The Code conundrum: Does Model Code of Conduct need legal teeth?

The MCC has helped the Election Commission hold free and fair polls in India for decades, albeit with occasional allegations of biases in enforcement. The question that is often raised in public discourse is whether it should be made legally binding.

S Y Quraishi

The Model Code of Conduct has been a distinctive feature of the elections in India. It has contributed enormously to the conduct of free and fair elections, which then US Secretary of State, Hillary Clinton, had in 2011 hailed as a ‘gold standard’ in democratic exercises.

The origins of the code go back to 1960, a pivotal moment preceding the general elections to the Legislative Assembly in Kerala. At that juncture, the state administration took a pioneering step by conceptualizing a code of conduct tailored for organized political entities within its jurisdiction. Drafted meticulously, this code underwent thorough deliberation and garnered voluntary approval from the leading political parties in the state. Encompassing crucial facets of electioneering, such as the conduct of public gatherings, dissemination of speeches and slogans, and the display of posters and placards, the code aimed to keep the campaign civil and peaceful.

In the third Lok Sabha elections in 1962, the Election Commission accepted Kerala's code as a model and disseminated it to all state governments, accompanied by an advisory to engage political parties in discussions and solicit their consent for adoption. Remarkably, political entities across states readily accepted the provisions outlined in the code, resulting in a more tranquil electoral landscape during that period.

The evolution of the code continued, with the EC collaborating closely with political stakeholders in 1979 to enhance its efficacy. A notable addition was a section imposing constraints on incumbent parties, aimed at mitigating any undue advantages they might wield over their electoral rivals. Subsequently, the code underwent consolidation, and it was reissued in 1991, reaffirming its relevance and utility in fostering electoral fairness and transparency.

Significantly, it was during the 10th general elections to the Lok Sabha in 1991 that the EC embarked on a proactive trajectory. It endeavoured to ensure rigorous adherence to the code's principles, emphasizing both literal compliance and adherence in spirit. This transformative phase heralded the inception of election observers, pivotal figures tasked with scrutinizing the code's implementation at grassroots levels.

In 2013, on the directions of the Supreme Court, a new chapter 8 was added to the guidelines for political parties, in order to prevent irresponsible announcement of freebies ahead of the elections.

The effectiveness of the Model Code of Conduct (MCC) comes under scrutiny every election season and the question that is asked in public discourse is whether it should be made legally binding.

The MCC is a self-regulatory framework borne out of political consensus rather than statutory enactment. Despite lacking statutory authority, violations incur reprimands from the EC, causing significant embarrassment for political actors due to media scrutiny and societal backlash.

Advocates for granting statutory status to the code argue that it would enhance its effectiveness and enforceability. However, the EC believes statutory recognition would take away the summary procedure for prompt action and replace it with a lengthy judicial process. The commission's ability to swiftly address violations, often within hours or minutes, maintains the MCC’s credibility, underscoring the effectiveness of preventive measures over punitive actions.

MCC not toothless

Despite being a voluntary pact among political parties, endorsed by the Supreme Court and enforced by the EC, the MCC is not toothless. Article 324 of the Constitution empowers the commission, allowing it to act in the absence of specific laws. In cases of severe MCC violations, such as the 2012 Rajya Sabha elections in Jharkhand, where cash was seized for potential vote-buying, the EC used its Article 324 authority to countermand the election, a move upheld by the Jharkhand High Court. The code has been used to censure a Union law minister for its violation. In some cases, senior politicians have been barred from campaigning.

It is noteworthy that almost all the provisions of the MCC are also covered under substantive laws and their violation may be considered ‘corrupt practices’ under the Representation of the People Act, 1951, or offences punishable under other laws. While appealing to caste and communal feelings to seek votes is a violation of the MCC if such pleas incite violence, they are also an offence punishable under the Indian Penal Code. Defacement of public property is not allowed under the MCC, while most states also have substantive laws to prevent the defacement of property. The EC has always taken the view that actions in cases of violations should be taken both under substantive laws as well as the MCC.

The MCC’s effectiveness in the era of social media is a new issue to be addressed.

So far, in measures that can only be termed pseudo-regulatory, the EC introduced a 'Voluntary Code of Ethics' for the 2019 Lok Sabha elections to regulate social media use. Additionally, a 'Media Certification and Monitoring Committee' pre-approves political ads and monitors media violations during elections, including social media. Social media specialists are designated at district and state levels for oversight. But, given the enormous pervasiveness of social media, these measures prove to be weak and ineffective. We need laws that can effectively cover issues, ranging from user privacy and digital data proprietorship. We need laws that can effectively penalize digital disinformation and hate speeches. In times to come, we must also introduce strong and suitable reforms to the MCC to confront the ramifications of the new age of social media.

Nobody can deny that MCC’s strict observance by the political parties and candidates and its prompt enforcement by the EC have brought about a sea change in elections and the electioneering process. The MCC is now regarded not just as a model code, but indeed as a moral code of conduct.

(The writer is a former Chief Election Commissioner of India and the author of India’s Experiment with Democracy-the Life of a Nation through its Elections.)