ARTICLE
11 April 2024

MODEL CODE OF CONDUCT: Behind The Scenes Of Electoral Integrity

JA
J.P. Associates

Contributor

J.P. Associates is Boutique Law Firm specialising in Intellectual Property and Indirect Taxation. We believe in practical solutions with resolute dedication to our clients. With an experience of over 20+ years in the aforesaid fields we are capable to swiftly resolve even the most complex legal issues in these fields.
The Electoral Commission of India is an autonomous constitutional body that was established on 25th January, 1950 in accordance with the Article 324 of the Indian Constitution that vests the authority and responsibility ...
India Government, Public Sector
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INTRODUCTION

The Electoral Commission of India (ECI) is an autonomous constitutional body that was established on 25th January, 1950 in accordance with the Article 324 of the Indian Constitution that vests the authority and responsibility with regards to the superintendence, direction and control of elections and the preparation thereof, in the ECI. Since then, the ECI has been accountable for the maintenance of the integrity of the Indian democracy by way of, inter alia, safeguarding and ensuring a dignified conduction of elections in the largest democracy of the world.

One of the ways the same is endeavoured to be achieved is through the formation of the Model Code of Conduct, i.e., a morally bound set of guidelines issued by the ECI prior to the conduction of elections, to be followed by both; the parties as well as the candidates contesting.

This article shall be thus an attempt at exploring the technicalities of the MCC as a concept as well as the intricacies involved in the 2024 Model Code of Conduct.

MAJOR MILESTONES IN IMPLEMENTING THE MODEL CODE OF CONDUCT

Date/ Year Development
1960 MCC was introduced for the first time in the Legislative Assembly elections in the state of Kerala as 'code of conduct', entailing the 'do's and don'ts' for the parties involved, on an experimental basis so as to ensure the peace and order in the state during said elections.
1962 Following the same, Model Code of Conduct was put forward in the general election to the Lok Sabha, appropriating a majorly successful observation.
1967 A Code of Conduct was further observed in the Lok Sabha and Assembly elections.
1968 ECI issued the first 'Minimum Code of Conduct' constituting a minimum standard of conduct to be obeyed by the political parties and sought its implementation through aid at state level. A code of conduct was thereafter circulated periodically before elections at the state and central level.
1979 Subsequently, a 'Model Code of Conduct' was issued by the ECI post consulting with the political parties, the same further held guidelines to prevent the abuse of advantageous position and resources by the 'party in power'.
1991 Given the rapid economic and political changes undergoing the nation, the MCC was re-examined and developed into its present form, with sturdier guidelines to regulate the conduct of political parties during the elections.
27th May, 1997 In the case of Harbans Singh Jalal, Ex-MLA v. Union Of India1, the Hon'ble High Court of Punjab and Haryana granted the MCC judicial recognition.
16th April, 2001 Through meetings between the ECI and the central government, it was concluded that the MCC would come into force as and when the ECI is to announce the schedule for any election and that the same is to not be made more than three weeks in advance of the date of notification of said election.
February, 2014 Part VIII was inserted into the MCC for the regulation of issue of election manifestos upon the recommendation of the Hon'ble Supreme Court in S. Subramaniam Balaji v. Government Of Tamil Nadu and Others2.
16th March, 2024 MCC for the 2024 Lok Sabha elections came into force and shall remain active till the election results are announced.

UNDERSTANDING THE MODEL CODE OF CONDUCT

GENERAL OVERVIEW

The Model Code of Conduct, as has been briefly stated above, is a set of guidelines that have been developed by the ECI overtime for the conduction of orderly elections and further for the prevention of malpractices that may occur due to power play.

STRUCTURAL ASPECTS

MCC is comprised of 8 parts, the last having been added in 2014. Each of its part concerns itself with a different component of elections and enlists the expected behaviours that are to be adhered to, by the persons concerned. The MCC's composition may be summarised as:

  1. General conduct: this part deals with the overall norms set for the parties to follow while campaigning for elections, such as refraining from caste and religion based targeting, and avoiding from indulging in corrupt practices and offences under the election law.
  2. Meetings: this section deals with the meetings of the political parties and the same entails the prior informing to the local police authorities and the observance of laws in force at the place of said meeting.
  3. Procession: there is required to be a premeditated route set out for the carrying of processions of the political parties to be adhered to strictly and further guidelines have been laid down with regards to the potential clashes in the schedules of parties and the adherence to the traffic rules.
  4. Polling Day: this part lays out the norms expected from the parties and the candidates to be followed on the day of polling, including cooperation with officers in-charge, honest conduct by the parties and strict adherence to the restrictions imposed on the plying of vehicles and prompt display of vehicle permits.
  5. Polling Booth: this section necessitates the requirement of a valid pass sanctioned from the ECI to individuals other than the voters in order for them to enter the polling booth.
  6. Observers: this section empowers the candidates and their agents to bring to the notice of the appointed observers, any specific complaint or problem regarding the conduct of the elections.
  7. Party in Power: this section subjects itself to the parties in power, both at the central level as well as in the state concerned. It ensures the prevention of abuse of power by the said parties in hampering of the orderly conduct of elections. It restricts the monopolisation of assets otherwise easily accessible to the party in power and calls for the non-usage of privileges and resources provided to office holders for purposes other than the official ones. Other than this, no work can be initiated by the party in power upon a new scheme and neither can new funds be released under the MPs/MLAs/MLCs' Local Area Development Fund of any scheme in the territory to which the election extends. It further also restricts ministers from entering any polling station or place of counting except in their capacity as a candidate or voter or authorized agent.
  8. Guidelines on Election Manifestos: the Apex Court, in its judgment of S. Subramaniam Balaji (supra) stated that, "79) Therefore, considering that there is no enactment that directly governs the contents of the election manifesto, we hereby direct the Election Commission to frame guidelines for the same in consultation with all the recognized political parties as when it had acted while framing guidelines for general conduct of the candidates, meetings, processions, polling day, party in power etc. In the similar way, a separate head for guidelines for election manifesto released by a political party can also be included in the Model Code of Conduct for the Guidance of Political Parties & Candidates"

In accordance, guidelines have been framed in consultation with the recognised National and State political parties, calling for the parties to abstain from inserting unconstitutional ideologies and superficial promises likely to vitiate the purity of the election process or from exerting undue influence on the voters in exercising their franchise so as to uphold the trust of voters in a dignified manner.

Part VIII also includes provision relating to the prohibitory period of release of manifesto, entailing adherence to the Section 126 of the Representation of the People Act, 1951 for both, single and multi-phase elections.

LEGAL ASPECTS

MCC is a voluntary code and not a legally enforceable one. What this means is that any political party or any candidate in violation of this code cannot be directly penalised, given the non-statutory nature of the MCC. However, given the generality of the provisions mentioned in the code, the party in violation can be penalised indirectly by way of approaching competent authorities and citing the equivalent provisions provided in the statutes.

Even though MCC is not legally enforceable, it has time and again been granted judicial recognition. For instance, in Harbans Singh (supra), the Hon'ble High Court of Punjab and Haryana had stated that "24. In view of what has been stated above, we are clear in our mind that the Election Commission are entitled to take necessary steps for the conduct of a free and fair election even anterior to the date of issuance of notification, from the date of announcement of the election. While doing so, the model code of conduct adopted to be followed by all political parties including the political party in Government, can be directed to be followed by the Election Commission. Action of the Commission in this regard cannot be faulted, for the said model code of conduct adopted by the political parties does not go against any of the statutory provisions. It only ensures the conduct of a free and fair election which should be pure."

SCOPE AND APPLICABILITY OF MCC

The MCC extends to the whole of the country in the case of Lok Sabha elections, to all poll bound states of India in case of assembly elections and throughout the district in case of by-elections. MCC comes into force as soon as the election date is announced by the ECI (16th March 2024 for the upcoming Lok Sabha elections), its enforcement lasting till the declaration of election results.

Placing further reliance upon S. Subramaniam Balaji (supra), wherein is has also been mentioned that, "79.)...We are mindful of the fact that generally political parties release their election manifesto before the announcement of election date, in that scenario, strictly speaking, the Election Commission will not have the authority to regulate any act which is done before the announcement of the date. Nevertheless, an exception can be made in this regard as the purpose of election manifesto is directly associated with the election process." Accordingly, the ECI contains within itself the power to indirectly place a check on the actions of the parties in violation of the guidelines mentioned on election manifestos as well as direct authority in case of violation of any corresponding statutory provisions, particularly the ones provided under the Representation of the People Act, 1951, Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973.

Additionally, any citizen having noticed the violation of provisions of MCC as well as of any statutory provision can report the same through the cVIGIL App introduced by the ECI as a measure for control and applicability of the code.

CHALLENGES AND CRITICISMS

  1. Inherent issues vis-à-vis the implementation: given the deep rooted socio-politics that India has subjected itself to since time immemorial, one cannot deny the fact that ground reality of election campaigning is somewhat unlike what would be the expected idealistic campaigning in a democratic utopia. Furthermore, the lack of statutory nature of the MCC makes its implementation strenuous if the corresponding statutory provisions do not exist. Not only this, given the generality of the majority of provisions contained in the MCC, the same may become open to interpretation and thus potentially facile to override.
  2. Lack of Public Awareness and Education: a proportion of the general population that is of the voting age is unaware about the Model Code of Conduct and the means of reporting violations thereof, especially with regards to measures such as the cVIGIL App. There exists thus an urgent need for the MCC and mechanisms related to it being promoted amongst the masses.
  3. Evolution of campaigning: with the progressively increasing technological advances, the ways of campaigning have progressed considerable, with parties now taking up social media platforms such as X and Instagram for campaigning to appeal to the younger voters. It becomes important that the MCC be kept updated regularly and fit to deal with the new age campaigning so as to ensure a more inclusive regulation for the orderly conduction of elections.
  4. Criticisms of the ECI's model code of conduct: it has been time and again argued that the restriction imposed by the MCC upon the announcement of new projects and initiatives by the government after MCC's implementation hinders the governance of the nation as well as causes delays with regards to critical issues that may require immediate action of the government. Furthermore, the time period before the election schedule is announced is one wherein there exists no mode of regulation of the actions of political parties, except for the statutory provisions which may leave an array of unethical activities that the parties may engage in, compromising the integrity of the elections. What may be thus suggested is a flexible timeframe or implementation of MCC in parts so as to cover the unchecked period before the official dates are announced.

ELECTORAL CONDUCT IN OTHER COUNTRIES

The concept of MCC is not original to India in the sense that there exist similar concepts regulating the electoral processes in democracies around the world. For instance, United Kingdom's Code of Conduct for Campaigners provides a comprehensive code of acceptable behaviours, directed towards the campaigners, electoral administrators and police forces at polling stations and in the community during till the polling day. Similarly, South Africa's Electoral Code of Conduct aims at promoting "conditions that are conducive to free and fair elections" and to create an environment that fosters tolerance, free political campaigning, and open public debate. Some other countries with voluntary codes of conduct include Bangladesh, Cambodia, Nigeria, Pakistan and Thailand. Meanwhile, countries such as the United States of America and Australia rely majorly upon statutory provisions for the guidance and regulation of conduct of political parties and fair play during the elections alongside any other guidelines that the state may issue.

Countries around the world have adopted the concept of a voluntary code of conduct to supplement the orderly execution of the electoral process alongside the statutory provisions regulating elections.

CONCLUSION

In cessation, the ECI's Model Code of Conduct provides regulatory measures with respects the general conduct of the candidates, particularly with regards to the moral behaviours of the parties and the candidates. Over the years, MCC has undergone a plethora of developments and judicial scrutiny, resulting in a comprehensive and inclusive code, which is of critical importance in the carrying out of the electoral process in India.

Structurally, it is comprised of eight parts, each referring to a different component of elections, ranging from the general conduct of the parties to the guidelines on election manifestos. The ECI has further introduced measures such as the cVIGIL App which require public awareness for a more effective implementation.

MCC being non-statutory in nature is consequentially only able to necessitate limited implementation with the rest being left to the parties given the code's voluntary nature. It thus becomes pertinent that voters remain vigilant while deciding upon their future representatives and be an active part of the electoral process from the initial phase of the elections instead of becoming susceptible to hearsay and making uninformed decisions. Despite the challenges, MCC is still an extremely integral aspect of the Indian elections and its grip upon the conduct of the political parties during the whole of the election process cannot be denied.

Footnotes

1. Harbans Singh Jalal, Ex-MLA v. Union Of India, (1997)116PLR778

2. S. Subramaniam Balaji v. Government Of Tamil Nadu and Others, AIRONLINE 2013 SC 153

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

ARTICLE
11 April 2024

MODEL CODE OF CONDUCT: Behind The Scenes Of Electoral Integrity

India Government, Public Sector

Contributor

J.P. Associates is Boutique Law Firm specialising in Intellectual Property and Indirect Taxation. We believe in practical solutions with resolute dedication to our clients. With an experience of over 20+ years in the aforesaid fields we are capable to swiftly resolve even the most complex legal issues in these fields.
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