A delegation led by Union Minister Vijay Goel called on the Chief Election Commissioner Sunil Arora and submitted a memorandum alleging that the Aam Aadmi Party's government was misusing its official position. The delegation accused AAP workers of making phone calls to voters stating that their names had been deleted from the voter's list and that they (AAP) can help voters get their names restored.
AAP's version is that the BJP got more than 30 lakh voters' names deleted in Delhi and hence it started talking about this issue and hired a call centre to inform voters about it. AAP alleged that this is what led the BJP to order the Delhi Police to harass the call centre employees. Chief Minister Arvind Kejriwal tweeted:
Why is CEC raiding our call centres and asking for our data? What is our crime? Pl tell our crime at least. https://t.co/uaECjjAxRh
" Arvind Kejriwal (@ArvindKejriwal) March 15, 2019
Speaking to Firstpost, senior AAP leader Sanjay Singh said that the raids were being conducted by the state police that is controlled by the Centre. "How can the police raid our call centres and demand our data? They are influencing our campaign. How are the crime branch and police getting even involved?" he asked. Singh questioned the reason why no action wasn't being taken by the CEC instead and accused the BJP for drumming up a list of 70 complaints by its own people against AAP.
Manoj Tiwari, Delhi BJP head, told Firstpost that Kejriwal is making his disrespect for constitutional mechanisms evident by taking this stand. The Election Commission of India has asserted that the local state police and Central paramilitary forces come under its superintendence and control during the elections for all purposes.
Once the complaint has been registered with the CEC, it is their decision on what action they like to take against the agency. Given the nature of the case, which involved phone calls and mass data collection, senior police officials might have deputed the crime branch to exercise its specialised skills. No arrests were made. In other states, politicisation of the state police becomes an issue around election time and central forces are deputed to keep a check. In Delhi, the police is controlled by the Centre. However, when a complaint is registered with an authorised body, there is nothing illegal about referring the case to the local police.
Going beyond the incident, the purpose of the Model Code of Conduct is to be able to keep a check on the party in power, because it is that party which can misuse administrative machinery for political gain. The Election Commission is well within its rights to investigate complaints from Opposition parties and since Kejriwal tweeted to the CEC, a dispassionate analysis to the political tussle between the BJP and AAP becomes essential.
During the recent state elections in Chhattisgarh, a senior IAS officer was appointed as a special observer. On condition of anonymity, he shared an incident with Firstpost regarding a vehicle distributing campaign material to voters, less than 48 hours before polling. "The Election Commission ordered the Sub-Divisional Magistrate to look for that vehicle and when it was found, the material was confiscated," he said, explaining that raising a complaint is bona fide right of political parties.
AAP has held a sit-in protest out the Election Commission office against Delhi Police over allegedly harassing call centre employees hired by their party and demanded action from the poll panel. A delegation led by Manish Sisodia, comprising senior leaders like Singh and party's Lok Sabha candidates Raghav Chadha and Atishi, reached the CEC's office and alleged that the police has been conducting searches at AAP's call centres at the behest of the BJP.
Unlike the lack of jurisdiction over the municipality and the state police, which can become a subject of political contest between the BJP and AAP, this particular issue centres around the constitutional powers of an autonomous body that has a long history of keeping parties in check.
One year etched in the story of that history is 1971, when freedom fighter Raj Narain contested in the Lok Sabha election against the then prime minister Indira Gandhi from the Rae Bareilly seat. Gandhi was re-elected by a two-to-one margin. With his election petition, Narain had summoned the state government of Uttar Pradesh before the Allahabad High Court to produce a document called the Blue Book that contained instructions for the protection of the Prime Minister of India when on a tour or in travel.
The government officials refused to produce the document, citing Section 123 of the Evidence Act in which it is stated that 'no one shall be permitted to give any evidence derived from unpublished official records relating to any affair of State except with the permission of the Officer at the Head of the Department concerned who shall give or withhold such permission as he thinks fit.' The central government of the time failed to file an affidavit to claim such privilege.
The high court hence ordered the production of the Blue Book, mainly for the government's failure in claiming its privilege under Section 123 (imposes the obligation on the government to timely claim such privilege in an affidavit). The Supreme Court of India held that the court had the discretion of drawing inference from non-filing of an affidavit that no privilege was claimed and that it enjoyed the judicial authority 'to look to the document itself and take a decision'. The Supreme Court also noted that under Section 162 of the Evidence Act, an objection to disclosure of a privileged government record 'should be filed on the date which is fixed for the production of document so that the Court may decide the validity of such objection.'
Right after the sweeping victory of the Indira Gandhi government, on 12 June 1975, The High Court of Allahabad found Indira Gandhi guilty of misusing government machinery under the The Representation of People Act, 1951, which meant that she could no longer continue to serve as the Prime Minister. She appealed in the Supreme Court but it was on vacation. Thereafter, a state of emergency was declared by the then President Fakrudeen Ali Ahmad citing internal disturbance.
The politicisation of the state police is a separate issue and the assumption of that politicisation, be it in the manhandling of its people by authorities or the motive of accessing the election data, isn't reason enough to question the motives of the CEC.