Model Code of Conduct for the three Election Commissioners to elicit public trust in their role as a Constitutional authority

To

Shri Rajiv Kumar

Chief Election Commissioner

Shri Gyanesh Kumar

Election Commissioner

Dr Sukhbir Singh Sandhu 

Election Commissioner

Dear Dr Sukhbir Singh Sandhu, S/Shri Gyanesh Kumar/ Rajiv Kumar,

I write this letter in the context of the conduct of elections shortly to the Parliament and some State assemblies. Now that the Election Commission of India (ECI) has announced the election schedule, the Model Code of Conduct (MCC) has become applicable.

Don’t you think that there should also be a “Model Code of Conduct” for the Commission itself, for the public to judge its role and performance?

Kindly remember that each one of you occupies the high office of an authority created by Article 324 of the Constitution, the mandate of which is loud and clear, that you are entrusted by the people of India to conduct elections in a free and fair manner. 

Article 324, as reiterated by the apex court time and again, provides a “reservoir” of authority at your disposal to discharge that responsibility. One expects you to realise that you have such a reservoir of authority in the first instance and that you will not hesitate in any manner to invoke it, where and when necessary.

While presenting the draft Constitution to the Constituent Assembly on November 25th, 1949, Dr B R Ambedkar said, 

“however good a Constitution may be, it is sure to turn out to be bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot“

I believe that each one of you individually and the Commission as a collective body, should bear in mind the apprehension expressed thus by Dr Ambedkar and remember that, the extent to which the objective of Article 324 will be achieved, will depend on how you exercise your authority under Article 324.
This is necessary in today’s context for the following reasons.

1. Over the years, the trust that the public repose in the Commission has diminished considerably, partly on account of action/ inaction on the part of the Commission itself and partly as a result of the machinations of the ruling political executive to compromise the apolitical role of the Commission.
2. Unfortunately, for no fault of yours, the procedure of selection by means of which you have come to become an Election Commissioner, has deviated considerably from the norms of transparency and objectivity laid down unambiguously by the apex court. In a way, this in itself has arisen as a part of the political executive’s effort to make the Commission feel subservient to it. This has had the effect of the Commission itself being inappropriately perceived by many as an extended arm of the political executive. 

You should remember that not every retiring civil servant has the benefit of being placed in such a high post-retirement office, carrying with it such enviable monetary and other benefits and, more importantly, the full might of the authority vested in you by the Constitution. 

It is for you, individually and collectively, during the next few months and thereafter, to send a strong message to the people through your conduct and decisions that you are determined to function as an apolitical institution, fully competent and inclined to play the role expected of you under Article 324. 
There have been many incumbents of the office of the Commission over the last several decades, some still remembered by the people as stalwarts and some easily forgotten. It is for you to choose which category you wish to belong.

Each one of you should bear in mind that, during the next few months, when the electoral process will be in full swing, you will be under intense scrutiny from all political parties and the public at large. As Election Commissioners, you are accountable to the President of India, the Supreme Court in so far as the legality of the electoral process is concerned, to the political parties and individual contestants who are equal partners in the process and to the public at large.

During elections, all political parties are equal. No single political party has a preferred status. The ordinary citizen of the country is no less than any political leader. The Commission should consider itself totally independent of the rulers who appointed them and conduct its affairs in a transparent, equitable manner, holding itself accountable to the Constitution and the public.

As a senior citizen concerned about the need to protect the democratic character of our Constitution, I thought that I should place before you the following unwritten but legally and morally binding Model Code of Conduct for the ECI (MCCECI):

Model Code of Conduct for Election Commissioners

ECI’s proceedings:

• The proceedings of the ECI should be totally transparent, compliant with Article 19 of the Constitution and the requirements of the Right To Information Act, especially that under Section 4 of the Act relating to suo moto disclosure.
• The minutes of every meeting of the ECI and the minute of dissent, if any, of an individual Commissioner, should be placed in the portal of the Commission for the public to see and respond, if necessary. The Commission should not be afraid of dissent within itself, as dissent is the essence of democracy and it shows that the Commission is a live institution.
• Every complaint received from political parties and individual citizens on violations of the MCC for political parties should be displayed in the portal along with a speaking order on its disposal
• The Commission should make itself fully accessible to all political parties equally, without giving the impression that it unwilling to meet the opposition parties, as it unfortunately did, when a senior delegation of opposition parties wanted to meet the Commission a few days ago to represent their concerns against the use of EVMs.

Election funding:

• It speaks volumes about the distorted nature of India’s election funding, when one looks at the Budgetary allocation made by the Parliament this year for Lok Sabha elections vis-a-vis the funds extracted by political parties through corporate donations. While the Parliament has allocated less than Rs 2,000 crores for conducting elections on such a vast scale this year, the funds received by political parties through the egregious, unconstitutional Electoral Bonds Scheme (EBS) itself amounted to around Rs 11,000 Crores! Probably, the EBS funds received by the ruling political party alone far exceed the expenditure to be incurred by the Commission on elections!
• The Apex court has held the Electoral Bonds Scheme (EBS) to be unconstitutional. From the information available now from the Commission’s portal, it appears that the funds received by political parties through the EBS were possibly associated in one way or the other with quid pro quos, possible intimidation/ extortion by some Central investigation/ enforcement agencies and so on. While the apex court ordered that the political parties should not encash unredeemed bonds, it appears that large amounts obtained through the already redeemed EBs are lying with the parties, waiting to be spent lavishly on electioneering. Considering the tainted nature of the major portion of such amounts, it is not in the public interest for the Commission to permit their use in electioneering. Uneven distribution of funds with political parties tilts the level-playing ground in favour of the ruling political party. Against this background, the Commission, drawing its authority from Article 324, should order a total freeze on all such amounts immediately and ensure that not a single rupee of such tainted money flows into electioneering.
• The people of the country have witnessed with dismay how the SBI, entrusted with the management of the EBS, has been dilly-dallying in divulging all the required information on the EBS to the Commission. It is still not clear whether the SBI has disclosed all the information accurately. The BJP, operating through the political executive, has unabashedly planted its representative on SBI’s Board, possibly to keep an eye on its affairs. This suggests that the Commission should insulate the SBI from the political executive’s influence. The Commission should therefore direct the government to withdraw BJP’s representative from SBI’s Board forthwith and direct all banks to maintain a reasonable distance from the political executive.
• In addition to the accepted instruments of electoral funding, considerable amounts of funds seem to flow through stock market manipulation, hawala transactions and other illicit means. The Commission should deploy experts to monitor this closely and take exemplary deterrent action where necessary.

EVMs:

• While the apex court has found no merit in the claim that manipulation is possible in the functioning of the EVMs and therefore the Commission could continue to deploy them as before, it is a fact that EVMs deprive the voter of the right to know physically that the vote cast has gone to the right candidate. Prima facie, this constitutes a violation of the voter’s right to know. Since the EVMs also function without totalisers, votes cast in a constituency cannot be “mixed” as was done in the past with paper ballots. This violates booth-wise secrecy of voting, rendering the electoral process prima facie illegal on that count. If the Commission is genuinely concerned about the legality of the process, it ought to have taken an inviolable stand on behalf of the voter to discard the EVM system altogether and go back to paper ballots as many other democracies have done. 
• Whatever be the case presented before the Supreme Court re: EVMs, one cannot choose to ignore the inherent technical flaws in the existing EVM system and its vulnerability to manipulation (https://youtu.be/z5Y6z29El3I). Instead of deifying the EVM system in its present format, the ECI should open its eyes to obvious technical flaws that cannot be summarily wished away
• As the Commission has failed the voter in questioning the use of EVMs and as it is too late for going back to the paper ballot system at this belated stage, the least that the Commission should do at this moment is to order a 100% verification of the EVM count vis-a-vis VVPATs. The argument that such a 100% count of VVPATs delays election results does not stand to reason, as accuracy is far more important than delay, when it comes to the efficacy of a democracy.
• As in the case of the SBI, since Bharat Electronics Ltd (BEL) and Electronics Corporation of India Ltd (ECIL) are closely involved in the manufacture and supply of the EVMs and in laying down the source code embedded in them, the BJP, once again operating through the political executive, has brazenly planted its representatives on the Boards of BEL and ECIL, to oversee their functioning. Recognising the public criticism against the EVMs, the least that the Commission should do at this belated hour is to direct the political executive to recall party nominees from BEL’s and ECIL’s Boards

Hate speeches, polarisation on religious, caste, creed lines to be dealt with firmly:

• In the past, there have been instances of very senior public functionaries occupying high offices openly polarising voters on religious, caste, creed lines and spreading hate to gain undue political mileage, which the Commission had not dealt with as it ought to have, perhaps either being afraid to displease those in power or feeling servile to the political executive. Such instances have tainted the electoral process, upsetting its apolitical character. The Commission should unshackle itself from the influence of the political executive to be able to reestablish itself as a genuinely effective Constitutional authority capable of acting without fear or favour. The nation cannot afford to permit its leaders to taint the electoral process with hate speeches and other divisive ways of electioneering.

Dealing with the ruling political executive firmly:

• The country has witnessed how the ruling political executive has compromised the integrity of almost all institutions, public authorities, the government machinery and even the media. The Commission should take note of this and ensure that no public authority or any part of the media functions in a partisan manner.
• It has become commonplace for Central investigation/ enforcement agencies to deal with leaders belonging to opposition parties in a selective manner, freeze their resources and restrict their participation in the electoral process by detaining them without trial, evidently at the behest of the ruling political executive, resulting in disabling the opposition and paralysing democracy. It is high time that the Commission opens its eyes to this harsh reality and extends its legal oversight on the functioning of those agencies to preempt any semblance of their conduct that runs counter to the overarching objective of conducting elections in a free and fair manner. There is no alternative to the Commission directly exercising its control over them, as it does in the case of the government machinery in the States.
• The Commission should request a high-level panel of retired Supreme Court judges, nominated by the CJI, to monitor the functioning of all Central investigating/ enforcement agencies during the next few months to make sure that they function totally independent of the political executive and remain accountable to the judiciary and no one else. 

The Commission should enforce its own guidelines strictly without fear:

• In January this year, the Commission has issued elaborate guidelines with a view to ensure elections being conducted in an apolitical manner: Some excerpts from it are as follows:

“Issue of advertisement at the cost of public exchequer in the newspapers and other media and 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…….. However, all those hoardings, advertisements, etc. which seek or purport to project the achievements of any living political functionaries or political party and which carry their photos or name or party symbol should be removed forthwith as no political functionary or political party can use public resources and incur or authorize expenditure from public exchequer to eulogize himself or itself or enhance his/its own or any political leader’s personal image. Such hoardings, etc. undoubtedly amount to their individual/party election campaign at public cost. Accordingly, the photos of political leaders in such advertisements should be removed/covered suitably. The continuing display of such hoardings and advertisements at the cost of public exchequer, even if such hoardings, advertisements or posters were displayed prior to the date of announcement of elections, constitutes a violation of the Model Code of Conduct as it provides an undue advantage to the party in power and has the effect of influencing the voters in favour of the party in power….There will be a complete ban on celebrations like “xxx years/days in power” during this period as such occasions are virtually utilized to highlight the achievement of the party in power.”

• In pursuance of the above guidelines, the Commission should immediately depute special teams to remove pictures of living political leaders, their names, or party symbol, whether relating to Central leadership or the State leadership, however high they may be. There are numerous hoardings carrying such pictures, names, party symbols etc. at railway stations, petrol bunks, national and State highways and other public places that violate the guidelines. The PDS ration cards, health insurance identity cards, vehicles and other moveable/ immoveable fixtures carrying the names and photos of living leaders should also be removed likewise.
• If leaders choose to visit religious places of worship, they may be free to do so but such visits should not be at public cost and should not be allowed to become public spectacles as such publicity is usually deliberately designed to secure undue political mileage for parties.
• It has become commonplace for political parties and leaders to misuse social media platforms to bypass the Model Code of Conduct prescribed by the Commission and try to mislead the public with false messages with divisive overtones. the Commission should deploy personnel to keep a close watch over this and come down heavily with an iron hand to stop them, if necessary

Corporate interference in elections:

• As a result of elections being heavily funded by big businesses, the corporate grip over political parties has gained strength over the years. The Commission should keep a close watch over this. When political leaders use vehicles and aircraft lent to them by big business houses at concessional rates and get hoardings/ advertisements financed by them, it amounts to nothing but outright electoral corruption. Such explicit and implicit items of expenditure should be accurately assessed by professionals and included in the expenses incurred by political leaders. If such assessed expenditure exceeds the ceilings prescribed under the election laws, it amounts to electoral corruption, calling for initiation of proceedings for disqualification of the concerned candidates.

In conclusion, let me express my utmost confidence and trust in your commitment to the letter and spirit of Article 324 and your ability, inclination and the will to fulfill its mandate. I repose trust in you that, at this crucial hour, each one you will stand by the people of India, rather than a single political party or a leader. Kindly remember that you occupy a high Constitutional position and function under full public glare, while discharging such an onerous and enviable responsibility as conducting elections in one of the largest democracies in the world. 

Please remember that, as long as you function exclusively in the direction of conducting elections in a free and fair manner, no public authority other than those specified in the Constitution can interfere in that task. If at all they try to interfere in any undue manner, let me assure you that the entire country will stand by you to uphold your impartiality and the cause of our great democracy, provided you unhesitatingly act in that direction.

I hope and wish that you will appreciate and comply with the Constitution scrupulously and enhance the image of our nation as an exemplary democracy. 

All the best,

Yours sincerely,

E A S Sarma

Former Secretary to the Government of India

Visakhapatnam