MODEL CODE OF CONDUCT: Behind The Scenes Of Electoral Integrity – Constitutional & Administrative Law

INTRODUCTION

The Electoral Commission of India (ECI) is an autonomous
constitutional body that was established on 25th January, 1950 in
accordance with the Article 324 of the Indian Constitution that
vests the authority and responsibility with regards to the
superintendence, direction and control of elections and the
preparation thereof, in the ECI. Since then, the ECI has been
accountable for the maintenance of the integrity of the Indian
democracy by way of, inter alia, safeguarding and ensuring
a dignified conduction of elections in the largest democracy of the
world.

One of the ways the same is endeavoured to be achieved is
through the formation of the Model Code of Conduct, i.e., a morally
bound set of guidelines issued by the ECI prior to the conduction
of elections, to be followed by both; the parties as well as the
candidates contesting.

This article shall be thus an attempt at exploring the
technicalities of the MCC as a concept as well as the intricacies
involved in the 2024 Model Code of Conduct.

MAJOR MILESTONES IN IMPLEMENTING THE MODEL CODE OF CONDUCT

UNDERSTANDING THE MODEL CODE OF CONDUCT

GENERAL OVERVIEW

The Model Code of Conduct, as has been briefly stated above, is
a set of guidelines that have been developed by the ECI overtime
for the conduction of orderly elections and further for the
prevention of malpractices that may occur due to power play.

STRUCTURAL ASPECTS

MCC is comprised of 8 parts, the last having been added in 2014.
Each of its part concerns itself with a different component of
elections and enlists the expected behaviours that are to be
adhered to, by the persons concerned. The MCC’s composition may
be summarised as:

1. General conduct: this part deals with the overall norms set for
   the parties to follow while campaigning for elections, such as
   refraining from caste and religion based targeting, and avoiding
   from indulging in corrupt practices and offences under the election
   law.




2. Meetings: this section deals with the meetings of the political
   parties and the same entails the prior informing to the local
   police authorities and the observance of laws in force at the place
   of said meeting.




3. Procession: there is required to be a premeditated route set
   out for the carrying of processions of the political parties to be
   adhered to strictly and further guidelines have been laid down with
   regards to the potential clashes in the schedules of parties and
   the adherence to the traffic rules.




4. Polling Day: this part lays out the norms expected from the
   parties and the candidates to be followed on the day of polling,
   including cooperation with officers in-charge, honest conduct by
   the parties and strict adherence to the restrictions imposed on the
   plying of vehicles and prompt display of vehicle permits.




5. Polling Booth: this section necessitates the requirement of a
   valid pass sanctioned from the ECI to individuals other than the
   voters in order for them to enter the polling booth.




6. Observers: this section empowers the candidates and their
   agents to bring to the notice of the appointed observers, any
   specific complaint or problem regarding the conduct of the
   elections.




7. Party in Power: this section subjects itself to the parties in
   power, both at the central level as well as in the state concerned.
   It ensures the prevention of abuse of power by the said parties in
   hampering of the orderly conduct of elections. It restricts the
   monopolisation of assets otherwise easily accessible to the party
   in power and calls for the non-usage of privileges and resources
   provided to office holders for purposes other than the official
   ones. Other than this, no work can be initiated by the party in
   power upon a new scheme and neither can new funds be released under
   the MPs/MLAs/MLCs’ Local Area Development Fund of any scheme in
   the territory to which the election extends. It further also
   restricts ministers from entering any polling station or place of
   counting except in their capacity as a candidate or voter or
   authorized agent.




8. Guidelines on Election Manifestos: the Apex Court, in its
   judgment of S. Subramaniam Balaji (supra) stated
   that, “79) Therefore, considering that there is no
   enactment that directly governs the contents of the election
   manifesto, we hereby direct the Election Commission to frame
   guidelines for the same in consultation with all the recognized
   political parties as when it had acted while framing guidelines for
   general conduct of the candidates, meetings, processions, polling
   day, party in power etc. In the similar way, a
   separate head for guidelines for election manifesto released by a
   political party can also be included in the Model Code of Conduct
   for the Guidance of Political Parties &
   Candidates“

In accordance, guidelines have been framed in consultation with
the recognised National and State political parties, calling for
the parties to abstain from inserting unconstitutional ideologies
and superficial promises likely to vitiate the purity of the
election process or from exerting undue influence on the voters in
exercising their franchise so as to uphold the trust of voters in a
dignified manner.

Part VIII also includes provision relating to the prohibitory
period of release of manifesto, entailing adherence to the Section
126 of the Representation of the People Act, 1951 for both, single
and multi-phase elections.

LEGAL ASPECTS

MCC is a voluntary code and not a legally enforceable
one. What this means is that any political party or any
candidate in violation of this code cannot be directly penalised,
given the non-statutory nature of the MCC. However, given the
generality of the provisions mentioned in the code, the party in
violation can be penalised indirectly by way of approaching
competent authorities and citing the equivalent provisions provided
in the statutes.

Even though MCC is not legally enforceable, it has time and
again been granted judicial recognition. For instance, in
Harbans Singh (supra), the Hon’ble High Court
of Punjab and Haryana had stated that “24. In view of what
has been stated above, we are clear in our mind that the Election
Commission are entitled to take necessary steps for the conduct of
a free and fair election even anterior to the date of issuance of
notification, from the date of announcement of the election.
While doing so, the model code of conduct adopted to be
followed by all political parties including the political party in
Government, can be directed to be followed by the Election
Commission. Action of the Commission in this
regard cannot be faulted, for the said model code of conduct
adopted by the political parties does not go against any of the
statutory provisions. It only ensures the conduct of a free and
fair election which should be pure.“

SCOPE AND APPLICABILITY OF MCC

The MCC extends to the whole of the country in the case of Lok
Sabha elections, to all poll bound states of India in case of
assembly elections and throughout the district in case of
by-elections. MCC comes into force as soon as the election date is
announced by the ECI (16th March 2024 for the upcoming Lok Sabha
elections), its enforcement lasting till the declaration of
election results.

Placing further reliance upon S. Subramaniam Balaji
(supra), wherein is has also been mentioned that,
“79.)…We are mindful of the fact that
generally political parties release their election manifesto before
the announcement of election date, in that scenario, strictly
speaking, the Election Commission will not have the authority to
regulate any act which is done before the announcement of the date.
Nevertheless, an exception can be made in this regard as the
purpose of election manifesto is directly associated with the
election process.” Accordingly, the ECI contains within
itself the power to indirectly place a check on the actions of the
parties in violation of the guidelines mentioned on election
manifestos as well as direct authority in case of violation of any
corresponding statutory provisions, particularly the ones provided
under the Representation of the People Act, 1951, Indian Penal
Code, 1860 and the Code of Criminal Procedure, 1973.

Additionally, any citizen having noticed the violation of
provisions of MCC as well as of any statutory provision can report
the same through the cVIGIL App introduced by the ECI as a measure
for control and applicability of the code.

CHALLENGES AND CRITICISMS

1. Inherent issues vis-à-vis the
   implementation: given the deep rooted socio-politics that
   India has subjected itself to since time immemorial, one cannot
   deny the fact that ground reality of election campaigning is
   somewhat unlike what would be the expected idealistic campaigning
   in a democratic utopia. Furthermore, the lack of statutory nature
   of the MCC makes its implementation strenuous if the corresponding
   statutory provisions do not exist. Not only this, given the
   generality of the majority of provisions contained in the MCC, the
   same may become open to interpretation and thus potentially facile
   to override.




2. Lack of Public Awareness and Education: a
   proportion of the general population that is of the voting age is
   unaware about the Model Code of Conduct and the means of reporting
   violations thereof, especially with regards to measures such as the
   cVIGIL App. There exists thus an urgent need for the MCC and
   mechanisms related to it being promoted amongst the masses.




3. Evolution of campaigning: with the
   progressively increasing technological advances, the ways of
   campaigning have progressed considerable, with parties now taking
   up social media platforms such as X and Instagram for campaigning
   to appeal to the younger voters. It becomes important that the MCC
   be kept updated regularly and fit to deal with the new age
   campaigning so as to ensure a more inclusive regulation for the
   orderly conduction of elections.




4. Criticisms of the ECI’s model code of
   conduct: it has been time and again argued that the
   restriction imposed by the MCC upon the announcement of new
   projects and initiatives by the government after MCC’s
   implementation hinders the governance of the nation as well as
   causes delays with regards to critical issues that may require
   immediate action of the government. Furthermore, the time period
   before the election schedule is announced is one wherein there
   exists no mode of regulation of the actions of political parties,
   except for the statutory provisions which may leave an array of
   unethical activities that the parties may engage in, compromising
   the integrity of the elections. What may be thus suggested is a
   flexible timeframe or implementation of MCC in parts so as to cover
   the unchecked period before the official dates are announced.

ELECTORAL CONDUCT IN OTHER COUNTRIES

The concept of MCC is not original to India in the sense that
there exist similar concepts regulating the electoral processes in
democracies around the world. For instance, United
Kingdom’s Code of Conduct for Campaigners provides a
comprehensive code of acceptable behaviours, directed towards the
campaigners, electoral administrators and police forces at polling
stations and in the community during till the polling day.
Similarly, South Africa’s Electoral Code of
Conduct aims at promoting “conditions that are
conducive to free and fair elections” and to create an
environment that fosters tolerance, free political campaigning, and
open public debate. Some other countries with voluntary codes of
conduct include Bangladesh, Cambodia, Nigeria, Pakistan and
Thailand. Meanwhile, countries such as the United States of America
and Australia rely majorly upon statutory provisions for the
guidance and regulation of conduct of political parties and fair
play during the elections alongside any other guidelines that the
state may issue.

Countries around the world have adopted the concept of a
voluntary code of conduct to supplement the orderly execution of
the electoral process alongside the statutory provisions regulating
elections.

CONCLUSION

In cessation, the ECI’s Model Code of Conduct provides
regulatory measures with respects the general conduct of the
candidates, particularly with regards to the moral behaviours of
the parties and the candidates. Over the years, MCC has undergone a
plethora of developments and judicial scrutiny, resulting in a
comprehensive and inclusive code, which is of critical importance
in the carrying out of the electoral process in India.

Structurally, it is comprised of eight parts, each referring to
a different component of elections, ranging from the general
conduct of the parties to the guidelines on election manifestos.
The ECI has further introduced measures such as the cVIGIL App
which require public awareness for a more effective
implementation.

MCC being non-statutory in nature is consequentially only able
to necessitate limited implementation with the rest being left to
the parties given the code’s voluntary nature. It thus becomes
pertinent that voters remain vigilant while deciding upon their
future representatives and be an active part of the electoral
process from the initial phase of the elections instead of becoming
susceptible to hearsay and making uninformed decisions. Despite the
challenges, MCC is still an extremely integral aspect of the Indian
elections and its grip upon the conduct of the political parties
during the whole of the election process cannot be denied.

Footnotes

1. Harbans Singh Jalal, Ex-MLA v.
Union Of India, (1997)116PLR778

2. S. Subramaniam Balaji v.
Government Of Tamil Nadu and Others, AIRONLINE 2013 SC
153

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