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Government is equally responsible for ensuring neutrality and level-playing field during elections

Even while a war of words is going on between the Election Commission of India (ECI) and the Finance Ministry over maintaining neutrality in raids against political parties while the Model Code of Conduct (MCC) is in force, it has come to the notice that 15 raids have been carried out targeting the Opposition parties by the Income Tax department (IT) alone in the past six months.

Last Sunday the ECI had written to the Revenue Secretary of the Government of India strongly advising that the enforcement agencies working under his supervision – IT and Enforcement Directorate (ED) – should be absolutely neutral, impartial and non-discriminatory in their action against political parties.

The immediate provocation was the IT raids on the Congress leader Kamal Nath’s associates in 52 locations in four states bang in the middle of electioneering – five days ahead of the first phase of polling. The raiding party from Delhi was accompanied with CRPF personnel and the Chief Electoral Officer (CEO) of Madhya Pradesh had no prior information about it.

On Tuesday, the Revenue Secretary and the Central Board of Direct Taxes (CBDT) rebutted the ECI’s charges and instead advised the ECI to curb the use of illicit money and keep tax officers in loop. The ECI is understood to have told them to keep it informed if its action related to electoral malpractice.

IT & ED targeting the Opposition

In the run up to this event, the IT and ED have conducted several raids targeting the Opposition rank – TDP, DMK and JD(S) – after the MCC came into effect on March 10.

On April 5, the IT raided TDP MP CM Ramesh and his supporters in Andhra Pradesh’s Kadapa, following which the Chief Minister Chandrababu Naidu went on a dharna in Amravati. Naidu has been complaining of harassment at the hand of the Central enforcement agencies after he snapped ties with the NDA government.

On March 28, in another pre-dawn swoop, the IT officials accompanied with the CRPF personnel from Delhi raided the JD(S) minister for minor irrigation CS Puttaraju, his nephew and PWD minister HD Revanna’s associates in Karnataka.

On March 29, there was yet another IT raid, this time on another Opposition party. The DMK’s treasurer Durai Murugan and his institutions were raided in Vellore, Katpadi and other places in Tamil Nadu.

Government is equally responsible for fair elections

The governments have as much responsibility of ensuring free and fair elections and providing a level-playing field for all candidates and political parties as the ECI.

In 1979, a new chapter was added to the MCC specifically for stopping misuse of official machinery – Part VII: Party in Power. The first line of this chapter says : “The party in power whether at the Centre or in the State or States concerned shall ensure that no cause is given for any complaint that it has used its official position for the purposes of its election campaign…”

In 2010, former Chief Election Commission SY Quraishi (2010-12) added a division to the ECI – Expenditure Monitoring Division (EMD) – to check misuse of money power in electioneering and is manned by the Revenue Service officials.

The EMD had issued a directive to the CBDT chairman on January 16, 2013 , clearly defining the role of the IT during electioneering: (a) keep track of “movement of undisclosed cash during election process” and (b) “for this purpose, the services of the officers and officials under the supervision of Director General of Income Tax (Inv.) in charge of the state are requisitioned by the Commission”.

This means the IT department is required to report to the ECI, not the other way round and it has to confine itself to checking misuse of money power. Its routine investigations are supposed to take a backseat during the elections so as not to influence the elections in any way – as has been the practice until now.

When asked for his views on the recent raids and the ECI’s notice to the Revenue Secretary, Quraishi told India Today: “Not at all. This has never happened. In our time, the government agencies were extra careful not to vitiate, harm or influence any candidate or party in any way. Normal activities were postponed. This (raids by IT and ED) is totally unprecedented and so has the ECI written to the Revenue Secretary.”

Regarding the misuse of official machinery vis-a-vis the Part VII of MCC, Quraishi said, “It (Part VII) is directed against the government which has an extra responsibility. It (government) has an advantage which has to be neutralised to ensure a level-playing field”.

SK Mendiratta – who served the legal department of the ECI for 52 long years (1964-2018), the last 20 of which as the legal advisor post his retirement – also confirmed that such a directive had never been issued in the past.

“It never happened. Raids are violation of Part VII. There is no legal angle to it. If something is wrong, action can be taken by the government agencies. The only thing to see is that nothing political is done to disturb the level-playing field.”

A serving ECI official said on the condition of anonymity that such raids on the Opposition parties do constitute misuse of official machinery and violates the Part VII. The ECI expects the government agencies to maintain decorum, restraint and ensure that powers are exercised legitimately, he added.

MCC is voluntary without statutory backing, but has worked well until now

The MCC was adopted voluntarily by the political parties, ECI and government of the day in 1968-69 but has the backing of the Supreme Court and High Court in their several rulings in the past. It has worked well until now and the ECI has always argued in favour of maintaining its voluntary nature which gives it moral authority in the conduct of elections in a free and fair manner.

The recent events – selective raids on the Opposition rank during the electioneering and the ensuing war of words between the ECI and Finance Ministry – have the potential to derail the MCC and vitiate the elections to the advantage of the party in power but to the detriment of the Opposition, raising questions about the free and fair nature of the elections in India.

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