Daily Answer Writing
19 April 2021

Que) Though Model Code of conduct not backed by a legislation yet it enhances the powers of Election commission of India for good. Comment (150 Words)
Source <https://www.thehindu.com/opinion/lead/the-eci-cannot-be-a-super-government/article34353019.ece>
GS 2: Constitutional bodies, RPA

Approach Answer:

Introduction: The Model Code of Conduct(MCC) is a set of guidelines,  for conduct of political parties and candidates during elections mainly with respect to speeches, polling day, polling booths, election manifestos, processions and general conduct and functioning of the party in power etc. It comes into force immediately on announcement of the election schedule by the commission and remains in force till the end of the electoral process.

             

Powers that Model Code of conducts gives to the Election Commission

              1. Power of enforcement of discipline: Commission enforces it under other statues such as Indian Penal Code, Representation of People Act, 1951.

              2. Powers of Election commission as a Civil Court: It can summon, issue show cause notice or bar a candidate for campaigning for a few days.

              3. Power to issue directions: ECI issues from time to time directions, instructions and clarifications on a host of issues which crop up in the course of an election.

              4. Power to punish parties: Paragraph 16A of the Election Symbols (Reservation and Allotment) Order, 1968 says that the commission may suspend or withdraw recognition of a recognised political party if it refuses to observe the MCC.

 

Importance of these powers

              1. Moral Enforcement:  It can contain moral provision such as preventing personal criticism, not making unverified allegations etc. which are subjective by nature.

              2. Comprehensive: It covers the guidelines in detail for each election which cannot be covered as comprehensively in a legislation.

              3. Build through consensus:  It was agreed to by political parties in 1979(5th Election). It has been evolved with the consensus of political parties who have consented to abide by it and also binds them to respect and observe it in its letter and spirit

              4. Flexible: These can be changed easily by the Election commission thus giving it an ability to address any contingent situation.

 

Limitations:

              1. Lacks teeth: It contains “rules of electoral morality” having only a persuasive effect.

              2. Lacks statutory basis: these are revised from time to time by ECI but does not have legislative backing. Thus actions like de-recognition of a political party might not sustain legally.

              3. Ability to ensure enforcement is limited: There exists a considerable amount of confusion about the extent and nature of the powers which are available to the ECI in enforcing the code as well as its other decisions in relation to an election.

              4. Confusion in Control of Administration: It is not clear legally if in the exercise of Article 324, the election commission has the power to transfer officers, as that can bring the state government to a grinding halt and is actually governed by Article 309 which cannot be bypassed by ECI.

              5. Dependency on the Criminal Justice system for serious cases: Any criminal case such as 'corrupt practices' under RPA, 1951 are finally decide by the Criminal justice system as EC can only have powers as a Civil court.

              6. Subjective application of powers: The powers given to the Election commission are arbitrary in nature and mired with confusion.

             

Conclusion: Thus although, lack of statutory basis gives its enforcement a questionable legal standing. However it forms a very important basis of our election conduction machinery. In this regard, a Committee of Parliament recommended that the code should be made a part of the RPA1951. However the ECI have not agreed to it on the ground that once it becomes a part of law, all matters connected with the enforcement of the code will be taken to court, which would delay elections.

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