As the dust settles after an acrimonious election cycle, the Election Commission of India (ECI) continues to reel under the unprecedented allegations of bias. This election will most certainly be remembered as the one when there was a complete breakdown of trust between the ECI and the political opposition with politicians and the civil society consistently raising doubts about the veracity of the electronic voting machines and the election timelines.Among the prominent concerns was ECI’s alleged lackadaisical approach to Prime Minister Narendra Modi’s and BJP president Amit Shah’s divisive appeals to religion during the campaign, which are prohibited under the law. But apart from the allegations of bias, a review of the poll body’s orders implementing this prohibition reflects entrenched institutional problems that are bound to undermine public confidence in the long run.Double standards?The Indian election law prohibits candidates from making appeals on the ground of religion, race, caste, community or language. Add to this the prohibition on promoting “feelings of enmity or hatred between different classes”, which is also criminalised under the Indian Penal Code. The Model Code of Conduct (MCC) governing elections reiterates these prohibitions and bars the use of any place of worship for canvassing votes.In the 2019 general election cycle, there were at least 21 instances, as available on the ECI website, where these prohibitions were alleged to have been violated. ECI found merit in all the complaints except six.In three cases, after an investigation, the poll body found the complaints against Digvijay Singh and Okram Ibobi Singh of the Congress Party and the BJP’s Vijay Rupani to be baseless and disposed them through reasoned orders. But in the remaining three – one against Shah and two against Modi – the ECI disposed the complaints without giving any reasons whatsoever.Also read: Election Commission Accused of Violating MCC for Delaying Action on ModiThe complaints against the two BJP leaders were in reference to three speeches they had made during the course of campaigning. In Wardha, Modi brought up “Hindu terrorism” and told his audience, “How can Congress be forgiven for insulting Hindus? Were you not hurt when you heard the word Hindu terror?”Shah said something similar in Nagpur. He told the audience that Rahul Gandhi had “defamed the Hindu community across the world” by talking about “Hindu terror” and “saffron terror.”Shah went one step further in his speech. He said that when “the election crowds come out” to greet Gandhi in his constituency of Wayanad, “we cannot know if it is India or Pakistan” – clearly referring to Gandhi’s Muslim supporters. In Nanded, Modi used the same motif when he told the audience that Rahul Gandhi had “used a microscope to find…such a seat where the majority of this country is a minority.”Since there was no dispute about their content, ECI could have only ruled on the basis of the substance of the speeches. But without any reasons, it is unclear on what grounds the ECI ruled the way it did.The fact that similar speeches made by others attracted the ire of the polling body raises further questions on whether the institution had fairly applied its mind.The Election Commission punished speeches that explicitly invoked religion and religious identity through the course of the elections. Adityanath was slapped with a 72-hour campaign ban for stating that the SP-BSP mahagathbandhan cared only for “Ali” and not “Bajrangbali.” BJP’s Suresh Gopi was warned after he invoked Lord Ayyappa and his “wrath” during election campaigning.The election body did not excuse references to religious identity through innuendos. Giriraj Singh was censured for stating that if those “who need three feet of ground for graves” – evidently referring to Muslims – do not sing Vande Mataram, the country will “never forgive” them. Gulab Chand Kataria of the BJP was “censured” and warned for telling his audience that those “who were 9% had become 19%” – again, evidently referring to Muslims – and “India will be broken into five pieces so that India’s culture is destroyed.”ECI also did not take kindly to any reference to the electorate’s religious identity. Navjot Singh Siddhu and Mayawati were slapped with campaign bans for encouraging Muslims to vote en bloc. Azam Khan was slapped with a 48-hour campaign ban for stating that the election had become all about “abusing Muslims” for the BJP and that the prime minister was a “murderer of Muslims and a thekedar (contractor) of religion.”Also read: EC Hands out Fourth ‘Clean Chit’ to Modi, but Uploads No Details on WebsiteIt is impossible to distinguish Modi’s and Shah’s speeches from these statements that the ECI deemed fit to punish or reprimand. ECI’s reason-less order does not help. The controversy around election commissioner Ashok Lavasa’s reported dissent on the “clean chit” to the two BJP leaders has further revealed the complete lack of transparency in ECI’s decision.Lack of reasonsThe grave appearance of bias in the Modi-Shah orders is further aggravated by the way ECI appears to handle the adjudication of MCC violations more generally. In the instances where the body has provided reasoned orders, the reasons are threadbare. In each of the orders, independent of the content of the speeches, ECI just recited the same reason: that the speech had the “tone and tenor to aggravate existing differences or create mutual hatred between religious communities.”But there is clearly a difference between say a Mayawati telling her Muslim audience to vote cohesively and an Adiyanath saying that the BJP will stop the “green virus.” They are qualitatively different in terms of being “hateful” irrespective of our view of their permissibility.ECI orders reproduce the same conundrum that was at the centre of the Supreme Court’s 2017 judgment of Abhiram Singh, which extended the prohibition to any invocation of religious or caste during election campaigning. Supreme Court had made no distinction between a reference to the interests of subordinated groups among the electorate on one hand and the election rhetoric that was divisive and hateful on the other.This distinction becomes even more relevant when the ECI has to determine the appropriate punishment for the violation of MCC. ECI’s arguably abrupt imposition of a halt on campaigning after violence in West Bengal shows how consequential such decisions can be for electoral activity.A review of ECI orders on appeals to religion displays no clear standards for punishment whatsoever. While Mayawati was punished with a 48-hour campaign ban for encouraging Muslims to vote together, Navjot Singh Siddhu was punished with 72 hours for a similar speech. While Maneka Gandhi was barred from campaigning for 48 hours for telling Muslims that she will not entertain them after the election if they do not vote for him, Giriraj Singh was “warned” and “censured” for saying that Muslims “will not be forgiven” if they do not sing Vande Mataram.Despite being in a quasi-judicial avatar, ECI’s orders do not reflect a culture of reason giving.Unreasonable expectations?Over the last many decades, the ECI has gathered more and more executive power. The question we must grapple with is whether we are too sanguine about ECI’s ability to comprehensively deal with the full breadth of its expanded powers.The Supreme Court has supported this growing clout, often making the institution the vehicle for the electoral reforms it has heralded. The Abhiram Singh judgment reflected its faith in the institution’s ability to regulate electoral speech, despite how much of it operates through innuendos and dog whistling. But it was the court that had to push the ECI to act when public interest litigators approached it, claiming to be aggrieved by the proliferation of appeals on religion during the elections.ECI had to finally admit before the court that it did not have adequate powers to deal with MCC violations. It can issue advisories, warnings and in extreme situations impose campaign bars and order the filing of FIRs. But these can barely act as adequate deterrence.The polling body has of course not done itself any favours by not being either prompt or transparent. It was the court that nudged the ECI to finally decide the complaints against Modi and Shah. When it proceeded against Adityanath and Mayawati after the court got involved, it was as ad hoc as many of its orders against other violations. But we would serve its long-term health well by reassessing whether institutionally, it is really up to the task of sanitising a chaotic electoral process as much as we may hope.Mohsin Alam Bhat is an assistant professor of law and the executive-director of the Centre for Public Interest Law at Jindal Global Law School.