Violation of Election Model Code of Conduct a common practice, stringent punishment need of the hour

With the seven-phase polling for assembly elections for five states, high voltage political activity is calmed down with the Election Model Code of Conduct (MCC) that kicked in with immediate effect. The Model Code of Conduct is a set of norms that have evolved over a period of six decades and must be abided by the political parties, their campaigners, and the candidates during a specific period before and during elections.

Why was MCC implemented?

Since independence, political parties have been an essential part of Indian democracy and incidentally are also a cause of various controversial subjects such as power grabbing by purchasing votes, announcing false and tall promises to lure voters, bogus voting, caste-based campaigns, and religious polarisation of voters among others.

One of the first and probably the most high-profile cases of electoral malpractices in India was the declaration of the election of Mrs Indira Gandhi from Rae Bareli as null and void during 1975 on the count of misusing government machinery to gain unfair advantage in contesting elections.

What are the guidelines for political parties and candidates?

India’s election history is marred with rampant toxic caste and religion based electoral campaigns. Even now Brahmin-Bania-Dalit etc and Hindutva are the buzz words during upcoming elections in the 5 states.

These points have become focal points of campaign strategy for main political parties. Topics like caste have gained so much importance that several political parties have demanded caste census, which no doubt if done will make the electoral campaigns more caste-based.

As per the MCC, political parties or candidates are to refrain from aggravating existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic. Criticism of other parties or their workers based on unverified allegations or distortion is to be avoided. Further no appeal to caste or communal feelings for securing votes are allowed to be made and all activities which are “corrupt practices” and offences under the election law are to be scrupulously avoided.

The Supreme Court in 2017 held that the elections are a secular activity and an election won by soliciting votes along the lines of identity politics could be considered corrupt practice and the result can be set aside. If this judgement is implemented in its letter and spirit, then practically every political party in India may get disqualified.

MCC Violation: A Common Practice

Violence, issuance of open threats to opponents, rampant and illegal use of loudspeakers and public places for conducting political meetings and gatherings is sadly a common feature in Indian elections.

Even after explicit communication by the Election Commission to the West Bengal Government to thwart pre- and post-poll violence, the nation witnessed one of the bloodiest elections so far. Earlier, during May 2019, for the first time in India’s electoral history the EC was forced to invoke its constitutional powers to curtail political campaigning in 9 constituencies in West Bengal after witnessing rampant violence in Kolkata. The Election Commission had also ordered the removal of Principal Secretary (Home) Atri Bhattacharya and Additional Director General, CID, Rajiv Kumar from their postings in West Bengal at that time.

Recently the election commission issued a warning that it will take stern action against hate speeches and provocative social media posts in the view of upcoming assembly elections in 5 states. As per the MCC, the political parties or candidates are mandatorily required to inform the local police authorities of the venue and time of any proposed meeting well in advance and be informed about any prohibitionary orders in force. Appropriate permissions and licenses are to be taken well in advance.

The recent events witnessed in West Bengal have once again proved that the MCC mostly remains on paper and the political parties carry on their agenda in its blatant violation.

Publication of Advertisements

The governments of the day publish advertisements of various kinds, including advertisements on their accomplishments and achievements. They also engage in advertising a lot of promises and announcements to garner public attention and influence public opinion to garner more votes in an unfair manner.

Therefore, the MCC brings into force a lot of restrictions on such activities. No advertisements bearing photographs of ministers or political functionaries are allowed nor any new schemes allowed to be advertised at the locations going to poll.

Electoral Campaigns and manifestos

Issuing manifestos promising freebies like free electricity, free water, tax exemption from property tax, etc., are popular tactics to win middle and lower middle-class votes in an unethical way. During January 2022, the Supreme court opined that this undoubtedly is a serious issue and issued notice to the Union Government and the EC to respond and frame guidelines to curb the problem.

It is through the election campaigns that candidates and political parties present their ideas and stand on various issues to the voters in the period preceding election day and for that they use various items such as flags, temporary offices, bulk SMS or voice messages, vehicles, loudspeakers etc. It is commonly seen that most political parties exceed the permitted limits and make mockery of the MCC.

In the interest of free and fair elections and to ensure zero favouritism or high handedness from the government servants, the Election Commission has been following a consistent policy that government officials directly connected with elections are not posted in home districts or districts where they have served for a considerably long period.

MCC is not a Law

MCC is not admissible in the court of law as a wholesome rule book with penalties accorded. It is not a law. CEC or the EC is empowered under Article 324 of the Indian Constitution, to formulate MCC and call upon any party or candidate, against whom a complaint has been lodged and investigated.

However, certain provisions of the MCC can be administered legally by soliciting corresponding provisions in other ordinances. The violations need to be conjured with statutes under the Indian Penal Code 1860, Code of Criminal Procedure 1973 and Representation of the People Act, 1951. But obviously this is not sufficient.

Having mentioned the aforesaid, violations of MCC are seen to be blatantly done right under the nose of the EC, and very less has been done in terms of punishing the violators.

Conclusion

The EC has done little till now, and a lot needs to be done as violations are very commonly seen in urban areas and in rural India the situation is worse in several states. The gold standard about the autonomy of the EC appears to be diluted in context to the interference by the ruling party and this must be attended to in the interest of our democracy.

In the lead-up to the 2019 general elections, the opposition alleged that the ruling party in contravention to the MCC appropriated credit for the heroic actions of the armed forces. Serious questions are also raised about scheduling of the election dates which most of the times are in favour of the ruling party.

Elections are the best test of democracy, and India cannot afford to see such mockery of the election process and the MCC. Instead of continuing with such a sorry situation, it will be better if a comprehensive legislation is enacted governing the subjects involving the MCC which will also define stringent punishments. If Indian democracy has to flourish, then Indians cannot continue to accept any compromise in context to free and fair elections.

The author is a practising lawyer in Bombay High Court and the Supreme Court based out of Pune.

(Disclaimer: The views expressed above are the author's own and do not reflect those of DNA.)