Having dragged its feet during last week’s first round of voting on enforcing rules designed to ensure a level playing field for all political parties, the Election Commission of India, a constitutional authority, got a wake up call via a petition to the Supreme Court.

Only then did the commission issue notices to four high-profile politicians barring them from campaigning for 48 to 72 hours prior to the polling day for failure to comply with the Model Code of Conduct and the Representation of the People Act (1951), which prohibit candidates and their campaigners from seeking votes on the basis of religion, race, caste, community or language.

Ajay Singh Bisht, more popularly known as Yogi Adityanath, chief minister of India’s largest and politically significant state, Uttar Pradesh, had proclaimed that if Ali (a common Muslim name) was with the opposition, then Bajrang Bali  – a Hindu god – was with the Bharatiya Janata Party. Bahujan Samaj Party supremo Mayawati – who in response had said that she wanted both Ali and Bajranbali, meaning votes from both Muslims and Hindus – was cited for appealing to Muslims to vote en bloc for the anti-BJP alliance.

Union minister Maneka Gandhi was cited for telling a Muslim gathering during a rally that she would “win without your votes” – but that she would remember this when they approached her for work. Azam Khan of Samajwadi Party had made a derogatory remark about his female rival while campaigning in Rampur, Uttar Pradesh.

The Election Commission also sought an explanation from Congress president Rahul Gandhi for his campaign theme, “Chowkidar Chor Hai” (the watchman is a thief), which is a jibe at Prime Minister Narendra Modi.

Commission spares Modi

Missing from this roster was a name that could have also attracted the commission’s ire. The name: Narendra Modi.

However, the election commission’s actions came after a petition was filed by an Indian expatriate yoga teacher living in the United Arab Emirates, Harpreet Mansukhani. She told the Supreme Court that ideally, the commission would have acted on numerous violations by several political parties had the laws and rules been read in a fair manner.

While the commission woke up to its powers after the petition was heard, it side stepped the fact that the prime minister’s speeches have been dosed with communal references. He also makes repeated mention of the armed forces, which was explicitly disallowed by the commission.

In his speech at Maharashtra’s Wardha earlier this month, Modi referred to the population of Muslims in Wayanad in Kerala in such a way as to suggest that it was the reason Rahul Gandhi had chosen it as one of his two seats.

In Latur, Modi asked if the first-time voters would “vote for the para-military jawans [soldiers] killed in the Pulwama terror attack” in February or if their vote could be “dedicated to the brave soldiers who carried out the air-strike” in Balakot, Pakistan, after that. Bharatiya Janata Party president Amit Shah also referred to Wayanad as “Pakistani territory” in one of his speeches.

NaMo TV, named after Modi and featuring his speeches and oher pro-BJP material, has also been in the middle of controversy as the commission reversed its stance on the ban of  the network. NaMo TV is available on all major Direct to Home platforms. Instead of an outright ban, the commission finally stated that NaMo cannot display ‘election matter’ during the silence period – when other campaigning also must be quieted down so that voters can think clearly about their choices.

Far from docking Modi’s campaign time, the commission has not even issued notices to him so far. This lapse has not escaped the attention of opposition parties or public intellectuals. “Is there a separate law for the prime minister or a separate code of conduct?” asked SY Quraishi, former chief election commissioner, speaking on a panel discussion on this issue. He believes that by not acting against these lapses, the commission has tarred its reputation, causing public doubts about its impartiality.

Political commentators have remarked that the commission did not find the nerve to take steps against Modi and Shah. A citizen’s complaint on the commission’s grievance portal elicited the response that a report on Modi’s violations had been received on April 14.

The model code is not enforceable by law; only certain provisions may be enforced by invoking corresponding provisions in laws such as the Representation of People Act, the Indian Penal Code (1860) and the Code of Criminal Procedure (1973). Strapped as it tends to be with election procedures and polling, the commission has been hesitant to get into a legal tangle.

However, a determined opposition or a firm commission can make a difference. A case that involved Shiv Sena’s founder and prominent leader in Maharashtra, the late Balasaheb Thackeray, is an example. Charged with using religious references and denigrating Muslims during election speeches in December 1987, Thackeray and Shiv Sena candidate Ramesh Prabhoo were taken to the Bombay High Court and were held guilty of violating the Representation of the People Act. The court also ruled the latter’s election void.

In 1995, the Supreme Court upheld that judgment and disenfranchised Thackeray and Prabhoo for six years. The three-judge bench had remarked: “We cannot help recording our distress at these kinds of speeches given by a top leader of a political party. The lack of restraint in the language used and the derogatory terms used therein to refer to a group of people in an election speech is indeed to be condemned. This [judgment] is essential not only for maintaining decency and propriety in the election campaign, but also … for a free and fair poll in a secular democracy.”

Far from reading out the riot act to Modi, the commission suspended an officer posted as an observer in Odisha state who had allegedly searched the prime minister’s helicopter in Sambalpur. This was after a mysterious black box was seen allegedly being taken out of Modi’s chopper a few days earlier in Karnataka. Since then other leaders’ vehicles have been checked but Modi, protected by the Special Protection Group, cannot be searched, according to the commission.

Congress, the main opposition party, and others have registered complaints with the commission. “The prime minister is not above the law of land” Sanjay Jha, national spokesperson of the Congress, said to Asia Times. “He has brazenly polarized, named communities, exacerbated communal divisions and invoked the defense forces. These are serious violations and the ECI has no reason to not suspend him from campaigning. Suspending him for three days is inadequate. The first violation should carry a warning and suspension for a week; the second violation should debar him from campaigning altogether,” Jha said.

The commission’s timidity seems to have given others openings to make threats. Gujarat BJP state legislator Ramesh Katara, campaigning for his colleague Jaswant Sinh Bhabor, warned that “Narendra Modi has installed cameras inside the polling stations this time. We will know who has voted [for] the Congress.”

Not only is such speech illegal, it also raises questions about the secrecy of the ballot in the era of electronic voting machines and the voter verifiable paper audit trail.