A code of conduct for the Election Commission

The Election Commission (EC) of India is a powerful constitutional authority charged with the responsibility of conducting free and fair elections. Once the EC has announced the dates of the start and the end of the election process, a code of conduct comes into force that bars central and state governments from taking any policy decision during the period. Even the proposals to take decisions of administrative nature have to be first vetted by the EC. The EC assumes the power to transfer any officer who is believed to be favouring a political party or candidate. In all such cases, it is the EC that appoints new officers.

Like all constitutional authorities, the EC also deserves respect due to it. However, genuine respect does not come just because of constitutional and legal powers vested in the institution. The genuine respect comes when people see the institution function impartially and objectively, without any discrimination. It comes when people see it delivering promptly and indiscriminately. Most of the people in India do not respect the police because they do not see it functioning impartially and promptly.

All institutions including constitutional authorities must conduct themselves in a manner that people develop a genuine respect for them. The constitutional authorities have also to keep in view that they do not have absolute power. They too have to work within the framework of the Constitution and the law. There is always a Lakshman Rekha (a strict convention or a rule, the ethical limits of power) that is not to be crossed. Crossing the Lakshman Rekhamay lead to a clash with other authorities with undesirable consequences. The EC is also expected not to cross the Lakshman Rekha.

Unfortunately, on occasions, the constitutional authorities have been found violating this well-accepted code of conduct. We saw it recently when the EC pulled up the income tax department.

Income tax raids on the aides and associates of Kamal Nath

It all started after 300 income tax sleuths accompanied by Central Reserve Police (CRP) personnel started simultaneously raiding 52 premises, all belonging to the aides and associates of Madhya Pradesh Chief Minister Kamal Nath. The raids started at about 3 AM on April 07, 2019 and continued for three days, in some premises even beyond that.

As soon as the news of raids became public, all hell broke loose. Instead of feeling ashamed, Congress adopted an aggressive attitude and cried foul. The opposition parties condemned it as “politically motivated”, as an “act of political vendetta”. The late evening that day (April 7) the EC sent an advisory  to the Department of Revenue (DOR) to keep enforcement actions during polls “neutral, impartial and non-discriminatory”,

The next day (April 8), the DOR sent a detailed reply (signed by a deputy secretary) to the EC. The Department, inter alia, stated:

The DOR also clarified that operations were not carried out with any political motive but, as is the common practice, on the basis of definite information and actionable intelligence.

In the evening of April 08, the CBDT made it public that

“Searches in Madhya Pradesh have detected widespread and well-organised racket of collection of unaccounted cash of about Rs. 281 crore through various persons in different walks of life, including business, politics and public service.”

“A part of the cash was also transferred to the headquarter of a major political party in Delhi, including about Rs. 20 crore, which was moved through hawala recently to the headquarter of the political party from the residence of a senior functionary at Tughlak Road, New Delhi,”

“Rs. 14.6 crore of unaccounted cash has been found so far, besides 252 bottles of liquor, few arms and tiger hide-skins,”

Ignoring the magnitude of the discovery of black money and not satisfied with the reply of the DOR, the EC summoned Revenue Secretary and CBDT Chairman for discussion in the forenoon of April 9. According to the media reports, the EC expressed its displeasure that it was not informed about the raids in time. The DOR’s explanation that the reports are sent only after operations are over and the EC comes in the picture only if the cash recovered related to the election did not satisfy the EC.

The next day (April 10) the EC sent a strongly worded letter to the Revenue Secretary, The Commission stated that it was deeply anguished by the “casual and trivial” manner in which its advisory of April 7 was taken. The commission wrote that “instead of detailing the modalities of implementing the advisory, the department insolently chose to issue a counter advisory,” the poll body noted. The EC wrote:

Was anything wrong with income tax raids on aides and associates of Madhya Pradesh Kamal Nath?

Can any impartial person who is worried about a huge amount of black money floating in the economy find anything wrong with the raids? If not, what made the EC so angry? I am unable to understand what the EC meant by saying that income tax raids should be “neutral, impartial and non-discriminatory”. Had I been Chairman of the CBDT, I would have asked the EC, ‘how could the raids be described as not being neutral, impartial and non-discriminatory? What should the Director-General (Investigation), Delhi, who organised the raids, have done when he received confirmed information about a huge amount of cash kept by persons associated with a powerful politician of a particular party? Should he have waited for similar information about a powerful politician of the ruling party to ensure neutrality, impartiality, and non-discrimination?

These high sounding words do not clarify what action the tax authorities should take when it receives specific information about a huge amount of cash kept by a politician in his house or office. What “modalities of implementation” are expected? In a Facebook post, Finance Minister Arun Jaitley has given a befitting reply to all those who talk of political vendetta and ask the tax authorities to be neutral and impartial and indirectly to the EC. He wrote that those who are criticising raids in which huge amount of unaccounted cash is discovered do not reply to the allegations on merit. He wrote

 Why did the EC get irritated?

If I say that the EC got irritated because the raids hit a powerful Congress politician, I may be hauled up by the EC or even the judiciary. So, I am not imputing any motive.

My guess is that the EC was irritated that a mere deputy secretary had replied to its advisory of April 7. Recently, the EC wrote to all the ministries/departments that no communication should be sent to the Commission by an officer below the rank of Joint Secretary to the government of India. The DOR should have observed protocol.

I think, after sending the letter of April 7, the EC expected the DOR to apologise and to assure that it would be careful in the future. However, the DOR asserted its authority and simply reminded the EC that the income tax raids were conducted in accordance with the advisory of April 7 and that it is the responsibility of both the Election Commission as also of the revenue agencies to check and eventually eliminate the use of unaccounted money in the election. If the EC expected ‘apology’ or assurance to be careful in future, I am sorry to say, it crossed the Lakshman Rekha. Election or no election, it is the job of the tax authorities to collect revenue for the state and to catch tax evaders. Election or no election, they are expected to work according to law, impartially and without any fear or favour.

EC should know how income tax raids are conducted

I do not know whether Member Sushil Chandra who was Chairman of the CBDT before joining the EC explained to his senior colleagues how the raids are conducted. Neither the Revenue Secretary nor the Chairman CBDT has any role. The IT department has 14 Director Generals (Investigation) posted at 14 stations in the country. Every DG is completely free to carry out investigations and order raids. He or she is not required to obtain anyone’s permission nor can anyone give directions. To maintain complete secrecy, the preparations are known only to him/her, the next in command and an Assistant Director General (the operational officer). He/she can refuse to give any prior information even to the Chairman and this has happened in the past. I remember a very old incident that took place when, probably, R. Venkataraman was Finance Minister (FM). The CBDT Member (Investigation) summoned the DG of Delhi and asked him whether he was preparing to raid any premises and if so whose and when. When the DG refused to give the information, the angry Member took him to the Chairman who supported the DG. Ultimately all the three and Revenue Secretary went to the FM. After listening to the whole story, the FM got a note prepared that no one – Minister, or Revenue Secretary, or Chairman CBDT or Member – had any power to ask for prior information.

EC’s reaction was unwarranted

Under such a system, there was no point in calling and reprimanding Revenue Secretary and Chairman, CBDT. It is really surprising and shocking that instead of appreciating the action of the income tax sleuths, taken at great risk in the national interest, the EC was more concerned with the respect it ‘deserves’. In order to assert its own superiority, the EC demeaned an important institution of the country charged with the responsibility of unearthing black money. If the EC expects respect from the income tax authorities, it should also respect the legal and constitutional responsibilities of other institutions. Respect begets respect.

The advisory of April 7 was unwarranted. As explained earlier, when the investigating authorities received confirmed information about a huge amount of cash and transactions in illegal money, they could not have waited for similar information about the ruling or any other party. To expect or demand that is absurd. The unwarranted and avoidable expression of anger and a letter reprimanding the DOR has demeaned the income tax authorities and raised doubts about the EC’s conduct. The EC unnecessarily wasted its time on a trivial matter. Yes, it was a trivial matter blown out of proportion.

All that the EC should have done after receiving information about raids is to ask for a factual report and after discussion conveyed its desire to the Chairman CBDT to be informed about raids as early as possible.

Kudos to income tax authorities

It is a matter of great satisfaction that neither the CBDT nor the DGs posted in the field felt demoralised, though the ‘reprimand’ must have gladdened the heart of the corrupt fellows. They did not succumb to unwarranted pressure of the EC. Almost everyday income tax sleuths are unearthing cash hoarded by politicians and businessmen.

Code of conduct for the EC

The first clause of the code of conduct for the EC should be that it must not exceed the Lakshman Rekha and must not demean other institutions discharging their responsibilities.

Devendra Narain

@narain41