It is time to junk the Model Code of Conduct (MCC). It is time to recognise that it is not just harmless fiction; this is a weapon of distraction and disruption. And it is time to name and shame the Election Commission of India (ECI) for reducing this democratic innovation to a farce.
Consider this election speech on October 24 in Jamshedpur by Himanta Biswa Sarma: “Desh ke kone kone mein abhi bhi jo Babur base hain, ye logon ko laat maar maar kar nikaalne ka samay aa chuka hai (It’s high time that the Baburs that continue to reside in all the nooks and corners of this country are kicked out)”. And now read the very first sentence of the MCC: “No party or candidate shall include [sic] in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic” (Para I.1). Or, consider the slanderous remarks made in Maharashtra by a BJP leader against family members of Congress leader Balasaheb Thorat or by the Congress candidate in Jharkhand against the BJP leader Sita Soren. Now read the second commandment (Para I.2) of the MCC: “Parties and Candidates shall refrain from criticism of all aspects of private life, not connected with the public activities of the leaders or workers of other parties.” In the run-up to this assembly election, the Maharashtra government has announced “schemes” that amount to open bribing of voters to the tune of Rs 1 lakh crore. That is MCC for you.
The EC is yet to take any step in these cases. It won’t matter much, even if it did issue a regulation notice. You can keep scrolling down the MCC and list all the proscribed activities. And then step out during election times to note all of these happen routinely, without any check: Appeal to caste or communal feelings to secure votes, voter bribing, distribution of alcohol, misuse of public funds and official media for partisan news reporting and misuse of official position to gain electoral advantage. My own experience of observing elections tells me that every “winnable” candidate in an assembly election spends anything between Rs 10 to 50 crore (the official upper limit is Rs 40 lakh), besides the money spent by the party. Paid news is no longer a scandal, and you would be joking if you complained about the unfair advantage to the ruling party. Should you wish to go beyond anecdotal evidence, the report of the Independent Panel for Monitoring Indian Elections, 2024, is a useful summary statement of how the letter and spirit of the MCC is observed only in its breach.
Even so, the idea of junking the MCC might look like an angry or desperate over-reaction. Surely, if a code is disregarded, we need to find ways to enforce it, not junk it. The report of the Independent Panel also recommends the strengthening of the MCC.
This fallacious reasoning and political inertia keep the farcical MCC going. The MCC is not the principal code that governs the conduct of elections in our country. If the EC really wants to conduct free and fair elections, it does not need the MCC. The Representation of the People Act, 1951 lays down the dos and don’ts for parties and candidates. Section 123 specifies “corrupt practices” that attract punitive action. Besides, there are normal laws of the land that govern any public action, speech or gathering that apply during elections as well. These laws bar bribing, coercion, misconduct of public servants and any incitement to caste or communal hatred etc. In any case, there is the overriding mandate of Article 324 of the Constitution that gives the EC wide-ranging powers of “superintendence, direction and control” of elections. The Supreme Court has recognised that the ECI can do pretty much whatever is necessary to conduct “free and fair” elections.
Why, then, do we need the MCC? First of all, free and fair elections are not just about enforcing the letter of the law, it is also about respecting the spirit of the law. The MCC was meant to translate this spirit of the law into a set of norms that would be acceptable to competing political actors and whose violation would invite moral sanction. Specifically, the MCC supplemented the existing rule book by emphasising the need for a decent campaign and, more importantly, by recognising that the ruling party may enjoy unfair advantages in the run-up to and during the elections that need to be checked. Second, the process of adjudicating the violation of election laws is tortuously long, requiring a very high threshold of proof. The MCC allowed easy identification of electoral violations and their quick redressal. Third, the Constitution bars any judicial intervention when the election process is on. The EC as the enforcement agency for the MCC, was an alternative and independent dispute-resolution mechanism during the election period.
Over the years, the EC has nullified each of these. Instead of acting as the guardian of the spirit of free and fair elections, the EC has reduced the MCC into a rule book (a compendium of over 250 pages and more than 150 circulars), full of legal minutiae with no regard to the spirit underlying this code. This has led to the mindless pursuit of trivial details of the placement of party flags, mechanical enforcement of meaningless rules about timing of election meetings and regular harassment of candidates and parties over expenditure statements that no one checks, without an iota of concern for the most egregious violation of the spirit of level-playing ground, of the brazen bribing of voters, buying of media and partisan conduct of election officials. Above all, the EC has lost the moral authority to shame parties and candidates.
The adjudication is neither quick nor fair. We only need to recall the EC’s inability to even issue a notice to PM Modi for his “ghuspaithia” remarks during the Lok Sabha elections. Far from holding election officials accountable for their conduct, the ECI is yet to respond to questions about its own conduct. The Association for Democratic Reforms has asked a most basic question: Why was there a discrepancy between votes polled through EVM and the votes counted by EVMs (excluding postal ballots) in as many as 536 out of 543 Lok Sabha constituencies? The ECI has not cared to respond.
The MCC has become a convenient alibi, a source of distraction for election monitoring and disruption of routine governmental activity. The MCC comes into force only on the day the elections are formally announced. Thus, as in the case of Maharashtra, the EC can delay the announcement of polls and legally exclude a vast range of electoral malpractices from the scanner. Thanks to the MCC, the local officials can take a governance holiday — achaar sanhita lagoo hai — to excuse themselves from routine actions that citizens need so badly. Above all, this legal fiction keeps the pretence of a free and fair election, guided by a Code and an umpire. We don’t need an MCC. At the most we need a few provisions of MCC to be incorporated in election laws. What we need is an ECI with a spine. If we don’t want to end up like our neighbours, where every election result is disputed, we desperately need someone to enforce the normal law of the land to ensure free and fair elections.
The writer is member, Swaraj India and national convenor of Bharat Jodo Abhiyaan. Views are personal