Thursday, 16 November 2017

During elections, USA should consider having a Model Code of Conduct enforced by autonomous and constitutionally protected Election Commission like India

First let us look at Election Commission of India's role in enforcing the Model Code of Conduct during elections in India. The state of Gujarat, the home state of Indian Prime Minister Narendra Modi from Bharatiya Janata Party (BJP) political party, is going through an election season for the state assembly. It has become a high-profile state election with the main national opposition party of India, the Indian National Congress (INC aka Congress) trying to do its best to put up a fight against the BJP which is currently in power in Gujarat.

The article, ECI bars Gujarat BJP from using ‘Pappu’ in electronic media advertisement, http://www.thehindu.com/news/national/ec-bars-gujarat-bjp-from-using-pappu-in-electronic-advertisement/article20449321.ece, dated 15th Nov. 2017 reports that the Election Commission seems to have asked the BJP to drop a pejorative word ('Pappu' a Hindi pejorative word) from its electronic advertisement, and the BJP seems to have complied by changing the word to something less pejorative.

If the report is true, I applaud the BJP for co-operating with the ECI, and I applaud the ECI for doing its job in ensuring that some code of conduct is maintained in the advertisements put out by political parties during this election season.

The article states that during the period the Model Code of Conduct is in operation political parties have to take the Election Commission's permission before releasing print or electronic election advertisements. It quotes an Election Commission official as saying, "In several instances, some changes were suggested by the committee which monitors print and electronic advertisements". But the official refused to confirm the above mentioned case. I think it is good that such matters are done in private between Election Commission and the political parties.

Some info. about the Election Commission (EC) from its wiki page: https://en.wikipedia.org/wiki/Election_Commission_of_India are given below:

The Election Commission of India is an autonomous constitutional authority responsible for administering election processes in India. The body administers elections to the Lok Sabha, Rajya Sabha, state Legislative Assemblies in India, and the offices of the President and Vice President in the country. The Election Commission operates under the authority of Constitution per Article 324, and subsequently enacted Representation of the People Act. The Commission has the powers under the Constitution, to act in an appropriate manner when the enacted laws make insufficient provisions to deal with a given situation in the conduct of an election. Being a constitutional authority, Election Commission is amongst the few institutions which function with both autonomy and freedom, along with the country’s higher judiciary and lately the UPSC.
...
Structure

Originally in 1950, the commission had only a Chief Election Commissioner. Two additional Commissioners were appointed to the commission for the first time on 16 October 1989 but they had a very short tenure, ending on 1 January 1990. The Election Commissioner Amendment Act, 1989 made the Commission a multi-member body. The concept of a 3-member Commission has been in operation since then, with the decisions being made by a majority vote. The Chief Election Commissioner and the two Election Commissioners who are usually retired IAS officers draw salaries and allowances at par with those of the Judges of the Supreme Court of India as per the Chief Election Commissioner and other Election Commissioners (Conditions of Service) Rules, 1992.

The Commission is served by its Secretariat located in New Delhi. The Election Commissioners are assisted by Deputy Election Commissioners, who are generally IAS officers. They are further assisted by Directors General, Principal Secretaries, and Secretaries and Under Secretaries.

At the state level, Election Commission is assisted by the Chief Electoral Officer of the State, who is an IAS officer of Principal Secretary rank. At the district and constituency levels, the District Magistrates in their capacity as District Election Officers, Electoral Registration Officers and Returning Officers perform election work.

Removal from office

The Chief Election Commissioner of India can be removed from his office by the Parliament with a two-thirds majority in both the Lok Sabha and the Rajya Sabha on the grounds of proved misbehavior or incapacity. Other Election Commissioners can be removed by the President of India on the recommendation of the Chief Election Commissioner. A Chief Election Commissioner has never been impeached in India. In 2009, just before the 2009 Lok Sabha Elections, Chief Election Commissioner N. Gopalaswami sent a recommendation to President Prathibha Patil to remove Election Commissioner Navin Chawla, who was soon to take office as the Chief Election Commissioner and to subsequently supervise the Lok Sabha Election, citing his partisan behavior in favor of one political party. The President opined that such a recommendation is not binding on the President, and hence rejected it. Subsequently, after Gopalswami's retirement the next month, Chawla became the Chief Election Commissioner and supervised the 2009 Lok Sabha Elections.

Functions

One of the most important features of the democratic polity is elections at regular intervals. Holding periodic free and fair elections are essentials of a democratic system and a part of the basic structure of the Constitution. The Election Commission is regarded as the guardian of elections in the country. In every election, it issues a Model code of Conduct for political parties and candidates to conduct elections in a free and fair manner. The Commission issued the code for the first time in 1971 for the 5th Lok Sabha elections and revised it from time to time. It lays down guidelines for the conduct of political parties and candidates during an election period. However, there have been instances of violation of the code by various political parties with complaints being received for misuse of official machinery by the candidates. The code does not have any specific statutory basis but only a persuasive effect. It contains the rules of electoral morality. However, this lack of statutory backing does not prevent the Commission from enforcing it.

A law regarding the registration process for political parties was enacted in 1989 and a number of parties got registered with the Commission. The registration helps avoid confusion [Ravi: and] ensures that the political parties are brought under the purview of the commission.

The election commission has the right to allow symbols to the political parties. It gives recognition to the national parties, state parties and regional parties. It set limits on poll expenses. The commission prepare electoral rolls and update the voter's list from time to time. Notifications of dates and schedules of election for filing nominations are issued by the commission. It is noteworthy that Election commission cannot allot same symbol to two regional political parties even if they are not in the same state.

The Commission can issue an order for prohibition of publication and disseminating of results of opinion polls or exit polls to prevent influencing the voting trends in the electorate.

To curb the growing influence of money during elections, the Election Commission has made many suggestions and changes in this regard. The Commission has appointed IRS officers of the Income Tax Department as Election Observers (Expenditure) of all elections and has fixed the legal limits on the amount of money which a candidate can spend during election campaigns. These limits have been revised over time. The Election Commission, by appointing expenditure observers from the Indian Revenue Service, keeps an eye on the individual account of election expenditure. The commission takes details of the candidate's assets on affidavit at the time of submitting nomination paper, who are also required to give details of their expenditure within 30 days of the declaration of results. The campaign period has also been reduced by the Commission from 21 to 14 days for Lok Sabha and Assembly elections to cut down election expenditure.

In an attempt to decriminalise politics, the Election Commission has approached the Supreme Court to put a lifetime ban on convicted politicians from contesting elections.
---- end wiki extracts ---

Ravi: The impression I have over the decades that I have seen Indian elections is that today the EC is quite effective in election advertisements not becoming very ugly in their attacks on rival candidates and parties. But political campaign speeches do become ugly and have vicious attacks. If it goes too far e.g. suggestive of violence or deemed as inflaming communal or caste conflicts, after the speech is reported to the EC, the EC has pulled up the concerned politicians who perhaps are warned not to repeat such stuff. So the EC has some effect in regulating campaign speeches but it comes into play after the speech and may not be as effective as its regulation of election advertisements as they can be released only after EC vets it and provides permission.

On the illegal usage of money (other than legally permitted election expenses) to influence Indian elections I think the EC has not been so effective in curbing it as such things seem to be done by lower level election campaign workers some of whom are arrested. The media has printed reports on such matters. E.g. Assembly elections 2016: Over Rs 62 crore illegal cash seized in poll-bound states; Tamil Nadu tops, http://indianexpress.com/article/elections-2016/india/india-news-india/assembly-elections-2016-over-rs-62cr-illegal-cash-seized-in-poll-bound-states-tamil-nadu-tops-west-bengal-assam/, dated 18th April 2016 [Note 1 crore is 10 million].  But these arrests and illegal cash seizures do not seem to have reduced such illegal usage of money in future elections.

The USA has a Federal Election Commission (FEC), https://en.wikipedia.org/wiki/Federal_Election_Commission. But its role seems to be mainly in monitoring election campaign finance and ensuring that election campaign finance laws are followed by USA political parties and candidates. In the 2016 USA presidential election, I did not see any reports of the FEC speaking to either of the two main presidential candidates, Mr. Donald Trump and Ms. Hillary Clinton, or their campaign staff, to tone down the vicious campaign advertisements and speeches they made against each other. I have to say here that Mr. Trump's campaign's attacks on Ms. Hillary Clinton, seemed more vicious to me, as he used terms like 'Crooked Hillary' and encouraged chants of 'Lock her up' in his campaign events. And there were times at his campaign events when he seemed to whip up dangerous passions against journalists present at that campaign event. Fortunately, no journalist was seriously attacked.

Now I am sure that Mr. Trump's campaign would have many complaints against Ms. Clinton's campaign too.

The main point here was that there was no constitutionally empowered agency which stepped in and asked the two campaigns to tone down the election rhetoric! In India I am sure that if the election rhetoric gets as vicious as (or more vicious than) the 2016 USA presidential campaign, the Election Commission of India would step in and make sure that the rhetoric tone gets lowered by all important parties and candidates involved in the election.

The USA mainstream media as well as some USA politicians, especially retired or out-of-office politicians, were openly critical of the vicious rhetoric of the 2016 campaign. But their criticism did not have significant impact. I mean, they did not have any power to enforce the campaigns to change.

Why can't the USA also have a 'model code of conduct' enforced by its Election Commission, like what happens in India? As a lover of democracy, I think USA, which is perhaps the most important democracy in the world today, should consider such a mechanism to ensure that political rhetoric during election campaign season does not become as vicious as, or more vicious than, the 2016 USA presidential campaign.

Please note that I have a PUBLICLY NEUTRAL role in these social media posts that refer to Indian political leaders which include leaders in government currently and those not in government. I do vote in Indian elections but I keep who I vote for as a private matter. 

Also, please note that I have a PUBLICLY NEUTRAL informal-student-observer role in these posts that refer to USA politics.

[I thank wikipedia and thehindu.com, and have presumed that they will not have any objections to me sharing the above extracts (very short extract from thehindu.com) from their website on this post which is freely viewable by all, and does not have any financial profit motive whatsoever.]

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