Moral or Model Code of Conduct? The Election Commission's powers to ensure free and fair polls

Bar & Bench April 13 2019
electoral bonds - Model Code of Conduct

Vikramaditya Jha

In the context of ongoing General Elections, all eyes are on the Election Commission of India (ECI) to conduct elections in a free and fair manner by implementing its Model Code of Conduct.

The Model Code of Conduct (MCC) is a consensus document consisting of a set of guidelines intended to help the poll campaign maintain high standards of public morality and provide a level playing field for all parties and candidates.

The Code has been issued by the ECI under executive powers under Article 324 of the Constitution of India. The Commission is entitled to issue instructions exercising plenary powers under Article 324 to ensure that the elections are conducted in a free and fair manner.

The Supreme Court observed in S. Subramaniam Balaji v. Govt. of Tamil Nadu that the Election Commission, in order to ensure a level playing field for contesting parties and candidates, and also to see that the purity of election process does not get vitiated, has been issuing instructions under the MCC, exercising its power under Article 324.

The Commission has issued a plethora of instructions and taken action, wherever necessary, against political parties or persons violating these directions. The Courts, from time to time, have upheld such directions/actions of the ECI.

However, recent trends paint a different picture.

The MCC is applicable to political parties, political leaders, electoral candidates, government machinery, including departments and offices, government officers, and any institution that runs on public funds.

The MCC has been revised on several occasions since 1974, when just before the mid-term General Elections, the Commission released a formal Model Code of Conduct for the first time. The last time this happened was in 2014, when the Commission introduced Part VIII on manifestos, pursuant to the directions of the Supreme Court in the S. Subramaniam Balaji case.

Powers and Limitations of the Commission under MCC

The MCC contains eight parts. Part I deals with general conduct expected from candidates and political parties. Parts II and III focus on public meetings and processions. Parts IV and V describe how political parties and candidates should conduct themselves on the day of polling and at the polling booths. Part VI is about the authority (observer) appointed by the EC to receive complaints on violations of the MCC. Part VII deals with the party in power.

The Code prohibits political parties or candidates from aggravating existing differences or creating mutual hatred between different religions, castes and communities. It bars candidates and parties from criticizing leaders or workers on their personal life. No appeal to caste or communal feelings for securing votes is allowed under the Code. It forbids ministers from using official machinery for election work and combining official visits with electioneering.

Advertisements glorifying the work of the incumbent government using public money are to be avoided. The government cannot announce any financial grants, promise construction of roads or other facilities, and make any ad hoc appointments during the time the Code is in force. Ministers cannot enter any polling station or counting centre, except in their capacity as a voter or a candidate.

Under the Code, even the ongoing schemes of development work or welfare, relief and rehabilitation cannot be used for election propaganda as observed by the Supreme Court in ECI v. Rajaji Mathew Thomas.

Period of Applicability

The date of enforcement of the MCC has been a bone of contention between the EC and the government. However, after the issue got settled in Union of India v. Harbans Singh Jalal, SLP(C), the Code now kicks in as soon as the election schedule is announced, and stays in force until the election process is completed.

Legal Enforceability

Although the MCC has been around for almost four decades, its observance is left to parties and candidates. It is not a legally enforceable document, and the Commission usually uses moral sanction to get political parties and candidates to fall in line. However, certain provisions of the MCC may be enforced by invoking corresponding provisions in other statutes such as the Indian Penal Code (IPC), 1860 and the Representation of the People (RP) Act, 1951.

Malpractices under MCC Corresponding Statutory Provisions Nature of Malpractice
Indulgence in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic. Section 123 (3A) of the RP Act, 1951 Corrupt Practice
Appeal to caste or communal feeling for securing votes and use of Mosques, Churches, Temples or other places of worship as forum for election propaganda. Section 123 (3)

Section 125 of the RP Act, 1951

Corrupt Practice

Electoral Offence

Bribery of voters Section 123 (1) of the RP Act,1951 and

Section 171B of the IPC

Corrupt Practice

 

Electoral Offence

Intimidation of voters Section 135A (c) of the RP Act, 1951 Electoral Offence
Impersonation of voters Section 171D of the IPC Electoral Offence
Canvassing within 100 meters of polling stations Section 130 of the RP Act, 1951. Electoral Offence
Holding of public meetings during the period of 48 hours ending
with the hour fixed for the close of the poll
Section 126 (1) of the RP Act Electoral Offence
Transport and conveyance of voters to and from polling stations Section 123(5) and

Section 133 of the RP Act

Electoral Offence
Creating obstruction in or breaking up meetings and processions
of one political party by workers of other parties, etc.
Section 127 RP Act Electoral Offence
Serving or distributing liquor on polling day and during the forty
eight hours preceding
Section 135 (c) RP Act Electoral Offence

Source: Manual on Model Code of Conduct, ECI, March, 2019

Governments have in the past attempted to amend the RP Act, 1951, to make some violations of the MCC illegal and punishable. However, the EC has argued that making the Code legally enforceable would be self-defeating, because any violation must be responded to quickly and this will not be possible if the matter goes to court. On the other hand, in 2013, the Standing Committee on Personnel, Public Grievances, Law and Justice recommended making the MCC legally binding by making it a part of the RP Act, 1951.

Advertisement

On the important issue of government-sponsored advertisements, the Law Commission of India in its report on Electoral Reforms in 2015 recommended that the ECI should impose restrictions on such advertisements for up to six months prior to the date of expiry of the House/Assembly. Advertisements highlighting the government's poverty alleviation programmes or any health-related schemes were suggested as the exception to the rule.

The EC has certainly not incorporated this particular recommendation in the MCC in the run-up to the 2019 Lok Sabha Elections, which has already seen government-sponsored advertisements not only in newspapers and on television, but also on social media. The most recent and innovative way of such advertisement through NaMo TV, which does not even have a broadcast licence, has attracted the limelight.

Political parties all across the country have been brazenly violating the MCC; we have been witnessing such cases on a daily basis. Whether it is Prime Minister’s address to the nation on Mission Shakti, or the release of his biopic just before the polls (although ECI has put a stay on Modi Biopic), or his use of the word “Hindu” during his public rallies, or the Rajasthan Governor’s remarks supporting return of PM Modi, or Uttar Pradesh's Chief Minister referring to the Indian Army as “Modi ji ki sena”, the list is getting longer by the day.

These incidents indicate the ineffectiveness of the MCC. Though the ECI has the power to invalidate the candidature of the person violating the law, it has unfortunately rendered itself as a toothless body.

Effectiveness of Punitive Measures

The ECI can take a range of actions in case of violation of the Code, including the imposition of fine, filing of FIR that leads to imprisonment, or even canceling the polls in that constituency.

There are examples of the ECI taking punitive action against violators. For instance, during Assembly elections in Madhya Pradesh in 2003, the Commission found that the then Chief Minister of Punjab used a state government aircraft for campaigning, in violation of the provision of the MCC that forbids ministers from combining official work with electioneering. The ECI forced him to pay the government the cost of the entire air journey. However, these instances of punitive measure taken by the EC are not only rare but lack deterrence.

The recent example in this respect is the “displeasure” shown by the ECI to the NITI Aayog Vice-Chairman for his criticism of the proposed Nyuntam Aay Yojana (NYAY) of the Congress party. The Commission told him to “exercise caution in future”, and “advised” the Uttar Pradesh CM to be “more careful” in future references to the Armed Forces in his poll campaign speeches.

Conclusion

Experts say that following the Model Code of Conduct is purely hinged on morality, not the fear of law. The word ‘moral’ becomes replaceable with ‘model’, during elections said former Chief Election Commissioner SY Quraishi.

The story so far in the run-up to the 2019 General Elections seems to be less than ideal for both the ECI, which seems to be more toothless than ever, as well as the stakeholders. In the past, the ECI exercised its powers freely, and rules were widely implemented. However, as far as the 2019 General Elections is concerned, the autonomy of the constitutional body seems to be under a cloud.

The author is an advocate at the Supreme Court of India.

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