Evolution of the model code of conduct

January 8, 2021

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The article is authored by Anshika Agarwal, from VIPS, GGSIPU, New Delhi. The article sets forth the significant developments observed in the Model Code of Conduct, a Code regulating the conduct of political elements during elections, since its inception, making it a more powerful tool at the hands of the Election Commission.

Table of Contents

Introduction

“The ballot is stronger than the bullet.” – Abraham Lincoln

In a country where democracy is the founding institution of governance, conducting elections becomes an absolute necessity. Elections form the heart and soul of the democratic structure, representing the public voices and opinions. It is the most powerful weapon resting in the hands of people, conferring them with the right to frame their opinions and voice them out by choosing a candidate matching their priorities and ideas.

However, the mere conduction of elections does not ensure the prevalence of a democratic structure. The process needs to be complemented with principles of fair play and justice. In the light of increasing electoral malpractices, a free and fair election procedure, ensuring transparency of governmental activities and secrecy of the ballot system needs to be maintained. The working of political parties, campaigners and the officials in charge needs to be incorporated under the umbrella of proper guidelines regulating their conduct.

India, being one of the largest democracy in the world ensures the prevalence of free and fair elections. The process works on the guidelines determining the course and nature of the election process, as proposed by the Model Code of Conduct brought in by the Election Commission.

Model Code Of Conduct

Model Code of Conduct is a non-statutory framework issued by the Election Commission ensuring free and fair elections as implied under Article 324 of the Indian Constitution. The Code provides for a comprehensive set of guidelines and instructions monitoring the general conduct of the political parties and the contesting candidates. It regulates the functioning of all such meetings, campaignings and processions performed by the contesting institutions prior to the elections. It further monitors the process of election manifestation and propagation thereby, keeping a close watch on the political activities.

The Election Commission ensures compliance with the Code by securing a safe and just environment for the voters and preventing all such corruption inducing activities. Despite its non-statutory nature, the Code is subjected to strict implementation. The Commission is authorised to take appropriate measures in case of any deviance from the Code.

Applicability of the Code

The Code comes into being as soon as the Election Commission announces the date of the elections. It continues to be in effect until the process of elections is completed. Its applicability extends throughout the territory of India during the time of General Elections and throughout the territory of State during the State Legislative Assembly elections. However, in the case of bye-elections, the applicability is reduced to that concerned constituency in which the elections are taking place.

Historical background of the Code

The existence of the Code dates back to the 1960 Kerala State Legislative Assembly Elections when the State Administration for the first time, issued a set of instructions, regulating the conduct of the participating political institutions. The Code was then taken into national cognizance during the 1962 Lok Sabha Elections and the State Legislative Assembly elections. It was widely circulated to all the recognised states and national political parties. As a result, the Code was voluntarily embraced and accepted in furtherance of securing a free and fair elections regime.

The subsequent general elections of 1967 witnessed more States coming forward to embrace the Code. The State of Kerala re-adopted the above Code in its conference of political parties in December 1966. States including Madras, Tamil Nadu, West Bengal and Andhra Pradesh too showed their acceptance towards the Code by evolving their respective codes based on the initial draft. The Codes were adopted after several discussions and deliberations of the parties in their political meetings.

The Election Commission further conducted state-level meetings to propagate the incorporation of the Code in the election process. A document titled, “Role and Responsibilities of Political Parties during Elections: An Appeal to Political Parties for the Observance of a Minimum Code of Conduct during Election Propaganda and Campaign”, determining the standard political behaviour, was prepared by the Commission during the midterm General Elections of 1968 and 1969. The same document was then presented to the political parties in these state-level meetings, appealing the compliance for the same.

A number of recommendations were made by the Commission regarding the nature of the Code. Thereafter, a revised Code was issued on 1st January 1974. Accordingly, the Chief Election Officers were directed to constitute district level standing committees, regulating the compliance to the Code. The committees, composed of members representing different political parties, worked under the chairmanship of the District Collector. Subsequently, the Code was nationwide circulated to observe its compliance during the 1977 General elections to the Lok Sabha and the 1974 General State Legislative Assembly elections.

With increasing malfeasance in the electoral process owing to the political competitiveness, the guidelines were, however, ignored. The flexible approach and a lenient implementation of the Code led to severe violations by the ruling political parties. It was in 1979 that the Election Commission, in a conference of political parties, consolidated the Code by adding a section monitoring the conduct of “parties in power”. A revised Code with a comprehensive framework was hence issued to prevent the powerful political actors from obtaining an undue advantage of their position. The Code now consisted of seven parts, with Part VII exclusively dealing with the provisions for “parties in power”, both at Centre and State level.

Despite the prolonged existence of the Code, the compliance was not backed by statutory sanctions. No punitive mechanism was adopted in case of any defiance. Owing to continued violations and increasing corrupt practices, the Election Commission in 1980, came up with a proposal to include Part VII of the Code under the purview of a statute. The said proposal was discussed with the Union Government. However, no law was enacted to this effect.

The 1991 General Elections proved out to be a turning point in the evolution of the Code. The Code was further consolidated and re-issued by the Commission under the supervision of the then Election Commissioner T.N. Seshan. Although the original draft of 1979 was retained, changes were made in Part VII of the Code. The improved version, now provided for stricter provisions, ensuring effective implementation.

The 1991 elections also observed active participation from the end of the Commission, ensuring strict adherence to the Model. The Commission directed that the Code should be operational as soon as the election date is announced. This was, however, negated by the Central Government and most of the States Government. It was during the 1994 Kurnool Constituency bye-elections and the State Legislative Assembly elections, that these directions were finally challenged by the Andhra Pradesh Government. Despite several deliberations in the Court, the matter failed to reach any definite conclusion.

It was, however, in the case of Harbans Singh Jalal v. Union of India & Other, some light was thrown on this conflict. A writ petition, challenging the Election Commission’s direction of operating the Code from the date of elections, was filed during the 1994 General PunjabLegislative Assembly elections. The Punjab and Haryana High Court, while deciding upon the matter, upheld the Commission’s orders. It validated the Commission’s authority to take all such necessary steps in pursuance of securing free and fair elections. The matter was then presented before the apex Court. A special leave petition was filed by the Central Government against the High Court’s rulings. Again no definite view was delivered by the Supreme Court.

It was on 16th April 2001 that a consensus was finally reached between the Election Commission and the State and Central Governments. An agreement regarding the same was entered into. It was mutually agreed that the Election Commission’s directions would follow. A mandatory clause providing that the date of elections would not be announced more than 3 years prior to the election date, however, limited the Commission’s intervention. It was further agreed that all such public projects will be inaugurated or laid by the public servants instead of political ministers so that public interest is maintained, once the Code is operated. Subsequently, changes in these respects were made in Part VII of the Model Code.

The Code was further modified in 2014. New guidelines with respect to the election manifestos were introduced. The Supreme Court via its judgement S. Subramaniam Balaji Vs Govt. of Tamil Nadu and Others dated 5th July 2013, directed the Election Commission to formulate such guidelines, regulating the conduct of political parties and the contesting candidates while manifesting elections. An additional Part VIII was specifically introduced for this purpose.

Law established in the Case of S. Subramaniam Balaji Vs Govt. of Tamil Nadu and Others

The apex Court entrusted the Election Commission to take appropriate measures in furtherance of free and fair elections. The driving force behind all such orders and directions lies in Article 324 of the Indian Constitution. Although law precludes the concept of election manifestos from the umbrella of “corrupt practise” under Section 123 of Representation of People’s Act, 1991, the practice of the distribution of freebies cannot be justified. It influences people’s opinions by dismantling the institution of free and fair elections. Hence, there lies an immediate need to develop a framework to regulate the procedure of election manifestos.

Present Day Status of the Code

The present form of the Code is made up of VIII comprehensive Parts. Part I regulates the general conduct and behaviour of the political actors, their workers and their supporters. Subsequent Parts II and III determine the standard criteria for holding meetings and carrying out processions. Parts IV and V regulate the polling booth activities of the political actors on the polling day. The next Part namely Part VI provides for redressal of complaints, pertaining to the conduct of elections by simply bringing it to the notice of the observers. The additional Parts VII and VIII as discussed above, deal exclusively with the “parties in power” and election manifestos.

Legal enforceability of the Code

The Code being non-statutory in nature, is not backed with legal sanctions. Despite the continuous efforts of the Election Commission to bring Part VII and Part VIII under the purview of a statute, no positive law was passed to this effect. It was soon realised by the curators of the Code that bringing the Code under the supervision of the judiciary would curtail its efficacy. The judicial remedies would take a considerable amount to time which would nullify the effect of the Code. The essence of the Code lies in quick decisions and spontaneous actions which would be absent in case the Code is incorporated under a statute. This led to the withdrawal of the proposal by the Commission.

However, certain provisions of the Code are enlisted as “corrupt practices” and “electoral offences” under the Representation of People’s Act 1951 and the Indian Penal Code. Violating these provisions attracts punitive actions. For instance, bribing the voters is both an electoral offence and a corrupt practice under Section 171 B of the Indian Penal Code and Section 123(1) of the Representation of People Act, 1951 respectively. Impersonating and intimidating voters, arousing communal sentiments to secure votes, aiding voters with conveyance and transportation facilities and many other such malpractices are too made an offence under IPC and RPA.

Conclusion

With an evolution in the Code, the election process has refined over time. From a mere document to a powerful authority regulating the conduct of political actors, the Code has come a long way. Strict guidelines with a stricter implementation have only added to the credibility of the Code. The present form is now subjected to a more assertive and active implementation by the Commission. Certain provisions are further incorporated under the supervision of the judiciary, thereby securing the democratic spirit of the country.