Introduction

Elections are said to be the “festival of democracy". In a democratic polity like India, the general elections are held, normally every five years, with much fanfare. In the electoral process, political parties put up their candidates and leave no stone unturned to garner the support of every voter living in their respective constituencies. In the electoral fray, all the parties and their candidates are viewed on an equal footing by the Election Commission of India which is the apex body for conducting the elections. In modern parlance it can be said they are given a ‘level playing field’ by the ECI so that the ‘candidates, political parties and their campaigners do not exercise undue influence on voters by excessive use of money and muscle power or by their mendacity.’1 Undoubtedly, an election in a democracy is the most crucial event. ‘A vote is meant to be a social contract based on faith and facts.’2 In this backdrop, the concept of a model code of conduct evolved over many years. The Model Code of Conduct happens to be a unique consensual arrangement. ‘In six decades of its existence, the code constructed by the consent of political parties, has become the face of the conduct of elections. Some provisions may have the backing of the law. The code exercises moral authority to keep campaign behaviour on track. Often, the EC is judged by the way it enforces this code.’3 Truly said, the Model Code of Conduct is more of a moral code than a legal one. The reason is simple-the democracy itself thrives well on moral and ethical principles which give strength to its roots besides the concepts of rule of law and a constitutional mandate.

The Model Code of Conduct was introduced initially as a ‘small set of dos and don'ts’ for the Assembly elections in Kerala in 1960. Its coverage included the conduct of election meetings, processions, speeches, slogans, posters and placards. At the time, KVK Sundaram was the Chief Election Commissioner of India. Later, in 1968, during the tenure of SP Sen Verma, the CEC, a consultation process was started with political parties, and the Election Commission of India circulated a Code to ‘observe minimum standards of behaviour to ensure free and fair elections.’ It became a practice of the Election Commission afterwards to circulate the Code before every general election. In 1979, during the tenure of SL Shakdhar as the CEC, the Election Commission in consultation with the political parties further amplified the Code. It added a new section putting restrictions on the ‘party in power’ to prevent abuse of position to get undue advantage over other parties and candidates. In 1991, the MCC was consolidated and reissued. Its provisions were vigorously enforced in letter and spirit under the unflinching leadership of the redoubtable CEC, TN Seshan.4 The adoption of the MCC raised the hope that all the stakeholders would imbibe a sense of self-restraint during the electoral process. The ECI describes the MCC as the ‘singular contribution by political parties to the cause of democracy in India.’5

Essential Ingredients of MCC

At the core of MCC, there are four principal stakeholders, namely, candidates, political parties, ruling party and bureaucracy. The last two belong to the ruling dispensation, yet the Code applies to them separately, too.

b. The bulk of the Code encompasses violations otherwise covered in law, such as, not to “aggravate existing differences or create mutual hatred or cause tension between different caste and communities”, or not to level “unverified allegations” and launch personal criticism, or not appealing “to caste or communal feelings for securing votes”, or parties and candidates not resorting to “corrupt practices". The Code mandates that parties and their workers will not disrupt the activities of rival parties. Further, the Code contains provisions regarding campaign meetings, processions, polling booths and election manifestos.

c. Model Code of Conduct is conceived in the manner to ensure that the ruling party is not able to garner undue advantage over the opposition parties in general. A full chapter (Part VII) of the Code contains the requisite provisions which places restrictions on ruling parties and the government of the day. It says that ministers shall not use official machinery or personnel during electioneering work, sanction grants or payments out of discretionary funds, announce or promise financial grants in any form, lay foundation stones for projects, make promises of projects like roads, water facilities etc. or make ad hoc appointments in government/public sector undertakings. ‘This is necessary to strip the ruling party of its incumbency advantage that disturbs the level playing field.’6 Further, the Cabinet Secretary and State Chief Secretaries have been asked to ensure the use of official vehicles is restricted for political activities, and photographs of political functionaries removed from official websites. ‘By deflating the official apparatus attached to a minister, the attempt is to make him an equal, and not more than equal.’7

MCC in an Advisory Role

In case of violation of the MCC, action is generally limited to censure of or reprimand to an individual. However, the Commission may also write to political parties advising them to ensure that their members do not attempt any violation of MCC. Such advice has sometimes been issued to state governments, in case the budget sessions of their legislatures fall during the election period. It asked them to consider bringing in a “vote of account” instead of the regular budget to avoid the violation of MCC by introducing alluring schemes. In such cases, the governments have always accepted the advice of the Election Commission. Such a piquant situation arose in Goa in May 2012 when a by-election was announced. But before that, a representation was made before the EC that the Chief Minister wanted to induct a minister into the Council of Ministers. The election was scheduled for June 2, 2012. Accordingly, a message was sent by the CEC, SY Quraishi to defer the induction of the minister. Though the CM, Manohar Parrikar, has a constitutional right to expand his ministry any time, he followed the advice of the EC, saying that- “He (CM) bows to the moral authority of the Model Code of Conduct, which should take precedence over his constitutional right.”8

The Election Commission and the MCC Violations (2024 general elections)

In the current election scenario, the Model Code of Conduct came into effect on March 16, 2024. In the following month, (March 16-April 16), the EC received 200 complaints of MCC violations, out of which the Commission has acted on 169 complaints. Party-wise position is as such:

This disclosure has been described by the Commission as “first of its kind” exercise aimed at transparency so ‘that misgivings and insinuations at times coming from certain quarters, however small or limited, are addressed and stopped.’9

Some Notable Actions by the EC

1. In a first, the Election Commission of India issued a notice to BJP president JP Nadda over Prime Minister Narendra Modi's controversial “infiltrator” remark in a campaign speech at Banswara in Rajasthan. The reply has to be made by April 29. The ECI move stands out as it is for the first time that a political party has been asked to respond on an alleged model code violation by a Prime Minister. Both the Congress and the CPI (M) have made a representation before the Commission, terming this as “hate speech". The action taken by the Commission is not known.10
2. A notice has been served by the EC on the Congress president, Mallikarjun Kharge for Rahul Gandhi's campaign remarks on allegedly accentuating a “North-South” divide. In this case also, the date of reply has been fixed for April 29.11
3. On April 1, 2024, the Election Commission “strongly censured” Congress spokesperson Supriya Shrinet and BJP leader Dilip Ghosh for the derogatory remarks against actor Kangna Ranaut and West Bengal Chief Minister Mamata Bannerjee, respectively. It also said that it will “specially and additionally” monitor their election-related communications in future.12
4. On 17th April 2024, acting on the orders of the Election Commission, social media platform X, withheld some posts containing political speech by elected politicians, parties and candidates for the remainder of the election period, though it disagreed with the orders. The posts in question were by the Aam Aadmi Party, the YSRCP, Telugu Desam Party President N Chandrababu Naidu and Bihar Deputy Chief Minister and state BJP president Samrat Chaudhary. In one takedown request on April 2, the EC asked for one post each by YSRCP and Naidu to be removed for violation of the Model Code of Conduct provision against criticism of private life of candidates or leaders and criticism based on unverified allegations. Further, In separate requests on April 2 and April 3, the EC asked that posts by the AAP and Chaudhary respectively be taken down for violating the same MCC provision and the EC's March 1 advisory to parties to maintain decorum during the campaign.13
5. The Election Commission on 21st May censured former Calcutta High Court judge and BJP candidate Abhijit Gangopadhyay for making derogatory remarks against West Bengal Chief Minister Mamata Bannerjee and barred him from campaigning for 24 hours.14
6. The Election Commission on May 1,2024, reprimanded Bharat Rashtra Samithi president K Chandrasekhar Rao and barred him from campaigning for 48 hours for his “objectionable” remarks against the Congress. The EC said that his remarks were violative of the provisions of the model code of conduct and its advisories.15

Other measures

• cVigil: The Election Commission has come up with cVigil or citizen vigilance mobile application that supports recording, reporting and resolving complaints of model code violations and about distribution of freebies, cash, liquor, etc. Complaints are legally sustainable and can remain anonymous. In ten days since the model code came into force, over 53,000 complaints have come through cVigil. During the last two months (March 16 to May 15), the EC has received a total 4.24 lakh complaints of model code violations of different nature. Out of them, a total 4.23,908 lakh or 99.9% of complaints have been disposed of. About 3.76 lakh complaints were resolved within the stipulated time of 100 minutes. In this app, a unique ID is provided to the complainant who can track the status of his complaint on his mobile phone.16
• The Election Commission’s avowed policy is zero-tolerance against any damage to the level playing field. In this regard, action has been taken against a union minister from Karnataka for alleged violation of the model code of conduct. The Commission directed immediate stoppage of delivery of WhatsApp messages to the public on the Centre's Viksit Bharat campaign. In the last week of March this year, the Commission put two seniors in the biggest two national parties on notice, for reported comments affecting the dignity of women.
• Recently, the Commission has noticed trends “destabilizing the decorum of political discourse”. Surrogate or indirect violations have emerged as bigger concerns than direct violation. Keeping this in view and after analyzing the disturbing trend of MCC violations, the Commission warned political parties against such surrogate means.17

The Need for Reforms in MCC

In the Indian context, the pattern of electioneering is changing fast. Over the years, the political parties and the candidates try to adopt new and ingenious means to evade the provisions of the model code of conduct. Moreover, the enhanced use of technology has also aggravated the situation. Keeping these factors in view, there is an urgent need to reform the model code of conduct. The following suggestions are worth considering-

1. In case of certain violations of the Code, mere censuring of the political leaders and now, of the political parties is done by the Election Commission. For them, it is a very light punishment, if any. It would be better to introduce punitive sections in the relevant Acts so that the same action would not be repeated in future. Also, it will serve as a stigma on the party and the candidates both.
2. Barring a political party or the candidate from campaigning for one or two days is not enough. In certain cases of serious violations of MCC, it should be banned for the remainder of the election period.
3. A compendium of such violations and action taken against the political parties and the candidates should be prepared and the whole information should be posted on the Commission's website. The repeated offenders should not be allowed to contest any election in the future for the coming ten years.
4. The EC gives a notice in all such cases of violation of the model code of conduct to the political parties and the candidates for making a reply. Often this time is long. Then, it becomes the responsibility of the EC to pursue each and every case for obtaining response from the culprits which takes a toll on the EC’s overworked machinery mainly responsible to conduct free and fair elections. Not more than a week's time should be given in such cases, and till then, the candidates should be barred from campaigning.
5. Robust provisions should be introduced in the MCC regarding the misuse of social media which is rapidly replacing the traditional methods of poll campaigning.
6. It should be the endeavour of the EC to take action on the complaints of violation of the model code of conduct and the outcome should be placed within 72 hours, so that people's trust in the functioning of the EC is not dented.

Conclusion

Elections in India have become very frequent, and a new crop of politicians have come up fast with a single aim of winning elections in any manner. That has resulted in flouting the ethical and moral norms enshrined in the model code of conduct, issued to all political parties prior to elections every time. The use of money and muscle power during the elections is not a new phenomenon. Added to these, the hate speech, derogatory language and personal attacks have turned the election arena with a disgusting aura. The introduction of the model code of conduct was aimed at clearing the mess, but the results have not strengthened the people's faith in the democratic process of electioneering. Often, political parties take the notices issued by the Commission very lightly and bide their time till the elections are over. There are no punitive actions attached to the Code. This lightens the gravity of the model code of conduct. Moreover, the provisions lack the definite timeline for disposal of the complaints of its violations. Also, the provisions do not cover the technological developments such as AI, deep fakes etc. So, this is high time to reform the provisions of the model code of conduct. Otherwise, in future it will prove to be a damp squib in the broad election scenario.

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References:

1. Ashok Lavasa, Model Code and context, The Indian Express, Apr 24, 2024.
2. Ashok Lavasa, The choice before EC, The Indian Express, Apr 2, 2024.
3. Akshay Rout, Showing Red, Yellow Cards Early Ensures Fair Poll Play, The Economic Times, Mar 31, 2024.
4. Ashok Lavasa, Mind the gap, The Indian Express, Apr 30, 2024.
5. Ashok Lavasa, Model code and context, The Indian Express, Apr 24, 2024.
6. SY Quraishi, The umpire cannot be silent, The Indian Express, Apr 3, 2024.
7. Akshay Rout, Showing Red, Yellow Cards Early Ensures Fair Poll Play, The Economic Times, Mar 31, 2024.
8. SY Quraishi, The umpire cannot be silent, The Indian Express, Apr 3,2024.
9. Vrinda Tulsian, Amid ‘insinuations’, EC details poll code action, Hindustan Times, Apr 17, 2024.
10. EC Notice First Time for a PM Violating Model Code, The Economic Times, Apr 26, 2024.
11. Ibid.
12. Aditi Agrawal, EC ‘Strongly Censures’ Ghosh And Shrinate For Comments On Mamata, Kangana, Hindustan Times, Apr 2, 2024.
13. On EC orders, X takes down posts of parties & leaders, but says disagree, The Indian Express, Apr 17, 2024.
14. Santanu Chowdhury, EC censures Gangopadhyay, bars him from campaign for 24 hrs over Mamata remarks, The Indian Express, The Indian Express, May 22, 2024.
15. 48-Hr ECI Ban on KCR Campaigning, The Economic Times, May 2, 2024.
16. Dainik Jansatta, May 19,2024.
17. Akshay Rout, Showing Red, Yellow Cards Early Ensures Fair Poll Play, The Economic Times, Mar 31, 2024.