The Hindu : Election without discipline

Online edition of India's National Newspaper
Friday, Apr 02, 2004

Opinion

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Election without discipline

By Rajeev Dhavan

The Election Commission is trying its best to discipline an unruly, often unscrupulous, class of power-hungry parties bent on a win at all costs.

THE LARGEST — conceivably the greatest — democracy in the world cannot go to the polls with a minimal respect for the ground rules that make free and fair elections possible. Indian governance thrives on the basic principle: "Break all rules if you can get away with it." Unfortunately, the elections of 2004 threaten to follow this principle.

India's `election code' prohibits corrupt practices (Section 123 of the Representation of the People Act 1951), punishes electoral offences (Section 125-137 of the RPA), mandates the disclosure of information about financial, criminal and educational status of candidates, restrains the use of excessive money or muscle during the elections and requires that the candidates follow the Model Code of Conduct and other related laws.

But the election code is taken lightly. No immediate disqualification follows any infraction or violation of it. Corrupt practices can invalidate an election — but only through an election petition decided years after the results are declared. The information regime can be fatal if no declaration is made at all. But wrongful declarations can only be tested after the election. Electoral offences have no immediate effect of disqualification. The model code draws from the Election Commission's (EC) power to `superintend, direct and control' elections under Article 324 of the Constitution. But it lacks a mechanism to enforce the code even though the courts have been petitioned for its enforcement. The EC is placed in the position of a schoolmaster, trying its best to discipline an unruly, often unscrupulous, class of power-hungry parties and candidates bent upon an opportunistic `free-for-all' win at all costs.

The election code is basically founded on three principles: secular fairness by denying appeals to religion, untouchability, Sati and so on; a level-playing field denying parties in power an unfair advantage and abjuring the abuse of money and muscle; and personal fairness to nullify personalised invectives and attacks. The 2004 elections have tested each of these principles to the brink.

To test this, we have to return to the lavish India Shining campaign on the achievements of the Bharatiya Janata Party-led National Democratic Alliance coalition, which was clearly a campaign document funded by the taxpayers' money. The Government's justification was that the election process had not begun. Ruling in the Ghasi Ram case (1968) on the use of some discretionary funds, the Supreme Court said: "... The energy to do good should not be used on the eve of the election but much earlier ... Payments from discretionary grants should be avoided." In the Telugu Desam case (1989), the advertisement speeches were seen as election promises but not corrupt practices on grounds of bribery. Likewise, the India Shining campaign was a massive election advertisement contrary to the spirit of electoral principles — the worst ever violation of this type. Significantly, the Shining India campaign resulted in a BJP-sponsored, 102-page pocketbook titled: Achievements of the NDA Government — with four lakh copies to be printed before the elections.

The political link with the Government's propaganda is inescapable. On March 3, 2004, the Delhi High Court wanted to know how much money was spent on this campaign. The CPI (M) protested to the EC. But the impact of Shining India continues throughout the election period. On March 9, the Commission asked for the removal of hoardings advertising the Government's achievements. Again, on March 16, the EC told the National Highways Authority to remove huge hoardings showing the Prime Minister and his dream projects. Shining India was a prefatory build-up to the BJP's Vision Document of March 30. The level-playing field principle has been violated. No government can use public funds to enable its re-election. That India is not shining is another matter. Only a similarly funded campaign of similar proportions can prove this.

New controversy has erupted over enforcing Rule 7 (3) of the Cable Television Network Rules 1994 prohibiting political advertisements. In 1999, the Andhra Pradesh High Court suspended this rule for the election period. In 2004, the EC sought to apply this rule. But on March 23, 2004, the Andhra Pradesh High Court again permitted political advertisements during elections.

On March 30, the Prime Minister directed the Government to appeal this decision. Having reaped the benefit of `Shining India', the BJP wants to prevent other parties getting similar benefits through electronic advertising. In fact, Section 39A of the RPA, introduced in 2003, impliedly permits such propaganda subject to equitable treatment of all parties. These legal provisions need reconciliation. The electronic media is crucial to modern elections. But only the richer parties funded by corporate funds can afford electronic advertising to the detriment of poorer candidates. The Andhra Pradesh High Court cannot suspend a rule at will during an election. Perhaps, for the 2004 election, such political advertising should be shelved until the legal position and party equities are clear.

Against heavy odds, the EC is trying its best to police the model code — no less under pressure from Government demands. On February 24, it turned down the Government's request for official aircraft for the Deputy Prime Minister, L.K. Advani. Such a request was unwarranted. The Government should not have made such a request, which was only to facilitate Mr. Advani's national yatra. Why was it necessary for the EC on March 5 to remind Arun Shourie not to participate in a public function to accept a doctorate?

On March 2, it needed the EC to warn that local development funds could not be used by MPs. On March 9, Jagmohan placed the issue of opening the Qutb Minar in issue against the EC's electoral wisdom cautioning a postponement. Given the controversy, the EC was right in declaring on March 10 that it would keep a watch on Mr. Advani's grand yatra, which is reminiscent of his earlier yatras including the one that prefaced the destruction of the Babri Masjid in 1992. No doubt, all-India elections invite all-India campaigns, but some campaigns are more provocative than others. The Delhi and Madras High Courts refused to pass an injunction against the yatra. The matter is before the Supreme Court. On March 21, a protest was made against Minister Nitish Kumar releasing official maps of Patna, which his party stated was done before the elections. Several political parties have protested the transfer of officials just before the election period. There is concern on whether the Government's film celebrating Dr. B.R. Ambedkar's life should be commercially released on April 14 — his birthday.

On March 24, 2004, the EC issued notices to Karnataka Ministers for making impermissible promises. On March 27, it raised the issue as to whether surrogate advertisements can be issued targeting politicians — including the Prime Minister.

But the EC has left many issues unresolved. While Narendra Modi's yatra to celebrate the Narmada Dam was stopped by the EC, the Narmada Bachao Andolan rightly told the EC that increasing the dam's height to 110 metres was contrary to the model code which prohibits even construction of roads and bridges during elections. Equally, the EC remained silent on Governor Madan Lal Khurana raising money for poverty alleviation from religious gatherings from March 27-30. There is concern whether invoking the construction of a Ram temple in Ayodhya is not an appeal to religion, and violative of the election code. It is the single biggest emotive issue in India. Even after the Supreme Court's judgment of 1995, appeals to Hindutva cannot be disguised as appeals to religion.

But one of the principal electoral issues revolves around personal attacks on Sonia Gandhi's foreign origin, which are a mixture of racism, xenophobia and intolerance. The EC is right in voicing its concern over the issue being raked up — forgetting that our people abroad are also successfully fighting elections in countries they have adopted as their own.

The EC is not a schoolmaster but is forced to be one. It is not a political body but is being driven to make judgments on political matters. The election has become glitzy. Parties and candidates have lost their sense of discipline. The real Indian voter, struggling to survive, is eclipsed by the dazzling display of hyperbole at the expense of a real election.

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