Opinion » Comment

Updated: March 26, 2014 01:47 IST

Model code as a moral code

Garimella Subramaniam
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WHITEWASH: A painter paints over a wall with a party symbol at Sholavandan, near Madurai. The Model Code of Conduct imposes restrictions on graffitti and wall painting. Photo: G Moorthy
The Hindu
WHITEWASH: A painter paints over a wall with a party symbol at Sholavandan, near Madurai. The Model Code of Conduct imposes restrictions on graffitti and wall painting. Photo: G Moorthy

With a growing number of political parties and candidates, a stronger Election Commission would serve the larger purporse of conducting a free and fair poll

The External Affairs Minister’s recent criticism of the election Model Code of Conduct (MCC), and the counter from senior leaders of the Bharatiya Janata Party (BJP), is but one more instance of the ongoing war of words among political parties during the poll process. There is at another level a constant tug of war between political parties and the Election Commission (EC) on the question of their respective jurisdiction — one that extends well beyond the poll timetable. While the tussle along these twin-tracks would undoubtedly have implications for the democratic process, resolving the latter conflict could well be the more significant.

The burden of Salman Khurshid’s attack on the EC — in a lecture at London’s School of Oriental and African Studies — was along the following lines. “You should do or say nothing that wins you an election,” he said, meaning that the three-member body would not allow politicians to perform their normal and legitimate functions during poll campaigns — of making promises, as prospective representatives, to potential voters.

For his part, the Leader of the Opposition in the Rajya Sabha, Arun Jaitley, took exception to Mr. Khurshid’s remarks, as also to the fact that they were aired on foreign soil. The BJP’s prime ministerial candidate Narendra Modi even claimed that the minister denigrated the image of a constitutional body.

But both the Congress and the BJP may have already forgotten that they were on opposite sides vis-a-vis the EC during the 2013 elections to State Assemblies. On that occasion, the EC, acting on a complaint lodged by the Congress, issued a notice of violation of the MCC against the Madhya Pradesh Minister of Industries for his remarks on the code. The commission found the latter guilty of precisely the kind of routine poll promises that Mr. Khurshid felt were not illegitimate for candidates to make.

As one of the custodians of the country’s democratic institutions, the EC cannot afford to object to expressions of divergent opinions on either the code of conduct or its application in specific instances. Indeed, the core objective of the code is the conduct of free and fair elections. The model code of conduct is perhaps best viewed as a moral code during electioneering and the EC would do well to err on the side of caution when applying its provisions. Conversely, it would be a self-defeating exercise for rival parties who have assented to its adoption, to regard the model code either as an impediment or as a subterfuge to settle mutual political scores.

Statutory backing

Despite its prima facie plausibility, the 2013 recommendation to accord statutory backing to the MCC, made by a Parliamentary Standing Committee on Law and Justice, seems erroneous. The Committee has held that most of the stipulations of the MCC are already contained in various laws and are therefore enforceable. To be sure, the violation of secrecy of voting, causing enmity among communities, the prohibition of public meetings 48 hours prior to the conclusion of polls, besides other offences, are covered by the Representation of People Act, 1951. Besides, impersonation at voting, offering inducements to voters, or accepting gratification to do something they never intended, amount to bribery under the Indian Penal Code. To threaten or to intimidate voters and candidates is an act of interference with their respective free electoral rights. The Parliamentary panel further points out that the EC invokes its 1968 order which pertains to the allotment of election symbols, either to suspend or to derecognise political parties for violations of the code.

On the basis of the above, the Standing Committee contends that the MCC as a whole could not be construed merely as voluntary in its application. Furthermore, since most of its provisions are enforceable, the remaining stipulations in the MCC should also be accorded statutory backing.

The bar on the ruling party from the use of its position for electioneering to combine official work with campaign activity, the exercise of monopoly over public places and transport facilities are important non-statutory stipulations in the code. It is self-evident that the latter are substantially different from the category of legally defined violations. Extending these facilities to various political parties on the same terms and conditions create a level playing field and increase the efficacy of the poll process. Conversely, the legal codification of these norms would be a potential nightmare, exposing the entire electoral process to needless litigation. These broad objectives are best achieved by oversight of an impartial election watchdog.

Need for a resolution

In fact, the Parliamentary Committee makes a pointed reference to its dissatisfaction with the existing legal remedy. This pertains to the absence of a procedure of immediate appeal where the nominations of candidates are rejected by returning officers. The decisions of the latter can, under the current system, only be challenged in the High Courts after the announcement of election results. This is an area where, in view of the Constitutional authority invested in the EC, with quasi-judicial powers, political parties could work out an amicable resolution.

It would be fair to say that, with a growing number of political parties and candidates in the fray, there is greater need for impartial oversight of the electoral process today than a few decades ago. A stronger EC would therefore best serve the larger purposes of the conduct of free and fair elections. Parliament could ill-afford to contemplate a legislation that seeks to accord legal status to the model code in its entirety. That would inevitably circumscribe the role and functions of the EC.

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The Election Commission has been,from the start,failing fundamentally in terms of constitutional provisions. Elections to legislatures are ONLY for selecting peoples' representatives for making laws for them. For exercise of executive power the only election that is allowed is under Art.55 for electing the President. Election promises which involve exercises of executive power are out of place under a Constitution which has set down Directive Principles of State Policy declared fundamental in the governance of the Country and which are,as a matter of duty under Art.37,to be applied by 'the State' in the making of laws.For electing the President,state elections have to be completed if a proper reflection of the latest popular opinion is to be tested. This has never happened.A bottom-up approach is required.There is a dire need to revamp the entire electoral process, with state funding of elections and restructuring electoral districts for ensuring equality of the weight of the vote.

from:  T.Devidas
Posted on: Mar 27, 2014 at 15:39 IST

"For law, in its true notion, is not so much the limitation as the
direction of a free and intelligent agent to his proper interest, and
prescribes no farther than is for the general good of those under that
law: could they be happier without it, the law, as an useless thing,
would of itself vanish; the end of law is not to abolish or restrain,
but to preserve and enlarge freedom..." said John Locke. Model Code of
Conduct (MCC) is not a law that should constraint or in any way fade
the vibrancy of our democracy and the zeal of the democratic
carnival, but should lead to greater participation of people and
candidates on genuine causes and concerns. In fact, a similar opinion
was put forward in N.Gopalaswami's article in the lead "Neither too
hard nor too soft", TH, December 12, 2013. Therefore, I agree with the
author's proposition that statutory backing to MCC is unessential and
that a sincere oversight from the election watchdog is enough.

from:  Siddhi Bangard
Posted on: Mar 26, 2014 at 18:05 IST

The election commission is doing a phenomenal job but I wish
there was a better way to account for the expenditures of
For example the recent, long, strange patriotic duet sung by prime
ministerial hopeful Mr Modi is being aired over and over again
on many radio channels ,advertisements allowed by the EC in the
Delhi metro are very expensive yet one sees many posters of Mr
Modi inside the metro network. His campaign seems to have begun a
year ago and is getting hotter using the most unprecedented media
blitz, it out shadows anything ever seen or any other political
party . Can anyone innocently assume that this is being done
within the declared limit?

from:  Anuradha Kalhan
Posted on: Mar 26, 2014 at 14:17 IST

Election commission is doing a commendable job. But, like all institutions which have
enarmous powers, EC is also exceeding its jurisdiction. Recently, EC has directed the
government not to revise the gas prices from 1st April, for which notifications have been
issued in January itself. I am not going into the merits or correctness of governments
decision on revision which has already been challenged in supreme court. It is also
mentioned that EC may not permit issue of fresh bank licenses. In what way these decisions
will have impact on the election. EC has to limit its role in their area only and not interfere in
other government decisions which do not have any bearing on election outcome.

from:  Mohan
Posted on: Mar 26, 2014 at 08:10 IST

The candidates standing for the election can promise what he can do if
he or she is elected .So what our External Affairs Minster complains is
not correct .Actually what violates the law is creating enmity among
communities by promising reservation quota for one community against the
others .This is communal and what is surprising is the people who stand
for this call others who wants equal opportunity to all as communal.

from:  sbalaraman
Posted on: Mar 26, 2014 at 07:54 IST
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