The Model Code of Conduct is a set of norms that has evolved over a period of six decades. These norms are to be abided by political parties, their campaigners and candidates during a specific period before and during elections.

Political parties have been an integral element of the freedom movement and the political ethos of India. While this is the case, they have also caused various controversies by using religion, money and muscle power to garner votes during elections.

The most high-profile case of electoral malpractice in India was probably the declaration of the election of Indira Gandhi from Rae Bareli as null and void during 1975, on the count of misusing the government machinery to gain an unfair advantage in an election.

As a result, on the eve of the general election to the Lok Sabha in October 1979, the Election Commission issued a comprehensive Model Code which was divided into seven parts, devoting one complete part (Part VII) to the role of the party in power at the Centre and in the States.

Anti-defection provisions making political defection a ground for disqualification were first inserted in the Constitution of India only in 1985. Yet, in today’s times, one cannot imagine that elections are completely free and fair.

The 1991 general election was a watershed event that contributed majorly to the evolution of the Model Code. That year, the Model Code was further amplified and re-issued. The Election Commission took the stand that Model Code shall come into operation right from the day the election schedule was announced. There was a major disagreement between the Election Commission and the Central government and some of the state governments on this point.

A definite view on this issue came from the Punjab & Haryana High Court in Harbans Singh Jalal v. Union of India & Others. In this matter, a writ petition was filed against the Election Commission’s direction to make the Model Code applicable from the date of announcement of the programme for the general election to the Punjab Legislative Assembly in December 1996. While upholding the Election Commission’s direction, the High Court in its order dated May 27, 1997, maintained that the Election Commission was entitled to take necessary steps for conducting free and fair elections, even from the date of announcement of the election. The Central government. who was a party in the matter, appealed this decision before the Supreme Court, which gave no concrete view on the same.

A series of meetings were held between the Election Commission and the Centre to resolve the issue, after which an agreement was reached on April 16, 2001. It was agreed that the Model Code would come into force from the date the Election Commission announces the schedule for any election, though a rider was added that such announcement shall not ordinarily be made more than three weeks in advance of the date of notification of that election. Later, it was endorsed by the Supreme Court in its judgment in S Subramaniam Balaji v. Government of Tamil Nadu & Others dated July 5, 2013 that the Model Code becomes enforceable from the date of announcement of the election programme.

In February 2014, an additional Part VIII was added to the Model Code to regulate the issue of election manifestos. In fact, Part VIII of the Model Code relating to manifesto comes into force even before the date of announcement of the election, if a manifesto is issued by any political party before such announcement.

• General Conduct

  1. No party or candidate shall participate in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic.

  2. Criticism of other parties or their workers based on unverified allegations or distortion shall be avoided.

  3. There shall be no appeal to caste or communal feelings for securing votes.

  4. All parties and candidates shall avoid scrupulously all activities which are “corrupt practices” and offences under the election law.

  5. The right of every individual for peaceful and undisturbed home-life shall be respected.

  6. No political party or candidate shall permit its or his followers to make use of any individual’s land, building, compound wall etc., without his permission for erecting flag-staffs, suspending banners, pasting notices, writing slogans etc.

  7. Political parties and candidates shall ensure that their supporters do not create obstructions in or break up meetings and processions organized by other parties.

• Meetings

1. The party or candidate shall inform the local police authorities of the venue and time of any proposed meeting well in advance.

2. A party or candidate shall ascertain in advance if there is any restrictive or prohibitory order in force in the place proposed for the meeting; if such orders exist they shall be followed strictly. If any exemption is required from such orders, it shall be applied for and obtained well in time.

3. Permission or license is to be obtained for facilities in connection with any proposed meeting.

4. Organizers of a meeting shall invariably seek the assistance of the police on duty for dealing with persons disturbing a meeting or otherwise attempting to create disorder.

• Publication of advertisements

It is observed that governments publish advertisements of various kinds, including advertisements on their accomplishments and achievements. Such advertisements are often released on special occasions, and on such occasions, if bye-elections are in progress, the issue of Model Code comes into question. It is not technically possible to block such advertisements.

The Election Commission has considered the issue and directed that:

1. An advertisement of general nature in connection with specific occasions of importance may be published. The advertisement shall not bear a photograph of any Minister or other political functionaries.

2. No advertisement having a specific reference or connotation to the areas covered by the constituencies going to bye-election shall be published on any date during the period.

3. Further, it is clarified that no new schemes should be advertised in the districts where the bye-election is being conducted.

• Campaigning

Election campaigns are the means through which candidates and political parties prepare and present their ideas and positions on issues to the voters in the period preceding Election Day. For this, they use various elements such as vehicles, flags, temporary office, bulk SMS or voice messages, loudspeakers, etc. The Election Commission has provided consolidated instructions through the Model Code of Conduct (MCC) which imposes some conditions on the use of such tools. The Code also provides a ban on campaigns based on caste, religion or language after the announcement of elections.

• Posting of officers and ban on transfers of officials

In the interest of free and fair elections and to ensure that there is no scope for public complaints, the Election Commission has been following a consistent policy that government officials directly connected with the election are not posted in home district or districts where they have served for a considerably long period. It was noted that such practice of reposting an officer to the same constituency/district, where he was posted during the last elections, may have some political motive.

To remedy this, the Election Commission decided to include a new stipulation in its directions issued on September 7, 2016, on the lines that “while taking the decision of transfer/posting of an officer it should be taken care that they may not be posted to that constituency where they were posted in previous elections."

The MCC is not admissible in a court of law as a wholesome rule book with penalties accorded. The Chief Election Commissioner or the Election Commissioner is empowered under Article 324 of the Indian Constitution to call upon any party or candidate against whom a complaint has been lodged. All ruling and contesting parties must adhere to these norms. This is a crucial step in curbing these violations, but in most cases, these complaints are suspended. However, certain provisions of the MCC can be administered legally by invoking corresponding provisions in statutes like the Indian Penal Code 1860, Code of Criminal Procedure 1973 and Representation of the People Act, 1951.

On July 3, 2018, the EC launched the C-vigil application for citizens to report on matters of political misconduct pertaining to violation of the MCC. The report must contain evidence in the form of videos or photographs and must necessarily be geo-tagged. The complaints filed are sent to the district control room, which then sends a surveillance squad with local police officers to investigate the matter.

The EC has done well till now in enforcing the MCC, but a lot needs to be done to improve the situation as violations are rampant and are met with impunity in urban areas. The situation in rural India is even worse in certain states.

Satya Muley is an advocate practicing at the Bombay High Court.