Codes & conduct

The responsibility of superintendence, direction, control and the conduct of all elections (to Parliament and to the Legislature of every state and the elections to the offices of the President and vice-president) shall vest in the Election Commission of India.”

The quoted expression in Article 324 of the Constitution of India remained just another set of lifeless words from January 1950, when the Constitution came into force, to December 1977, when the Supreme Court infused life into them through the case of Mohinder Singh Gill.

Gill’s case arose out of election to the Lok Sabha held on March 16, 1977. Counting took place as scheduled, on March 20, 1977, in five Assembly segments peacefully. However, the balance of the counting on the next day was halted by violent acts allegedly by the Akali Dal candidate. On a report from the returning officer, the Election Commission of India ordered cancellation of polls in the entire constituency — as was the wish of the Akalis — and directed fresh elections.

Gill, while conceding recount, challenged re-poll before the Punjab high court and the case eventually landed before a five-judge constitution bench of the Supreme Court. In the course of upholding the decision of the EC, Justice V.R. Krishna Iyer, speaking on behalf of the court, held: “…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, not arbitrarily nor with partiality but in keeping with the guidelines of the rule of law and not stultifying the presidential notification nor existing legislation.

More is not necessary to specify; less is insufficient to leave unsaid. Article 324, in our view, operates in areas left unoccupied by legislation and the words ‘superintendence, direction and control’, as well as ‘conduct of all elections’, are the broadest terms. Myriad maybes, too mystic to be precisely presaged, may call for prompt action to reach the goal of free and fair election.”

Dealing with the objection that this will create a constitutional despot beyond the pale of accountability, a Frankenstein’s monster who may manipulate the system into elected despotism, the bench’s answer was that the judicial branch, at the appropriate stage, can “call the bluff, quash the action and bring order into the process”.

Thus, the concept of “free and fair election” was read into Article 324 — a phrase that became the goal of that article. And eventually the article became the fountainhead of the EC’s powers to meet the “myriad maybe” situations. The election manual and the official website of the EC contain hundreds of instructions and guidelines, all claiming parentage to Article 324.

The model code of conduct is a unique document inasmuch as it has evolved with the consensus of political parties themselves. It has no statutory backing and many of its provisions are not legally enforceable. Public opinion is the moral sanction for its enforcement. It was first conceived in 1960 in Kerala — a state that has turned coalition politics into a fine art. The EC issued a revised model code of conduct on January 1, 1974, which was further modified and the model conduct as is prevalent now was re-issued in January 1991 — all on the basis of consensus of political parties.

The parties, thus, reached an understanding that they would play the game of elections in accordance with the model code of conduct. The EC is like the umpire in a game of cricket. It has no police force of its own to bodily throw out an offending player — like the umpire, it only signals. So far the code has worked — in the sense that no one has openly defied the EC whenever infraction has been pointed out. The alleged offender has either denied the allegation or offered an explanation.

Frequent appeals for LBW verdicts even from a fielder on the midwicket boundary are not uncommon. In affidavits furnishing information regarding own criminal antecedents, truth was often a regular casualty. Therefore, the Parliament in 2002 had to amend the 1951 Act and make filing of a false affidavit or concealing the truth an offence. Demands for inclusion of more of the code in the already bulky statute book have mostly been ignored, and rightly so. However, the experience of post-2002 amendment does not encourage making of more laws.

The code comes into force from the date of official announcement of election schedule. It applies only to elections to the lower houses — Lok Sabha and the Vidhan Sabhas — where voters directly elect the members. And it comes to an end with the declaration of the results.

It generally prescribes good behaviour for the political parties and candidates, thus making it amply clear that politicians are fully aware of what is good. However, the meat of the code lies in the last part that prescribes “dos and don’ts” for the governments in office. State governments have to obey them only during the general elections and elections to the Assembly of that state. However, the Central government has to be watchful not only during the general elections, but also during elections to one or the other state Assemblies, which keep occurring periodically, thus hindering its normal functioning frequently.

Once the schedule of elections is announced, the EC is the boss. It can do anything that is not prohibited by any statute — all in the name of free and fair elections. Curbing the influence of black money in the elections is a major concern of the EC. In this regard there are nearly 100 written instructions from the EC. One such instruction prohibits carrying large amounts of cash. It was under this provision that the former Bihar chief minister Jitan Ram Manjhi’s son with '4.6 lakh in cash was questioned.

Does the Prime Minister offend the code by continuing with his Mann ki Baat on All India Radio? The EC has answered this question when it said you can speak all that you can at a rally. May be, the EC should permit the use of radio for all concerned, without the obligation to supply the audience.

The writer is a senior advocate of the Supreme Court and former additional solicitor- general of India.

He can be reached at knbhat1@gmail.com