India 2014 elections: Modi is testing the Model Code of Conduct`s limits in the final phase of campaigning

The Times of India
May 6, 2014, 4:31 pm IST Ronojoy Sen

Sins of commission? Modi is testing the Model Code of Conduct`s limits in the final phase of campaigning

The latest confrontation between BJP’s prime ministerial candidate Narendra Modi and the Election Commission (EC) is one among several that have marred the ongoing election campaign. When Modi, while campaigning in West Bengal, accused EC of being biased and dared it to act against him, he was throwing a challenge to an organisation that routinely tops the popularity charts for state institutions.

But it’s not just Modi who has had harsh words for EC. Several others, including Trinamool Congress chief Mamata Banerjee, have had run-ins with EC during the poll campaign.
The reason why EC is so irksome to politicians is because it has steadily expanded its regulatory authority, granted under Article 324 of the Constitution, over everything related to elections. However, it wasn’t always so. Before T N Seshan’s tenure as chief election commissioner in the 1990s, EC was an organisation primarily concerned with ensuring fair and smooth voting. This it did remarkably given the scale of elections in India.

But it was the Model Code of Conduct — which first made its appearance in 1960 in the assembly elections in Kerala — that became a potent regulatory tool from the 1990s. Unlike the Representation of the People Act (RPA), which has provisions to penalise individual electoral offences and corrupt practices, the Code is a set of moral principles meant to guide the conduct of political parties during the campaign period.

Though the Code had no legal force, it was Seshan, as historian David Gilmartin points out, who brought it “into public consciousness as a symbol of the underlying notion that elections required a different kind of morality from everyday politics”.

EC has been ambivalent about turning the Code into law since this could lead to protracted legal battles in court — as so often happens with RPA-related cases — and undermine its authority during elections. Indeed, some have justifiably argued that by taking on sweeping powers during the election period there is a danger of EC resorting to populism.

So long as the Code does not have legal sanction, EC can take immediate remedial action. This it has done by handing out public censure to both candidates and government officials and in rare cases cancelling elections. In this election campaign we have already seen EC banning for a period BJP’s Amit Shah and Samajwadi Party’s Azam Khan. Similarly for the past few elections it has been commonplace for EC to transfer government officials, something which always raises the hackles of ruling parties.

The lack of legal sanction has, however, led to gaps in the enforcement of the Code. Provisions in the Code itself are also hard to enforce. For instance, it says that criticism of other political parties “shall be confined to their policies and programme, past record and work” and that it must “refrain from criticism of all aspects of private life”. But anyone following the mud-slinging in this election campaign knows that this is being ignored.

Some of these contradictions were on display in the case involving BJP candidate Varun Gandhi in the 2009 Lok Sabha elections. Varun was charged with delivering communally charged and provocative speeches in his constituency while the Code was in place, but before he had been nominated as a candidate. Although EC gave directions for criminal charges to be pressed against Varun, on its part it could only request BJP not to field Varun as a candidate. Though BJP disassociated itself from Varun’s speeches, it still nominated him and he ended up winning the seat.

Before Modi’s unprovoked comments against EC in West Bengal, he got into another tangle with EC for flashing BJP’s election symbol near a polling booth. But that, we must remember, was not a violation of the Code but of RPA, something which can attract punishment. An FIR has been filed and the law will now take its own slow course.

To come back to the Code, however, there was a feeling that Modi might test its limits in the final phase of campaigning when most of the country had already voted. That is precisely what is happening.

Following his remarks in West Bengal, Modi delivered a speech in Ayodhya with a huge portrait of Lord Rama as a backdrop and repeated references to Rama. That potentially violates the clause in the Code which advises against aggravating differences between different communities as well as Section 123 of RPA which prohibits appealing for votes on the ground of religion. Indeed the latter was a bone of contention in the long-drawn case over use of Hindutva, which Supreme Court eventually upheld, in election campaigns.

To be sure some of the provisions in the Code and RPA are restrictions on freedom of speech. These provisions are also notoriously difficult to enforce and often result in lengthy legal battles, as in the case of use of Hindutva, where the final judgment comes years after the actual election took place.

That, however, is no excuse for Modi to launch a frontal attack on EC. By doing so he might be scoring some cheap election points. But potential damage to one of the few credible state institutions in India betrays acute short-sightedness on the part of Modi.

The writer is a senior research fellow, ISAS and ARI, National University of Singapore.