Upholding the model code

SY Quraishi

BIHAR electioneering is becoming harsh and bitter. This has compelled the Election Commission of India to issue an advisory to all political parties and candidates to conduct themselves with dignity. 

Every election in India brings to the  fore the conduct of the political parties and candidates. Bitter personal attacks and the rousing of communal and caste passions vitiate the peaceful environment which is imperative for a free and fair election. Some states have been  particularly notorious for such violations, Bihar being one of them. Many top leaders have already hit the headlines. Lalu Yadav, Sharad Yadav, Amit Shah, Sushil Modi are the prominent names among many others who have attracted either a model code notice or FIR or both. People’s expectations from the EC and the model code are so high that they expect drastic action in each case. Action like reprimand or censure is considered toothless. 

It’s important to understand the scope and limitations of the code. 

The  model  code  of  conduct  (MCC) is  a  set  of  guidelines of the political parties and candidates for ideal conduct and behaviour in electioneering. It originated before the Legislative Assembly election of Kerala in 1960 as a code of conduct for the organised political parties in the state, covering all important aspects of electioneering, like public meetings and processions, speeches and slogans, posters and placards. It was voluntarily approved by the leading parties of the state. 

Later, before the third Lok Sabha elections in 1962, all recognised parties readily accepted and followed the code nationally, contributing to a peaceful election campaign. In 1979,  a new Section was added, placing restrictions on the party in power to prevent undue advantage of the ruling party over other parties and candidates. The enforcement of the code received a new vigour in 1991, when the institution of election observers for monitoring the observance of the code came into existence. 

The present code contains guidelines for the general conduct of parties and candidates to desist from personal attack, appeal to communal and caste feelings, and to maintain discipline and decorum in meetings and  processions. The guidelines for the party in power are severe, prohibiting the use of official machinery and facilities used for electioneering, and against ministers and other authorities for announcing grants, new schemes, etc. 

The questions regarding the legal validity of the model codes and the period of its applicability was raised before the Punjab and Haryana High Court in 1997 (Harbans Singh Jalal vs. Union of India & others). The court ruled that the “code does not contain any provision contrary or derogatory to any enactment... It only ensures the conduct of free and fair election which should be pure.” It also held that the EC is entitled to enforce the code from the date of announcement of the election schedule till the announcement of the results. The order was confirmed by the Supreme Court (1997) based on an agreement between the Union of India and the EC. 

The authority of the model code comes not from any statute, but from the willing consent of the parties. Though the penalty for the violation of the code is not more than a reprimand, censure or condemnation (which many people consider toothless!), parties and candidates are extremely cautious not to attract a notice from the EC. Any violation becomes a media headline and  attracts condemnation from society in general.

The election period is short, but surcharged and incident-packed. Therefore, timely and effective action is essential. As a norm, the cases of violation of the code are dealt with by the EC in a matter of hours. The offender is forced to make amends immediately. The code is thus more preventive than punitive.

Though the code of conduct is based on a voluntary agreement among the parties, the commission is not helpless if the parties violate its provisions. When the EC is convinced that a stronger action is necessary, it gives a notice to the party for freezing of its election symbol under the Symbols order. The EC also uses its plenary power under Article 324 to take action in many cases where required. In April 2012, during the Rajya Sabha elections in Jharkhand, when a large amount of cash was seized, the EC countermanded the election, invoking  Article 324. The Jharkhand High Court not only upheld the order, but also hailed it as “the only step of great consequence taken by the Election Commission after the independence of the country”. 

Many provisions of the code are also covered under substantive laws and their violations may be corrupt practices under the Representation of the People Act or punishable offences under other laws. The EC has always taken a view that action should be taken both under the substantive law and the MCC. 

The pro-active implementation of these provisions by the EC has come as a great relief to the harassed public and has been appreciated across the country notwithstanding the criticism of some politicians that this has killed the festival of democracy. Historic voter turnouts defy this criticism. 

The code seeks to prevent corrupt practices and electoral offences. Parties and candidates are to refrain from using religion and religious sentiments for obtaining vote, indulging in activities which may create mutual hatred between different castes and communities, bribing of voters, and campaigning during the prohibited period of the last 48 hours, etc. 

Nobody can deny that it is the observance of the code and its enforcement with firmness and promptitude by the EC that has brought about a sea change in the election process. The hundreds of election-related murders rampant a decade ago are now history. 

It has proved to be extremely effective and has delivered positive results, bringing down the rate of MCC violations during elections substantially. It is now regarded as a moral code of conduct. 

The code is a singular contribution of political parties in the cause of free, fair and transparent elections. The present-day leadership must not diminish the great gift that their predecessors gave to the nation half a century ago. 

 — The writer is a former Chief  Election Commissioner of India