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 ongoing silence on complaints regarding vitriolic speeches and the misuse of Indian forces as propaganda by Prime Minister Narendra Modi and the BJP’s 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 Congress says the EC’s silence is akin to “tacit endorsement”.

It stated, “It is in public domain that they have indulged in hate speeches, repeatedly used the armed forces for political propaganda, despite a clear prohibition on the same by the EC [election commission].” The petition described how “the prime minister in blatant violation of the Model Code of Conduct held a rally on the day of polling in Gujarat on April 23, ie date of voting for the third phase of the election”.

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 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 Narendra 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.

With the appointment of T.N. Seshan (a Rajiv Gandhi favourite) as chief election commissioner, the code of conduct was abused to a new low and a dangerous game began. These codes was expanded and used as a threat to call off the polls.

One of the most honest and able law ministers we have ever had is Dinesh Goswami of the V.P. Singh government. The recommendations of his committee on election reforms were ignored. It recommended statutory fora for the Model Code of Conduct to reduce the discretionary element. The election commissioner has consistently exposed his colossal ignorance — every breach would have to be prosecuted, it argued. In his magisterial pronouncement in the House of Com­mons, Sir John Simon pointed out that every breach of the law did call for prosecution.

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. They should be retired a high court judge.

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.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, May 4th, 2019