There is no precedent for the massive protest that was undertaken by the Congress before the Supreme Court of India on April 28. The Apex Court agreed to urgently hear a Congress petition that said the Election Commission’s (EC’s) ongoing silence on complaints regarding vitriolic speeches and the misuse of Indian forces as propaganda by Prime Minister Narendra Modi and the BJP president, Amit Shah, was tantamount to a “tacit endorsement” of their conduct.
A bench, headed by the Chief Justice of India, had consented to hear on April 30 a petition, whose urgency had been stressed by lawyers A.M. Singhvi and Sunil Fernandes.
In a direct criticism of the Election Commission, the petition filed by Congress legislator Sushmita Dev said the rules for Mr Modi and Mr Shah were different from those set for other candidates.
The Congress said that no action had been taken by the commission on the many petitions of violations that the Model Code of Conduct had moved so far. The delay, the Congress emphasised, was a deliberate action itself. According to the petition, since the notification of the election in March, the Prime Minister and Mr Shah had “specifically in sensitive areas and states, ex-facie violated the provisions of the Representation of the People Act and the Election Rules”.
The petition described at length the reported remarks of Mr Modi that allegedly contravened the code of conduct. For instance, Mr Modi’s utterances presented Rahul Gandhi’s choice of Wayanad as “a seat where the minority is majority” and called for votes in the name of the troops killed in the Pulwama attack in February. The petition alleged that the lack of action by the commission against the Prime Minister and Mr Shah was a “tacit endorsement” of their statements and a clean chit to the individuals.
“Inaction on the part of the Election Commission is a sign of invidious discrimination and is arbitrary, capricious and impermissible ... certain selected very powerful individuals have been permitted to gain an unfair electoral advantage by their material infractions of the Representation of the People Act, Election Rules and Model Code of Conduct.”
Eyebrows were raised when the present Chief Election Commissioner and his two subordinates were appointed brazenly without any consultation with the Opposition. On April 30, the Supreme Court asked the Election Commission to explain its silence against the hate speeches alleged against it in a 146-page affidavit. Forty representations had been now made against them since the Model Code of Conduct came into force on March 10.
Not since the days of Indira Gandhi (1972-77 and 1980-1984) have institutions been suborned as under Mr Modi. What is now directly in issue is the state of the Election Commission and its bogus code of conduct, which is of recent origin. The commission once based its rules on the rulings of the Supreme Court. The Model Code of Conduct that was enforced by the commission had no statutory back-up. It is well settled, since the days of A.V. Dicey that executive action against a person’s rights are devoid of legality.
The time has come in 2019 to amend the Constitution to make consultation with Opposition leaders imperative in the appointment of all Election Commissioners and make it obligatory on the commission to seek legal opinion on whether the facts warrant a prosecution. The Election Commission seems to obey no rules except its own. Constitutional legislation is imperative if the situation is not to get out of hand. For this, an all-party consensus is essential. But that can be attained only after the elections. Indian political parties abhor consensus. We are in an acute dilemma.
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