ED, I-T actions on Kejriwal, Congress spark election conduct debate. Can the Election Commission step in?

Opposition parties and observers of the electoral process have, therefore, raised concerns that such actions distort the electoral process.

These questions emerged because most of these developments took place after election dates were announced when the Model Code of Conduct (MCC) was already in place. The MCC is a set of principles that empowers the Election Commission of India (ECI) to supervise the polling process and pass orders to ensure a level playing field between the contesting parties and candidates.

The basis of the powers under which the Commission issues these orders is Article 324 of the Constitution, which mandates the ECI to hold free and fair elections.

However, India’s political opposition believes recent events have compromised the prospect of free and fair elections.

“How can we claim to have free and fair elections when one party is involved in a multi-thousand crore scandal while the other faces hefty tax demands? Democracy demands transparency and fairness, not Tax Terrorism,” Congress leader and former finance minister P Chidambaram said on X (formerly Twitter) on March 30.

Can the EC step in?

This begs the question of whether ECI can step in since the action by enforcement agencies is on leaders and parties involved in the upcoming general elections.

Though there are no straight answers to this question, former Election Commissioner Ashok Lavasa says that one of the principles under the MCC is that the ruling party should not get any undue advantage because they are part of the government; unfortunately, as far as the implementation of the existing law is concerned, the procedure followed by enforcement agencies is not specifically covered by the code of conduct.

“And, no one has raised this concern in the past that enforcement agencies’ actions should be overseen by the ECI under MCC. There has always been an acceptance that law enforcement agencies will act in a manner as per the law of the land and won’t give any reason for those involved in the electoral process to complain about excesses or selective application of the law,” Lavasa added.

Former Chief Election Commissioner SY Quraishi believes that since the cases are ongoing, government agencies can take action within two months once election results are announced.

“By throttling two politicians from campaigning, and by freezing accounts (of the Congress party), irreparable damage has been inflicted on them. There is more politics than law here. Level playing field is sacrosanct and cannot be disturbed. And, free and fair elections involve a level playing field, based on the structure of the Constitution,” Quraishi told Moneycontrol.

According to both Lavasa and Quraishi, the Election Commission can intervene if steps taken by authorities risk the level playing field during elections.

While Lavasa says that even in the absence of any specific provision in the MCC, the EC will be within its remit if it decides to intervene to check the misuse of authority by any government agency that significantly disturbs the level playing field during elections, Quraishi cites Article 324 of the Constitution, which gives ECI the power to tell agencies to avoid such actions that may damage the conduct of polls.

Lavasa further articulates that whenever there is a perception that the law is being selectively implemented or excesses are being committed by any law enforcement agency to the detriment of a political party or a candidate, they can complain to the ECI. “And the Election Commission, to my mind, has to first determine whether that action will impact the ability of that complainant to contest fairly. And if ECI believes that it can impact the level playing field, the election commission can ask the process to be put on hold till polls conclude.”

Quraishi agrees. “Even if a politician is prevented from campaigning for two days, it causes great damage. As a principle, it can wait; it must wait. (Otherwise) It is interference in the free and fair elections,” he says.

As per the latest developments, Kejriwal remains in judicial custody till April 15. The chief minister was arrested on March 21 by the Enforcement Directorate (ED) in the Delhi liquor policy case.

On the other hand, the Income Tax department has made demands totaling Rs 3,500 crore from Congress. But Solicitor General Tushar Mehta, on April 1, gave an undertaking at the Supreme Court that no coercive action will be taken against the party during the upcoming general elections. The court is now expected to hear the case in July 2024.

What does the law of the land say?

Weighing in on the debate around whether the timing of the actions taken by government agencies could derail the conduct of the elections, C. Aryama Sundaram, Senior Advocate, Supreme Court of India said, “Without a doubt, proceedings against opposition parties or incarceration of opposition leaders after election date are announced, disrupts the level playing field, even though in law such actions may be warranted and sustainable.”

But the law of the land allows both tax demands as well as probes. Another senior advocate of the apex court, Vikas Singh, says whether it is the steps taken by the income tax department or the ED, both are part of the rule of law, even if they result in action or arrest.

“EC can intervene only for administrative action. It cannot ask them to defer the proceedings. The level playing field cannot be provided by EC in these two issues,” Singh added.

Lavasa agrees that there are no provisions prohibiting raising tax demands when MCC is in place.

“However, in view of recent developments, this issue merits due consideration so that its misuse is prevented,” the former Election Commissioner added.

Only time will tell if India’s Election Commission will intervene or not.

However, former Chief Election Commissioner Quraishi believes that whether there is a precedent or not, the time is right for the ECI to set a precedent for it.