Where's the level playing field? CCG sends open letter to ECI

A disturbing pattern of harassment of Opposition leaders on the cusp of the polls calls into question the motivation of central agencies, says the Constitutional Conduct Group

Chief election commissioner Rajiv Kumar announcing the general election schedule in New Delhi on 16 March 2024 (photo: PTI)
Chief election commissioner Rajiv Kumar announcing the general election schedule in New Delhi on 16 March 2024 (photo: PTI)

NH Digital

In the Election Commission of India (ECI) meeting with officers nominated as election observers on 11 March 2024, chief election commissioner (CEC) Rajiv Kumar stressed the importance of ensuring a level playing field for all political parties and candidates and the need to keep both electorate and candidates safe from intimidation and inducements.

Just 10 days after his exhortation, chief minister Arvind Kejriwal was arrested in Delhi liquor policy case, under the draconian provisions of the Prevention of Money Laundering Act (PMLA), where securing bail is extremely difficult.

Today, the Constitutional Conduct Group (CCG) has penned an open letter to the ECI, wondering where the 'level playing field' is at:

We are not questioning the right of law enforcement agencies to take steps to check corruption in high places and bring to book the guilty. What we are concerned about is the timing of this arrest. The liquor policy case has been investigated for over 13 months and two prominent Aam Aadmi Party (AAP) leaders have been in custody for months, with one of them, Sanjay Singh, being released on bail recently, while the former deputy chief minister Manish Sisodia is still in jail.
Even if it is the case of the investigating agency that Mr Kejriwal was evading summons to appear before them, nothing stopped them from questioning him, if necessary, at his residence
The arrest of a senior Opposition political functionary at a juncture when the Lok Sabha elections had been announced and the Model Code of Conduct was in place reeks, to our mind, of deliberate, motivated executive action. The law must take its course, as many legal worthies today never tire of saying, but the heavens would not have fallen if coercive action had been initiated after the end of the election process on 4 June 2024.
One could understand that in the case of a criminal investigation relating to the right to life of a citizen, immediate arrest may be warranted. Surely, this would not apply in the case of a prominent political figure who is hardly likely to be a flight risk and in whose case, with the investigations having gone on for so many months, the possibilities of tampering with evidence and influencing witnesses are quite remote.

The letter also notes that the AAP convener and Delhi chief minister's arrest is not an isolated instance.

It highlights a disturbing pattern of harassment of Opposition parties and leaders, a veritable witch hunt on the cusp of the general elections ahead, and based on this pattern, calls into question the motivations of the central agencies.

The CCG declares itself puzzled at the way the income tax department has reopened old tax assessments of the Indian National Congress (which should, as a political party, not need to file income tax) as well as other Opposition parties.

It also holds that the raids and searches targeting at this juncture Opposition leaders such as Mahua Moitra, the Trinamool Congress politician who is a candidate in the Lok Sabha elections, defy any even-handed explanation:

Given the tardy record of the central law enforcement agencies in completing investigations and filing charge sheets, the undue zeal in selectively pursuing these cases gives rise to the suspicion that the motivation goes beyond a mere desire to enforce justice.

The also letter brings up the important point that the arrests of political functionaries and harassment of Opposition parties after the election process has started not only deprives individuals of the exercise of their fundamental right under Article 19 of the Constitution of India to canvass for votes but also distracts the political parties from focusing on election campaign—something the CCG calls for the ECI's intervention in:

The pattern of events over the past month calls for firm action from the ECI to quell rising public suspicion that the ECI is sitting silent while a politics of vendetta is being practised to deny opposition parties the freedom to actively participate in the election process.
To ensure that this does not continue, we are of the view that, just as the entire government machinery in the states functions under the control and supervision of the ECI, activities of the machinery at the Central government level, especially the law enforcement agencies, should be controlled by the ECI through the exercise of its powers under Article 324 of the Constitution of India.
Else, if state government law enforcement agencies adopt an approach similar to that of the central agencies, the resulting anarchy would make a mess of the entire electoral process.
We are deeply disturbed by the failure of the ECI to take immediate action in this matter. Media reports show that a delegation of members of prominent opposition parties met the CEC and the Election Commissioners as long back as 21 March 2024. However, leave alone dealing with such arbitrary executive actions with a heavy hand, the ECI has not even issued a note of caution in this regard.

The letter notes that the CCG "has been interacting with the ECI since 2017 and has sent many letters to your predecessors: there has been no response from the ECI over the past five years" and in particular, calls it to account for its inaction on the topic of electoral bonds and EVMs as well as violations of the Model Code of Conduct by the ruling BJP and Prime Minister Narendra Modi:

We note that the ECI has reneged from its earlier stand opposing electoral bonds. The ECI has made no efforts to assuage doubts in the minds of the thinking public and political parties about the integrity of EVMs and the need to use VVPATs effectively to ensure accuracy in the recording of votes, a matter that is now sub judice.
Nor has the ECI been particularly effective in enforcing the Model Code of Conduct to check its misuse, especially by the party in power. Our group had pointed out many such instances in the 2019 Lok Sabha elections but, apart from minor slaps on the wrist, the ECI failed to enforce its writ on repeated offenders.
In the current elections as well, infractions of the Model Code of Conduct by no less a personage than the prime minister have not been acted upon by the ECI even after these were brought to its notice.

In spite of the enormous powers vested in it under Article 324 of the Constitution of India, the letter says, "the ECI, in recent years, has exhibited a strange diffidence, especially in dealing with actions that impact the conduct of free and fair elections"—a situation it calls on the election commissioners to amend:

We urge the ECI to live up to the shining legacy bequeathed by a line of eminent persons who have led the ECI in the past seven decades. The nation looks to you to act with firmness and determination to maintain the reputation and sanctity of the world’s largest electoral exercise

The full text of the letter may be found below:

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