The Supreme Court, the Election Commission and the 18th Lok Sabha Elections-II: The Court, the Commission, and the Enforcement Agencies [Guest Post]

[This is a guest post by Hardik Choubey.]

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Introduction

In my previous post, I discussed the Supreme Court’s (SC or ‘the Court’) order which refused to stay the executive-dominant appointment process of members to the Election Commission (‘the ECI’). In this post, I will be discussing the phenomenon of ‘suspect enforcement’ by union executive agencies, which has been alleged to contribute to reducing the fairness surrounding the 18^th Lok Sabha Elections. Throughout this post, I would point to indicators of ‘suspect’ enforcement by executive agencies. The thesis of this essay would be to explore the avenues for redressal for this state of affairs. I argue that owing to the existing jurisprudence and practice of the SC, it may not be the appropriate site for the redressal of the grievances associated with these events. I will also argue that the ECI, acting as a fourth-branch or guarantor institution, might have been the appropriate institution to structurally handle these grievances. However, owing to its composition being union executive dominated, this might raise issues of accountability.

Background

In recent months, multiple events involving Central Investigative Agencies, the Income Tax (Hereinafter, IT) Department and the campaign of the ruling coalition have sparked a wider conversation on the fairness surrounding the upcoming elections to the 18^th Lok Sabha.  On 31^st January, the (then) Chief Minister of Jharkhand was arrested by the Enforcement Directorate (ED) in an alleged land scam case, after submitting his resignation to the governor. Likewise, on 21^st March, the sitting Chief Minister of Delhi was arrested by the ED in an alleged liquor policy money laundering scam. Though the Chief Minister of Delhi was released on interim bail for 20 days to allow him to campaign for the general elections, similar treatment was not provided to the CM of Jharkhand by the SC.  Several other raids, summons and arrests of persons prominent within the opposition have taken place in the time period leading up to the elections (See here and here).

Beyond these arrests by central investigative agencies, the principal party in opposition, i.e., the Indian National Congress (INC), received fresh Income Tax Notices for several hundred crore rupees whilst up to Rs. 135 Crore were withdrawn from their accounts as recovery on 16^th March- significantly hampering their ability to campaign. Further still, even as the Model Code of Conduct (MCC) went into effect on 16^th March, many persons received WhatsApp messages from the Government of India through ‘Viksit Bharat Sampark.’ These messages highlighted the achievements of the ‘party in power’ at the Union and contained a letter from the Hon’ble Prime Minister, which would go against the stipulation that:

…the misuse of official mass media during the election period for partisan coverage of political news and publicity regarding achievements with a view to furthering the prospects of the party in power shall be scrupulously avoided.

The ECI took note of this breach and asked for a reply from the Ministry of Electronics and Information Technology (MeitY). The ministry responded that the messages were sent before the MCC going into effect, although the delivery of messages may have been delayed due to system architecture and network limitations. The EC directed MEITY to ensure that forthwith no further delivery of such messages takes place, essentially making the effect of the messages on the campaign a fait accompli.  

Various commentators have pointed to these events, and others including the continuing trend of opposition leaders joining the ruling coalition, in order to highlight the lack of fairness involved in the upcoming elections (See here, here and here). Many have particularly underscored the specific role and responsibility that constitutional courts and the ECI have in ensuring a free and fair democratic process (see here). However, in all the events highlighted above, any relief has mostly come via the Union agencies agreeing to not pursuing coercive steps until after the election period (For instance, see here).

No doubt, opposition leaders or parties do not operate above the law and cannot be granted carte blanche immunity in cases of proved illegal actions. Notwithstanding this, the timing and nature of actions undertaken by central agencies has led multiple opposition parties to write to the ECI, asking for replacement of the heads of probe agencies during elections. Needless to say, this state of affairs raises critical questions of constitutional importance. 

Constitutional Courts and Institutional Inabilities

The primary issue that political parties/leaders face in making an argument against coercive actions taken by central agencies is that each such action is challenged and evaluated within its self-contained facts and law. For instance, even when the timing of the IT Department’s issue of tax demand notices and their recovery of Rs. 135 Crore from the accounts of the INC could be reasonably argued to be suspect (being in the immediate run-up to a national election), the validity of that action is adjudged only with reference to the facts and statutory law applicable to that case. This is why when the INC prayed for a stay on the recovery undertaken by the IT Department and stressed upon the hardship created for the party [in the backdrop of an impending election], the ITAT [At Para 4-6; 47-48] and the Delhi HC [At Para 12-13] considered only the relevant procedural history, the existence of a prima facie case and relevant statutory law whilst rejecting their prayer. Similar issues have plagued the cases relating to arrest and bail of several opposition leaders. It is clear that in their own individualized context, each coercive action undertaken by central agencies/departments against members/entities of the political opposition could very well meet a prima facie standard (being a particularly low-bar), and justify their prolonged subjugation before each specific case is decided on merits.

However, in the context of a broader, structural phenomenon of various opposition parties/leaders facing uncharacteristically synchronized coercive action at the hand of central agencies, it becomes imperative that some capable institution steps in to ensure that the electoral process is not jeopardized. At this juncture, it has to be noted that in 2023, 14 political parties had approached the SC [in INC & Ors. v Union of India] with a petition alleging that central investigating agencies were being weaponised by the Union Government to clamp down on dissent by arresting opposition leaders and praying for the application of a triple test before any such arrests are made. The petitioners therein provided indicative statistics regarding the misuse of these agencies over a period of time. The court reportedly declined to lay down ‘abstract guidelines’ as politicians could not be granted a higher immunity; rather, the court suggested that general principles could be evolved if specific instances of the agencies being used to selectively target leaders were shown. The petition was accordingly dismissed.

INC & Ors. v Union of India highlights perhaps the fundamental obstacle that the political opposition would face in approaching the constitutional courts for a structural remedy to suspect enforcement patterns. As Professor Dam points out, the constitutional courts seldom see their role as remedying structural problems outside of the ‘existing constitutional order’, particularly when the space within which those problems exist are highly politically contested [At 137-138] (Vineet Narain v Union of India being a notable exception). This would perhaps also explain the Chief Justice’s reported remark to the petitioners that “when you say that space for opposition has shrunk, the remedy is in that space, the political space. Not the Court.”

Thus, in the absence of highly probative evidence of animus on the part of the enforcement agencies, it seems very unlikely that constitutional courts could remedy the situation the opposition finds itself in. Nevertheless, the situation has a wide-ranging impact on the political process of Indian democracy. I submit that a state of affairs where political competition could be significantly stifled through discretionary enforcement actions by the union executive has the character of a ‘political process malfunction.’ John Hart Ely characterised one form of ‘political process malfunction’ as a situation where the system was undeserving of trust because “…the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out…” [At 103]. Such a process malfunction, I submit, necessitates for the ECI to step in as the constitutionally envisioned institution to ensure a fair electoral process. However, this necessity would have to be balanced against the problem with the danger that emanates from the lack of ECI’s accountability.

The Election Commission as a Constitutional Guarantor of Fair Elections

When the constituent assembly was faced with deciding upon independent India’s electoral framework, the question of who was to be the administrator of elections was front and centre. Since colonial administration had placed these responsibilities upon central and provincial governments on ad-hoc bases, the framers ‘had little recourse to precedent or institutional antecedents’ [At 99]. The framers envisioned that the ECI would function as an independent constitutional which would organize and implement the wider electoral framework upon which the democratic state was built. During the Constituent Assembly Debates on 29 July 1947, whilst discussing the electoral system for an independent India, Dr. B.R Ambedkar stated:

Many people felt that if the elections were conducted under the auspices of the Executive authority and if the Executive Authority did have power, as it must have, of transferring officers from one area to another with the object of gaining support for a particular candidate who was a favourite with the party in office or with the Government of the day that will certainly vitiate the free election which we all wanted. It was therefore unanimously resolved by the members of the Fundamental Rights Committee that the greatest safeguard for purity of election, for fairness in election, was to take away the matter from the hands of the Executive authority and to hand it over to some independent authority. (The Election Commission) [Emphasis Mine].

The framers’ concerns clearly lay in the executive having any undue influence over the ‘purity’ or ‘fairness’ in the electoral process. Indirect ability with the executive to influence a free and fair election would go against what the framers had envisioned. Their concerns resulted in the adoption of Article 324(1) of the constitution, which was widely worded to empower the ECI. For convenience, it has been reproduced below:

324. Superintendence, direction and control of elections to be vested in an Election Commission—

(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission). [Emphasis Mine]

Thus, the constitutional imperative to ensure the purity and fairness of elections was vested with the ECI. For the ECI to fulfill this imperative as a ‘fourth-branch’ or ‘guarantor institution,’  the constitution has, as Ackerman puts it, ‘provide[d] a mechanism to ensure the continuing force of its [the constitution’s] ideal of democracy despite the predictable efforts by reigning politicians to entrench themselves against popular reversals at the polls.’

Scholars have charted how the commission has attempted to fulfill this duty since its inception (see here and here). A primary method that the commission has engaged with this duty is through ‘structuring, steering and framing the electoral process’ via extra-legal regulations such as the MCC (although the Code does not have the force of law), registration of political parties, disclosure requirements for candidates, and enforcing election campaign standards. The extent of the application of these extra-legal regulations have themselves been affected by a whole host of factors, such as the status of political competition in the country (see here At 35-40), the leadership of the commission (see here) and the opposition that the commission receives to its perceived ‘overstepping’ in the democratic process (see here).

Nonetheless, the SC has at multiple times aided the cause of the ECI in its enforcement of these extra-legal regulations in the pursuance of fair elections. In Mohinder Singh Gill v CEC, Delhi (1978), a 5-Judge Bench of the SC, whilst dealing with a contention that Election Commission had no power to cancel the election and direct re-poll- since the Representation of People Act of 1950-51 [RPA] was silent on the issue, observed:

Article 324, in our view, operates in areas left unoccupied by legislation and the words ‘superintendence, direction and control, as well as ‘conduct of all elections’, are the broadest terms… [Para 39-SCC Version]

Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission, shall act in conformity with, not in violation of, such provisions but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from, pushing forward a free and fair election with expedition. [Para 92-SCC Version]

Further, in Union of India v Association for Democratic Reforms (2002), the SC upheld the ECI’s power to mandate pre-election asset and antecedent disclosure in exercise of similar constitutional power. 

The ECI and Structural Remedies for Suspect Enforcement Patterns?

The discussion above highlights the systemic issues that the political opposition might face in obtaining remedies from constitutional courts against the structural problem of suspect enforcement patterns during an election cycle. The ECI, however, could attend to this state of affairs and alleviate the situation in furtherance of their mandate of conducting fair elections. Apart from constitutional restrictions, the only limitations to the commission’s powers to provide a remedy are [Mohinder Singh Gill v CEC, Delhi (1978) (Para 92)]:

1. the ECI cannot act in contravention of any valid law created by the parliament or state legislatures relating to elections; and
2. As an administrative body, the ECI would have to act in conformity with the principles of natural justice.

During the last Lok Sabha election cycle, the ECI took note of the activities of central investigative agencies against multiple opposition leaders and issued what it termed a ‘strong advisory’ on April 7, 2019 (4 days before the election’s first phase), which said:

The Election Commission strongly advises that all enforcement actions during the election period, even when conducted ruthlessly with a view to curb the blatant electoral malpractice (of using money power to influence voter behaviour), be absolutely neutral, impartial and non-discriminatory. Further, in case of suspected use of such illicit money for electoral purposes, the Chief Electoral Officer should be kept suitably informed while the Model Code of Conduct is in force. [Emphasis Added]

Even after this advisory, whose non-adherence did not invite sanctions, the central agencies conducted coercive actions against the interests of multiple opposition politicians (see here and here). In spite of this, no reported action was taken by the ECI whilst allegations of ruling-coalition favoritism in central agency raids and arrests were levelled. It has been reported that a similar advisory is being mulled over by the ECI for this election cycle. However, if the last election cycle is to be considered an indicator, such a non-binding advisory’s moral suasiveness would not suffice in guaranteeing fairness in the electoral process. At best, it would act as an informal expression by an expressive and materially capable institution, and would thus be an insufficient remedy to the present political process malfunction [At S45-S47].

A more appropriate remedy would be the application of what Slobodan Tomić has labelled a ‘pre-election silence’ in pursuance of ‘fair-er elections’.  A ‘pre-election silence’ by enforcement agencies happens when such agencies “tend to become ‘silent’ during election campaigns…that ACAs [Anti-Corruption Agencies] perform a sort of ’self-exclusion’ from political struggles during elections” (At 50-51). This remedy would entail for the ECI to mandate, with certain specific exceptions, that coercive legal actions against political parties/party leaders be voluntarily suspended up until after the election cycles. Interestingly, something akin to the phenomenon of ‘pre-election silence’ was adopted by the IT department in the INC-Income Tax Demand case, where on 1^st April, the IT Dept. submitted that no-coercive actions would be taken against the INC until after the elections.  Obviously, there would have to be exceptions in cases of credible violent offences or when there’s a definite possibility of witness tampering, to name a few. But as a structural remedy, a ‘pre-election silence’ which continues till after elections would enable political parties and leaders to actually compete in elections, rather than being subjected to parallel coercive legal action. Needless to say, strict vigilance regarding such a mandate would be required on the part of the ECI, otherwise this avenue for a structural remedy would turn into a ‘parchment guarantee.’

Problems with ECI and Structural Remedies

The ECI conducts its business in accordance with Chapter III of the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 [‘The Act’], which provides that the Chief Election Commissioner (CEC) and other ECs can regulate the procedure for the transaction of business and transact business by unanimous decision, but in case of difference in opinion, the decisions would have to be taken by majority (Section 10).  As has been discussed previously, the ECI’s current composition is dominated by appointees from a union executive dominated process (Section 7). This raises obvious questions regarding the independence and unbiasedness that would be displayed by the ECI in its decisions during the conduct of elections.

In the context of the 18^th Lok Sabha Elections, upon the completion of one month of the MCC going into effect, the ECI released a press statement providing an update upon the MCC’s enforcement. Though status updates on specific individual complaints were largely not provided, the ECI sought to establish two things: First, that the commission was committed to a level playing field for all parties, where actions upon and against each party was being undertaken and second, that it has not found it correct to take any step that could overlap or overrun the legal judicial process.

In this context, I make two submissions: First, it seems unlikely that the ECI is willing to structurally ameliorate the concerns relating to suspect enforcement patterns, at least not by overlapping with any judicial process.

Second, even if the ECI were to undertake a structural exercise to remedy the (allegedly) suspect enforcement patterns against the political opposition, such actions raise legitimate concerns about the expansion of the ECI’s powers. These concerns would only be amplified when one considers the potential for biased decision-making that an union-executive dominated ECI can have. As Mohsin Alam Bhat has shown, ‘the character of the ECI’s regulation through architecture, nudge and notice (ANN) do not lend themselves to oversight and transparency easily’ (S97-S100). This, he argues, limits the operational accountability of the institution and so, an ECI which can effectively use structural ANN Regulations for the purpose of ensuring fair elections would need to fall upon the other mode of accountability, i.e., ‘structural accountability’ [S101]. This would require creating processes that protect its independence, competence and neutrality. However, the qualities of independence and neutrality would always be (at least) under question if the process for appointments of ECs remains executive-dominated.

Conclusion

Several diverse opinions have been shared regarding the state of Indian democracy in light of (allegedly) suspect enforcement patterns against the political opposition. These have ranged from claims that even under the present circumstances, the elections would be as fair as they ever were, to suggestions that the opposition could boycott the elections if free and fair elections are impossible. Remarkably, none of the prevalent opinions claim that the situation surrounding enforcement patterns (amongst other political developments, such as the horse-trading of elected representatives and party leaders) bode well for Indian democracy. In these circumstances, it falls upon the Election Commission to proactively ensure fairer elections. In the absence of self-executing constitutional norms, broader remedies by the commission, which are scrupulously enforced, appear to be the only possible path.

However, any suggestions regarding an expansion of the ECI’s functions or activities in light of suspect enforcement patterns would be limited by a question over the commission’s structural independence. This very well might leave citizens and political parties in the midst of an unending maze, where the two major institutions tasked with securing a fair democratic process might be institutionally and structurally limited in providing any relief (assuming they have the desire to provide them). In such a conundrum, one might be forced to ask if the institutions of a democracy are themselves dead ends for the democratic process.