LAW RESOURCE INDIA

Don’t break the code

Posted in ELECTION LAW by NNLRJ INDIA on February 23, 2012

TS KRSHNAMURTHY IN THE INDIAN EXPRESS

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
express@expressindia.com

2 Responses

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  1. Sumitro, Tezpur said, on February 23, 2012 at 09:02

    UPA Govt trying to undermined the authority of Election Commission by trying curb its power which is not healthy sign for democracy. So time has come all civil socities joined their hands to thwart Govt.

  2. Mayuram V. Sankaran said, on February 23, 2012 at 19:04

    The above write-up, “Don’t break the Code”, by a former Chief Election Commissioner, Shri T.S.Krishnamurthy, makes interesting reading. However, it also raises many queries in one’s mind. If the Election Commission of India has indeed framed the “Model Code of Conduct” way back in 1960 (or thereabout) to be complied with by all the political parties and the candidates contesting elections through an informal consensus arrived at among the political parties of that day without actually drawing upon any enabling legal provisions to do so, then they clearly need a legal authority to exercise those powers in these days when there is hardly any consensus on anything among the political parties and candidates. How long will the Election Commission fall back on an informal agreement of the political parties without any statutory backing or rules framed under the enabling provision of either the Constitution or any relevant statute to show the legal authority for their enforcement? This argument applies even though the Honorable Supreme Court itself in a sense sanctified those rules by giving their seal of approval for the enforcement thereof for the purpose of a ‘free and fair election’ through a decision of that Court in the year 2001 perhaps without the question being squarely faced. It depends upon the wisdom of the Legislature (controlled by the ruling majority coalition) whether they want to continue to entrust the power for the enforcement of the provisions with the Election Commission of India or set up a separate body or Tribunal for that purpose or generally leave it to the formal courts of law having the necessary territorial jurisdiction over the matter. One can only canvass for the status quo to be preserved in the interest of ‘free and fair elections’ in any such new law on the subject by advancing sufficient justifications.


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