The role of free and fair elections in any democracy cannot be understated. And the enormousness of that task in a democracy as heterogeneous as India can only be tackled by a body free of state interference, mandated under constitutional powers, armed with the ability to take immediate, spontaneous remedial action in case anyone intends to make a plaything of the election process which...
The role of free and fair elections in any democracy cannot be understated. And the enormousness of that task in a democracy as heterogeneous as India can only be tackled by a body free of state interference, mandated under constitutional powers, armed with the ability to take immediate, spontaneous remedial action in case anyone intends to make a plaything of the election process which is the foundation of a democratic country. And although the Election Commission of India is a Constitutional body with little state interference, its armoury is unused, to say the least. We do have a set of guidelines in the form of the Model Code of Conduct to level the field between different political parties but since it originated in the 1960s in Kerala, by the will of political parties themselves, it does not have statutory or constitutional backing, as was accorded to the Election Commission by the Constitution Makers. Not to say that the MCC is not a comprehensive code or is lackadaisical in its implementation but it does not have the teeth to take any punitive action for its own violations. However, there is a legislative enactment punishing certain violations of the Model Code of Conduct in the form of Representation of People's Act, 1951, under provisions like Section 123, 126, 126A, 133 etc. where prohibition and punishments for violation of code of conduct guidelines have been laid down.
The gist of election timelines in India that is "Every legislative assembly of every state, unless sooner dissolved, shall continue for five years and no longer." emerges from A.324 of the Constitution of India read in conjunction with A.172(1) and S.15 of the Representation of People Act, 1951. And for the upcoming elections, along with ensuring that the elections are accessible, fair, free, inclusive, participative, peaceful and safe, the commission also has three more objectives to fulfil; which involve making elections Covid safe, providing a hassle-free voting experience and inducing maximum voter participation. In addition to this, as soon as the election schedule is announced by the ECI, the Model Code of Conduct comes into effect and the Election Commission makes elaborate arrangements that these guidelines are followed effectively. Admittedly, there is a natural assumption that because the Model Code of Conduct has been evolved with the consensus of political parties, it will be followed strictly, however, every year in every election the Model Code of Conduct is violated, vociferously by some and subtly by others.
A Closer Look At The Model Code Of Conduct
| Part I | Minimum standard of good behaviour & Conduct | No political party/candidate to indulge in activities aggravating existing communal differences or causing tension between different castes, communities, religious or linguistic. Criticism of other parties to be confined to policies, programs, past record and work NOT ON Private life. No appeal to caste or communal feeling for securing votes. Mosques, churches, temples or other places are not to be used for election propaganda. "Corrupt practices" and offences listed under election laws to be avoided scrupulously. Organizing demonstrations/picketing before houses of individuals not to be resorted to under any circumstances, peaceful and undisturbed home-life shall be respected. Any individual's land, building, a compound not to be used by political parties/candidates for erecting flag-staffs, banners, notices, slogans etc. Supporters and workers shall not create disturbances at public meetings organized by other political parties. Posters issued by one party are not to be removed by another. Processions by one party are not to be taken out where meetings are being held by another. |
| Part II | Holding of public meetings | Party/candidate to inform local police in advance about the venue + time of any proposed meeting so that police can make arrangements to control traffic and maintain peace and order; If any restrictive/prohibitory order is in force in a place, such shall be followed strictly and exemptions must be sought well in advance; License/permission for loudspeakers/any other facility to be taken well-in-advance; The police shall help organizers to deal with disturbing elements, organizers themselves shall not take any action against such persons |
| Part III | Taking out processions | Time, route, place of procession shall be decided in advance. No blockage/hindrance of traffic. Right of the road to be kept in mind. Intimation to local police about the same. Ascertainment of restrictive orders and their compliance, traffic regulations compliance must be kept in mind. If two or more local parties want to take procession through the same area, organizers and local police to consult well in advance about the same. Political parties to be mindful of processionists carrying articles that could be misused by undesirable elements. Burning effigies representing members of other political parties not to be countenanced by any political party or candidate. |
| Part IV | Conduct of political parties and candidates on polling day | Political parties/candidates must co-operate with officers on election duty; must supply their authorized workers with suitable badges/identity cards; identity slip given to voters shall not bear any symbol of a political party or any party's or candidate's name; must refrain from service/distributing liquor forty-eight hours preceding and on the polling day; shall not allow unnecessary crowd near political party's camps; ensure candidate's camps shall be simple, no eatable to be served at the camp and no posters, flags, symbols etc to be displayed; co-operation with authorities regarding compliance with restrictions imposed on plying of vehicles on the polling day. |
| Part V | Conduct at the polling booth | No one to enter the polling booth except the voters and people carrying valid pass from the Election Commission. |
| Part VI | Appointment of Observers | Candidates/agents having specific complaint regarding elections may bring the same to observers appointed by Election Commission. |
| Part VII | Provisions for party in power | Ministers to not combine official visit with electioneering visit or use official machinery/personnel for electioneering work; government transport (air-crafts, vehicles, machinery, personnel, not to be used for furtherance of interest of party in power); public places, rest houses, government accommodation not to be monopolized, shall be used in a fair manner; advertisements and misuse of official mass media for furthering prospects at the cost of public exchequer shall be avoided scrupulously; ministers/other authorities shall not sanction grants/payments out of discretionary funds once the election announcement is made by the Commission and from the time elections are announced, ministers/other authorities shall not announce any financial grants, lay foundation stones of projects etc., make any promise of construction of roads, provisions of drinking water facilities etc., make any ad-hoc appointments in government, public undertakings etc., Central/state govt ministers not to enter polling station except in their capacity as a candidate or voter or authorized agent. |
| Part VIII | Guidelines on election manifesto | As per the apex court judgment in S. Subramanian Balaji v. Govt of Tamil Nadu & Ors.; no distribution of freebies, election manifesto to not contain anything repugnant to the ideals and principles enshrined in the Constitution, avoid making promises likely to vitiate the purity of election process or exert undue influence on voters, manifesto to reflect the rationale of policies and broadly indicate means and ways to meet the financial requirement of it. |
It is pertinent to mention that the Election Commission did feel the need to provide statutory backing to Model Code in the 80s when a proposal pertaining to the same was placed before the Goswami Committee on electoral reforms. It contained suggestions to amend the Representation of the People Act, 1951 by inserting S.124 and S.126A to make the violations of some provisions of the Model Code punishable, however, the bills never saw the light of the day. The interesting thing that happened thereafter was that the Election Commission went through an epiphany that if the guidelines of the Model Code were converted to electoral offences then the whole object of the Model Code would be rendered redundant since violations of Model Code warranted quick decision making and remedial measures and the judicial process would make that unlikely. Besides, if the judicial pronouncement on Code of Conduct violations were to come after the elections were over, then such pronouncements were meaningless.
Hence, since the late 80s, the Election Commission has maintained its viewpoint that the Model Code of Conduct should remain a set of guidelines instead of becoming the law. Moreover, there are already several provisions of the IPC and Representation of the People Act, 1951 that make violation of some of these guidelines punishable.
| Bribing voters | Corrupt practice under S.123(1) of RPA, 1951 Electoral offence under S.171B, IPC. |
| Appealing to caste/communal feelings to secure votes; Using religious places worship as forums for election propaganda | Corrupt practice under 123(3), RPA 1951 Electoral offence under S.125, RPA, 1951. |
| Indulgence in activities aggravating existing mutual differences and hatred or causing tension b/w different communities, castes, religions | Termed corrupt practice under S.123(3A), Representation of People Act, 1951 |
| Providing transport & Conveyance to voters, to and fro from polling stations | Corrupt practice under S.123(5), RPA, 1951 Electoral offence under S.133, RPA, 1951 |
| Holding public meetings within 48 hours of electoral polling | Electoral offence under S.126(1) RPA, 1951 |
| Obstructing meetings & processions of other political parties (through leaflet, tearing posters, sympathizing with workers, taking out processions) | Electoral offence under S.127, RPA, 1951 |
| Canvassing within 100 meters of polling station | Electoral offence under S.130, RPA, 1951 |
| Serving/distributing liquor on or within 48 hours of polling day | Electoral offence under S.135 (c), RPA, 1951 |
| Intimidating voters | Electoral offence under S.135A, RPA, 1951 |
| Impersonating voters | Electoral offence under S.171D, IPC |
Applicability Of The Model Code Of Conduct
For State Legislative Assembly elections and General Election to Lok Sabha, MCC stays in operation till completion of the election process, for the former, throughout the state and for the latter, throughout the country. MCC is even applicable to Legislative council elections from Local Bodies Graduates and Teacher's constituencies. But in the case of bye-elections, MCC's application is limited to the specific assembly constituency segment (when it is a part of state capital/metropolitan city/municipal corporation) and in other cases, Model Code is applicable to the entire district, encompassing the constituency going for bye-election.
During the time period discussed above, the Model Code is also applicable to organizations/corporations wholly or partly funded by Central/State Governments and the Election Commission has framed the following guidelines for campaigns by organizations/corporations/persons who are not political parties/candidates:
- No one shall invoke religious grounds or do activities to create disharmony among people of a different class, caste, religion etc. and any such thing shall be punishable with S.153A, S.153B, S.171C, S.295A and S.505(2) of IPC and S.125 of RPA, 1951
- No one shall indulge in statements/activities offending decency and morality and are malicious in nature, attacking personal life and liberty
- Organizations/persons holding public programmes must give a prior declaration to abide by these guidelines
- Public programmes to be monitored through videography and district administration to ensure that people violating the Model Code by Election Commission shall not be violated.
- And if the programmes involve incurring any expense, it shall be covered under S.171H of IPC.
Landmark Judgments On Model Code
Although Election Commission is a Constitutional Body and its mandate to ensure fairness and transparency during elections gives it wide-ranging powers, but because of the non-statutory, non-punitive nature of the Model Code of Conduct, judicial pronouncements have chimed in time and again and have helped in strengthening the mechanism pertaining to the Model Code and other electoral machinery.
In the case of Ghasi Ram v. Dal Singh & Ors., where Dal Singh, who was a Minister in the State Government at the time, had used discretionary funds to bribe the voters in his own constituency, and had provided certain irrigation facilities in other villages in return for supporting his candidature, the apex court had held Dal Singh's actions innocent and remarked that the "position of a minister is difficult" and that Ministers must attend to grievances of public otherwise they would fail and "if every one of his official acts done bona fide is to be construed against him and an ulterior motive is spelled out for them, the administration must necessarily come to stand-still." Further noting that the money used was not directed to voters but to Panchayats and the general public and just because that had the corollary consequence of pushing forward the claims made by respondents, it did not mean the money was used to gain voters. The Supreme Court, however, remarked that "although the action of the first respondent is innocent, the attitude of the government is far from laudable. To arrange to spend money on the eve of elections in different constituencies although for the general public good, is when all is said and done, an evil practice, even if it may not be a corrupt practice. Payments from discretionary grants on the eve of elections should be avoided."
Then in the case of Union of India v.Harbans Singh Jalal & Ors., where the Punjab and Haryana High Court had ordered that the Model Code Conduct would come into force from the date of announcement of the election, and Union of India filed an SLP during the pendency of which an Office Memorandum was circulated by Ministry of Law and Justice, in consultation with the Election Commission leading to this matter being disposed of. This office memorandum contained two significant amendments to the Model Code, one pertaining to the exception given to public servants to lay foundation stones, etc. of projects or schemes of any kind, in the public interest, even when Model Code of Conduct is in place, and secondly that the commission shall announce the date of election which shall be a date ordinarily not more than three weeks prior to the date on which the notification is likely to be issued in respect of such elections.
Another landmark judgment of the apex court was Election Commission of India v. Rajaji MathewThomas & Ors., where five days prior to the election announcement in Kerala, the State government granted administrative sanction to a scheme extending the then scheme about providing food grains to certain marginalized categories of people, pursuant to which numerous complaints were received by Election Commission of India and the Chief Electoral Officer. The state government did seek EC's permission to implement the extension on the scheme but EC denied it citing that the extension of the scheme should ideally be deferred till the completion of the election process. This was followed by a writ petition filed in the Kerala High Court by the State government where the High Court gave an order in favour of the state government calling EC's action arbitrary and unconnected with its objective of levelling the playing field between political parties. Election Commission challenged HC's order in Supreme Court submitting that it had no objection regarding continuance of the scheme but extending the scheme to new sections of the population would definitely disturb the level playing field for political parties. The Apex court rightly stayed the High Court judgment and stated that the intentions and objectives of the Model Code of Conduct had to be kept in mind even when doing activities for the public good.
Recent Violations Of The Model Code
Regardless of how many penalizing provisions and judgments may come, the truth of the matter is that the Model Code of Conduct has not been able to stop political parties from flouting the guidelines therein and running their election campaigns on the exact opposite principles as mentioned in the Code and yet, the Election Commission has not done much. The 2019 Lok Sabha elections saw the likes of the Yogi Adityanath asking for votes citing things like Bajrang Bali v. Hazrat Bali, clearly violating the first and foremost guideline in the Conduct of not using communal divisions for gaining votes. And this is just one instance of such a communal, divisive agenda being used by our political leaders for their own advantage, regardless of the repercussions that we now see in 2022 in the form of the general intolerance against different religions in society. The Colonial policy of divide and rule clearly has been noted and augmented by the current leaders. And all Election Commission has done is be a mute spectator to such conduct. This conduct of the Election Commission is definitely new, considering the 2014 elections had seen it assert the MCC guidelines when it made recommendations about postponing decisions regarding natural gas pricing and notifications pertaining to ecologically sensitive areas in western ghats. It is also apposite to mention here that the few times EC has flagged violations of MCC, the commissioners have to bear ruthless consequences. When Ashok Lavasa, an Election Commissioner during the 2019 election campaign, highlighted at least five accounts of violations of MCC by the then Home Minister and Prime Minister, he and his family had to undergo severe harassment. Not only his phone number was listed to be infiltrated by Pegasus software making him a surveillance target, his wife was also targeted by the income tax department and his son had to quit his job as a director of an organic food company because of him being under the scanner of FEMA regulation violations. Mr. Ashok Lavasa then had to leave his upcoming promotion of Chief Election Commission for a job at the Asian Development Bank, where he currently works.
India has a written constitution and Britain does not but still, Britain sees scarcely any violations of their election processes because people in Britain follow conventions that have greater significance compared to laws. India follows the Westminster model of parliamentary democracy which has its foundations in ethics, morality and propriety, values that ideally should be abided to in India, but are not. The Election Commission and the MCC itself work under the assumption that the political parties will respect these values but that has not been the case as illustrated by the above examples. Although the Election Commission itself believes that keeping MCC in the form of guidelines and not turning them into penal provisions is the way to provide quick remedial measures in case of violations, no substantial remedial measures or actions have been taken in the past half a decade, to substantiate this claim. Instead, the ECI has lost its credibility as the "watchdog of free and fair election".
Another concern regarding the guidelines, apart from ECI's conduct, is the problematic nature of these guidelines regarding social media which includes platforms like Facebook, Google, Twitter etc. but somehow leaves WhatsApp, which sees the most action and has the fastest reach, out of its scope. It's high time the misuse of WhatsApp is included in the MCC guidelines and they are reconstructed in a manner that actually supplements the purpose of the Election Commission, instead of rendering it a meek spectator to such brazen violations and divisive propaganda. Additionally, on the face of it, there are several forums in the form of apps, helplines and portals to register civilian complaints regarding transgression of Model Code like National Grievances Service Portal, cVigil App, Voter Helpline App, Voter Helpline:1950 etc., but their effectiveness is questionable, to say the least. Election Commission urgently needs to restructure the MCC and decide on what will actually make it useful instead of being just a set of rules that no political party seems to regard or respect.
Views are personal.