[Burning Issue] Model Code Of Conduct

Model Code of Conduct

What is MCC?

These are the guidelines issued by the Election Commission of India for conduct of political parties and candidates during elections mainly with respect to speeches, polling day, polling booths, election manifestos, processions and general conduct.

Aim: To ensure free and fair elections.

When it comes into force?

  • The Model Code of Conduct comes into force immediately on announcement of the election schedule by the commission.
  • Election Commission (EC) has announced that Model Code of Conduct comes into force immediately in states where legislative assemblies have been dissolved prematurely.
  • The Code remains in force till the end of the electoral process.

Restrictions imposed under MCC

The MCC contains eight provisions dealing with general conduct, meetings, processions, polling day, polling booths, observers, the party in power, and election manifestos.

I. For Governments

  • As soon as the code kicks in, the party in power whether at the Centre or in the States should ensure that it does not use its official position for campaigning.
  • Hence, no policy, project or scheme can be announced that can influence the voting behaviour.
  • The code also states that the ministers must not combine official visits with election work or use official machinery for the same.
  • The ruling government cannot make any ad-hoc appointments in Government, Public Undertakings etc. which may influence the voters.
  • Political parties or candidates can be criticised based only on their work record and no caste and communal sentiments can be used to lure voters.

II. For Political Parties

  • The party must also avoid advertising at the cost of the public exchequer or using official mass media for publicity on achievements to improve chances of victory in the elections.
  • The ruling party also cannot use government transport or machinery for campaigning.
  • It should also ensure that public places such as maidans etc., for holding election meetings, and facilities like the use of helipads are provided to the opposition parties on the same terms and conditions on which they are used by the party in power.

III. Campaigning

  • Holding public meetings during the 48-hour period before the hour fixed for the closing of the poll is also prohibited.
  • The 48-hour period is known as “election silence”.
  • The idea is to allow a voter a campaign-free environment to reflect on events before casting her vote
  • The issue of advertisement at the cost of public exchequer in the newspapers and other media is also considered an offence.
  • Mosques, Churches, Temples or any other places of worship should not be used for election propaganda. Bribing, intimidating or impersonation of voters is also barred.

Importance of MCC

    • Despite the fact that it emerged as a moral code for voluntary adherence, over the years the MCC has acquired ‘supplementary legality’
    • Since the MCC itself does not have the force of law, it is enforced through executive decision-making.
    • It remains, therefore, ambiguous and uneven as far as the modality of implementation and certainty of execution, are concerned.
    • Since 1991, the Model Code has come to be seen as an integral part of elections.
    • It was also during this period that the MCC experienced its passage from an ‘agreed set of dos and don’ts’ among political parties, to a measure directed at restraining the party in power.
    • James Lyngdoh, the CEC of India from 2001 to 2004, describes this transition as ‘pitching into the party in power’.

Effects of Application of MCC

  1. The present code contains guidelines for general conduct of political parties and candidates (no attack on private life, no appeal to communal feelings, discipline and decorum in meetings, processions, guidelines for party in power – official machinery and facilities not to be used for electioneering, prohibition against Ministers and other authorities in announcing grants, new schemes etc.).
  2. Ministers and those holding public offices are not allowed to combine official visits with electioneering tours.
  3. Issue of advertisements at the cost of public exchequer is prohibited.
  4. Grants, new schemes / projects cannot be announced. Even the schemes that may have been announced before the MCC came into force, but that has not actually taken off in terms of implementation on field are also required to be put on hold.
  5. It is through such restrictions that the advantage of being in power is blunted and the contestants get the opportunity to fight on more or less equal terms.

What if violated?

  • The ECI can issue a notice to a politician or a party for alleged breach of the MCC either on its own or on the basis of a complaint by another party or individual.
  • Once a notice is issued, the person or party must reply in writing either accepting fault and tendering an unconditional apology or rebutting the allegation.
  • In the latter case, if the person or party is found guilty subsequently, he/it can attract a written censure from the ECI — something that many see as a mere slap on the wrist.
  • However, in extreme cases, like a candidate using money/liquor to influence votes or trying to divide voters in the name of religion or caste, the ECI can also order registration of a criminal case under IPC or IT Act.
  • In case of a hate speech, a complaint can be filed under the IPC and CrPC; there are laws against the misuse of a religious place for seeking votes, etc.

Using powers under Art. 324

  • The Commission rarely resorts to punitive action to enforce MCC, there is one recent example when unabated violations forced EC’s hand.
  • During the 2014 Lok Sabha polls, the EC had banned a leader and now party president from campaigning in order to prevent them from further vitiating the poll atmosphere with their speeches.
  • The Commission resorted to its extraordinary powers under Article 324 of the Constitution to impose the ban.
  • It was only lifted once the leaders apologised and promised to operate within the Code.

Legal status of conduct. In what way can the MCC be made more effective?

  • The Model Code of Conduct does not a have a statutory backing and it is more a consensus driven code arrived at after consultation with all political parties to ensure free and fair elections and to see that the ruling party does not misuse its dominant position.
  • The Parliamentary Standing Committee on Law and Justice recommended in its 2013 report that statutory status be accorded to the MCC.
  • The committee held that most of the stipulations of the MCC are already contained in various laws and are therefore enforceable like 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.
  • 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.
  • Another reason for the above recommendation by the Standing Committee is the absence of an immediate appeal mechanism against the decision of the returning officer to cancel the nomination of a candidate. In this case, the decision can only be challenged in the High Court after the announcements of election results.

What if given Statutory Backing?

  • Both the ECI and several independent experts, believe that giving statutory backing to the MCC would only make the job of the Commission more difficult.
  • This is because every alleged offence will then have to go to an appropriate court, and right up to the Supreme Court.
  • Given the flaws of our legal system, election petitions filed decades ago are still pending before many High Courts — it is anybody’s guess what that situation might lead to.

The logic against Legal status to MCC

  1. The decision making power will go to the Judiciary and thus the swiftness, expedition and promptness in dealing with the cases of violation of MCC will be gone.
  2. If the model code of conduct is converted into a law, this would mean that a complaint would lie to the police/Magistrate. The procedures involved in judicial proceedings being what they are, a decision on such complaints would most likely come only long after the election is completed.
  3. The legal codification of these norms would be a potential nightmare, exposing the entire electoral process to needless litigation. The broad objectives of MCC are best achieved by oversight of an impartial election watchdog.

Way Forward

  • In the past, successive ECIs have elicited compliance by public censure and invoking sections of the IPC and the Representation of the Peoples Act.
  • Elections have become the site of unprecedented display of money, muscle and technology as power.
  • Its concentration in any party gives it extraordinary and unfair advantage in electoral competition.
  • The ECI must guard against ceding the space which it has extracted and affirmed by innovatively enhancing the residuary powers given to it in Article 324 of the Constitution of India.
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Sakshi Singh
22 Apr, 2019

If EC have to take the bull by the horns, upon the infringement of Model Code Of Conduct, it simply can’t, even not for now!
Because for this, there’s a copious need of judicial reform. First it has to be ameliorate. Without it, taking measures against breach of MCC, will consequent of no use.