Lavasa said that the MCC controls four stakeholders — political parties, candidates, and the government which consists of the party in power and the bureaucrats

Commission of India faces in the conduct of general elections in India: enforcement of the Model Code of Conduct; blurring of lines between news and publicity of candidates and political parties; and monitoring and capping election expenditure by political parties, former election commissioner Ashok Lavasa said at an event on the 2024 general elections at the Indian International Centre in New Delhi on Thursday. “All of them have a bearing on level playing field,” he said.

Lavasa said that the MCC controls four stakeholders — political parties, candidates, and the government which consists of the party in power and the bureaucrats. Most provisions of the MCC, he said, already exist in the law. This document, according to a Supreme Court judgement, “carries the force of law”, he said. “But as we know that in law, there is a letter and there is a spirit. So people who are smart, they will adhere to the letter but violate the spirit. And that will give enough reason for the enforcement authority to say that there is no violation of the letter so what can I do,” he said.

Since the elections were declared on March 16, multiple opposition parties have repeatedly complained to the poll body about the abuse of central investigation agencies by the central government to undermine the opposition and hamper the level playing field, especially after the arrest of Delhi chief minister and Aam Aadmi Party national convenor Arvind Kejriwal.

Lavasa said that the MCC does not cover courts and law enforcement agencies so the poll body “maintains a very studious approach, a very careful approach on how to deal with the actions of law enforcement agencies and the courts”, he said. “But the fact is that they do have the power to call out or to scrutinise the plaints they would receive even pertaining to law enforcement agencies if the complaint means the disturbance of the level playing field. So they do have the authority but they have a tradition, they do have a framework within which they operate and that is one of the biggest challenges — how to balance it,” he said.

In the run up to the elections, multiple political parties have accused the poll body of turning a blind eye to violations of the MCC by the Bharatiya Janata Party (BJP). Moreover, despite the BJP blatantly invoking religion in its campaigns, which is a clear violation of the MCC, the EC has not taken any action against the ruling party. Lavasa said that there is a “good reason” why the poll body avoids taking suo motu action – to avoid “exposing themselves to accusations of discrimination”. “They cannot be expected to know everything that is happening. I think for good reason, they have taken a principled position. Although nothing prevents them from taking suo motu cognizance but they hold themselves back for this reason and they respond to complaints,” he said.

To deal with the problem of “cherry picking complaints”, Lavasa said that the issue can be resolved if the EC uploads all complaints it receives and action taken for the violation of the MCC on its website. “It is there for people to see. What decision the Election Commission eventually takes on the complaint could be a matter of debate and discuss because in any case it is not possible to satisfy everyone all the time, but at least nobody will accuse you of not acting or not disclosing the information that people ought to know before they make up their mind on whether the Election Commission is fair or not fair,” he said.

Lavasa also said that these days, the distinction between publicity and paid news is “quite blurred”. “Whereas there are regulations to control paid publicity in the sense that it will go into the account of the candidate who is giving the publicity material, all that is accounted for. But if the media itself decides to publicise a candidate or a party in a disproportionate manner, what authority can the Election Commission exercise on that media?” he said.

The third problem is the lack of limit on spending by political parties during elections. While spending by political candidates is limited to ₹95 lakh, and is monitored by expenditure observers and different committees, there is no such limit for political parties. “Election Commission has been recommending to the government that we must put a ceiling ... on spending by political parties during elections,” Lavasa said. The other aspect, is said, is the expenditure which is incurred off the books. “Nobody knows what that amount is; it is all speculation. I think ADR [Association for Democratic Reforms] tried to put some number to that during the 2019 elections but then these are numbers which nobody can verify,” he said.

Lavasa also addressed the issue of release of feature films that double as propaganda during election season. He said that in 2019, the EC stopped the release of a biopic but said that these are “complex matters”. “[If] you put a blanket ban saying that during this period, nothing doing, nobody will release anything of this kind but then it suppresses freedom of expression.”

On March 29, the BJP live-streamed an interaction between PM Narendra Modi and Microsoft co-founder and billionaire Bill Gates without specifying that the interaction occurred on February 29, a fortnight before the elections were declared. How do you hold parties and media accountable for such misleading actions?

Lavasa said that is a complex issue where before the MCC is imposed, “there is a spate of advertisements issued at the expense of the government”. In the past, he said, there have been suggestions that no advertisements from the government should be released for a 90-day or a 180-day period before the D-Day. “But it is not for Election Commission to unilaterally take this decision because you will be treading on some of the legitimate functions that government is doing by encroaching on that authority and curtailing the authority of the government to inform the people about government activity,” he said.