Both Election Commission of India and several independent experts however believe that giving statutory backing to the Model Code of Conduct (MCC) would only make the job of the Commission even more difficult. This is because every alleged offence will then have to go to an appropriate court and right up to the Supreme Court.
By Sanjenbam Jugeshwor Singh
Political parties are campaigning and gears up in full force for the upcoming Assembly elections 2022 in five states across India- Uttar Pradesh, Uttarkhand, Goa, Punjab and Manipur- which are set to be conducted in February and March. The Election Commission of India always imposes its Model Code of Conduct (MCC) in states where the elections are set to take place to make sure that the voting and campaigning process goes smoothly. This Code contains a set of guidelines for the political parties and candidates during the elections. According to the rules set by the ECI, the MCC immediately comes into force as soon as the election schedule and dates are announced for the states to make sure that the election and polling process remains fair and free. The main reason why EC’s Model Code of Conduct is imposed in the poll-bound states is to make sure that the central government or the ruling parties in the states do not misuse their position of power to gain unfair advantage in the election.
The fact is the MCC evolved as part of the ECI’s drive to ensure free and fair election and was the result of a consensus among major political parties. It has no statutory backing. Simply put, this means anybody breaching the MCC can’t be proceeded against under any clause of Code. Everything is voluntary. 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 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 criminal case against the candidate under relevant sections of Indian Penal Code or Income Tax Act. In case of a hate speech, a complaint can be filled under IPC and CrPC; there are laws against the misuse of a religious place for seeking votes etc.
The expert view is that, as of now, following the MCC is purely hinged on morality, not the fear of law. Since poll campaign are turning uglier, more personal and combative, the moral obligation entailed in the model code can really bear down heavily on candidates at a time when they are trying show to the voters how upright and competent they are for the job. The MCC carries significant moral weight; indeed former Chief Election Commissioner SY Quraishi had described it as the Moral Code of Conduct. Filling an FIR, particularly against a senior leader during the election, in itself becomes a cause of huge embarrassment to the party the candidate represent. It presents the candidate as ethically wrong to the people. Even if it just rap on the knuckles, most politicians do not relish the reprimand by the ECI. What if a party or politician ignored the notice? The ECI believes that the voters doesn’t forget or forgive a politician who tries to take on the election regulators or attempts to brazen it out. There are numerous examples of politicians who got into a slanging match with the ECI over MCC violations and were severely punished by voters. And yet the abysmal depth the many states election campaign plumbed has underscored the inadequacy of the MCC in dealing with erring politician, with many wondering if giving statutory backing to the Code could be the answer. After all, it is argued, which politician would flinch from a mere reprimand if the prize is victory in an important election?
Both ECI and several independent experts however 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 slowness of our legal system- election petitions filled decade ago are still pending before many High Courts- it is anybody’s guess what that situations might lead to. Former CEC VS Sampath had once told that the MCC is meant to provide an “immediate solution, instant remedy to certain situation’’. When notice for Model Code of Conduct violation is issued, we give 48 hours to reply and reply is usually in by the 47th hours, however big a politician may be. If the contestant is wrong, the person tenders an apology. Since such an apology brings the candidate to the immediate notice of the voters as the wrong doer; it is a deterrent unlike a situation when a case against a candidate goes to the court and may linger, giving the benefit of doubt to him/her. One may say, we only give censure or reprimand but that is not the point. Parallely, under the laws of the land action will be taken. An FIR will be filed, that case will continue for months and years, Sampath had said. The previous UPA-2 government did, in fact attempt to quietly give statutory backing to the MCC. A former Law Minister during UPA-2 regime announced a scheme after the declaration of Model Code in an upcoming election. Though the EC advised him not to do so, he didn’t pay heed. So the EC wrote to the President and the Minister was censured and fined. The move came soon after the Law Minister had a very public run-in with the ECI, UPA ended up with egg on its face and the hush-hush moved was dropped. Later, the parliamentary standing Committee on Personnel, Public Grievances, Law and Justice recommended that the MCC be given statutory backing by enacting a law. However that recommendation found very little acceptance. Incidentally the reason the parliamentary Panel made the recommendation was that the ECI, while enforcing the MCC, sometimes appeared to be encroached upon legislative power of parliament. In the coming days, with electioneering heating up in the five poll-bound states, there may be more occasions for the EC to not just issue show cause notices but even order FIR against high profile candidates for MCC violations. If there are instances of senior leaders violating MCC, “there are also those who understood their moral sanctity’’.
(Sanjenbam Jugeshwor Singh is Asst. Prof. JCRE Global College, Babupara, Imphal. He can be reached at [email protected])