Whose job is it to stop election interference, if not the Election Commission’s?

The punitive actions by India’s tax authorities and the Enforcement Directorate against Opposition political parties and leaders, especially after the general elections have been notified, amount to election interference. The statutory body charged with holding free and fair elections is the Election Commission of India. It has powers to issue directives to the executive to act in a manner conducive to the conduct of free elections. Failure to check the intimidation of Opposition parties and leaders by agencies of the central government amounts to abdication of its responsibility by the Commission. If the Commission does not realise this and make amends, the Supreme Court should, suo motu, direct the Commission to act.

In Transparency International’s Corruption Perception Index, India fell from its rank of 85 in 2022 to 93 in 2023. In 2023, most states of the country were ruled by the BJP, as in 2022. That means the corruption that was reported by businessmen and experts was experienced in governments mostly run by the BJP. Yet, the tax authorities and the Enforcement Directorate, mandated to enforce and investigate violations of the Prevention of Money Laundering Act and the Foreign Exchange Management Act, have scrupulously avoided going after leaders of the ruling party and focused their energies solely on leaders of the Opposition.

Clear double standards

Corruption, it might be argued, is corruption, and should be acted against. If corruption by Opposition leaders is acted against, surely that is preferable to those culpable going off scot-free, even if their counterparts in the ruling party remain untouched? Isn’t a garden better off by removing some of its weeds, even if all the weeds are not removed? Such reasoning is specious at multiple levels.

Let us assume that those Opposition leaders coming under the boot of the Centre’s investigative agencies are, indeed, corrupt. Even then, by selectively acting against the corrupt among the Opposition while leaving the corrupt within the ruling party unfettered, the investigative agencies prepare the ground for increasing the overall level of corruption in the polity. By selectively acting against only the corrupt among the Opposition, the executive arm of the state tilts the power balance in favour of the ruling party, increasing the concentration of power. Absolute power, you might have heard, corrupts absolutely. The closer the ruling party moves towards absolute power, the closer it moves to absolute corruption. Partial removal of weeds does not improve the garden, if harmless dandelion is being weeded out to let poison ivy spread.

Can't even file charges against the accused

But it is not the case that the targets of all raids, questioning and arrests by the investigative agencies are, in fact, corrupt. They are merely accused of corruption. Even after being put behind bars for months, the state has been unable to even frame charges against them, leave alone prove that they are corrupt. This violates the principle that no one should be deprived of their liberty in an arbitrary manner. Articles 21 and 22 of the Constitution supposedly shield Indian citizens from arbitrary truncation of their liberty. The norm that bail should be the rule and jail the exception, for those detained on suspicion of having committed an offence is violated by the courts, cowed by an all-powerful executive.

Three conditions warrant denial of bail: One, the suspect could flee. Two, the suspect could tamper with the evidence if set at large. Three, the suspect could commit another offence while at large pending the prosecution of the initial charge. Does any of these conditions apply to Arvind Kejriwal, chief minister of Delhi?

He is a leader of the Aam Aadmi Party, and of the Opposition grouping, INDIA. He intends to fight the government, not flee. The risk of flight does not exist.

Will they tamper evidence?

Come to the possibility of tampering with evidence. Given India's air pollution level, even the driven snow is not particularly pure. So, let us not worry about the purity of Kejriwal’s conscience. The alleged offence for which he has been arrested, putting in place an excise policy that supposedly favoured some liquor companies, is now more than a year old and the deputy chief minister Manish Sisodia has been in jail, without a charge being framed against him, for 13 months. If evidence had to be tampered with or destroyed in relation to the excise policy, it was destroyed long ago. Kejriwal is not being investigated for stupidity, after all. There is no risk of any evidence being tampered with.

If granted bail, can Kejriwal repeat the offence of putting in place another biased excise policy tailored to suit certain liquor companies, covertly, without anyone taking note? The idea is absurd. There are no grounds for denying him bail.

Similar considerations apply in the case of another chief minister now being administered the Enforcement Directorate’s tender care behind bars, Hemant Soren. True, he had resigned as chief minister minutes before his arrest, but that does not alter the fact that his arrest took another Opposition politician out of action during the election campaign.

The Congress party’s bank accounts have been frozen, to collect alleged income tax dues arising from violations in 2017-18. The Communist Party of India is being asked to pay a fine of Rs 11 crore, for using an old Permanent Account Number card.

The time to recover tax dues is not in the run-up to the general elections. Depriving political parties of their funds and leaders and activists during an election campaign amounts to interference with the elections.

In the post-Soviet world of globalization, not even a pretence of non-capitalist economic organization offers itself as a differentiating characteristic for systemic rivalry among geopolitical blocs. The new divide is between democracies and the non-democracies. So far, the world has been happy to count India among the democracies.

If the attacks on Opposition parties and leaders continue on the pretext of correcting economic wrongs, the fig leaf covering the truth of India’s democracy would wither and drop off. What is revealed would not just be a thing of beauty but also push India out of the Democracy camp.

Much rides on the actions of the Election Commission and the ability of the Supreme Court to proactively defend the Constitution.