In the largest-ever election in human history, nearly 97 crore Indians will cast their votes determining the fate of more than 8,000 candidates. The Kesavananda Bharati v State of Kerala (1973) judgment held that free and fair elections form part of the basic structure of the Constitution. Three essential ingredients constitute free and fair elections: A level playing field for political campaigning, an independent umpire to oversee the process and a fair regulatory framework or rules of the game.
It is the spirit of this celebrated judgment which makes the 2024 elections a test case for the survival of democracy. In my opinion, three features make this general election the most troublesome in our history.
Not free, not fair
First, the principle of free and fair elections has been thrown out of the window. A significant number of Opposition political leaders are in jail and the timing and the manner of their incarcerations have confused some, concered many. Delhi’s sitting Chief Minister Arvind Kejriwal, former Education Minister Manish Sisodia, MP Sanjay Singh (who is now out on bail), Jharkhand’s former Chief Minister Hemant Soren and Bhartiya Rashtra Samiti’s K Kavitha are the key Opposition leaders in jail.
Scores of Opposition leaders have switched over to the ruling coalition because of the evident misuse of investigation agencies like the Enforcement Directorate (ED) and Central Bureau of Investigation (CBI). Take for example, the case of Maharashtra’s Praful Patel. He had been facing a CBI inquiry since 2017. He was one of the main suspects in a case inquiring into corruption charges in the Air India-Indian Airlines merger. In May 2019, the ED’s chargesheet indicted him for abusing his position as Civil Aviation Minister through a middleman. However, within months of his joining the BJP’s coalition partner, CBI filed a closure report.
An Indian Express report found that at least 95 per cent of the prominent politicians against whom central investigation agencies took action after 2014 were from the Opposition. Twenty-three of 25 Opposition leaders accused of corruption have gotten relief from investigations after joining the BJP since 2014.
The Prevention of Money Laundering Act (PMLA) has a provision — incarceration unless the judge is satisfied with the suspect’s innocence. This has flipped jurisprudence upside down and hangs as a sword over opposition leaders’ heads. In such a scenario, an investigation alone is enough of an intimidation. The BJP has mastered the art of hounding, intimidating and threatening the Opposition leaders into joining the party, and the central investigation agencies are being used blatantly as their tool. This distorts the level playing field.
A biased umpire
Second, it is expected that the Election Commission should be independent. Setting aside the Supreme Court’s constitutional bench judgment, the unilateral appointment by the Executive of the two Election Commissioners two days before the announcement of election dates cast a shadow on its independence. The continued silence on several complaints by the Opposition against the BJP and its alacrity in acting on the latter’s complaints raise serious questions of bias. So far, the EC has a different approach in responding to the BJP and Opposition’s complaints of violation of the Model Code of Conduct
The AAP filed several complaints with the EC ranging from the alleged sealing of its party office by Delhi Police to certain objectionable hoardings. However, almost three weeks since the complaints, the EC is yet to issue a notice to the BJP. Similarly, Congress’ complaint of the BJP’s violation of the Model Code of Conduct by using government machinery to send bulk WhatsApp messages awaits action by the EC. On the other hand, on BJP’s complaint against Delhi’s Education Minister Atishi, EC issued a notice to her within 24 hours.
The dichotomy this reveals is stark. Most recently, we all heard Prime Minister Modi calling all Muslims “ghuspaithiye” (infiltrators), and yet he has not been censured by the EC.
Different rules for different parties
Third, the rules of the game are different for different parties. The old adage of “Show me the face, I will show you the law” fits well in our context. Take, for example, the relentless hounding of opposition parties by the Income Tax department evident from the freezing of bank accounts of the Congress. The disputed expenditures date back to 1994-95 . However, when the Congress in its press conference on March 29 showed the exact same violations by the BJP — which deserve a penalty of Rs 4,600 crore — no notice was served by the IT Department. Left parties have received IT notices as well. The ruling and the opposition parties seem to be governed by different laws, and the IT Department appears selective, and their application.
Meanwhile, BJP amassed nearly Rs 7,000 crore through electoral bonds and as independent scrutiny into the issue is rising, there are serious and substantive questions around quid pro quo.
It remains to be seen how far we can stretch the limits.
The writer works with the Government of Punjab on education, health and social welfare. Views are personal
