The Decision Challenges the Principle of the Rule of Law

Newsreel Asia Insight #241
June 4, 2024

The Chief Election Commissioner (CEC) Rajiv Kumar told Scroll.in that it was the decision of the Election Commission to refrain from taking action against the top two leaders of the Bharatiya Janata Party (BJP) and the Congress party, despite apparent violations of the Model Code of Conduct (MCC). This unprecedented – and unworthy-of-precedence – decision brings to light two major issues that challenge the core principles of our democratic system.

The principle of the rule of law implies that all persons and institutions, including the government, are accountable under laws that are publicly promulgated, equally enforced and independently adjudicated. It requires that legal rules are followed and applied impartially, particularly by governing bodies. And the rule of law is not just a legal doctrine but a guarantee.

The ECI is tasked with ensuring free and fair elections, which includes enforcing the MCC and involves taking action against misuse of official power to influence voters. Therefore, the CEC’s admission that they “decided” not to admonish the top two leaders from major political parties – including when they target a specific community in their speeches – raises serious concerns. This means, if less prominent figures or parties had violated the MCC, then the Election Commission would have admonished or penalised them? It sends a message that some are above the law.

If the reasons are not based on a clear interpretation of legal provisions but rather on discretionary or political grounds, it could be viewed as a violation of the rule of law.

Imagine the impact on the average voter. Seeing prominent political figures escape scrutiny while others are penalised for similar actions creates a perception of bias. This perception is not merely a theoretical concern but a tangible blow to the legitimacy of our electoral process. Trust in democratic institutions is built on the assurance that rules are enforced uniformly. When this trust is compromised, it risks disillusioning the electorate and diminishing the integrity of the entire system.

The second issue revolves around the CEC’s apparent strategy of maintaining “political balance,” which seems to stem from a desire to avoid accusations of partisanship by treating leaders from both major parties equally. This prioritises political optics over the enforcement of legal and ethical standards.

By choosing not to act against any prominent leaders, the ECI inadvertently suggests that political considerations outweigh the need for strict adherence to the law. In other words, it could imply a presumption that maintaining a sort of political equilibrium is a form of fairness, and not adherence to law.

If accurately represented by the CEC’s comments, the CEC’s remarks also suggest an assumption about voter expectations and behaviour. It might presume that voters are more aligned with their party loyalties and might view any action against their leaders as partisan or unfair, rather than being primarily concerned with strict compliance with the rule of law and ethical campaigning. This oversimplifies voter attitudes.

It undermines the very purpose of the ECI, which is to uphold fair and free elections without fear or favour.

Such a decision can have far-reaching implications. It implies that electoral integrity is negotiable and that maintaining a facade of neutrality is more important than upholding democratic principles. This perception not only affects public trust but also emboldens political actors to push boundaries, knowing that enforcement may be selective and lenient for those with significant influence.

And it happened. Some second-run leaders of the BJP appeared to violate the MCC. Assam chief minister Himanta Biswa Sarma repeatedly targeted Muslims in his speeches, and accused 12.5 million residents of Assam of being infiltrators from Bangladesh.

The public deserves to know the rationale behind the ECI’s actions or inactions, especially when it involves high-profile figures. Transparency in decision-making reinforces trust and ensures that the ECI’s actions are guided by the rule of law rather than political expediency.

As citizens, we must demand more from our institutions.