Far more disturbing, however, are the reports that some parties indulged in campaign blatantly on communal lines, thus violating election law with impunity. Doubtless, our election law distinguishes corrupt practice from electoral offence, the remedy for the former invariably being invoked after the conclusion of elections in a High Court. The remedy for the latter too is a lengthy process, depending on the pace of investigations etc., even though the aggrieved need not wait for the conclusion of elections. The Election Commission appeared to be bristling with activity when it decided to hear the matter involving the BJP’s use of a CD with communal overtones during the campaign. Even though the non-BJP parties made a determined bid to seek derecognition of the BJP under the Symbols Order for this alleged violation of model code of conduct, the E.C. has preferred to wait and watch the party’s response to its interim directions to it ( asking it to condemn the CD etc.) and also the progress of the investigation to determine whether the party’s senior leaders were involved in this. The E.C.’s relevant press note is here.
While the E.C. should be reasonably fair and non-partisan while exercising its powers under the Symbols Order, it needs to ask itself why it has not been able to effectively use its powers under Paragraph 16A of the Symbols Order, 1968. This provision, inserted by the then CEC, T.N.Seshan, through a notification in 1994, enables the Commission to suspend or withdraw recognition of a recognized political party for its failure to observe Model Code of Conduct or follow lawful directions and instructions of the Commission. It is enough that the Commission “is satisfied on information in its possession” to invoke this section against a party. Yet, the E.C. has used this only once, when it directed all political parties to hold organizational elections periodically, or face derecognition in 1996. Ensuring a clean election campaign is part of the E.C.’s mandate to hold free and fair elections. But looking at the manner the E.C. has dealt with redressal of complaints under Paragraph 16A, it appears to be a toothless provision.