EC’s radio silence on Modi’s ‘meditation’ spectacle raises serious concerns over its neutrality

The Election Commission of India (EC) chose to maintain radio silence over protests by the opposition parties that Prime Minister Narendra Modi’s ‘meditation’ at the Vivekananda Memorial, Kanyakumari, between May 30 and June 1, close to the last phase of polling on June 1, would lead to a serious violation of the Model Code of Conduct for political parties and candidates.

In the normal course, Modi’s inclination to meditate after a grueling election campaign across the country would appear to be well-intended, as it would help him as an individual to restore for himself some degree of composure and equanimity in preparation for the uncertain electoral verdict on June 4.

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However, the Prime Minister wanting to exercise his individual right to meditate at a public place like the Vivekananda Memorial amounts to an open invitation to the media to broadcast the event live to the voters, who are yet to exercise their franchise in 57 Lok Sabha constituencies spread across eight States and Union Territories, after the restriction on any campaigning—direct or indirect—kicks in.

Rightly, a delegation of Congress leaders comprising Randeep Singh Surjewala, Abhishek Singhvi and Naseer Hussain met the EC officials and urged the commission to ensure that this is not broadcast/telecast or printed during the silent period of the campaigning.

The State Secretary of the Tamil Nadu unit of the CPI(M), K. Balakrishnan wrote to the EC saying that the event would become a huge propaganda material for Modi and the BJP, and will affect the concept of a level playing field for all the candidates and their parties, which the EC is duty-bound to protect. He also brought to the EC’s notice that the very purpose of ending the campaign 48 hours prior to the conclusion of the poll would be defeated if the Prime Minister sought to be in the limelight and earn public admiration for his ‘meditation’ at a public place, constantly covered by the media. He, therefore, requested the EC to ban the telecast, broadcast of this news in both mainstream media and social media and render justice in the matter.

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Under the paragraph on ‘General Conduct’, the Model Code of Conduct for the Guidance of Political Parties and Candidates says that all parties and candidates shall scrupulously avoid all activities that are “corrupt practices” and offences under the election law, such as bribing of voters, intimidation of voters, impersonation of voters, canvassing within 100 meters of polling stations, holding public meetings during the period of 48 hours ending with the hour fixed for the close of the election, and the transport and conveyance of voters to and from polling station.

The words “such as” used here shows that the corrupt practices and offences mentioned are not exhaustive. Sub-sections (b) and [c] of Section 126 (1) of the Representation of the People Act, 1951 (RPA), which deals with the prohibition of public meetings during the period of 48 hours ending with the hour fixed for conclusion of the election says: “No person shall (b) display to the public any election matter by means of cinematograph, television or other similar apparatus; or [c] propagate any election matter to the public by holding, or by arranging the holding of, any musical concert or any theatrical performance or any other entertainment or amusement with a view to attracting the members of the public thereto, in any polling area during the period of 48 hours ending with the hour fixed for the conclusion of the poll for any election in that polling area”.

Under Section 126(2) of the RPA, any person who contravenes the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to two years or with fine, or with both. Section 126(3) of the RPA defines “election matter” as any matter intended or calculated to influence or affect the result of an election.

Disturbing a level playing field

It is clear that the Prime Minister’s meditation at the Vivekananda Memorial during the 48 hours ending with the hour fixed for the conclusion of the elections in the seventh phase in the general elections on June 1—televised live by many television channels—would surely attract the provisions of Section 126 of the RPA. The allegation of the opposition leaders that it would disturb the level playing field, therefore, has, prima facie, some substance.

The Prime Minister’s meditation at Kanyakumari between May 30 and June 1 is just one instance of the EC looking the other way when confronted with hard evidence of the ruling party violating with impunity the Model Code of Conduct. The former Election Commissioner, Ashok Lavasa, writes in a recent column that chicanery in dodging the Model Code of Conduct has a higher premium than the inclination to adhere to it. While the strict, prompt and non-discriminatory enforcement by the EC will doubtless strengthen the Model Code of Conduct, there is a need to remodel it by imposing more reasonable restrictions, he suggests. Perhaps the time has come for EC to initiate punitive action against political parties if its functionaries or star campaigners are involved in proven cases of violation, he adds. More importantly, Lavasa has proposed that all complaints with action taken reports should be on EC’s website, and disposal of complaints must be time-bound.

In the ongoing elections, the EC asked both the BJP and the Congress presidents, J.P. Nadda and Mallikarjun Kharge respectively, for their comments on the star campaigners’ alleged Model Code of Conduct violations. Expressing dissatisfaction with their comments on the alleged violations, the EC asked the BJP to convey to its star campaigners to refrain from hate speeches. It also asked the Congress to avoid implying that the Constitution is in danger and making any references to the defence forces (that is, not to make the Agniveer Scheme, an election issue). The EC’s belated intervention in the case of the BJP, and its unreasonable advice to the Congress raised questions about its neutrality.

The EC, in the past, had viewed the Model Code of Conduct—a voluntary agreement among political parties—as a mechanism to take quick action, ‘like [a] fire brigade dousing fire’. But in recent weeks, the EC’s inaction has mostly invited ridicule and censure from the civil society, even as it remains a silent spectator to attempts by the ruling party and its leaders to erase fairness from the electoral process.

Shooting the messenger

The EC’s approach to civil society interventions seeking its accountability meant that it saw nothing wrong in shooting the messenger. For instance, the EC doubted the credentials of a highly-respected watchdog body such as the Association of Democratic Reforms (ADR), which is a petitioner before the Supreme Court, challenging the lack of transparency in voter turnout figures.

The ADR has successfully challenged the Electoral Bond Scheme before the Supreme Court. However, its plea for 100 per cent Voter Verified Paper Audit Trail Verification (VVPAT) was rejected by the apex court, which cast aspersions on its motives. Suspecting ADR’s bonafides, the top court sought to discourage petitions based on suspicions and conjectures.

In the voter turnout figures case, the ADR just sought a direction from the court to the EC to publish true copies of Form 17C on its website within 48 hours of the completion of voting. Every presiding officer on the day of polling fills up this form recording voter turnout in every polling station of a constituency. The discrepancy of five to six per cent between the initial figures provided on the day of polling, and the final voter turnout report released (in percentages, and not in absolute numbers) by the EC after several days, warranted ADR’s plea.

Instead of welcoming ADR’s plea as a non-adversarial litigation, the EC described association’s petition as a mala fide attempt to create an atmosphere of suspicion among voters by making false allegations. Curiously, however, the ECI, after vehemently objecting to ADR’s petition in the Supreme Court, released absolute numbers of votes recorded in the first five phases of the election on May 25. The court itself had given reprieve to the EC on May 24, by adjourning the hearing of the matter to July. The flip-flop by the EC—in the span of just two days— surprised observers.

V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues.