Failure to Execute the Model Code of Conduct Need to Strengthen the Code and Election Commission

Gautam Sen
India`s Seventeenth General Elections are about to be concluded. The elections have been extremely tumultuous and acrimonious with aggressive campaign by most of the political parties and contestants, particularly the major ones. The Model Code of Conduct (MCC) specified by the Election Commission of India (ECI) and an essential element of the election process to ensure a level playing field for the political parties, candidates, and enjoin the observance of certain basic norms in the environment including by the press and the people at large, has been grossly violated and severely tested. The MCC is an essential instrument or an institutional measure for free and fair elections, maintaining a level playing field for the contestants, a democratic milieu and not allow the elections to be vitiated by caste, communal and obscurantist propaganda and also avoid adverse impact on the country`s external relations and in fact, on the country`s security and sovereignty at large.
The latest manner of functioning of the ECI seems to indicate that, this august constitutional body has been either unable to prevent gross violation of the MCC, or not confident of its powers or disinclined to exert them. Major political leaders including the prime minister, quite a few chief ministers and those at the helm the national and state political parties, have on the face of it, indulged in vitriolic remarks bordering on personal vilification and attacks beyond normal political discourse against their opponents and rabid unseemly criticism of their policies and programmes. A worrisome phenomenon has been the linking of opponents` political programmes and also of their leaders with the so-called postures, pronouncements and acts of a neighbouring unfriendly country. Some attributes of the violations have been unique and much beyond those observed in earlier elections.
Another set of instances have involved delinquent behavior of high constitutional functionaries like governors of states. There has been no parallel to instances like those involving Tathagata Roy and Kalyan Singh, governors of Meghalaya and Rajasthan respectively, commenting publicly in support of the incumbent prime minister and his central regime and his party`s policies and candidates when strict neutrality and avoidance from entangling in such matters is the strict norm and constitutionally mandated, while the national election process is on. The president of India`s office has only noted the complaints lodged on these occurrences, and seems to have not advised any consequential measure to the union government on whose recommendations the governors are appointed, to withdraw the president`s `constitutional pleasure` and advise the governors to step down for violation of their constitutional mandate and norms. The ECI also does not seem to have exercised its authority to send appropriate advisories to the president. Such inaction on the part of the ECI would have been unthinkable when T. N. Seshan or even his successors like Monohar Singh Gill, T. Krishnamurthy or V . K. Lyngdoh were heading the high constitutional election institution.
The ECI has plenary powers under Article 324 of the Constitution to conduct, control and superintend the elections at the national and state levels. Supreme Court pronouncements have upheld this wide ambit of the ECI`s powers. No judicial interference in the election process once the same has been set in motion till concluded with declaration of result, has been the accepted norm, which has strengthened the ECI`s powers and its scope of action. However, during the present election, the highest court has had to step in on quite a few occasions to deliberate on complaints of violation of the MCC and apparent inaction or failure in timely intervening to ensure observance of the MCC. It is the ECI`s prerogative to act decisively against violations of the MCC, which it has apparently failed to do. In the process, the ECI only has undermined its own powers which it unquestionably has within the constitutional purview. Court intervention to timely decide on MCC violations, particularly against major political leaders, had thus become unavoidable. The redeeming aspect is that, the Supreme Court only directed the ECI to exert its powers, implying that the latter take decisive action when violations of the MCC is a prima facie evident, and did not attempt to detract from the ECI`s powers by themselves going into the merits and substance of the violations.
In the above backdrop, time has come to institionalise the MCC in a manner that, the code assumes the status of a law, and the ECI is fully empowered to execute it accordingly. The constitutional mandate of the ECI is there, but it has to be spelt out in an expansive way so that, by virtue of its plenary powers embodied in the Constitution, the ECI can take summary action to abort action violating the MCC and take consequential punitive measures which cannot be challenged in a court of law, during the period the code is applicable and till the election process is over. The hiatus lies in the fact that, the ECI has been issuing advisories under the MCC, sometimes reprimanding and taking countervailing action-as it did recently under the Supreme Court`s exhortation, barring some major political leaders from campaigning for short period, but in a manner which has not been sufficiently punitive or hurt the violators of the MCC. Perhaps, some measure like cancelling the candidature of a candidate, barring the latter for a defined period from contesting election, etc, may have to be contemplated. Empowering the ECI in this respect will require the Peoples Representation Act to be amended and herein will come the most significant barrier from political parties` disinclination to allow such amendment in self interest. An initiative is required on the part of the ECI and its commissioners past and present, in this regard. A peoples` movement or initiative can only reinforce such an initiative.
Finally, the present procedure of appointing election and chief election commissioners, needs to change. Some commissioners may be `considerate` or beholden to the political executive which appointed them, which in turn may influence their posture on adopting hard decisions against certain members of the political executive. The only way to overcome this phenomenon may be to alter the process of appointment of the commissioners from the present system to one in which the commendatory body selects them and it is incumbent on to the president accept the recommendation. Such a recommendatory body could be composed of vice president, prime minister, leader of the largest opposition party in the two houses of parliament reckoning number of members of both houses of the central legislature, and chief justice and the next senior-most judge of the Supreme Court.
Unless the appointment process is taking out of the sole discretionary purview of the union executive, some diffidence or disinclination may induce some of the commissioners of the ECI to shy away from hard decisions on violation of the MCC. However, it is difficult to generalize but, personalities and predilections of the commissioners and their past administrative experiences may induce traits in them which may not be conducive to conduct of elections in a vigorous and impartial manner, manifestly evident during T. N. Seshan`s time. An aggressive set of commissioners or a chief election commissioner is not advocated. It is of essence to have such constitutional functionaries who can act resolutely in a manifestly firm and impartial manner. The moot point is whether the political parties will allow such a change which will impart the force of law to the MCC and chief election commissioner and his or her two colleague commissioners, do not carry and baggage of the past and are intrepid.
(The author is a retired IDAS officer who has served in senior union and State Government appointments and as election commission observer in many elections.)