Five days after the Election Commission of India (ECI) announced the Model Code of Conduct (MCC), Delhi Chief Minister Arvind Kejriwal was bizarrely arrested by the Enforcement Directorate (ED) for his alleged role in money laundering in the Delhi liquor scam. Before him, three other ministers of the Delhi government had been arrested.

Ideally, after the announcement of the Model Code of Conduct, which resolves to provide a level playing field for the ruling and opposition parties, Kejriwal should not have been arrested as it subverted the electoral process not just in Delhi, but also in the states where his party, the Aam Aadmi Party (AAP), is contesting elections or campaigning. Though Kejriwal, perhaps on his lawyer’s legal advice, had been ducking summons from the central agencies for some time until the code was announced in the country, there is little merit in why the ED decided to violate the MCC when its investigation could have waited a couple of months until the polls were concluded. As Kejriwal in his defence says, the ED had filed a case 1 and ½ years ago, but they could not find any evidence of his alleged criminality.

Chief Election Commissioner, Rajiv Kumar

The Chief Election Commissioner, Rajiv Kumar, sources claim, was cognizant of the harm a decision like this (the arrest of Kejriwal) could cause to the fragile reputation of the ECI and endeavoured to initiate an advisory to the prosecuting agencies that they should refrain from such extreme actions until voting was over. Informed sources claim that the CEC was prevailed upon by two newly appointed Election Commissioners—Kumar and Sandhu. Both of them have the reputation of being close to the party in power, and they have given no evidence in the past that they can look the government in the eye. Hence, the refusal of the ECI to prevent the enforcement agencies from pursuing the enemies of the BJP government has stripped away the veneer of neutrality that the election body had built for itself over the years.

The inability of the ECI to rein in the enforcement agencies has single-handedly undermined the fairness that is intrinsically built, ideally, into the democratic process. What has become apparent in the staggered, seven-stage elections is that the ruling party and its candidates are sitting pretty as they can force their opponents to either leave the fray or pull punches—if they get to campaign at all. This has happened in different parts of the country. In Madhya Pradesh and Gujarat, the ruling party does not allow space for the opposition to be part of the election campaign. A senior opposition leader said, “We have written off these states as we cannot even campaign.” In Surat or Indore, two Congress candidates resigned from the party even before polling, thus allowing their opponent to win without a fight. In other states, where the BJP has been in power, there have been cases of excessive voting that even exceeded 105 percent, compelling the ECI to either countermand the poll or order a recount in some booths. There have been other instances where the ECI has been found wanting in ensuring free and fair elections.

The ECI has allowed the BJP government to create the flawed impression that elections are incidental and that they would remain in power under all circumstances. Prime Minister Modi joyfully shared with his supporters that he had received many invites to participate in foreign events after the parliamentary elections, suggesting that these foreign nations are convinced that he and the BJP were both returning to power. What was not really explained to the uninitiated was that these invites were sent to the nation, not to an individual.

Worse, the ECI, by being lackadaisical about implementing the Model Code of Conduct, has allowed the ruling party to build on the fear that resides in the minds of the political opponents and voters. Even now, political opponents and mediapersons are unsure whether their phones are being monitored by the agencies through military-grade surveillance software, Pegasus, or not. The promptness with which the government acted on whatever is spoken or written suggests that the agencies are on top of their game.

Take, for instance, the speech that Home Minister Amit Shah made recently on reservation, which led the Delhi police to show excessive enthusiasm in trying to get to those involved in creating the offensive video and retweeting it. One wonders whether the ECI played a role in triggering a police probe into Shah’s alleged fake video where he makes an electoral promise to end job reservation for Scheduled Castes and Scheduled Tribes when they return to power. The Delhi Police displayed alacrity in sending a notice to even the Telangana Congress Chief, Revanth Reddy.

What is interesting is that neither the ECI nor the Delhi police showed any urgency when the Representation of People’s Act was violated when the BJP leader spewed venom against the Congress manifesto, even when there was little basis for calling it divisive. Similarly, it did nothing when toxic reels were put out on Instagram against Muslim minorities that were built on a distortion of history. After civil society and a section of the media expressed outrage, the reel was removed, but it showed the helplessness of the ECI and the extent to which the hate-filled ecosystem of the ruling party can go to demonise minorities.

Nearly all political parties have lodged complaints about the absence of a level playing field in these elections. Although the exposure of electoral bonds has brought to the fore the manner in which companies—including those involved in the manufacture of vaccines—were extorted to cough up funds to pay the ruling party through the bond route, it has not changed the balance of power. Even now, the BJP has large control over resources and sway over government agencies. Worse, the pliant attitude of the ECI adds to the BJP’s profile as a party that does not need elections to come to power.

SANJAY KAPOOR is a Senior Journalist based out of Delhi. He is a foreign policy specialist focused on India, its neighbourhood and West Asia. He is the Founder and Editor of Hardnews Magazine. He is a Member of the Editors Guild of India (EGI) and, until recently, served as the General Secretary of EGI.

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Chief Election Commissioner Rajiv Kumar wanted to issue an advisory to the enforcement agencies to refrain from going after the opposition politicians after EC announced MCC, but he was overruled by his colleagues. Why?
How the ECI Contributed in Undermining Its Own Model Code of Conduct