“I did not take kindly to the usual methods and devices that accompany electioneering. Elections were an essential and inseparable part of the democratic process and there was no way of doing away with them. Yet, often enough, elections brought out the evil side of man, and it was obvious that they did not always lead to the success of the better man. Sensitive persons, and those who were not prepared to adopt rough-and-ready methods to push themselves forward, were at a disadvantage and preferred to avoid these contests. Was democracy then to be a close preserve of those possessing thick skins and loud voices and accommodating consciences?”
This passage occurs in The Discovery of India, written by the first Prime Minister of India, Jawaharlal Nehru, when the Election Commission of India (EC) did not exist, nor did the Model Code of Conduct (MCC).
The MCC, a unique consensual arrangement that evolved over many years, comes under stress as soon as it comes into force with the announcement of elections. It tests political parties, their leaders, the candidates, and the EC itself. All this is under the piercing gaze of the media and the critical oversight of the judiciary.
How the Model Code evolved
The MCC started as a small set of dos and don’ts for the Assembly election in Kerala. It covered the conduct of election meetings/processions, speeches, slogans, posters and placards in 1960 when K V K Sundaram was the Chief Election Commissioner (CEC).
In 1968, under CEC S P Sen Verma, the EC consulted with political parties and circulated the Code to observe minimum standards of behaviour to ensure free and fair elections. Whereas it became a practice for the EC to circulate the Code before every General Election in 1979 with S L Shakhdar at the helm, the EC in consultation with the political parties further amplified the code, adding a new section placing 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 re-issued and the redoubtable T N Seshan used it as a weapon of mass destruction.
Why MCC needs more teeth
The political environment in the country has since sharpened, blunting the efficacy of the MCC. Instances of violations are rising, becoming rampant and rabid. Political leaders are deploying their prestige, firepower and demagoguery like never before and finding ingenious ways to remain in the shadow zone between the letter and the spirit of MCC. Money has replaced muscle; technology has provided a shining armour. Chicanery in dodging the MCC has a higher premium than the inclination to adhere.
While the MCC draws its strength and sanctity from the strict, prompt and non-discriminatory enforcement by EC, there is a need to remodel it by imposing more reasonable restrictions in a non-discriminatory manner. This is essential to restore a certain degree of decorum and discipline in public discourse.
A significant gap in the present framework is that the MCC has not clearly spelt out the consequences of defaults, thus diluting its deterrent effect. It is necessary to specify punitive measures in a fair, transparent and predictable manner, especially with respect to serious violations such as hate speech invoking communal and caste feelings to secure votes, offering inducements for garnering votes, using foul, filthy and abusive language against political opponents, indulging in political propaganda by invoking, praising, questioning or criticising the Indian armed forces, etc.
Such violations should attract severe consequences that could be graded and made known publicly. For example, the first case of any such violations could attract a ban on campaigning for a specified period; the second could entail a ban for a longer period and the third would debar the concerned candidate or political functionary for the entire period while the MCC is in force. Such a ban would mean a complete prohibition on all public appearances and interaction on all forms of media. It should provide that those found in repeated violation would not be eligible to be categorised as star campaigners in subsequent elections for a certain length of time.
Parties, leaders and violations
In a rather deft (some felt it was “droll”) move, the EC has taken the unprecedented step of serving political parties notice for violations alleged to be committed by individuals. Whereas a traffic violation is the responsibility of the driver, issuing a notice to the party introduces the principle of vicarious liability as notices are served only after prima facie satisfaction by the EC. Perhaps the time has come for MCC to initiate punitive action against political parties if its functionaries or star campaigners are involved in proven cases of MCC violation. This action could be a fine and/or action under The Election Symbols (Reservation and Allotment) Order, if warranted. The mechanics of this should also be suitably incorporated into the revamped MCC without absolving individual offenders.
The procedure for dealing with such cases should be streamlined such that punitive action is taken within 72 hours of the violation. A standard procedure must be laid down. Delayed responses dilute the impact of penalties and diminish public confidence in the credibility of the EC.
A list of all cases of reported violations should be compiled, a statement of their disposal/pendency should be displayed on the EC website and a database needs to be created for public information.
In MCC violations directly connected with specific provisions of extant law under various Acts, it ought to be the responsibility of the law enforcement machinery to initiate legal action. If that has not been done and a complaint is received and action is taken by the EC, it should be mandatory that legal action by the law enforcement machinery should automatically follow even if there is no specific direction by the EC.
Better politicians, unbiased Commission
Whether all this will deter potential violators and instil an element of self-regulation in the conduct of political parties, depends on the character of the political leaders. However, it would certainly limit the referee’s discretion in decision-making, thereby sparing him allegations of bias or discrimination. The EC would also bind itself publicly to proceed against cases of transgression in a time-bound and credible manner, which will inspire greater public confidence in its commitment to conducting free and fair elections.
But more than anything, what can inspire popular trust is model leadership, not model codes. Demosthenes said, “You cannot have a proud and chivalrous spirit if your conduct is mean and paltry; for whatever a man’s actions are, such must be his spirit.”
The writer is a former Election Commissioner
People queue up to cast their votes in the first phase of the Lok Sabha elections in Tripura. (Express photo by Abhinav Saha) 
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