Ex-Election Commissioner Ashok Lavasa writes: A message on the Model Code of Conduct for leaders – from Mahabharata and beyond

The philosopher Francis Bacon begins his famous essay ‘Of Truth’ thus: “What is truth? said jesting Pilate and would not stay for an answer”.

Not only Pilate, hardly anyone stays for an answer because of the philosophical complexity of the query. Take the four lions on the Ashokan pillar, our national emblem on the base of which Satyameva Jayate is inscribed. Three of them can be seen as representing the three dimensions of truth. One that I can see, the other that you can see, and the third that neither of us can but a third person could. Truth, however, has a fourth dimension that no one can fathom. That is why we often say, “God only knows the truth”.

The ECI, however, deals with ordinary mortals who it tries to bind by a Model Code of Conduct (MCC) during the period they seek votes. These men (and some women too) often face the dilemma of whether it is worse to lie to others or to oneself. It is somewhat naïve for us to expect anyone to be a “model” for a few days if he has not been that in the course of his ordinary existence.

The adoption of the MCC was accompanied by a fervent expectation that it would instil in all stakeholders a sense of self-restraint. In the Manual on Mode Code of Conduct published at the time of the General Elections in March 2019, I wrote, “It is incumbent upon those who aspire to represent the people to project before the people a behaviour that is worthy of emulation and an example of a model conduct that reflects their values.”

The ECI describes the MCC as the “singular contribution by political parties to the cause of democracy in India.” Having contributed to making a model code, should not the political parties and their leaders demonstrate model conduct in what they say and mean? Some feel that the coarseness of the language used by some political leaders uncovers their ignoble intent, while others think that this sparring is merely a part of the political jousting.

Some people also wonder, why it is a “model” and not a “moral” code. Morality, as we all know, is often amorphous. It has more to do with intent than impact. Law looks at mens rea, the motive behind the action to determine the full measure of guilt. Morality, however, is deeper; sometimes so deep and subjective that the intent lies hidden in the inaccessible recesses of the mind of the accused. That’s why Immanuel Kant said “In law, a man is guilty when he violates the rights of others. In ethics, he is guilty if he only thinks of doing so.”

The core of Kant’s assertion informs the spirit of the MCC. The Code states: “No party or candidate shall include in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic” and that “there shall be no appeal to caste or communal feelings for securing votes.” In fact, it is listed as a “corrupt practice” and “electoral offence” in the Indian Penal Code under Section 123 (3&3A) and Section 125 of the Representation of the People Act, 1951. The catch, however, is that for any appeal on grounds of “religion, race, caste, community or language” to become a “corrupt practice”, it must be “to vote or refrain from voting for any person.” Similarly, promoting enmity between classes becomes an offence punishable with imprisonment for a term which may extend to three years, or with a fine, or with both only if it is “in connection with election”. However, proving that such a statement was made in connection with an election could legally mean that it should be an explicit appeal to vote or refrain from voting.

This is enough of a loophole for clever wordsmiths to escape the law. This is what might make law enforcement seem like “Dor ko suljhā rahā hai aur sirā miltā nahīñ” (to use Akbar Allahbadi words) — trying to untangle the thread but not finding the end. The ECI apparently finds itself in this bind as seen from its exhortation to the political parties while announcing the elections and repeating the same dutifully while disposing of the complaints of egregious violation of the MCC against the star campaigners of two national parties.

Even Yudhistra could not be held guilty technically because his announcement of Ashwathama’s death was loud enough for everyone to be heard. He did mutter that it was an elephant but that was lost in the din of the tactical triumphal conch that followed the announcement. Both facts in question – Bhima’s killing Ashwathama the elephant and Yudhistra’s confirming that Ashwathama was killed — were true. Dronacharya thought that his son Ashwathama was killed and withdrew into meditation because the “whole truth” was not spoken in a manner he could comprehend. In the process Dhristadyumna killed Dronacharya. In this mythological story, the purpose of the ruse was achieved but Yudhistra lost his moral high ground.

For us, the Mahabharata story has a message: Rethink MCC and reboot our conscience. Elections are necessary in a democracy. It should not lead to people and their leaders losing their moral ballast. That could cause damage that extends beyond the periodic exercise of political choice.

The writer is a former Election Commissioner.