NEW DELHI: Circa 1994, TN Seshan, the 10th Chief Election Commissioner of India, wrote to the then Prime Minister PV Narasimha Rao to remove his two ministers, Sitaram Kesari and Kalpnath Rai, from the cabinet for reportedly violating the Model Code of Conduct (MCC) during state assembly elections.
Known as the ‘father of electoral reforms’, Seshan has been credited for his exemplary efforts in implementing the MCC in its letter and spirit and changing the electoral process in the country.
Cut to 2024, the lacunas in the system still plague the Election Commission of India (ECI), the most powerful electoral body, in ensuring free and fair polls in the country.
With the country nearly halfway through the seven-phase general elections, the ECI has already been inundated with hundreds of complaints alleging violations of the MCC by political parties and candidates.
What is MCC?
It is a set of guidelines to regulate political parties and candidates to ensure free and fair elections. The code comes into force the moment the EC announces the poll schedule and remains operational until the process is concluded. Divided into eight parts, the MCC deals with guidelines regarding election speeches, conduct, cost of exchequer, portfolios, election manifestos, and processions, among others.
Under the MCC, the government is not permitted to announce any major scheme which could influence voters. The MCC does not enjoy any statutory backing. The ECI draws its power to conduct free and fair elections from Article 324 of the Constitution. The MCC is an idea evolved by political parties, says former Chief Election Commissioner (CEC) N Gopalaswami. The MCC originated in Kerala in 1960, he told this newspaper.
"In Kerala, all political parties came together and decided to formulate a list of dos and don'ts for parties during elections. Later, the political parties wanted the ECI to helm it, and the guidelines were revised further," he said.
“The MCC was first issued by ECI under the title of 'Minimum Code of Conduct' on September 26, 1968, during the mid-term elections 1968-69. The code was further revised in 1979, 1982, 1991, and 2013,” according to a book published by the ECI.
Under the MCC, parties and candidates are banned from invoking religion and caste to woo voters. Mosques, churches, temples or any other places of worship should not be used for campaigns. The MCC also prohibits criticism of a candidate's private life. It stipulates that all criticism must be confined to the policies, work, and programmes of a candidate or a party. The guidelines also say that a ruling party cannot advertise at the cost of the public exchequer for its political campaigning or achievements of its government. Parties are mandated not to engage in activities or deliver speeches that can stoke tension or hatred between different communities, castes or religions. The MCC states that the parties in power at the Centre and in the states should ensure that they do not use their official position for campaigning. Ministers and other government authorities cannot announce financial grants in any form.
Speaking to this newspaper, former Chief Election Commissioner VS Sampath said that though the MCC is not legally binding, violations can lead to legal repercussions under relevant laws.
"It is incorrect to say that MCC doesn't have powers. For instance, if a candidate is censured by the EC for hate speech or any other MCC violation, it can even tilt the results,” says Sampath.
"Certain violations of the MCC fall under the Indian Penal Code 1860, the Code of Criminal Procedure 1973, and the Representation of the People Act, 1951. The ECI may send a 'show cause notice' to the accused party and seek a response within a specified period. The party can either admit the mistake and offer an apology or reject the charges. If the candidate doesn't render an apology and is found guilty, he may receive a written warning from the ECI. Sometimes, the EC could ban a candidate from campaigning for a while," he says.
There is also a provision that if any party disobeys the ECI and violates the MCC despite repeated warnings, the poll body can withdraw the election symbol and derecognize the party.
“The MCC will be effective only if the commission takes action with alacrity. That is most important,” said Sampath.
Key issues
On Friday, several leaders of the Opposition INDIA bloc submitted a memorandum to the ECI on various electoral issues and the alleged violations of the model of conduct by the ruling BJP during the ongoing Lok Sabha polls. They took exception to the ECI's reluctance to act against Prime Minister Narendra Modi's alleged model code of conduct violations. On April 11, a civil society group of 87 former civil servants, called the ‘Constitutional Conduct Group’, wrote to the ECI on the lack of a level playing field in the ongoing polls.
However, on April 16, a month after the MCC came into effect, the poll body, in a press release, asserted that swift actions were taken to ensure equal play for all political parties. It said various political parties and candidates had filed about 200 complaints under the MCC. “Of these, action has been taken in 169 cases,” said the commission, adding it took action in 38 out of the 51 complaints filed by the BJP, and 51 of the 59 complaints by the Congress. Out of the 90 complaints filed by other parties, 80 got redressal, said the ECI. It also received 16 delegations from seven political parties, lodging complaints regarding MCC violations.
The commission also shared data from the cVigil app, which allows citizens to report violations. A total of 2,68,080 complaints have been filed through the portal, of which 2,67,762 cases were addressed in less than 100 minutes on an average. Speaking to this newspaper, former CEC O P Rawat said complaints regarding MCC are normally disposed of quickly. “During my tenure, complaints regarding MCC violations used to be addressed swiftly. The documents and evidence presented by the parties were thoroughly examined, and actions taken without delay,” he said.
He further said that the cVigil app hastened the disposal of MCC complaints in a big way. “The cVigil complaints during Lok Sabha 2019 polls were 1.42 lakh, and nearly 1.10 lakh were found correct. The results were reported to the complainant within 100 minutes of filing the complaint, and the EC took appropriate action,” he said.
Actions taken by EC
Some of the actions initiated by the EC after the imposition of MCC include an advisory issued on March 21 to the Centre against sending WhatsApp messages on the government programme, 'Viksit Bharat'. The action came after widespread protests from Opposition parties and the civil society.
While the ECI had sent notices to the various political parties over MCC violations, Opposition parties allege that the poll body acted in a partisan manner by censuring them more than the ruling BJP and its allies. On May 2, the EC directed all political parties to stop enrolling or registering voters for post-election beneficiary-oriented schemes under the “guise of surveys”, saying it amounts to corrupt practice under election law. The advisory came after a complaint by the BJP regarding the Congress' “Ghar Ghar Guarantee” outreach to the people, which the saffron party claimed was a “corrupt practice amounting to bribery”.
On May 7, the ECI directed X, (formerly Twitter), to take down an objectionable animated video shared by the Karnataka BJP handle, saying that the post violated the “extant legal framework”. Citing the differential treatment, an opposition leader points out that a Congress social media team member was arrested recently on complaints by the BJP on a doctored video involving Union home minister Amit Shah.
On May 1, the EC barred former Telangana chief minister and Bharat Rashtra Samithi chief K Chandrashekar Rao from campaigning for 48 hours for making “derogatory and objectionable statements” against the Congress in Sircilla. On April 29, the EC issued a show cause notice to BJP MLA from North Tripura, Jadab Lal Nath, for allegedly misbehaving with a booth-level worker on election day, April 26. On April 15, a Thiruvananthapuram MCC nodal officer warned Congress leader Shashi Tharoor for making “unverified allegations” against BJP candidate and Union minister Rajeev Chandrasekhar.
In an unusual move, the ECI also made political party heads liable for the violation of MCC by their star campaigners. On April 25, the ECI issued notices to the presidents of the BJP and the Congress on complaints against Prime Minister Modi and Congress leader Rahul Gandhi on the violation of MCC during their speeches. While the Congress raised the PM's allegations against the Congress's minority appeasement, the BJP alleged that Rahul was making false claims of poverty and other issues in his speeches. The Congress also listed several instances where Modi reiterated his allegations against Congress.
“Usually, notices are sent to an individual directly rather than to the party. If the individual is not complying after repeated warnings, then the EC sends advisories to parties as a last resort,” said an officer who didn't want to be named.
Past violations
During the 2019 elections, the ECI temporarily prohibited Uttar Pradesh Chief Minister Yogi Adityanath, former Union minister Maneka Gandhi, BSP chief Mayawati and SP leader Azam Khan from campaigning for violating the model code of conduct.
Another controversy erupted in 2020 after Election Commissioner Ashok Lavasa dissented and resigned. Lavasa's premature exit came after his dissenting note to the ECI that gave a clean chit to Modi and Shah on MCC violation during campaigning.
The ECI issued a notice in November 2023 to Congress general secretary Priyanka Gandhi Vadra for allegedly making remarks against Modi during the Madhya Pradesh assembly election. During the 2014 Lok Sabha polls, the EC banned BJP leader Amit Shah from participating in any public rallies after he made a hate speech. The commission lifted the ban after he assured the poll body that he would not disturb law and order in UP.
V S Sampath, who served the office from 2012 to 2015, recollects how the then prime minister Manmohan Singh sought permission from the ECI to visit the Golden Temple during the Punjab assembly elections. “Mr Singh wrote to the ECI and assured that it's purely a personal visit and there won't be any election-related activity. We didn't find any reason to stop the visit,” he said.
Legal teeth?
While many argue that strict implementation of the MCC is possible only by making it legally enforceable, Rawat says that the model code should remain out of the purview of courts. “If the MCC is legalised, the lengthy legal proceedings will delay the electoral process. Elections have to be completed within a time frame. That's why I oppose it,” says Rawat.
In 2013, a parliamentary panel recommended that the MCC be granted legal backing and included in the RPI Act, 1951. However, it didn't materialise.
According to Prof Jagdeep Chhokar, founder of the nonprofit Association for Democratic Reforms (ADR), the MCC cannot be given legal teeth. “This is not a legally enforceable document. Once it is legalised, it will go to courts, and there will be an inordinate delay in the electoral process,” said Chhokar, adding that the onus is on political parties to regulate their functioning.
In 1999, the Law Commission of India said that political parties should be made internally democratic and financially transparent by law, he points out. “But no political parties will take the responsibility,” he added.
Echoing the view, V S Sampath says that only an authority like the ECI can speedily dispose of matters. “Under the MCC, we usually give 24-48 hours notice for a person to give his explanation for any violation. If any law empowers the MCC, no court will resolve the matter within 48 hours. The issue will be forgotten till after the election ends,” he said. He points out that the ECI has been given the power to supervise and conduct free and fair elections by Article 324 of the Constitution.
In tune with social media and AI
The ECI recently released guidelines prohibiting political parties from disseminating misinformation through social media platforms and technologies such as Artificial Intelligence (AI). The latest advisory directs parties to take down any deep fake audio/videos within three hours from social media platforms and warn the person responsible for it within the party.
It stated that political parties must not impersonate other persons, including parties or their representatives, on social media. It also directed political parties to refrain from using AI-based tools to distort information or spread falsehood. Parties are also banned from posting derogatory content on women and children.