Don’t break the code


Election process will lose credibility if EC has no power to enforce rules

The Election Commission (EC) and the Supreme Court of India can be considered as the crown jewels of Indian democracy. Both these institutions, although non-elected, have been rendering a great service in preserving and protecting the civil rights of citizens in no small measure.

It is indeed disturbing, if not shocking, to know that there is a move to convert the Model Code of Conduct into a law. The present proposal, though not officially confirmed, seems to be motivated to check the assertive authority displayed by the EC during elections, from the announcement of election dates to the declaration of results, so that any action that violates the Code will perhaps be dealt with by a court of law and not the EC. Seemingly innocuous, such a move is fraught with dangerous consequences as it will not only diminish the authority of the Election Commission in effectively enforcing the rules of behaviour by political parties and the candidates but also destroy the quality of representative democracy so zealously provided for in our Constitution.

The Model Code of Conduct had its origin quite some decades back, thanks to an initiative taken by police officers in Thiruvananthapuram in 1960 to bring about a consensus among political parties to ensure a level-playing field in fighting electoral battles. Recognising the merit of a code in ensuring free and fair elections, the Election Commission of India, after evolving a consensus among political parties, brought into force the Model Code of Conduct to be complied with by all parties and contesting candidates for all elections. In April 2001, the Supreme Court gave its seal of approval to the enforcement of the Code of Conduct as an important instrument for conducting free and fair elections.

Although the Code of Conduct has been in use for quite some time, there have been some limitations in its enforcement both from the point of view of political parties and the Election Commission of India. There is also a view that the Code of Conduct stands in the way of prompt execution of developmental projects, which in my opinion is a myth as the instructions of the commission are clear about allowing development projects/ emergency measures by officials. The Code, being an informal agreement among political parties, does not have legal authority but its utility as a tool for free and fair election management has been well recognised by the Supreme Court. However, political parties tend to take the Code very lightly, as they think that the EC can at best express displeasure or defer the election without any direct adverse consequence to the party or the contesting candidate.

The weakness in the enforcement of the Code is no doubt inherent but over a period of time its impartial enforcement by the EC has been well received by all stakeholders and independent observers. In fact, the symbols order, which is the basis for allotment of symbols to all political parties/candidates, does contain a provision to the effect that the EC can even withdraw a symbol of a party in case of gross violation of the Code of Conduct. The symbols order has also been recognised and approved by the Supreme Court in its judgments. In a nutshell, it may be noted that the Model Code of Conduct has proved its utility in ensuring free and fair elections.

The proposed attempt to convert the Model Code of Conduct into a separate law may appear to be well intended giving the impression that it is easy to enforce compliance through an Act rather than by a Code. Unfortunately, there is a catch in this move. If the proposed law provides that all violations thereunder have to be taken up before a court of law, the very objective of conducting a free and fair election will be given a death blow. The superiority of the Code is that its enforcement power is with the EC as it is able to swiftly swing into action and take appropriate measures to create the necessary impact for the voters to feel that an unbiased body has taken stern and severe action as a result of which no one is at a disadvantage.

There are a number of instances in which violations of the Code have been dealt with by the Election Commission within a week, thereby checking abuse of authority and misuse of money power and muscle power. For example, there was a case of a chief minister who took a state aircraft up to the border of his state and after crossing the border used a party vehicle for election canvassing in another state. Obviously, this person was misusing his authority to get unfair political gains. After a showcause notice, his party was asked to reimburse the cost of his air travel to the state exchequer. Similarly, there was another case where the photograph of a chief minister was displayed on school bags supplied free by the government. The entire scheme was ordered to be withdrawn immediately. In yet another case, the entire election was countermanded as a result of violation of the Model Code of Conduct. Very often, such decisions are taken within a week or 10 days after inquiry and giving opportunity to the concerned. Such swift action cannot be taken if the cases are filed in a court of law for adjudication, as judicial process takes months and years for judgment to be given. Time is of the essence as action in such matters has to have an immediate impact.

My view is that if at all a legislative shape is to be given to the Model Code of Conduct, the power to deal with offences and to impose punishment should be given to the Election Commission. This will strengthen it in its election-management exercise. The punishment in such offences can be confined to monetary fine, disqualification and withdrawal of recognition to political parties depending on the nature of the offence. On the other hand, if the power to launch prosecutions and punish these offences is passed on to the court, it will be a retrograde step, contributing to the decline of the credibility of the EC and the election process. If the proposed move shifts the authority to enforce the rules of the game to the court, it will result in devaluing the Election Commission’s authority.

The writer is a former chief election commissioner


Decision on Sec 377 could affect other sexual offences in IPC: SC


NEW DELHI: The Supreme Court on Wednesday said its final decision on the correctness of the Delhi High Court judgment — which decriminalized Section 377 of Indian Penal Code covering a sexual act in private between consenting adults — could have far reaching impact on several sexual offences listed in the penal laws.

A bench of Justices G S Singhvi and S J Mukhopadhaya requested the counsel for parties to keep in mind the evolving social ethos as the key words in the HC judgment — “consenting adults committing a sexual act in private” – could have a bearing on several other sexual offences enumerated in the IPC.

“Though the focus of our judgment would remain on Section 377, but keep in mind that it could have bearing on provisions relating to other sexual offences. Obscenity could be one such provision,” the bench told senior advocate Amarendra Saran, who was arguing against the HC verdict on behalf of Delhi Commission for Protection of Child Rights (DCPCR).

The court was possibly hinting at offences like adultery and obscenity in public, mostly misused by police to harass couples in parks.

Section 497 defines adultery. According to it – “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

In this case, the consent of the woman is immaterial and the consenting sexual act still would constitute an offence if the consent of her husband was not taken.

Saran said NGOs had challenged the legality of Section 377 before the HC on the ground that it targeted homosexuals as a class and hence violated the LGBT (lesbian, gay, bisexual, transgender) group’s right to equality guaranteed under Article 14, right to privacy under Article 21 and the constitutional guarantee under Article 15 prohibiting discrimination on the basis of sexual orientation of such persons.

He argued that right to privacy did not confer right on consenting adults to commit an act in private which was illegal. “In other words, right to privacy does not confer immunity to crimes committed by consenting adults in private. Hence, the reasoning of the HC that Section 377 is violative of right to privacy is clearly erroneous,” Saran said.

He said Section 377 did not suffer from class bias. “It applies uniformly to any man or woman if such person indulged in carnal intercourse which is against the order of nature,” he said and cited a 1990 Supreme Court judgment to back his argument that all “non penile-vaginal” intercourse would fall within the meaning of “carnal intercourse against the order of nature”, which has been classified as an offence under Section 377.

The DCPCR counsel said “there was a vast cultural difference in the Indian society and other societies of the world” and faulted the Delhi HC judgment for basing its reasoning on foreign court rulings.