Turn India’s model code of conduct into law, and prevent future EC bias

Headquarters of the Election Commission in New Delhi | Representational image | Manisha Mondal | ThePrint

In 1960, during the assembly elections in Kerala, election officials and representatives of political parties came together to help frame a brief set of DOs and DON’Ts for the elections. This dealt with processions, speeches, posters, placards and the like. In 1962, then Chief Election Commissioner K.V.K. Sundaram circulated these guidelines to all political parties before the Lok Sabha elections. They were consecrated as the ‘Model Code of Conduct for Guidance of Political Parties and Candidates’ (MCC) for all subsequent elections nationwide.

The model code of conduct is a unique product of India’s election machinery. The MCC sets the ground rules for the largest democratic exercise in the world, the quinquennial Lok Sabha elections. It has been framed with the main objective of ensuring a level playing field for all candidates and ensuring that elections are free and fair.

Although Article 324 vests powers of superintendence, direction and control of elections in the Election Commission, these powers were initially not fully invoked by the Commission – until T.N. Seshan, the most famous and colourful Chief Election Commissioner of India, came along. He was ruthless in implementing the MCC, even cancelling elections on grounds of MCC violations, such as the Kalka by-election in 1993. Polling was suspended in a constituency in Madhya Pradesh because a sitting governor campaigned for his son, in violation of the MCC. Seshan, who was jokingly referred to as “Alseshan” by the media for his ruthless implementation of the MCC and election laws, once responded by asking “Don’t I resemble a bulldog more?” In 1991, under Seshan, the MCC was consolidated and re-issued.

The MCC is divided into eight parts dealing with general conduct, meetings, processions, conduct on polling day, conduct in polling booths, observers, regulation of the party in power and guidelines on election manifestos. In addition to these, the EC has also issued numerous directions and notifications, which also regulate conduct during an election. Apart from the MCC, there is a list of “corrupt practices” specified under The Representation of the People Act (RoPA), 1951. If a person commits a corrupt practice, his or her election can be disqualified. However, this can only be raised through an election petition before the courts, after the election results.

Unlike the RoPA Act, the MCC is not a statute. There has been a debate as to whether the MCC should be made into an Act of Parliament. However, the Election Commission has opposed this on the grounds that the interpretation of laws by the courts will take a lot of time, whereas the Election Commission would prefer handling MCC violations swiftly using its discretionary powers. However, it’s clear that the Election Commission has overlooked some glaring gaps in the MCC, which has been exposed in the ongoing elections.

The MCC does not specify the type of punishment that may arise from a violation of its provisions. There is no classification of violations based on the severity of the act. For instance, is a violation of the prohibition on appealing to religious sentiments more serious than making unsubstantiated allegations against an opponent? How does the EC decide whether a certain speech should attract a censure, a 24-hour ban or a 72-hour ban? In the absence of specific punishments for each violation, the application of the code is purely left to the discretion of the EC.

The absence of specific norms on exercising its powers can lead the EC to arbitrariness and individual bias. Mayawati was banned from public meetings by the EC for 48 hours, due to her appeal to Muslims to consolidate their votes to defeat the BJP, whereas Narendra Modi’s speech about how Rahul Gandhi is afraid of Hindus and hence selected a seat where “the minority is majority” was given a clean chit by the EC. The EC issued an advisory prohibiting appeals to votes in the name of the defence forces; however, it went out of its way to overrule the opinions of the chief electoral officer of Maharashtra and that of the district election officer, to give a pass to Modi, after he shamelessly sought votes in the names of the jawans who were killed in Pulwama.

Amit Shah, the president of the BJP, made a disgusting communal remark saying that he cannot distinguish between a procession in Pakistan and a procession in Wayanad, insulting the people of the constituency by trying to portray the Muslims in the region as Pakistanis. Yet, the Election Commission was unmoved by his remarks.

While the Commission swiftly acted against Maneka Gandhi, Mayawati and others in a matter of days, it kept sitting on the complaints against Modi and Shah, until it was forced to dispose of them after the Supreme Court imposed a deadline. The failure to provide for decisions to be made within a certain time frame after a complaint, increases the possibility of misuse. The EC can sit on a complaint as long as it likes, even after the main phases of the election are over, because the MCC does not specify a timeline.

It is such incidents that raise troubling concerns about the autonomy of the EC and other institutions under the current dispensation. Subjecting the appointment of commissioners to a non-partisan process, instead of leaving it to the government of the day, is essential.

There is merit in incorporating the MCC as a law, with clear procedures, clarity on the exact powers of the EC, classifying the punishments based on the severity of the violation, and placing a clear-cut time-bound procedure for following up on complaints. The Election Commission can still be kept in charge of implementing the MCC as a quasi-judicial body, so that one need not go to the courts in the first instance. Alternatively, the Election Commission can incorporate these changes in the MCC without an Act of Parliament. But the loopholes must be eliminated.

The EC must also revise some of its impractical and bizarre directions, such as not allowing more than three party flags to be hoisted in the residence of a party supporter, or getting the names of an MP on an ambulance or a high-mast light (purchased using his or her local area development funds) covered up to avoid influencing voters. Surely these are donations the MP is fully entitled to advertise as reflections of his or her development priorities? What we need is rationalisation of rules, not rulings born out of paternalism and extreme puritanism.

The credibility of the EC is directly linked to the credibility of Indian democracy. We owe it to our people to build robust institutions with checks and balances to prevent abuse, since we cannot always depend on messianic figures to maintain independent bodies.

Getting the rules right is the best way to start. We all agree we need an electoral code of conduct; but it’s time for an improved model.

The author is a Member of Parliament for Thiruvananthapuram and former MoS for External Affairs and HRD. He served the UN as an administrator and peacekeeper for three decades. He studied History at St. Stephen’s College, Delhi University and International Relations at Tufts University. Tharoor has authored 18 books, both fiction and non-fiction; his most recent book is The Paradoxical Prime Minister. Follow him on Twitter @ShashiTharoor. Views are personal.