Question – Discussing the features of model code of conduct, state whether the model code of conduct can be made legally enforceable.- 7 January 2022
Answer –
Free and fair elections are the foundation of any democracy. In India, the world’s largest democracy, elections are considered as a festival and all political parties and voters together take part in this festival. In this hustle and bustle of elections, the candidates who are in the fray use all kinds of gimmicks to create wind in their favour. In such a situation, all the candidates and all the political parties go among the voters.
In such a situation, giving equal opportunity to all to determine its policies and programs becomes a big challenge, but the model code of conduct mitigates this challenge to some extent.
Features of Model Code of Conduct
- The Model Code of Conduct currently in force has given guidelines for the general conduct of political parties and candidates.
- Firstly, as soon as the Model Code of Conduct comes into force, there are many restrictions on the state governments and administration.
- Government servants come under the Election Commission till the completion of the election process.
- Some specific guidelines have been given for the ruling party in the Model Code of Conduct. In these, it is forbidden to use government machinery and facilities for elections and to announce grants, new schemes etc. by ministers and other officials.
- Ministers and people posted in government posts are not even allowed to campaign during the official tour.
- Advertisements cannot be issued using government money. Apart from these, mention of private life and making any appeal inciting communal feelings has also been banned during election campaign.
- If a government official or a police officer takes the side of a political party, the Election Commission has the right to take action against him. Apart from this, guidelines have also been made to maintain discipline and etiquette in election meetings and to take out processions.
- A candidate or party has to take permission from the Election Commission for taking out processions or holding rallies and meetings and the information has to be given to the nearest police station.
- Public places like helipad, meeting ground, government bungalow, government guest house should not be occupied by certain candidates. These should be provided equally to all the candidates.
Currently, the MCC is not legally enforceable and the ECI generally uses moral sanction or objection to enforce it. However, unlawful practices such as spreading hatred through political speeches, provoking caste and community sentiments of voters, etc. have been recognized in other laws such as the Indian Penal Code (IPC), 1860 and the Representation of the People Act (RPA), 1951 etc. may be prohibited by the described provisions.
In this context, several arguments have been made for making MCC legally enforceable under the RPA, 1951. These include:
- Since MCC is not enforceable, political parties violate it according to their interests. In such circumstances the powers of the Election Commission are limited, as it cannot take punitive action against it. It can only be condemned by it and is also subject to its evaluation. This leaves potential for misuse of MCC.
- With the advent of social media, election-related information flows have intensified and made it more difficult to control MCC violations. Enforcement of MCC will prove to be more effective by imposition of legally binding obligations on these forums to take action in case of MCC violations.
- Since MCC is not vested with legal power, it is enforced through executive decision-making. Therefore, as far as the method of its implementation and certainty of performance are concerned, it remains unclear and uneven.
It may be mentioned that in the year 2013, Parliament’s Standing Committee on Personnel, Public Grievances, Law and Justice had approved the MCC as RPA, recommending it to be made legally binding as a part of 1951.
However, arguments can also be made against the MCC enforceability, including:
- Being the ‘model’ of the code of conduct, its enforcement is desirable and not mandatory. For the essential elements of desirable conduct, it has already been clarified by law which conduct is legally acceptable and which is unacceptable. Most of the violations of MCC are already punishable under various laws like IPC and RPA, 1951.
- In the age of technology, the scope of ‘ideal’ behavior has become limited and alternative ways to defy it are sought from time to time. In this situation, it would be difficult to outlaw each new act by law.
- The ECI has argued against the MCC, saying that the elections should be conducted in a short time, i.e., 45 days, whereas the judicial proceedings would normally take longer. Also, this will increase the workload of the judiciary.
- Despite the lack of enforceability, the ECI has a number of mechanisms in place to monitor violations of the MCC. These include Joint Task Force of Enforcement Agencies, cVIGIL Mobile App through which audio-visual evidence of misconduct can be reported etc.
Actually, the model code of conduct is an important issue related to election reforms, which opens the way for many more election reforms.
If seen, our democracy is getting better with every election, but along with the efforts of the Election Commission in making this festival of democracy successful, it is also the responsibility of the citizens of the country to make it successful.
