Tyranny of the status quo

The Model Code of Conduct is a weak document which does fairly little to ensure a level playing field for all political parties and candidates

The need for reforming India’s murky electoral processes again attracted the attention of the Supreme Court last July, when it struck down a provision in the election law temporarily protecting those legislators who stood disqualified for certain types of criminal convictions, if they had filed an appeal within three months. The government tried to bring in an ordinance to restore the status quo ante but hastily capitulated. Another Supreme Court judgement delivered just a week later turned down the request of a petitioner from Tamil Nadu, calling for a declaration that the promise of “freebies” to voters as part of poll manifestos of the main parties in that State constituted “electoral malpractice.” The Court ruled that the extant law related only to “electoral malpractice” by individual candidates. While parting with the case, the court expressed discomfort with the existing legal provisions and hoped that the legislature would enact “a suitable law” in this regard, but that, in the meanwhile, the Election Commission would take some steps to extend the scope of the existing Code of Conduct for political parties and candidates by including suitable provisions on such poll promises.

This, they had suggested, could be done even prior to the announcement of an election programme as a special case, possibly by securing a consensus. The provisions of the Code of Conduct prior to a poll have been restricted to a period which commences with the announcement of the election which shall ordinarily not be earlier than three weeks before the commencement of the actual election schedule which is notified simultaneously with the election notification. This was the result of a cosy compromise arrived at by the Commission with the Union of India in a Special Leave Petition before the Supreme Court in April 2001. The Commission thereby formally bound itself to a position that it had not accepted fully earlier.

The Constitution has conferred overall responsibility for the “superintendence, direction and control” of elections to Parliament and to the State Legislatures on the Election Commission. Subject to laws made by the legislature, the “plenipotentiary” authority of the Commission to regulate the electoral process to secure a free and fair poll has never been in dispute. A one-man Commission took full advantage of this many years ago to issue electoral identity cards in all constituencies, mainly to prevent the impersonation of voters that was then rampant only in a few States or constituencies.

Penal consequences

This action has stood the test of time and has now been suitably embodied in the relevant rules. The Commission could have taken a speedy cue from the above observations of the Supreme Court to reassert the scope of its regulatory ambit, once an election was imminent, without waiting for a poll notification. The Code of Conduct, now in force, is in any case a weak document which does fairly little to secure a “level playing field.” Some of its provisions are contained in the law itself, failure to adhere to which entail penal consequences. All political parties and candidates are fully aware of these provisions. It is, in fact, on the ground of such misuse of official position that Indira Gandhi was convicted by the Allahabad High Court in 1975, temporarily changing the course of the history of Indian democracy.

Some of the major actions on the part of the main players to gain undue advantage in the coming elections have been particularly noteworthy. The prime ministerial candidate of the Bharatiya Janata Party went on record earlier voicing his opposition to the institution of the central Lokpal and has effectively aborted a similar institution from functioning in his own State. On the other hand, the vice-president of the Congress had, speaking in Parliament, asked for “constitutional status” for this post, which the law, as now passed, has not accorded. These parties joined hands to make a law at variance with their own pronouncements.

The hasty attempts to make the appointments to this institution, already controversial, will stop with the poll code kicking in. That the hurried bifurcation of Andhra Pradesh was for electoral gains by the major parties is a fact uncontested. The Commission could easily have aborted these major steps, taken prior to the poll. Also, the mad rush by the ruling party to dole out favours to groups of people or individuals, successfully beating the poll code in many cases, and some populist ordinances (with the President performing the Commission’s duty of objecting to some) are practices that have still not been dropped.

By a “consensus” early last month with major political parties, the limits of election expenditure by each candidate have now been increased in line with the “increased cost of living” from Rs.16 lakhs to Rs. 28 lakhs for an Assembly constituency and from Rs.40 lakhs to Rs.70 lakhs for a Parliamentary constituency. This would indeed be a joke if one takes note of the declared assets of many prospective candidates. Filing false expenditure returns is a malpractice which can invite disqualification. On proper scrutiny, many elected candidates could meet this fate.

There are recent illustrations, however, to show that big money alone cannot win elections, so there can be no doctrinaire objection to being more realistic and allowing for greater transparency, even if some reports claim even these “limits” are largely unutilised. The Commission can again review the matter and call for much steeper increases in these limits or even do away with them altogether in the ensuing elections. A fresh “consensus” would be ideal, but if this is elusive, a meeting with NGOs active in this field could help evolve better norms.

(R.C. Iyer is former Chief Electoral Officer, Maharashtra.)

The provisions of the Model Code of Conduct have been restricted because of a cosy compromise between the Election Commission and the Union of India in 2001

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