With the conclusion of the 2019 Lok Sabha Elections, SLR Forum brings to you the 'Election Series' - a four-part series which will analyse one of the most controversial measures adopted by the Election Commission of India - imposition of 'campaign bans' on candidates for violations of the Model Code of Conduct.
This is Part I of the Election Series
- Sregurupriya Ayappan*
A democratic form of government is a part of the basic structure of the Indian Constitution and one of the ways in which this manifests is through a periodic endorsement of the political executive through elections. Hence, free and fair elections are a basic feature of democracy and are integral to ensure electoral accountability. The constitutional body, that is the Election Commission of India (‘ECI’), is entrusted with the responsibility of ensuring a free and fair electoral contest in a smooth and effective manner. There are various ways in which this electoral accountability can be vitiated including electorate manipulation, voter disenfranchisement and religious and communal appeals, to name a few. These practices have plagued the recent Lok Sabha elections as well, and in an attempt to curb these, the ECI imposed ‘campaign bans’ for limited periods on those who engaged in such practices.
While there has been a lot of disenchantment with the ECI and a fear of a loss of its independence, in an attempt to offer a small glimmer of hope in this post, I contend that the ECI creatively exercised the power vested with it even in these elections. I shall examine the orders passed by the ECI against three individuals specifically – Bahujan Samaj Party leader Mayawati, Uttar Pradesh Chief Minister Yogi Adityanath, and Congress politician Navjot Singh Sidhu. The commonalities that tie the orders passed against them are: one, none of these three were candidates contesting for a seat to the Lok Sabha, and two, all three of them had ‘appealed to secure votes on religious lines’ and thereby, violated the Model Code of Conduct (‘MCC’). I argue that these orders are constitutionally valid despite the lack of any express statutory provision empowering the ECI to issue and enforce them and that this should form the basis for more such creative inventions in the forthcoming years.
To this effect, I shall make three arguments: one, although the penalty of campaign bans are not statutorily provided for, the ECI has plenary powers under article 324; two, the Model Code of Conduct has acquired supplementary legality which has been judicially endorsed; and three, in light of the previous contentions, since there is now constitutional recognition of the political party as the primary unit of representation in elections, enabling non-candidates to continue to influence the electorate despite clearly partaking in unfair electoral practices would prevent the ECI from fulfilling its mandate. This weakening of the institution would in turn adversely affect the horizontal accountability which is integral to the democratic structure. Hence, such an interpretation of the powers of the ECI would be unconstitutional.
I. Controversial Comments, Corrupt Practices and Campaign Ban Orders
Before diving into the arguments, it would be helpful to briefly explain the three incidents that they rest upon.
On 7th May, 2019, Mayawati made a statement at Deoband, Sahranpur which roughly translates to:
I appeal to you people of the Muslim faith. Please repose your faith in the Mahagathbandhan and do not let your votes get split due to emotions or by voting for your friends and family. This is the only way you people of the Muslim faith can see the Bharatiya Janata Party routed from the state of Uttar Pradesh.
This immediately went viral on the Internet. In her reply dated 11th May, Mayawati accepted that she had made these statements and the ECI, after noting her position as the leader of the Bahujan Samaj Party and the responsibility vested in it, deemed it fit to impose a 48-hour ban on her.
Two days after this, Shri Yogi Adityanath made certain provocative statements in Meerut, which also went viral soon after. He said:
Day before yesterday, in Sahranpur, you saw Mayawati's speech. What was she saying? If the Mahagathbandhan gets the Muslim votes, that's enough. They do not want other votes. I too want to tell you, my brothers and sisters, that if Congress, SP or BSP have faith in the Muslims, I have faith in Bajrang Bali. And I want to tell you that these other parties have accepted that they shall never be able to bear the rise of Bajrang Bali. That's why I am on this stage trying to save us from the “Ali-Ali” chanting green virus that they want to inflict upon the country. I have already cleaned Eastern Uttar Pradesh of this virus and Western Uttar Pradesh also does not need it. Just once, ensure that the Mahagathbandhan loses and the green virus shall disappear from India (emphasis mine).
He also accepted the statements made by him in his reply dated 11th May. The ECI observed that being ‘the Chief Minister of a state’ and a ‘senior leader’ of the ruling political party, he had ‘an added responsibility’ to uphold the values of the Constitution and imposed a 72-hour ban on him. Interestingly, it invoked section 125 of The Representation of the People Act 1951 while justifying the longer time period.
Much before this, on 15th April in Barsoi in Bihar, Navjyot Singh Sidhu appealed to the voters there stating:
I have come to tell my Muslim brothers only one thing - you are in such a constituency where despite being the minority you are the majority here. BJP will try to split your votes. I'm telling you that if you join together, no one shall be able to defeat you. This is getting proved in Poorniya today... I've come to caution you that they are trying to divide you. They have brought down people like Owaisi so that your votes will get split and BJP will win. So please unite, you are 64% of the population here, do not let your votes get split.
The ECI, in its order banning him from campaigning for 72 hours, pointed out that Sidhu was the ‘star campaigner’ for the Congress party and ought to have ‘desisted from making these remarks’. It is evident from all three statements that they were clearly appeals made on religious grounds to vote in a particular way. The ECI pointed out that this amounts to corrupt electoral practices under section 123(3) of The Representation of the People Act 1951. This shall be elaborated upon in the following sections.
II. Plenary Powers of ECI and Corrupt Political Practices
These three individuals to whom orders were issued were not contesting elections. In other words, they were not ‘candidates’ and hence, section 123(3) of The Representation of the People Acts 1951 would not be applicable to them. This implies that there can be no severe consequences like disqualification from voting and contesting for any corrupt practices against these specific individuals. While section 125 of the Act does apply to any person as it creates an electoral offence, it has a higher threshold of promoting or attempting to ‘promote feelings of enmity or hatred between different classes of people’, which the ECI presumably, on examining the notices issued, felt was met only by Yogi Adityanath.
However, corrupt electoral practices by non-candidates too hampers free and fair elections, perhaps even more so than ordinary candidates since these non-candidate campaigners often have greater face value and political pull and appeal amongst the electorate. In fact, this is noted by the ECI in the notices issued to these individuals where it notes that they are ‘senior leader(s)’, the ‘Chief Minister’, or a ‘star campaigner’ and that the impact of their speeches has spread beyond the constituency through electronic means. What actions, if any, can then be taken against them if the ECI is to ensure conduct of free and fair elections?
Article 324 of the Constitution provides that the ‘superintendence, direction and control’ of the conduct of elections to the Parliament are vested in the ECI. These terms have been interpreted very broadly to include all powers, be they executive, legislative or quasi-judicial, necessary for the smooth and effective conduct of elections. Relying on this, it may be argued that the ECI’s powers extend to issuing rules and enforcing them. The only limitation with respect to this rule-making power is that it should not contravene the express provisions of the Constitution or statute. Since the ECI is expected to play a preventive role to ensure corrupt practices do not take place, it is constitutionally empowered to take steps to circumvent the limitations of the routes of election petitions, which are both post-facto and inapplicable to a large number of politically active individuals, and also criminal prosecution for electoral offences, which have higher thresholds and could result in quick bail and no prevention of continuation of malpractice. One of the avenues is the ‘campaign ban’ which also has implicit judicial approval.
III. Supplementary Legality of the MCC
One of the contentions against the MCC is that it has no legal or statutory backing. This grouse has been raised by several quarters lamenting its lack of enforceability or effectiveness. It has been contended that despite emerging as a moral code for voluntary adherence, over the years the MCC has acquired ‘supplementary legality’. The courts on several occasions have treated accounts of violations of the MCC seriously, acknowledged its object and enforceability, and declared the ECI as competent to entertain complaints regarding it. Although it does not have the force of law, the MCC is enforced through executive decision-making. While this might make the modality of implementation of the MCC uncertain, it provides much scope for the ECI to innovatively enhance its residuary powers under article 324.
In fact, the reasons cited by the ECI while expressing its disagreement regarding giving the MCC a statutory character are that it enables it to take quick executive action and thereby, play a preventive role and, it allows the ECI to locate its power within the reservoir of Article 324 instead of assigning it to a limiting statue. In the three cases discussed herein, the MCC has clearly been violated, often multiple times, by the concerned individuals and they have accepted the same as evidenced by the orders of the ECI. It is contended that such speech is a deliberate two-pronged political strategy to mobilise support and coerce opponents by reinforcing a group identity through otherisation. The ECI has innovatively used ‘campaign bans’ as a measure to warn and control such unfair electoral practices to uphold the supplementary legality of the MCC.
IV. Party-centric Democracy, Horizontal Accountability and the Basic Structure Doctrine
The ground reality is that most often people vote for political parties and not candidates. This assumption has been constitutionally entrenched by the Constitution (Fifty-Second Amendment) Act 1985 and passed judicial muster. This recognises that the political party is the primary unity of representation and that the actual power enjoyed by individual legislators or candidates is miniscule. While the Representation of the People Act still encapsulates the candidate-centred view, the MCC clearly recognises the central role played by political parties since it specifically applies to political parties and seeks to restrain unfair practices adopted by them. As discussed before, in the three cases where the ECI issued orders, it clearly recognises the role each individual played in the overall scheme of the political party and its propaganda despite them not being candidates.
It is contended that given the recognition of the role of political parties in the constitutional scheme, this must inform the constitutional conception of democracy itself to be one where the party plays a central role. This would imply that the conduct of free and fair elections should be accompanied by regulation of the powers of the political parties in the political arena and not just regulation of the conduct of the candidate. It would be pertinent to draw upon the concept of horizontal or institutional accountability at this juncture. The Constitution envisages various institutional checks on the actions of the executive and the ECI is one of them. Concomitantly, according to the constitutional scheme, these institutions must be vested with sufficient powers to be capable of scrutinising the actions of the political executive.
With specific reference to the ECI, if one interprets the scope of its powers so narrowly as to not be able to adopt measures such as campaign bans, it would render the institution crippled and incapable of fulfilling its mandate of holding free and fair elections. The ECI would be bound by the strict confines of The Representation of the People Act and would only be empowered to pursue statutory violations of candidates. It would only be able to issue warnings regarding the MCC and leave it to public opinion to morally sanction violations. In other words, such an interpretation would attack the very feature of democracy which is a part of the basic structure of the Constitution as elections would neither be free nor fair.
There is no express statutory provision or bar on the imposition of a campaign ban. On the other hand, we find that the Constitution vests considerable powers in the ECI for it to conduct free and fair elections. These broad powers of the ECI, which include formulation and enforcement of the MCC through innovative measures, have been judicially recognised and upheld. Further, given that the anti-defection jurisprudence has constitutionally recognised the role of political parties in the electoral process, it is necessary for the ECI to be able to proceed against violations of members of political parties apart from the contesting candidates. Any contrary restrictive interpretation of the powers of the ECI would be inimical to the prong of horizontal accountability in the democratic scheme envisaged by our Constitution, which is part of the basic structure doctrine. Hence, campaign bans are constitutionally valid.
*Sregurupriya Ayappan is a 4th year student at the National Law School of India University, Bangalore.
 Kesavananda Bharati v Union of India & Ors AIR 1973 SC 1471.
 Kihoto Hollohan v Zachillhu & Ors 1992 SCR (1) 686.
 Tarunabh Khaitan, ‘Killing the Constitution with a Thousand Cuts: Executive Aggrandizement and Party-State Fusion in India’ (2019) SSRN <https://www.ssrn.com/abstract=3367266> accessed 26 May 2019.
 Constitution of India 1950, art 324.
 Khaitan (n 3).
 These banned the concerned individuals from campaigning for a specified duration, ranging from 24 to 72 hours.
 Mayawati, Election Commission of India, 15 April 2019, Order No 437/UP-HP/2019.
 Yogi Adityanath, Election Commission of India, 15 April 2019, Order No 437/UP-HP/2019.
 Navjot Singh Sidhu, Election Commission of India, 22 April 2019, Order No 437/ES-1/BR-HP/2019.
 Election Commission of India Model Code of Conduct, Part I, paras 3-4.
 Mayawati, Election Commission of India, 11 April 2019, Notice No 437/UP-HP/2019.
 Mayawati (n 7).
 Yogi Adityanath, Election Commission of India, 11 April 2019, Notice No 437/UP-HP/2019. These remarks clearly allude to eradicating an entire religious community and a promise to do so in the future, thereby satisfying the elements of the electoral offence under s 125.
 Adityanath (n 8).
 Sidhu (n 9).
 The Representation of the People Act 1951, s 123 reads as follows: ‘The following shall be deemed to corrupt practices for the purposes of this Act – (3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate: Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.’
 The Representation of the People Act 1951, s 125 reads as follows: ‘Promoting enmity between classes in connection with election.—Any person who in connection with an election under this Act promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred, between different classes of the citizens of India shall be punishable, with imprisonment for a term which may extend to three years, or with fine, or with both.’
 Adityanath (n 13).
 Mayawati (n 7).
 Adityanath (n 8).
 Sidhu (n 9).
 Mayawati (n 7); Adityanath (n 8); Sidhu (n 9).
 Mohinder Singh Gill v Chief Election Commissioner (1978) 1 SCC 405.
 Shanti Bhushan, ‘The Election Commission and Its Powers’ The Hindu <http://www.hindu.com/2009/03/28/stories/2009032854951100.html> accessed26 May 2019.
 AC Jose v Sivan Pillai 1984 SCC (2) 656.
 H M Seervai, Constitutional Law of India: A Critical Commentary (4th edn, Universal Law Publishing 2015) vol 3, 3011.
 Mehal Jain, ‘ECI Seems to Have Woken Up to Its Powers’ (Livelaw, 16 April 2019) <https://www.livelaw.in/top-stories/eci-seems-to-have-woken-up-to-its-powers-sc-expresses-satisfaction-of-action-against-poll-code-violations-144319> accessed 26 May 2019.
 . Law Commission of India, Electoral Reforms (Report No 255, 2015); Rajya Sabha Standing Committee, Electoral Reforms: Code of Conduct for Political Parties and Anti-Defection Law (Report No 61, 2013).
 Ujjwal Kumar Singh and Anupama Roy, ‘The Lack of a Legal Status for the Model Code of Conduct Leaves Room for Ambiguity’ (The Wire, 18 April 2019) <https://thewire.in/politics/election-commission-model-code-of-conduct> accessed 26 May 2019.
 Nutan Thakur v Election Commission of India 2012 (3) ADJ 217.
 Indian Oil Corporation & Ors v Ujjal Chowdhury & Or. (1999) 1 Cal LT 220 (HC); Intelligence Decisions Systems (India) P Ltd v Chief Election Commissioner AIR 2006 Ker 229.
 Rajinder Kumar Sharma & Anr v Lt. Governor, Delhi & Ors. (1996) DLT 682.
 Singh and Roy (n 29).
 Law Commission of India (n 28).
 Cherian George, ‘Regulating "Hate Spin": The Limits of Law in Managing Religious Incitement and Offense’ (2016) 10 IJOC <http://ijoc.org/index.php/ijoc/article/view/5451/1688> accessed 26 May 2019.
 Kihoto Hollohan v Zachillhu & Ors 1992 SCR (1) 686.
 Aradhya Sethia, ‘Where’s the Party?: Towards a Constitutional Biography of Political Parties’ (2019) 3(1) Indian Law Review 1.
 Khaitan (n 3).