Assert the (Moral) Power

The polls for the 17th Lok Sabha are in full swing, and the Model Code of Conduct (MCC) has gained much attention in light of the various violations and degrading political discourse in the world’s largest elections. New transgressions happen every day at this point. In recent weeks, noteworthy cases involved UP Chief Minister Yogi Adityanath, current Minister for Women and Child Development Smt Maneka Gandhi, MP from Unnao Sakshi Maharaj and BSP Supremo Mayawati.

On April 15, the EC’s lawyer submitted to the Apex Court that it was powerless and ‘toothless’ to act against hate speech. The court was hearing a petition filed by a Non-Resident Indian (NRI), Harpreet Mansukhani, highlighting the increase in hate and divisive speeches in the name of religion. The next day, People’s Union for Civil Liberties submitted a letter addressed to the ECI objecting to the “communal, anti-constitutional and hate-inciting statements in the last few days as part of a high pitched election campaign which has seen new depths of electioneering replete with undisguised, brazenly communal and divisive, threatening and intimidatory speeches and sloganeering.”

Needless to say, in light of these events, there are clarion calls from some quarters for the legalisation of the Model Code of Conduct. At present, it is a voluntary code evolved by political parties and facilitated by the ECI. It is not a statute passed by the Parliament, and hence it’s not judicially enforceable. The only action against a violator is an advice, a warning or censure.

The moral authority of the MCC far outweighs its legal sanctity. Politicians are scared of inviting a notice being in violation of the same, as it serves to hurt public opinion.

The first judicial acceptance of the Code’s legality came in 1997 when Punjab & Haryana High Court gave the EC power to enforce the code from the day the schedule was announced till when final results are announced. “Such a code of conduct when it is seen that it does not violate any of the statutory provisions can certainly be adopted by the Election Commission for the conduct of the free and fair election, which should be pure as well,” the judgment said.

Four years later, the Supreme Court upheld the verdict, while also saying that there shouldn’t be a gap of more than three weeks between the declaration of dates and notification of the polls.

This demand for making MCC into law is made by both those who think the code is powerless and those stung by its moral force. How politicians perceive the code differs. Two prominent examples come to mind.

In May 2012, during a by-election to Goa’s Cortalim constituency, we heard that the CM (the late) Manohar Parrikar had plans to induct the candidate into his council of ministers. The Commission considered it as a disturbing to the level playing field and it ‘advised’ Parrikar to defer it. An angry Parrikar called me and forcefully argued that it was his constitutional right to do so.

Admitting that it was indeed his constitutional right to do so, but it was the Commission’s ‘advice’ that he delays the decision. To his credit, he not only accepted the advice but remarked that he “bows to the moral authority of the model code of conduct, which should take precedence over his constitutional right”. Really, a shining example of statesmanship.

On the other hand, the then Law Minister Salman Khurshid announced that Congress would double the reservation for minorities in government jobs while campaigning for his wife. Khurshid’s statement invited condemnation from the fourth estate and the civil society. Even the Commission was not spared the horror of condemnation even after it censured him, as they thought the punishment was inadequate. Some even went to the extent of calling it a “fixed match”. They failed to see that the code is voluntary in nature and “censure” is the most EC can do. What some thought was a “toothless” act, stung the minister, as he was punished with “censure”, with no appeal. Public perception matters.

Not long after, the parliamentary standing committee on personnel, public grievances, law and justice, sought to make the code a part of RPA, 1951. Many political analysts saw it as a thinly disguised ploy to divest EC of its powers by transferring the code to the judicial domain. The move was dropped after much hue and cry in the media.

The fact remains that elections are packed with incidents. Legal battles over violations are bound to linger for years on end. It actually will be counterproductive and weaken the EC’s position. The MCC’s effectiveness is in its fire brigade like effect, dousing the fire immediately.

Additionally, it is also crucial to remember that some provisions of the MCC are part of statutes such as the Indian Penal Code, 1860, RPA, 1951 and the Code of Criminal Procedure, 1973. The action under code does not preclude legal action under the relevant laws. All that is required is strict enforcement.

The solution to the issue of EC’s declining public credibility is not in making MCC a law, but in giving EC more powers and undertaking the reforms that have been pending for over two decades. In the past, Commission officials have been accused countless times of being stooges of the government of the day who appoints them, and the same is happening now, perhaps in a more magnified way. The genesis of the problem lies in the appointment system of the Chief Election Commissioner (CEC) and Election Commissioners. This debate can be settled once and for all by depoliticising these appointments.

The Collegium system has been widely proposed. The Law Commission in its 255th Report recommended it, consisting of the PM, the Leader of Opposition and the CJI. Political stalwarts such as LK Advani and former CECs including BB Tandon, N Gopalaswamy and myself have supported it repeatedly even while in office.

In November last year, a PIL was also filed in the SC calling for a “fair, just and transparent process of selection by constituting a neutral and independent collegium/selection committee”. But these calls have fallen on deaf ears because the successive governments don’t want to part with their powers. On such a vital issue, the judiciary must act without delay. The derailment of democracy and the decline of public trust will lead to degradation in the credibility of all institutions, which is bad news.

The system of removal of Election Commissioners also needs to be changed. At present, only the CEC is protected from removal except through impeachment. The government can control a defiant CEC through the majority voting power of the two Commissioners. Due to the uncertainty of elevation by seniority, they are left feeling vulnerable to government pressure.

The Commission’s reputation suffers when it is not able to tame the repeat offenders in political parties, and that is especially true in the context of the ruling party. Despite having the power to register political parties under Section 29A of RPA, 1951, the EC has no power to de-register political parties for violations of Model Code. This is true for even the gravest of violations of the oath taken at registration. It is in this context that the EC’s lawyer also submitted to the Apex Court on April 15 that “we [the ECI] cannot de-recognise or disqualify the person. This (the power of censure) is the only power.” This in a way also highlights the urgency of empowering the Commission in this context.

To sum up, the Model Code of Conduct is a moral code. The Commission just needs to enforce it more strictly, for which it must be accorded sufficient powers. The guardian of elections in the world’s largest democracy needs urgent institutional safeguards to remain fiercely autonomous and protect its credibility. Urgent action is pending, not for making the MCC into a law, which will be counterproductive, but for the depoliticisation of constitutional appointments and empowerment of EC to deregister political parties which will deter grave electoral misconduct.

Since the party in power is often considered the biggest offender, the Commission must also come down heavily and visibly no matter how high a position the violator holds.

While reforms are being debated in the context of political parties and depoliticisation of constitutional appointments, it is important that the EC asserts ample authority that it already has constitutionally. It must make tough decisions. It’s not mere discretion that it is exercising, but a pious constitutional mandate. It does not need a reminder from the Supreme Court about its inherent constitutional powers.