Conducting democratic elections during a surge in COVID-19 cases has been a question that countries across the world have been grappling with since the onset of the pandemic. While on the one hand there is an obligation to protect public health, on the other hand, authorities are obligated to ensure regular elections for accountable governance. Faced with this dilemma, around sixty countries have chosen to prioritise public health and postpone elections. India, however, opted to conduct elections despite COVID-19 cases skyrocketing. Not only have millions of Indians casted votes amidst the second wave of the pandemic, but they have also participated in large-scale rallies, with thousands gathering in public without masks and violating social distancing protocols. Against this troubling backdrop, concerned onlookers have asked whether the Election Comission (EC), a constitutional body responsible for the supervision of elections, can be held accountable for its complicity in the disastrous second wave.
Last month, as West Bengal, Assam, Kerala, Tamil Nadu, and Puducherry prepared to conduct elections, the EC was lambasted by the Madras High Court, with judges calling out the body for its “puerile silence” on the blatant violations of the COVID-19 protocols, arguing that the Commission “should be put up on murder charges” for turning a blind eye to the impact of political rallies on India’s COVID-19 crisis.
Even though the Madras High Court judges have by their own tacit admission engaged in hyperbole (by omitting their calls for the Commission to be charged with murder in their final order), there is a visible link between the surge in COVID-19 cases and elections. Despite Indian Home Minister Amit Shah claiming that the elections shouldn’t be blamed for the second wave, there has been a demonstrable spike in COVID-19 cases in poll-bound regions.
For example, non-poll-pound Maharashtra and Delhi, which were the worst-affected regions by the second wave, respectively saw a 118% and 209% increase in daily cases from April 1 to April 18. Meanwhile, West Bengal, which witnessed large-scale political rallies since the beginning of April, saw a 1040% rise during the same period. As illustrated by the examples of Maharashtra and Delhi, there are several other factors at play in the current surge in cases. However, as evidenced by West Bengal, political rallies, specifically in light of the apparent violations of the COVID-19 protocols, are definitely a contributing factor.
Given these statistics, it comes as little surprise that the Madras High Court and others have pointed fingers at the EC. That being said, it is critical to understand what the scope of the EC is, specifically in light of the unprecedented circumstances brought forth by the pandemic.
The EC wields a wide range of powers concerning the “superintendence, direction, and control” of elections. In this regard, it has the ability to lay down rules, called the Model Code of Conduct, which guides campaigners, political parties, and their leaders’ behaviour before and during an election. In the case of the recent elections, whose results were declared on May 2, the Model Code of Conduct had been in place since February 26 (when election dates were announced).
However, the EC failed to use these expansive provisions to enforce COVID-19 protocols. While on April 29 the body did pass orders calling for the maintenance of social distancing and mandating masks, these orders were restricted to polling stations and did not encompass campaign rallies. It was only on April 16, by when most poll-bound states had already found themselves in a spiral of surging cases, that the EC passed an order limiting political rallies. However, this, too, was an entirely superficial attempt by the EC, which merely invoked its plenary powers to prohibit rallying between 7 PM to 10 AM.
There is an argument to be made that local government and law enforcement agencies are better equipped to ensure compliance with COVID-19 protocols. However, the EC has historically enforced rules and regulations on political parties’ leaders and campaigners. One of the critical powers of the EC that enables the body to implement these rules is its ability to block political parties from campaigning. In fact, in April, Mamata Banerjee, the Chief Minister of West Bengal, was banned for campaigning over her “highly objectionable remarks” during an election rally, showing that the use of this power is not unprecedented. Therefore, the EC would have been well within its powers to mandate abidance by COVID-19 protocols at campaign rallies. It could have also cracked down on political parties and leaders who flouted the rules by restricting them from campaigning for a certain period of time, thereby ensuring greater compliance from political leaders and their campaigners.
The current situation was not entirely unpredictable either. On April 1, India was already reporting 81,466 cases each day, rapidly approaching the numbers it recorded during the peak of the first wave. Moreover, the EC also had several previously-conducted elections from across the world to learn from. For instance, elections in Serbia and Belarus resulted in a sharp surge in COVID-19 cases. Meanwhile, pre-empting the impact of election rallies on the pandemic, Singapore and Malaysia had imposed a complete ban on rallies altogether. Furthermore, Mongolia urged political leaders to conduct election rallies online; if digital rallies were not possible, in-person rallies were allowed to be conducted with limited crowds and mandatory compliance with COVID-19 protocol such as social distancing, temperature checks, and compulsory masking. Admittedly, a complete ban on rallies and forcing political parties to shift online is not a feasible solution in India, as it may result in information asymmetry, seeing as internet penetration in the country stands at a meagre 34.4%. Nevertheless, imposing strict restrictions on the size of gatherings and stringently imposing social distancing and masking rules would have perhaps prevented the virus from making its way through the poll-pound states as rampantly as it currently is.
There are a number of factors that precipitated the current second wave of COVID-19 cases and cases are rising in states where elections did not take place as well. Therefore, it is not clear how effective such measures by the EC or local authorities would have been. However, it is clear that greater vigilance could have definitely reduced the impact and perhaps provided healthcare facilities with additional time to prepare for the current surge. Although holding the EC legally responsible for its failure to implement adequate measures to curb the spread of COVID-19 during elections may be a step too far, there is nonetheless a lesson to be learnt about how the body could have, and can in the future, more responsibly wield its powers, particularly during a public health crisis.
Election Campaigning and COVID-19: Can the Election Commission be Held Responsible?
The Election Commission could have, and should have, played a more significant role in enforcing COVID-19 protocols during election campaigns.
May 9, 2021
SOURCE: ASSOCIATED PRESS