Frequent complaints during elections, that the other side is violating the Model Code of Conduct, remind me of a contested cricket match where even fielders on the leg side boundary appeal for an LBW decision against the rival team’s batsman. In the case of elections, the umpire, i.e. the Election Commission, can receive complaints, but has no power to rule the offender “out”. Questions naturally arise then, about what the code of conduct is all about.
The written reply of Salman Khurshid, the then law minister, to the Rajya Sabha in May 2012 presents a good enough picture of the model code. He said, “The Election Commission of India has intimated that Model Code of Conduct is a set of guidelines evolved by the Commission with consensus of political parties for the smooth conduct of free and fair election in the country. As the Model Code of Conduct does not have a statutory backing, many of its provisions are not legally enforceable and hence not legally punishable.”
He further elaborated, “There are certain provisions in the Model Code of Conduct, the violation of which also constitutes violation of some provisions in the election laws and/or the Code of Criminal Procedure. The violations are punishable in a court of law. In cases of, inter alia, violation of Model Code of Conduct by a political party, the Commission can either suspend or withdraw the recognition of a party. In case of individual candidates or leaders of political parties, the Commission may take action, if deemed appropriate, under the residuary powers available to it under Article 324 of the Constitution, which includes censure against person who is guilty of violation of the code.”
The process of the evolution of election law began after parliamentary elections in Ferozpur, Punjab, in March 1977. The EC ordered re-poll in many constituencies selectively on the ground that elections there were vitiated on account of violence, malpractices and the like. The power of the EC to do this was questioned before the Supreme Court. The Constitution Bench speaking through Justice Krishna Iyer, (Mohinder Singh Gill v. Chief Election Commissioner, 1978) declared the law, which is the genesis of the present day election jurisprudence including the model code. The learned judge began the judgment in his inimitable style: “Every significant case has an unwritten legend and indelible lesson. This appeal is no exception, whatever its formal result.
The message, as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless words: ‘At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper-no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.’ If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men dressed in little, brief authority. For be you ever so high, the law is above you.”
Article 324 provides that “the superintendence, direction control and the conduct of all elections shall be vested in the Election Commission”. The court in Gill’s case held that “Article 324 is a plenary provision vesting the whole responsibility for national and state elections and, therefore, the necessary powers to discharge that function… Even so, situations may arise which enacted law has not provided for. Legislators are not prophets but pragmatists. So it is that the Constitution has made comprehensive provision in Article 324 to take care of surprise situations. That power itself has to be exercised, not mindlessly nor mala fide, nor arbitrarily nor with partiality but in keeping with the guidelines of the rule of law… Article 324, in our view, operates in areas left unoccupied by legislation... Myriad maybes, too mystic to be precisely presaged, may call for prompt action to reach the goal of free and fair election. Article 324 is geared to the accomplishment of free and fair elections expeditiously.”
The first edition of the Model Code of Conduct, notified in January 1991, was the brainchild of T.N. Seshan, the then CEC. The original heading of the document — Model Code of Conduct for the Guidance of Political Parties and Candidates — remains, though its contents have increased. That four-page document dealing with the general conduct of the candidates makes interesting reading and reminds us of all the good sentiments expressed in religious scripts — the Ten Commandments being the pithiest of them all. However, there is rightly no warning that the violator would go to hell. The EC too cannot sanction that because the model code is not a law made by the legislature, it is a judicial invention. Only a law made by the legislature can impose punishments.
J. Jayalalithaa, the Tamil Nadu Chief Minister, was recently at her sarcastic best when she grumbled publicly that for fear of violating the code of conduct she chose not to introduce the party candidate — the code may treat the expenditure on those public meetings as expenses incurred by the candidates! The Bharatiya Janata Party publisising its manifesto while elections are in progress was not taken kindly. Amit Shah, who is not a candidate, is called upon to explain his “badla” speech — probably to be advised to behave. However, Imran Masood’s threat to butcher Narendra Modi or Shashi Tharoor’s alleged bribery are more serious and beyond the code; hence left to the courts of law.
The law declared in Gill’s case was followed and reaffirmed by the Supreme Court many times right up to the present day. The EC has the power to stop or recall an election altogether and order re-poll to ensure “free and fair elections”. The EC is the sole judge of how that goal is achieved. Mamata Didi should be advised to control her temper and obey the EC quietly.
In 1995, in the Bihar Assembly elections, Mr Seshan repeatedly directed re-poll in several booths. Reason? Lalu Prasad Yadav had successfully stalled Mr Seshan’s dictate to make photo-identity cards mandatory before elections — hence the special love. Result? Parliament had to step in to pass the Vote on Account to save the state from the blushes.
