Wednesday, May 7, 2014

Sins Of Commission?


08 May 2014
Sins Of Commission?
Modi is testing the Model Code of Conduct’s limits in the final phase of campaigning

The reason why EC is so irksome to politicians is because it has steadily expanded its regulatory authority, granted under Article 324 of the Constitution, over everything related to elections. However, it wasn’t always so. Before T N Seshan’s tenure as chief election commissioner in the 1990s, EC was an organization primarily concerned with ensuring fair and smooth voting. This it did remarkably given the scale of elections in India.

So long as the Code does not have legal sanction, EC can take immediate remedial action. This it has done by handing out public censure to both candidates and government officials and in rare cases cancelling elections. In this election campaign we have already seen EC banning for a period BJP’s Amit Shah and Samajwadi Party’s Azam Khan. Similarly for the past few elections it has been commonplace for EC to transfer government officials, something which always raises the hackles of ruling parties.

The lack of legal sanction has, however, led to haps in the enforcement of the code, Provisions in the Code itself are also hard to enforce. For instance, it says that criticism of other political parties “shall be confined to their policies and programme, past record and work” and that is must “refrain from criticism of all aspects of private life”. But anyone following the mud-slinging in this election campaign knows that this being ignored.

Before Modi’s unprovoked comments against EC in West Bengal, he got into another tangle with EC for flashing BJP’s election symbol near a polling booth. But that, we must remember, was not a violation of the Code but of RPA, something which can attract punishment. An FIR has been filed and the law will now take its own slow course. To come back to the Code, however, there was a feeling that Modi might test its limits in the final phase of campaigning when most of the country had already voted. That is precisely what is happening.

Following his remarks in West Bengal, Modi delivered a speech in Ayodhya with a huge portrait of Lord Rama as a backdrop and repeated references to Rama. That potentially violates the clause in the Code which advises against aggravating differences between different communities as well as Section 123 of RPA which prohibits appealing for votes on the ground of religion. Indeed the latter was a bone of contention in the long-drawn case over use of Hindutva, which Supreme Court eventually upheld, in election campaigns.

To be sure some of the provisions in the Code and RPA are restrictions on freedom of speech. These provisions are also notoriously difficult to enforce and often result in lengthy legal battles, as in the case of use of Hindutva, where the final judgment comes years after the actual election took place.

That, however, is no excuse for Modi to launch a frontal attack on EC By doing so he might be scoring some cheap election points. But potential damage to one of the few credible state institutions in India betrays acute short-sightedness on the part of Modi.

Extract of an article by Ronojoy Sen, TOI, May 07, 2014

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