GIVE SOME TEETH IN ITS JAWS
Constitution of India has bestowed the responsibility of conducting election on the Election Commission of India (ECI) under article 324. This article provides for ‘Superintendence, direction and control of elections to be vested in an Election Commission.—(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission)’
Thus the ECI has been given constitutional status so that it could conduct the election in a free, fair and peaceful manner. The independence of the Commission has been guaranteed under 324(5) of the constitution as it reads ‘Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment.
Election is the pivot and corner stone of democracy; therefore it has to be conducted in a free, fair and peaceful manner. For this purpose, the Parliament enacted in 1951 the Representation of People Act and subsequently conduct of election rules to this effect was also framed in 1961.
India went on poll for the first time and it was a huge success both in terms voters turn out and peacefulness. India made tryst with destiny in the real sense of the term as dreamed by Nehru in his famous midnight speech on 14 August, 1947.
After few years, the ECI issued an order to regulate the activities of the political parties and their candidates and also to take punitive actions for violations if any.
The ECI, in exercise of the powers conferred on it under article 324 of the Constitution, section 29A of the Representation of the People Act, 1951 (Act 43 of 1951) and rules 5 and 10 of the Conduct of Elections Rules, 1961 made an order called the Election Symbols(Reservation and Allotment) Order, 1968.
This step of ECI was a milestone in the electoral history of Indian democracy in the sense that it laid the foundation stone of model code of conduct. After every election, parliamentary or state legislative, the ECI felt the need to add more teeth into its jaw and gradually some sort of a set of regulatory guidelines with regard to political parties especially those in power and ministers, officers etc was required to be framed.
First step towards evolution of a set of code to regulate and monitor the activities related to the process of election was taken by T.N. Seshan in 1991, when he issued a set of instructions called Model code of conduct or MCC. Although this set of instructions did not have any legal or statutory backing, it was advisable on part of political parties, particularly those in power, officials related to conduct of poll etc to adhere to these instructions. This is how the seed of the present day model code of conduct or MCC was sown. There was a lot of hue and cry as to whether or not ECI or for that matter CEC can issue such advisory or instruction or not and if whether it can have some statutory effect at all.
Legal luminaries may be divided on this issue but the ruling of Apex court in this regard is worth mentioning.
In 1978 itself five Judges constitutional bench of the Supreme Court held in Mahinder Singh Gill versus CEC AIR 1978 ‘ the constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the election commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances.’
Thus the apex court cleared all doubts whatsoever with regards to the powers and functions of the ECI in matters of conduction of a free and fair election. It is perhaps due this fact the framers of the constitution have made provisions in article 329 of the constitution for debarment from interference by courts in matters of elections.
Even then the matters of dispute did arise especially when Sehan played tough on the political parties. Keeping in view of the growing tendencies of parties in power to take undue advantage of being in power, the ECI inserted in 1994 (Notification. No. O.N. 42(E) 18th February, 1994). a new section called section 16A in the Election Symbols (Reservation and Allotment) Order, 1968. In fact the insertion of this new section marked the beginning of the process of giving statutory and legal touch to the Model Code of Conduct or MCC. By virtue this section, the ECI assumed power to withdraw recognition of a recognised political party for its failure to observe model code of conduct or follow lawful directions and instructions of the commission. This is how the model code of conduct in its present form came into being.
Even after insertion of the above provision in the Election Symbols (Reservation and Allotment) Order, 1968, the model code of conduct could not be made a statute, perhaps because the said order itself in a way was an executive order issued by the ECI by virtue of powers conferred on it by article 324 and Acts enacted therein.
In fact, the notification issued to this effect itself says ‘in exercise of the powers conferred by article 324 of the Constitution 1[read with section 29A of the Representation of the People Act, 1951 (43 of 1951) and rules 5 and 10] of the Conduct of Elections Rules, 1961.
This MCC therefore, remained exposed to judicial scanning. The first legal opportunity to examine this code came in 1997, when a petition was filed in Punjab and Haryana HC challenging the EC powers which it drew by inserting section 16A in the Election Symbols (Reservation and Allotment) Order, 1968. The Court dismissed the petition and upheld the validity of the amendment made in the said order. The court observed that EC can issue directions to the govt and ask them to follow the Model Code of conduct. The court further said that the EC is entitled to take such steps for the conduct of free and fair election. Clarifying the confusion as to what would be the date from which the MCC would come into vogue; the court said the commission can invoke this MCC even before the issuance of notification of dates of polls also.
In 2000, the Union govt moved to the Apex court against the ruling of the EC regarding the date of Model code of conduct coming in force after the above order of Punjab and Haryana High court, and sought a favourable decision from the apex court. The legal battle went on between the govt and the ECI. In the mean time a compromise was reached between the EC and Union govt with regards to the date from which the MCC to come in force and eventually the Union govt withdrew the application from the apex court.
As per this compromise reached between the Union govt and EC, it was agreed upon that the EC would announce the poll schedule two weeks prior to the notification of the election and the code will came into force from the date the EC announces the schedule.
After this arrangement the model code of conduct comes in force with immediate effect after the announcement of schedule of polls.
CATEGORIES OF MODEL CODE OF CONDUCT- the model code of conduct thus is a compendium of circulars and instructions issued by EC invariably before every election and contain dos and don’ts. It is generally categorised into General conduct, Meetings, Processions, poll day, Polling Booth, Observers, Parties in power and some questionnaire.
Although model Code of conduct as such is not enforceable as it lacks any legal vertebra, it directs the officials especially DEOs to lodge FIRs as and when instructions under this code are violated. The ECI directs the concerned authorities to lodge cases under different penal provisions of prevailing national or local laws.
MODEL CODE OF CONDUCT AND IPC- In Indian Penal Code (IPC) for instance, a separate chapter IX A has been inserted in 1920 by Election Laws ( amendment) Act, 1920 (Act 30 of 1920). This chapter contains section 171 only but over a period of time, depending upon exigencies; sub-sections have been added to it time to time. As on now, this section 171 contains nine (9) sub-sections i.e. 171-A- 171-I. Two amendments have so far been made, one in 1975 adding clause(a) and (b) in sub-section A of section 171 and other in 2003 wherein a provision in section 171-D was made to enable duly authorised persons to cast proxy votes.
Thus for most of the violations of MCC, cases are registered under the provisions of this chapter of IPC.
Similarly violating prohibitory orders invoked under section 144 of Criminal Procedure Code of 1974, cases under section 188 of IPC are registered which is a cognizable but bailable offence. This law has become almost toothless and people make mockery of it because even if you violate the prohibitory orders, police would have to set you free as soon as you are taken into custody. In fact cases are registered under this section 188 for any kind of act of disobedience of order issued by a public servant who is legally authorised to promulgate such orders. Therefore, technically speaking, if the model code of conduct is violated, FIRs can be lodged u/s 188 of IPC also because the ECI is empowered to issue or promulgate such instructions by virtue of powers conferred on it under Article 234 of Indian Constitution.
Apart from above mentioned sections, cases are also registered for violating model code of conduct in sections other than chapter IX of this code depending upon the nature of offence.
WALL PANTING AND POSTER PASTING- The wall panting or poster and pamphlet pasting on walls are also prohibited as per the instructions of MCC subject to certain conditions. Raising hoarding and banners are also prohibited. If such things come to the notice of the concerned authorities cases are required to be registered. Problem sometimes arises that under which law and sections do these cases be registered? The EC has furnished a list that instances for which cases under Defacement of Public Property Act should be registered. This is a local law and almost every state govt has its own law related to defacement of property. For instance in Delhi there is one Delhi Prevention of Defacement Act, 2007, in W.B there is one W.B Defacement of Property Act, 1976, in Bihar we have Bihar Prevention of Defacement of Property Act, 1985 etc. Thus, for every state there is a separate law. In some states it is cognizable and non-bailable whereas in others it is bailable and non-cognizable. It causes lots of technical problems for the ECI to issue one uniform direction to all the States. Similarly for use of laud speakers, we have a plethora of Acts and rules. Almost every state has a separate law or rule regarding the use of laud speakers.
Under the above circumstances the enforcement of MCC in letters and spirits often becomes difficult. The officials have to use discretion and it is rightly said that discretion begets discrimination.
MODEL CODE OF CONDUCT AND RP ACT 1951- in order to help ECI to conduct a free and fair election as enshrined in article 324 of the constitution, the parliament enacted a comprehensive law called Representation of People Act, 1951. In fact it contains provisions to regulate the activities and conduct of both political parties as well as poll officials. It is therefore can be said the precursor of MCC. If a glance at this law is made, it clearly stipulates the provisions related to violation of MCC. These provisions are inserted in PART VII and titled as CORRUPT PRACTICES AND ELECTORAL OFFENCES. The chapter-I of this Part contains provisions related to Corrupt Practices and has one section 123 only. CHAPTER-III of part-VII of this Act is titled ‘Electoral Offences’ and contains sections like 125-Promoting enmity between classes in connection with election, 125A- Penalty for filing false affidavit, etc., 126-Prohibition of public meetings during period of forty—eight hours ending with hour fixed for conclusion of poll, section 127-Disturbances at election meetings, section 127A-Restrictions on the printing of pamphlets, posters, etc., section 128-Maintenance of secrecy of voting.
Last but not the least is section 8 of RP Act which deals in disqualification on conviction for certain offences. Sub-section 3 of this section says ‘ A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub-section (2) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.’
Sub sections (1) and (2) of section 8 contain a list of offences in which quantum of punishments is less than two years but still then the convicted persons are liable to be disqualified.
NEED OF A COMPREHENSIVE ELECTION LAW ENLISTING MCC- In the above mentioned situations, the RP Act of 1951 has become almost obsolete especially due to amendment made in section 41 of Criminal Procedure Code which now prohibits arrests for an offence, the quantum of punishment for which is less than seven years. The plethora of penal laws, rules and orders with regard to violation of MCC has become a vexed problem both for the election related officials as well as for the political persons. Many a time acts of disobedience are committed due to non-acquaintance of laws pertaining to a particular action. Moreover what is the use of such directions or code which themselves are not codified. It is therefore advisable on part of the govt as well as ECI to take steps in this regard and enact a comprehensive legislation incorporating therein all relevant provisions connected with entire gamut of election processes.
Till date, all offences related to violation of model code of conduct are dealt in accordance with the provisions of Criminal Procedure Code, it therefore take very long time in reaching a case to the logical conclusion. The proposed legislation as discussed in above paragraphs, therefore should be enforced by a special rule also. Meaning thereby that special processes and special courts should be evolved so that these offences are tried and reached to logical legal conclusion. The present day scenario is that everyone believes that nothing happens in such cases. Even the officials are of the view that file some cases to escape the apprehended wrath of the ECI, once the election process is over everyone tends to forget about these cases. In fact, this notion about the ECI and cases of violation of its directions are very detrimental to our democracy and therefore this state of affairs must be changed. The concept of 'speedy trial' in some selected cases has been a very successful exercise in the state of Bihar.The percentage of conviction in relation to the national average has gone up in a short span of time. The cases under Arms Act, 1956 and Prevention of Corruption Act are being disposed off at a fast pace. The number of convictions in Bihar has risen to a spectacular proportion. This concept can be utilised in this matter also. After all, elections and democracy are the twin pillars of our political institutions which ought to be protected against any decay and degeneration.
