Is the Model Code of Conduct a Moral Code of Conduct?

Since poll campaigns are turning uglier, more personal and combative the moral obligation entailed in the model code can really bear down heavily on candidates at a time when they are trying show to the voters how upright and competent they are for the job.


The FIR against Gogoi particularly is reminiscent of one filed against Narendra Modi two years ago, during the 2014 Lok Sabha elections. Credit: PTI

New Delhi: On April 14, the Election Commission (EC) issued a show cause notice to West Bengal Chief Minister Mamata Banerjee for violating the Model Code of Conduct (MCC) by announcing a new district at a poll rally in Asansol.

Just three days ago, the EC brought another chief minister under the scanner for violating the poll code. Assam Chief Minister Tarun Gogoi was not only severely reprimanded for holding a press meet in Guwahati on April 11, even as polling was on in 61 constituencies of the state, but an FIR (First Information Report) was filed against him too. Booked under Section 126 of the Representation of People’s Act, 1951, the veteran Congress leader’s maximum punishment, if proven guilty, could be two years in jail.

The FIR against Gogoi is particularly reminiscent of one filed against Narendra Modi two years ago. On April 30, 2014, in the run-up to the parliamentary elections, the Gujarat administration booked BJP’s prime ministerial nominee and then chief minister of the state after the EC took note of a politically charged speech he gave during a media interaction and displayed his party’s symbol outside a polling booth in Gandhinagar.

The charges against Modi were rejected and, in all likelihood, so will it be in the case of Gogoi. Banerjee too is likely to get away by tendering an apology. However, such observations raise some questions — going by the conviction rate, are cases filed with regard to the MCC  purely symbolic? Would cases stemming from such FIRs gain more strength if the MCC becomes a legal document per se? Does it then justify giving a statutory status to all the stipulations of the MCC, as suggested by the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice in 2013?

The expert view is that, as of now, following the model code is purely hinged on morality, not the fear of law. Since poll campaigns are turning uglier, more personal and combative, the moral obligation entailed in the model code can really bear down heavily on candidates at a time when they are trying show to the voters how upright and competent they are for the job.

“Filing an FIR, particularly against a senior leader during the elections, in itself becomes a cause of huge embarrassment to the party the candidate represents. It presents the candidate as ethically wrong to the people. That is the reason most leaders castigated for breaking the Model Code of Conduct don’t usually repeat it,” says former Chief Election Commissioner S.Y. Quraishi.

That the word ‘moral’ becomes replaceable with ‘model’ works during elections, he underlines, by giving an example from his tenure at the Nirvachan Bhawan. “A former Law Minister announced a scheme after the declaration of the model code in an upcoming election. Though the EC advised him not to do so, he didn’t pay heed. So the EC wrote to the President and the minister was censured and fined. Mind you, there is no appeal in such cases. A law minister violating ethics doesn’t go down very well with the voters.”

Though the model code puts a moral obligation on the contestants to help make an election free and fair, most of its stipulations do fall under various laws, thus enabling the EC to order filing of cases against the violators, including initiating criminal cases under the Indian Penal Code. This certainly prevents one from seeing the MCC as only voluntary in its application, a reason why the 2013 Parliamentary Standing Committee suggested that the remaining stipulations should also be accorded statutory backing. It referred to stipulations like the bar on the ruling party from using its position for electioneering by combining official work with campaign activity; the exercise of monopoly over public places and transport facilities.

“It is obvious that these non-statutory stipulations are very different from those of the legally defined ones. Of course, only one political party should not be allowed to these facilities to help create a level playing field but it is also true that the legal codification of these stipulations would expose the whole electoral process to needless litigations. So they are best achieved by the oversight of an impartial poll watchdog,” says a New Delhi-based senior poll researcher who doesn’t want to be named here.

Reacting to the move during the UPA II regime to give statutory powers to the model code, he points out, “Many politicians are in favour of making it legally tenable as it clears them of the burden of morality during elections. They then don’t have to be morally correct during campaigns; and any case that may crop up due to it can go on for years in the court. It suits them. So even if the conviction rate of the cases related to the model code may be low, its moral nature should remain intact simply because these days it is only in the run up to the elections that most politicians are conscious of being morally right.”

When the EC issues a show cause notice to a candidate, the person has to respond to it within 48 hours. “If the contestant is wrong, the person tenders an apology. Since such an apology brings the candidate to the immediate notice of the voter as the wrong doer; it is a deterrent unlike a situation where a case against a candidate goes to the court and may linger, giving the benefit of doubt to him/her,” he points out.

Both Quraishi and former CEC N. Gopalaswami disagree that cases filed for violating the MCC don’t usually lead to conviction.
“There are more than 3 crore cases pending across the country, which also includes cases filed for violating the poll code. So it is wrong to believe that most of those FIRs don’t lead to any conviction. Many cases are still on. The EC can’t ask the Judiciary to specially expedite these cases because it is beyond its domain,” says Gopalaswami.

“Some cases go on for years together but both the media and people lose interest in them after the elections, so we usually don’t hear about them,” says Quraishi.

Political pressure does mount against such cases if the party in question comes to power. “If the same party comes to power, it tries to delay the investigation,” says Gopalaswami. Though the EC usually doesn’t follow up the cases, Quraishi mentions one case that the commission chased because the party, after coming to power, tried to withdraw the complaint. “This was in Karnataka. The EC ordered an FIR against a state minister for violating the poll code. After his party won the polls, the state cabinet passed a resolution to withdraw the case. We went to the court opposing it. The lower court gave the judgment in our favour. The case thereafter went to the Karnataka High Court where it is still being heard.”

Even though the speed of the cases is slow, taking steps like granting quasi-judicial powers to the EC to directly deal with the cases – some experts do suggest it — will not work either. “That will be against the separation of powers as granted by the Constitution. Breach of law is for the judiciary to take care of. Executive shouldn’t do it,” points out Gopalaswami.

In the coming days, with electioneering heating up not only in Bengal but also in Tamil Nadu, Pondicherry and Kerala, there may be more occasions for the EC to not just issue show cause notices but even order FIRs against high profile candidates for MCC violations. Quraishi though points out that if there are instances of senior leaders violating it, “there are also those who understood their moral sanctity”. One such leader is Union Defence Minister Manohar Parrikar.

Quraishi says, “I mentioned Parrikar’s example in my book too (Elections, An Undocumented Wonder). Just after the election dates were announced, Parrikar, then chief minister of Goa, chose a party contestant as a minister. As the CEC, I sent him an advisory against it. He called me angrily to say that the EC was questioning his sovereign right to elect a minister. I explained to him that if he chose a minister just when the assembly elections have been announced, he was not giving a level playing field to all the candidates. Parrikar withdrew his decision with a statement that was statesman like. He said, ‘I surrender my sovereign right to choose a minister to the moral right of the code of conduct'”