Issues in Model Code of Conduct of ECI

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Recently, the elections in West Bengal and Assam have been marked by violations of the Model Code of Conduct

About Model Code of Conduct

• The MCC is a set of guidelines issued by the Election Commission to regulate political parties and candidates prior to elections, to ensure free and fair elections.
• This code is based on consensus among political parties.
• This is in keeping with Article 324 of the Constitution, which gives the Election Commission the power to supervise elections to the Parliament and state legislatures.
• The MCC is operational from the date that the election schedule is announced till the date that results are announced.
• The MCC is not enforceable by law.  However, certain provisions of the MCC may be enforced through invoking corresponding provisions in other statutes such as the Indian Penal Code, 1860, Code of Criminal Procedure, 1973, and Representation of the People Act, 1951.
• Evolution of MCC
  • A form of the MCC was first introduced in the state assembly elections in Kerala in 1960.  It was a set of instructions to political parties regarding election meetings, speeches, slogans, etc.
  •  In the 1962 general elections to the Lok Sabha, the MCC was circulated to recognised parties, and state governments sought feedback from the parties.
    • The MCC was largely followed by all parties in the 1962 elections and continued to be followed in subsequent general elections.
  • In 1979, the Election Commission added a section to regulate the ‘party in power and prevent it from gaining an unfair advantage at the time of elections.
  • In 2013, the Supreme Court directed the Election Commission to include guidelines regarding election manifestos, which it had included in the MCC for the 2014 general elections.
• Committee of Parliament Recommendations
  • It recommended that the code should be made a part of the Representation of the People Act 1951.

• Stand of ECI
  • The ECI did not agree to it on the ground that once it becomes a part of the law, all matters connected with the enforcement of the code will be taken to court, which would delay elections.
  • The position taken by the ECI is sound from a practical point of view. But then the question about the enforceability of the code remains unresolved.

Issues

• There are crucial issues that need to be examined in the context of the model code and the exercise of powers by the ECI under Article 324.
• Since it is a code of conduct framed on the basis of a consensus among political parties, it has not been given any legal backing.

• Transfer of officials
  • One issue relates to the abrupt transfer of senior officials working under State governments by an order of the commission.
  •   The ECI orders the transfer on the assumption that the presence of those officials will adversely affect the free and fair election in that State.
  • . It is actually not clear whether the ECI can transfer a State government official in the exercise of the general powers under Article 324 or under the model code.
    • Article 324 does not confer untrammelled powers on the ECI to do anything in connection with the elections.
    • Transfer of officials etc is governed by rules made under Article 309 of the Constitution which cannot be bypassed by the ECI under the purported exercise of the power conferred by Article 324.

• Administrative moves
  • Another issue relates to the ECI’s intervention in the administrative decisions of a State government or even the union government.
  • According to the model code, Ministers cannot announce any financial grants in any form, make any promise of construction of roads, provision of drinking water facilities, etc or make any ad hoc appointments in the government. departments or public undertakings.
    • These are the core guidelines relating to the government. But in reality, no government is allowed by the ECI to take any action, administrative or otherwise, if the ECI believes that such actions or decisions will affect free and fair elections.
    • For instance,a recent decision of the ECI to stop the Government of Kerala from continuing to supply kits containing rice, pulses, cooking oil,
    •  The question is whether the ECI could have taken such a decision either under the model code or Article 324.
    •  The model code does not provide any clue.

Conclusion

• There is no doubt that the ECI, through the conduct of free and fair elections has restored the purity of the legislative bodies.
• However, no constitutional body is vested with unguided and absolute powers.
• Neither citizens nor the ECI is permitted to assume that the ECI has unlimited and arbitrary powers.

Source:TH/FL