Debating India

ELECTIONS 2004

Model code and actual conduct

Friday 26 March 2004, by VENKATESAN*V.

DEPUTY Prime Minister L.K. Advani appears to have made a virtue of the compulsion to observe the Model Code of Conduct during elections, by opting to travel by road in Tumkur in Karnataka, where he was campaigning on February 29, when the Election Commission announced the dates for the general elections.

The code bans the use of official aircraft by Ministers other than the Prime Minister during the campaign period. The E.C. had earlier rejected a request from the government to consider relaxing the code for the Deputy Prime Minister in view of the heightened perceptions of threat to his life.

Even as Advani seemed to convey an honesty of purpose in observing the code from day one, his government had no compunction about not observing it in spirit once the Lok Sabha had been dissolved but the code was not in force. In fact, this approach earned it a mild rebuke from T.S. Krishnamurthy soon after he took over as Chief Election Commissioner on February 8. He said that in his personal view, taxpayers’ money should not be used to gain electoral advantage. His observation was in response to questions from the media on what he felt about the multi-crore `India Shining’ advertising campaign of the Central government, which had invited criticism from the Opposition parties.

Prime Minister Atal Bihari Vajpayee defended the campaign even after the dissolution of the Lok Sabha by taking shelter under the plea that the code came into force only when the E.C. announced the election schedule.

The E.C. formulated the model code - a set of principles for the guidance of political parties and candidates - in 1991 when T.N. Seshan was the Election Commissioner. The code, to which the political parties and candidates adhere to voluntarily, does not have statutory backing, but this has not affected the competence of the E.C. to enforce it with the objective of holding free and fair elections.

The code stipulates that the party in power, be it at the Centre or in the States, shall ensure that no cause is given for any complaint that it has used its official position for the purposes of its election campaign. In particular, it appeals to ruling parties to avoid issuing advertisements in newspapers and other media at the cost of the public exchequer and misuse of the official mass media during the election period for partisan coverage of political news and for publicity.

The judiciary had an opportunity to examine the legality of the code in 1997 when the Punjab and Haryana High Court dismissed a petition challenging the E.C.’s powers. The E.C. drew its powers under Section 16A of the Election Symbols (Reservation and Allotment) Order, 1968, by which it could suspend or withdraw recognition of a political party for its failure to observe the model code or follow lawful directions and instructions issued by the E.C.

The High Court held that the E.C.’s action in directing the government to follow the model code was legal and proper and that the E.C. was entitled to take steps for the conduct of a free and fair election even prior to the date of issuance of notification, from the date of announcement of the election. The Union government, which challenged this decision in the Supreme Court, however, reached a compromise with the E.C. on the issue. As per the compromise, the E.C. will announce the poll schedule two weeks prior to the notification of the elections and the code will come into force from the date the E.C. announces the schedule.

This compromise was reached on the assumption that the E.C. would have the discretion to choose the dates of the elections, within the Constitutional framework, and that ruling parties would not enjoy any unfair advantage by virtue of being in power at the time of elections. In retrospect, this assumption appears to be naive in the light of the dissolution of the 13th Lok Sabha on February 6, eight months ahead of the expiry of its term. The decision to dissolve the State Assemblies of Andhra Pradesh, Karnataka and Orissa also appear to be flawed and without valid reason. This has given rise to the belated realisation that the code should come into force soon after a government decides to go in for early polls.

The Union Cabinet decided to dissolve the Lok Sabha and go in for early polls, on January 27. As the E.C. could not have been expected to prepare the poll schedule in a hurry, it was expected that the Union Government would voluntarily adhere to the model code, knowing full well that the polls were imminent following the dissolution of the Lok Sabha. At the all-party meeting convened by the E.C. on February 20, the Opposition parties expressed their concern over this blatant violation of the spirit of the code by the government.

As the E.C. had stated in its affidavit before the Punjab and Haryana High Court, the philosophy underlying the code was that the ruling party should not take unfair advantage of its position to tilt the views of the electorate on the eve of the election. The Central government may well stop its `India Shining’ campaign with the E.C’s announcement of the poll schedule, but by insisting on its right to run the campaign until the poll schedule is announced, it has reduced the E.C. to a hapless spectator to its blatant violation of the philosophy and spirit of the model code.

See online : Frontline

P.S.

in Frontline, volume 21, Issue 06, March 13 - March 26, 2004.

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