Guardian’s Dilemma: Model Code of Conduct
“So you are basically saying you (the EC) are toothless and powerless against hate speeches. The most you can do is send a notice to the offending candidate. If the candidate replies, send him or her an advisory. Despite this, if there is a violation of Model Code of Conduct, you may then file a criminal complaint... That is all? Those are your powers under the law? You are duty-bound... In certain matters… time is limited. You have to act promptly. Whether the outcome is good or bad, you have to get into it immediately.”
Chief Justice Ranjan Gogoi to the Election Commission, April 15
If Parliament is the custodian of democracy, the Election Commission of India (EC) is the umpire of political morality. This General Election, being held in seven phases from April 11 to May 19 for the 17th Lok Sabha and Assembly seats in Andhra Pradesh, Sikkim and Odisha, is the most virulent and polarising of them all since the first votes were cast in 1952. In the eye of the storm is India’s Chief Election Commissioner (CEC), Sunil Arora, who succeeded OP Rawat as the 23rd CEC. As fierce poll campaigns ratchet up the venom and histrionics, the commission is hard-pressed to protect the Model Code of Conduct (MCC). The culprits are not just local leaders and state motormouths.
They include Prime Minister Narendra Modi, challenger Rahul Gandhi and a host of Union ministers and Opposition leaders. Of late, there are allegations that the EC is being manipulated by the government. Arora has met the allegation and challenges both punitively and objectively. He faces three daunting challenges: Violations of the MCC, punishing hate speeches and seizing political black money and contraband.
In spite of government claims of eradicating black money, agencies have seized cash, liquor, drugs, gold and other contraband worth 25 billion—twice the value of goods seized in the 2014 elections. Around 1 billion in cash and goods are being confiscated daily. India’s ongoing polls are the world’s costliest election with expenditure set to touch $7 billion, says the Centre for Media Studies. The 2016 US presidential elections cost $2.4 billion.
In a statement on a non-partisan action plan on misuse of social media, Gopalkrishna Gandhi, former Governor of West Bengal, says, “India has a fairly robust electoral code of conduct, which scrutinises campaigning on the ground and through conventional media, but the same has not translated into a scrutiny of online campaigning. This has enabled the political parties to spend substantially on digital media without any checks.”
The MCC, issued in March, is a set of guidelines consensually agreed on by all political parties, in order to maintain high standards of public morality in poll campaigns and provide a level playing field. On March 26, a group of 66 retired civil servants wrote to the President to stop the release of a biopic on Prime Minister Narendra Modi on April 11, when the election campaign would be at its height. The letter said the film violates the MCC and gives the BJP the upper hand. The day before the release date, the EC banned the screening during poll period. The commission cannot, however, interfere in the digital broadcast of the film since there are no guidelines in place yet for social media promotion. The court, however, has asked the EC to view the Vivek Oberoi film by April 22 to decide whether it should be banned. So, is the EC really relevant?
“I would clearly dismiss any suggestion that holds that today the EC is irrelevant just because the number of violations is increasing and the EC’s hands are full. The EC has to evolve its strategy and response as the new challenges emerge in every election, and it always does. The absence of the EC would in effect give a free hand to the violators and the violations would increase manifold and would go totally unchecked,” believes Nalin Kohli, Supreme Court lawyer and official spokesperson of the BJP.
On April 4, Modi’s ‘Main Bhi Chowkidar’ programme, which was broadcast live on DD News, its YouTube channel, and its social media handles, invited a host of complaints. The Congress protested vehemently, forcing the EC to open an investigation. When UP Chief Minister Yogi Adityanath politicised the Army at a political rally by calling it “Modiji ki sena”, the EC could only chide him “to be more careful”. Former army officer and Punjab Chief Minister Captain Amarinder Singh wrote to the CEC seeking action against Modi’s invocation of the Pulwama terror attack and Balakot air strikes. “Can’t let independence of armed forces be undermined,” he tweeted. The EC is yet to act on it. Yogi’s Bajrangbali-and-Ali statement earned the political monk an EC rap on the knuckles.
Yogi explained that he was responding to BSP chief Mayawati’s remark requesting Muslims not to split their votes. Interestingly, even Mayawati is in the dock for her statements. But all this was only after the court pulled up the EC and reminded the poll panel that it was “duty-bound to take action and cannot sleep over such issues.” In March, a photo of an Indian Railways teacup with the words “Main bhi chowkidar” surfaced on Twitter, inviting the ire of Opposition parties which accused the government of using public bodies to promote Prime Minister Modi.
The Railways quickly withdrew the cups. The poll panel was also quick to chastise NITI Aayog vice-chairman Rajiv Kumar for violating the MCC by speaking against the Congress’s proposed minimum income scheme ‘NYAY’. BJP leaders went on the warpath against Rahul for his attacks on Modi regarding the Rafale deal. A delegation of its leaders asked the EC to take action against Rahul for allegedly violating the MCC by making “unverified” allegations. However, all this was not devoid of lighter moments: The EC has served a notice on Narendra Modi doppelganger Abhinandan Pathak, who is contesting the Lok Sabha elections from Varanasi, for violating the poll code over his slogan—“one vote, one note”.
ne huge challenge for the EC in spotting violations is the social media. Former Chief Election Commissioner N Gopalaswami in a statement issued on safeguarding elections and democracy against digital platforms suggests some remedies to tackle this: “Headed by a competent and senior officer and staffed by members with the requisite technical capabilities, the EC should receive complaints and grievances from the public, candidates, or political parties and help prevent profiling and hate speech. It should ensure that digital platforms are not used to target communities on the lines of caste, religion, ethnicity and linguistic identity, or in any other way that violates the electoral code of conduct. The same regulations should be applicable for apps developed by/for political parties.”
Last week, the EC issued a show-cause notice to Union Minister Maneka Gandhi who at a rally in Sultanpur warned the minority community that they would need the BJP to get their work done. Not to be outdone, Maneka went ahead and told villagers in Pilibhit that she would grade villages according to the number of votes she received and would prioritise development work correspondingly. The EC has also cracked down on Maneka. The most infamous of these is perhaps Shiv Sena MP Sanjay Raut, who challenged the EC at a poll meeting in Mira-Bhayander, Maharashtra: “They are reminding us of the law and the code of conduct. We are the kind of people who will say ‘to hell with the law and we will see (what happens to) the code of conduct’.”
Controversial SP leader Azam Khan asked voters not to fear the Rampur District Magistrate (DM), and promised that he would make the DM clean Mayawati’s shoes after the Lok Sabha elections are over. Rajasthan Governor Kalyan Singh violated the MCC by asking BJP workers to work for the return of Modi as Prime Minister. Singh, who holds a constitutional post, told partymen in Aligarh, “All of us are BJP workers and we want the party to win.” The EC also wrote to the President to cancel the upcoming polls in Vellore, Tamil Nadu, scheduled on April 18, over abuse of money power and the President has accepted the recommendation.
DMK leader and MP TKS Elangovan says, “It is not that the EC lacks power, rather it is the higher-ups in the body that do not perform their duties adequately. In the time of TN Seshan, the commission as a body had weak rules. Despite that, Seshan is known as one of the ablest Chief Election Commissioners this country had. On the contrary, despite some sound laws in place now, the people leading the poll panel have failed miserably in their duty. They indulge in pleasing the powers-that-be and are outrightly biased.”
Leaders have often lamented that the commission has no direct legal powers to punish politicians and parties violating the MCC. The MCC is just a voluntary agreement between the commission and parties with no statutory binding. The only upside is that most stipulations fall under various laws, which would enable the EC to order cases to be filed against violators, including criminal cases under the Indian Penal Code. Many Opposition parties have criticised the EC for functioning as a government puppet. Allegations have surfaced that state poll officers are loyal to the government of the day. However, no action has been taken to change the status quo since all political parties hope to come to power some day.
During the Telangana Assembly elections last year, names of 22 lakh voters went missing from the electoral rolls. An RTI query revealed that in Telangana, Aadhaar-linking was used to delete names of voters without verification and showed serious discrepancies, forcing chief electoral officer Rajat Kumar to apologise, only after celebrities like Jwala Gutta came out in the open. The EC data further shows that about 4,00,000 women working in the armed forces and security organisations are missing from the electoral rolls of 2019. Technology has come to the rescue again. Young software engineer Khalid Saifullah has created the Missing Voter App to find out the status of voter’s name by giving a missed call on 8099683683.
He found that 15 percent of all voters and 25 percent Muslims are not present on the electoral list, thereby preventing 12.7 crore Indians from voting in the Lok Sabha elections. This includes cricketer Rahul Dravid, who ironically is the EC ambassador in Karnataka. A PIL in the apex court has pleaded for a committee to be set up under a former Supreme Court judge to monitor the election process and to check the fairness of the EC.
To crowdsource complaints over parties and candidates breaking the MCC, the commission has created the app cVIGIL (citizens’ vigil) that enables people to report violations and alert EC officers in real time. Launched in July 2018, it was tested in the Assembly elections in Madhya Pradesh, Chhattisgarh, Rajasthan, Mizoram and Telangana. Now, the app covers the rest of India. Citizens can upload photos or videos of misconduct, add a brief description for the authorities to act.
The Internet and Mobile Association of India (IAMAI) and social media outfits such as Facebook, WhatsApp, Twitter, Google, ShareChat, TikTok and BigoTV have formulated an online ‘Code of Ethics’ enforcing mechanism with a dedicated grievance channel to expedite action, pre-certification and ensuring transparency in expenditure of political advertisements. A notification mechanism will inform authorities for action against offenders under Section 126 of the Representation of the People Act, 1951.
Currently, the EC is under pressure again from the Opposition to include paper trails for EVMs on the grounds that they can be hacked. The BJP has criticised the intention of Opposition leaders to move the Supreme Court demanding verification of at least 50 per cent of the votes cast in the ongoing Lok Sabha elections against the Voter Verified Paper Audit Trail (VVPAT) slips. On April 8, the apex court ordered that VVPATs from five randomly-selected EVMs in every constituency should be counted instead of just one EVM. The order was passed on a petition filed by 21 Opposition parties. The EC responded saying that if the demand is met, counting would be delayed by six days.
The pro-VVPAT parties argue that the specially calibrated machine will ensure that the ballot box button and VVPAT’s printed slips are the same. These slips form a paper trail for the returning officer to corroborate both readings. Arora has admitted that though EVMs cannot be tampered with, they do malfunction. Complaints about voting delays on account of non-functional EVMs have come from Andhra Pradesh, Maharashtra, Uttarakhand, Jammu and Kashmir, Bihar, Assam, Manipur, West Bengal, Odisha and Uttar Pradesh.
After being constantly dragged into controversies regarding its poor stand on the MCC, and after being pulled up by the Chief Justice of India, who threatened to drag CEC Arora into the courtroom, the EC woke up and went about taking some poll code violators to task: Yogi Adityanath, Mayawati, Azam Khan and Maneka Gandhi. It banned them from campaigning for a specific timeframe.
“Well, at least something is better than nothing. Given the fact that we are a representative democracy, the EC will always be relevant. On the whole, the commission has been working well. But there have been some phases of uncertainty. After all, election commissioners are also human beings. And they are all former bureaucrats with 35-odd years of service behind them. They forget that they are independent, constitutional authorities and are above any reproach,” says Jagdeep S Chhokar, former professor, dean and director-in-charge of IIM, Ahmedabad. He is also one of the founding members of Association for Democratic Reforms that works in the area of electoral and political reforms.
In spite of blatant violations and intimidation by leaders, it is the judiciary that is expected to give EC teeth. Unless political parties, leaders and voters agree on a campaign based on merit rather than hate, elections in India will remain vituperative and subject to the transgression of democratic values.
Functions and Powers
- Issues the Model Code of Conduct in every election
- Regulates political parties and registers them for being eligible
- Publishes the allowed limits of campaign expenditure per candidate and also monitors the same
- Can recommend for disqualification of members after the elections if it thinks they have violated certain guidelines
- In case, a candidate is found guilty of dishonest practices during the elections, the courts consult the EC
- Can postpone candidates who fail to submit their election expense accounts timely
- Allots election symbols
- Appoints tribunals for decision of doubts and disputes
- The appointment of the election commissioner is exclusive with the government. No other entity has any role in the appointment. Government of the day makes the recommendation to the President. And given the sort of fiercely competitive politics we have, being appointed solely by the government of the day opens the election commissioner to a charge of being termed ‘government’s stooge’.
- Though the CEC has Constitutional protection and cannot be removed except through impeachment, the other two election commissioners do not enjoy this privilege. They can be removed by the government of the day anytime they feel like. Therefore, there is a certain degree of insecurity which is filled into this process of appointment and the service conditions. This puts a little dampener on the complete free exercise of the EC.
- As per Article 324 of the Constitution, the EC has full power to conduct free and fair elections, but under the same Article, there is the Representation of the People Act, 1951. The EC cannot do anything which the said Act prohibits it from doing.
- Under the Representation of the People Act, there is something called ‘Conduct of Election Rules’. What is written in the rules, the EC has to follow. And the rules are made by the government not by the EC.
- The other boundary is the judgments of the Supreme Court and High Courts. In several election petitions, the courts pass orders which are binding on the EC.
(Jagdeep S Chhokar, former professor, dean and director-in-charge of IIM, Ahmedabad. He is also one of the founding members of Association for Democratic Reforms.)
The ‘Seshan Effect’
Indian politicians, it was said, feared only God or TN Seshan. Tirunellai Narayana Iyer Seshan was appointed the 10th Chief Election Commissioner in December 1990, and continued to serve for six years. His stick spared none.
During these times when dragging the EC into a controversy is the order of the day, Seshan can be remembered for effectively implementing the Model Code of Conduct for the first time, filing cases and arresting candidates for not abiding by polling rules, reining in muscle and money power in elections, and suspending officials for aligning with candidates.
Earlier, there would only be the Chief Election Commissioner. But with Seshan ruling with an iron hand, it was felt that the addition of two more election commissioners would tame him, hence the body became a three-member one. Two decades on, as the EC’s credibility falters, the need for another Seshan arises.
- The government may not lay any new ground for projects or launch new welfare programmes
- No political party can use pictures of defence and military personnel in any advertisements
- Government bodies are not to participate in any recruitment process
- Campaign rallies and road shows must not hinder the road traffic
- Candidates are asked to refrain from distributing liquor to voters
- Public spaces should be equally shared among the contesting candidates
- On polling day, all candidates should cooperate with the poll-duty officials
- Candidates should not display their election symbols near and around poll booths on polling day
- The ruling party ministers should not make ad-hoc appointment of officials
- Before using loudspeakers, candidates and political parties must obtain permission or licence from local authorities
- Local police should be informed before conducting election rallies