#BiharElections is a Twitter hashtag. But the Assembly polls that end with voting in the final phase today could well have had another: #DirtiestCampaign. Controversies have arisen over attacks on political rivals by everyone from PM Narendra Modi to RJD chief Lalu Prasad — and the Election Commission of India (ECI) has stepped in repeatedly to keep politicians from crossing the line.
Notices for breaching the Model Code of Conduct (MCC) have been issued to several leaders including BJP chief Amit Shah, Congress vice-president Rahul Gandhi, and Lalu.
But what happens after the notice is issued? This Bihar campaign has been especially bruising, but the ECI issues notices for violation of the MCC during almost every election — do politicians and political parties take these notices seriously? What happens if they refuse to pay heed to the notices?
The fact is the MCC evolved as part of the ECI’s drive to ensure free and fair elections, and was the result of a consensus among major political parties. It has no statutory backing. Simply put, this means anybody breaching the MCC can’t be proceeded against under any clause of the Code. Everything is voluntary.
The ECI can issue a notice to a politician or a party for alleged breach of the MCC either on its own, or on the basis of a complaint by an other party or individual. Once a notice is issued, the person or party must reply in writing — either accepting fault and tendering an unconditional apology, or rebutting the allegation. In the latter case, if the person or party is found guilty subsequently, he/it can attract a written censure from the ECI — something that many see as a mere slap on the wrist.
However, in extreme cases, like a candidate using money/liquor to influence votes or trying to divide voters in the name of religion or caste, the ECI can also order registration of a criminal case against the candidate under relevant sections of the Indian Penal Code or Income-Tax Act. In case of a hate speech, a complaint can be filed under the IPC and CrPC; there are laws against the misuse of a religious place for seeking votes, etc.
The MCC carries significant moral weight; indeed, former Chief Election Commissioner S Y Quraishi had described it as the Moral Code of Conduct. Even if it just a rap on the knuckles, most politicians do not relish the prospect of a censure or a reprimand by the ECI.
What if a party or politician ignores the notice?
The ECI believes that the voter doesn’t forget or forgive a politician who tries to take on the election regulator or attempts to brazen it out. There are numerous examples of politicians who got into a slanging match with the ECI over MCC violations, and were severely punished by voters.
And yet, the abysmal depths the Bihar campaign plumbed has underscored the inadequacy of the MCC in dealing with erring politicians, with many wondering if giving statutory backing to the Code could be the answer. After all, it is argued, which politician would flinch from a mere reprimand if the prize is victory in an important election?
Both the ECI and several independent experts, however, believe that giving statutory backing to the MCC would only make the job of the Commission more difficult. This is because every alleged offence will then have to go to an appropriate court, and right up to the Supreme Court. Given the slowness of our legal system — election petitions filed decades ago are still pending before many High Courts — it is anybody’s guess what that situation might lead to.
Former CEC V S Sampath had once told The Indian Express that the MCC is meant to provide an “immediate solution, instant remedy to certain situations”. “When notice for Model Code violation is issued, we give 48 hours to reply and the reply is usually in by the 47th hour, however big a politician may be. One may say we only give censure or reprimand, but that is not the point. Parallely, under the laws of the land, action will be taken. An FIR will be filed, that case will continue for months and years,” Sampath had said.
The previous UPA 2 government did, in fact, attempt to quietly give statutory backing to the MCC. However, the move came soon after then Law Minister Salman Khurshid had a very public run-in with the ECI, the UPA ended up with egg on its face, and the hush-hush move was dropped.
Later, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice recommended that the MCC be given statutory backing by enacting a law. However, that recommendation found very little acceptance. Incidentally, the reason the Parliamentary panel made the recommendation was that the ECI, while enforcing the MCC, sometimes “appeared to be encroaching upon legislative power of Parliament”.