Why the model code of conduct should be scrapped

Let’s face it. The Model Code of Conduct (MCC) did not work in the just-concluded general elections, results of which are scheduled on May 23.  It ended up largely favouring the ruling Bharatiya Janata Party (BJP), Prime Minister Narendra Modi and party president Amit Shah.

The MCC is a good-intentioned, well-meaning set of guidelines that is intended to ensure a level-playing field for the ruling and opposition parties during the course of electioneering. Its precursor was a code of conduct agreed upon during the Kerala Assembly elections of 1960 by all political parties.

The code worked well and was later incorporated by the Central Election Commission in 1979. The underlying assumption behind the code is that all political parties will abide by it voluntarily in the larger interests of Indian democracy.  An attempt in 2013 to legislate the guidelines did not find favour with the EC as it feared it could prolong the election process.

The MCC, therefore, is more of a moral code than legalistic. For example, if the EC pulled up a politician or a party for flouting the code, the public shaming was seen as a good enough deterrent. Sometimes, breaking the code could result in cases being filed under the Representation of People’s Act, Criminal Procedure Code or the Indian Penal Code.

However, by and large, the code will work only if political parties follow it in toto. The current election has clearly shown that it is a dead letter if not adhered to.  The Prime Minister had at least 11 complaints of violating the code, none of which the EC found worthwhile. So were the complaints against Amit Shah.

However, the opposition parties did not get the same leeway as under the code the Election Commission had taken over the administration of the various state governments and regional ruling parties were forced to abide by the MCC.  For example, Andhra Pradesh Chief Minister Chandrababu Naidu complained that the EC representative, citing the model code of conduct, was not allowing him to discharge his duties in the state.  This, despite voting having been completed in Andhra Pradesh.

On the other hand, the EC delayed its verdict on the Prime Minister’s controversial NaMo channel which continuously telecast his speeches and other activities,  even after campaigning ended in the various phases except for the seventh when it shut transmission two days prior to voting.  On the eve of the last phase, the EC agreed to allow Modi to visit Kedarnath and publicise the visit, his purported meditation inside a cave and all related activities during the so-called silent period before voting. West Bengal Chief Minister Mamata Banerjee has complained that this was a violation of the code of conduct.

In Bengal, following violence, the EC curtailed campaigning a day earlier than scheduled, hampering Mamata’s plans while ensuring that the Prime Minister completed his scheduled rallies.

These instances show that the model code of conduct worked for some and was not applicable to others. The failure of the code brings one to the larger question of the EC itself. In the 1990’s, under the legendary T N Seshan as Chief Election Commissioner (CEC) political parties were forced to follow the model code as otherwise he would publicly rebuke the offender, and in some cases like in Bihar, even postponed elections.

Political parties realised that if someone like Seshan were to head the EC, they would have no space to game the code of conduct.  The Congress, which was in power, moved to dilute the power of the CEC by converting it into a three-member body in 1993.  Also, unlike the judiciary which maintains its independence through its collegium, the three members of the EC are government appointees including the incumbent poll commissioners.

In the past few days, the manner in which the EC has gone about its task vis-a-vis the model code of conduct has raised several questions. It refused to make public the dissenting view of one of the election commissioner Ashok Lavasa, even while the other two gave a clean chit to the Prime Minister on at least two of the code violation complaints against him. As a result, Lavasa boycotted the sitting of the election commissioners to discuss other such alleged violations.

But the original purpose of diluting the power of the EC has been achieved. This time, the BJP seemed to take advantage. In the future, it could be another ruling party at the Centre with a different person at the helm. If that party and individual decide to brazen it out as far as the code is concerned, the consequences may not be deterrent enough.

Moreover, the MCC could be used against opposition parties thereby diluting the fairness of the poll process. So the way forward seems pretty simple: either ensure that the EC is genuinely independent of the executive where the model code of conduct is taken seriously, or junk the code. Let there be a level playing field for all parties.

Though the suggestion might be akin to “throwing the baby out with the bathwater”, any serious electoral violation can still be taken care of by extant laws. After all, there is a historical precedence in the Allahabad High Court judgment of 1975 which disqualified then Prime Minister Indira Gandhi on grounds of electoral malpractice, at a time when the MCC was not in vogue.