Model code as a moral code
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.
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. firstname.lastname@example.org