Is Model Code of Conduct a Deterrent or Incentive?

By Juanita Justin

(Image source: Business Line)

The Election Commission of India (ECI) is an autonomous constitutional body that is responsible for conducting smooth, free and fair elections and monitoring the election processes of the political parties and candidates. It enforces the code of conduct as soon as the dates for the Assembly election in a state or the Lok Sabha polls are announced, and it stays effective until the completion of the poll process. Article 324 of the Indian Constitution provides the electoral commission with the power to monitor the Central/State governments, the candidates, their political parties and the polling processes. The violation of the Model Code of Conduct (MCC) does not warrant any punitive action. However, some steps were taken under the Representation of People Act 1951 to grant certain provisions of the MCC legal sanctity and label them as illegal practices punishable with a jail time for up to two years, a fine or both. The ECI has not been pushing for the MCC to be legally enforced and become a written law as it believes it to be a “self-defeating measure”. During the 45- day period of the elections, when the code is imposed, any breach of the code demands a quick and effective action as time is of the essence. A prompt action is not possible if the matter is taken to the courts as a regular judicial process will take a long time to take measures against the violators. Certain actions under the MCC considered as “corrupt practices” or “electoral offences” are: aggravating existing differences, appealing to caste and communal feelings for securing votes, using places of worship as a forum for election propaganda, bribing voters, intimidating voters, impersonation of voters, canvassing within 100 metres of polling stations, holding public meetings during the period of 48 hours before the polls, transporting voters to and from polling stations, obstructing an opponent’s political campaign or procession, and serving or distributing liquor on the day of or before the polling day.

Evolution of the Code of Conduct The idea of the MCC for political parties during elections was adopted from the State of Kerala and

first observed in the 1962 general elections. In 1967, it evolved to a 10-point code and a committee consisting of seven members was set up to observe political campaigns and to ensure smooth, fair and free polls. The Code was first revised in 1974 and again in 1979 to include the 7 th section in the MCC — the role of the party in power. The Code did not enforce its rules and its observance was totally left to the “good sense” of the contesting political parties. The 1991 general elections were a game changer for the MCC as this was the first time the Code came into force right from when the election dates were announced. The 1997 High Court judgment granting the Election Commission (EC) the right to take necessary steps to conduct free and fair elections from the date of announcement created tensions and disagreements between the EC and the Central and State governments as the political candidates did not like the restriction the Code imposed on them right from the start of their electioneering. Finally, in 2001, the disagreements regarding the start of the MCC’s operations were resolved and the EC has been implementing the code ever since. In 2014, the final part referring to the manifestos and to regulate their content was added.

Violations of Model Code The rise of the Internet and its impact on users (reaching 627 million users in India in 2019) paved the way for social media to be used as a platform by political parties and their supporters to campaign for elections and sway the voters in any way they can. This move causes an influx of misinformation and fake news intended to influence voters and mislead them. There have also been instances of bribing the voters on WhatsApp. Though the model code has not been updated to suit the technological era, the underlining rules stay the same. Various measures are being taken along with the Internet and Mobile Association of India (IAMAI) to curb the misuse of information and to process any violation of the code within three hours. Companies like Google, Facebook, WhatsApp, ShareChat, Twitter, BIGO and ByteDance have agreed to adopt the code of conduct and work swiftly to take the required action on the complaints received by the nodal officer appointed to monitor fake news, political advertisements and any online content that violates the MCC. Around 500 Facebook posts, 2 twitter threads and one WhatsApp account were removed as they were in violation of the code that prohibits the propagation of election matters during the 48-hour silent period before the polls. In addition to that, 702 Facebook pages and accounts misleading voters and spreading fake news related to Congress’ and BJP’s supporters were taken down by Facebook during electioneering. The poll body also banned the release of Prime Minister Narendra Modi’s biopic stating that its release during the elections would have disturbed the level playing field among the candidates. It ordered for re-polling at five booths in Andhra Pradesh due to the polling day violence in the booths, the malfunctioning of the Electronic Voting Machines (EVMs) and various other circumstances that obstructed a free and fair poll. Although the ECI set a limit of `70 lakhs for political campaigning specifically for a roadshow, it is hardly being enforced. Prime Minister Narendra Modi was accused of crossing the set limit for his roadshow in Varanasi. So far, the Congress has filed 11 complaints against the PM and BJP president Amit Shah pertaining to alleged hate speeches, the PM holding a rally on the day of the polls in Gujarat, defaming the opposition and for repeatedly referring to the Balakot airstrike and misusing India’s armed forces for political campaign purposes. The electoral body issued an advisory on 10 March specifying that there should be no mention of the defence forces during the election campaigns. Despite the warning, the BJP continually used the photo of the fighter pilot involved in the Pulwama attack for its campaigning purposes, clearly violating the MCC. The ECI has also been relatively quiet regarding the issue and paid no attention to the PM’s repeated alleged violations until the Supreme Court intervened and demanded the ECI to explain its silence and take a decision on the complaint. Of the 11 complaints, the ECI has ruled two in favour of the BJP claiming that Modi’s speech in Latur and in Wardha did not go against the MCC violations. While some of the complaints are still pending before the poll body. The Supreme Court also had to intervene for the ECI to take action against Uttar Pradesh Chief Minister Yogi Adityanath’s hate speeches, eventually banning him from campaigning for 72 hours, and BSP supremo Mayawati’s campaigning for votes on the basis of religion. She was banned for 48 hours from her poll campaigns. Apart from all the appeals in the Supreme Court, the ECI has also received millions of references and complaints on their mobile app (cVIGIL) and through social media since the code has come into effect on March 10. They are unable to keep up with the volume of the work and the technological advancements. N Gopalaswami, former Chief Election Commissioner states that, “No election commission is completely partisan,” some may strive to be unbiased but commission as a whole cannot be completely unprejudiced. This was evident when a BJP campaigning material was found inside an official ECI vehicle in Uttarakhand. Though the commission admits that it is ‘toothless’ and has no power to de-recognise or disqualify a person other than temporarily banning him/her from electioneering, there have been instances in the past where the ECI was robust in carrying out its duties. T N Seshan, the 10 th Election Commissioner in 1990, showed the country how powerful the ECI can be and the authority it holds by hosting a range of reforms to conduct free and fair elections. So, rather than blaming the commission for its inefficiency, the process of the appointment of officials in the ECI should be scrutinised.

(Juanita Justin is a Research Intern at CPPR Centre for Strategic Studies. Views expressed by the author are personal and need not reflect or represent the views of Centre for Public Policy Research)