Does the Model Code of Conduct need legal teeth?

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Mr. Krishnamurthy, a lot of people have said that the ECI has not properly enforced the MCC during this election and that some violations have been overlooked. What is your opinion on these allegations?

T.S. Krishnamurthy: The media and political parties make vague allegations against the ECI, and this is common during every election. As far as political parties go, one set of parties or the other will always have a complaint. This is very common in every election. Parties have their own political reasons for making complaints. What is necessary is to know how genuine these complaints are and what action has been taken. It is for the people to decide whether the action taken has been free and fair.

Mr. Achary, do you think the MCC needs legal teeth for better implementation?

P.D.T. Achary: I don’t look at this from the point of view of political parties but from the point of view of law and the Constitution. Legal enforceability is out of the question because it (the MCC) doesn’t have legal teeth. But the point is that the ECI has been given a lot of powers. In fact, Justice Justice Krishna Iyer had said in one of his judgments that it (the ECI) is a reservoir of powers. That means the ECI has a lot of powers to act to ensure that elections are free and fair. So, it is not necessary to give legal teeth to the MCC. The argument against giving it legal teeth is that once it (the ECI) goes to the courts, it will take a lot of time. The electoral process, once it starts, should be completed expeditiously. So, legal teeth should not be made a part of the Representation of the People Act (RPA), 1951. In the absence of this legal provision, the MCC can be enforced and that is for the ECI to deal with because Article 324 of the Constitution gives it enormous powers wherever there is no legal provision. Whether the ECI is actually using all its powers under Article 324 is the question.

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People who do not favour statutory measures to implement the MCC also argue that when a strict measure is taken, it disrupts the political process. Mr. Krishnamurthy, what do you think?

T.S. Krishnamurthy: While I agree that the Supreme Court in one of its judgments observed that the ECI has a reservoir of powers under Article 324, it is only in respect of areas where there is a legislative vacuum. This is not an all-comprehensive power. The ECI is entitled to exercise this power without appealing to any other outside body, but even here, the restriction is that it has to be within the framework of the Constitution and the RPA. It is not as if the ECI has got extraordinary powers to go beyond the provisions of law. The ECI is accountable for its decisions in exercise of such power.

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The main purpose of the MCC is to ensure a level playing field and ensure that elections take place in a free and fair manner. But the problem is that the MCC is only a code. Once it finds a violation, if the ECI can book them under the Indian Penal Code (IPC) or under the RPA, or file an FIR, that will take months and years to be decided by the courts. Moreover, the police which functions under the State government will be taking action against such complaints depending upon which party comes to power.

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And if there are other violations not covered by the IPC or the RPA, all that the ECI can do is, say, ban a candidate from campaigning. But it has no wide-ranging powers as people assume, and that is where the problem lies. That is why I believe that some limited power should be given to the ECI to impose a monetary penalty or a temporary disqualification or something like that. There are some areas where I believe that it (the MCC) should be brought within the framework of law. I know there are differences of opinion among political parties and analysts. Some parties may not agree to such a change. But if you want to instill some fear in candidates and the political parties, at least some minimal power of imposing a monetary penalty [should be given]. Or disqualification for a short period would be ideal.

In recent times, has there been any discussion with parties on widening the ambit of the MCC or making it more efficient?

T.S. Krishnamurthy: As far as I know, I don’t think so.

Mr. Achary, what is the harm in including certain statutory provisions like penalties for violating the MCC within the RPA Act?

P.D.T. Achary: See, once it becomes a part of the RPA Act, suppose the ECI moves in and uses that particular provision against any person who violates the MCC, that person will certainly go to court and challenge it. If there is a stay, then the matter will end there. So, quick executive action is what is required. Judicial proceedings are out of question. An election has to be completed expeditiously within a given time frame.

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I agree with Mr. Krishnamurthy that the reservoir of powers doesn’t mean that the ECI is omnipotent and it can operate outside the Constitution and law. The Supreme Court has made it clear that if there is a statutory law, then the ECI will have to go by that. But if there is no statutory law to deal with the particular situation, the ECI can draw this power from Article 324. Let’s suppose a very important person violates the MCC. In such cases, the ECI has, even during this election, taken a leader off campaigning for 24 hours or 48 hours. If the ECI can use this power and take a person off the campaign for 24 hours or 48 hours, it can take that person off the campaign for the duration of the election if it is a very serious offence or violation. That call has to be taken by the ECI.

I would also like to draw your attention to Paragraph 16A of the Election Symbols Order, 1968. It says if there is a violation of the MCC, the ECI can even derecognise or temporarily suspend the recognition given to a party. So, it is not that the that the ECI does not have or cannot exercise its authority.

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T.S. Krishnamurthy: Yes, the ECI has the power under the Election Symbols Order to withdraw (recognition). But if the ECI starts withdrawing the symbol for various violations that political parties are indulging in these days, I think most of the parties are likely to lose their symbol at one stroke. It cannot be invoked in all cases; it can only be invoked in very serious cases. Among the candidates and political parties, mere fear of withdrawal of the symbol or filing an FIR doesn’t work. Thousands of cases of FIRS are filed and you know how the FIRs are treated.

Over the past few years, there has been a debate on whether the ECI has been able to ensure a level playing field. What do you think?

P.D.T. Achary: Here, the point is whether the ECI is using all its powers to deal with situations where senior political leaders while campaigning seem to be violating the MCC. Whether the ECI (in such situations) is acting effectively and applying the MCC and its regulatory aspect uniformly to all the people, whatever position they may hold politically or otherwise, is the question that needs to be debated. It is a serious situation. And all of us know what has been happening during this election.

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Social media has become a huge influence as far as campaigning goes. Do you think it needs regulation?

T.S. Krishnamurthy: This is a complex issue. There is need for regulation. How that can be done needs to be discussed with all stakeholders. I’m not saying everything is hunky dory. We have to bring about some changes. The MCC was started with a good intention. It had a lot of positive effect initially, but parties are now becoming more and more aggressive. I think it is time for us to review the contents of the MCC and also to find out methods to improve the regulation of social media, hate speeches, and fake news. But let us clearly understand that the ECI does not have that kind of a power during the election process to swiftly deal with the violations.

P.D.T. Achary: Social media is unregulated, so some muck also moves through it. But the point is that when there is a some kind of a control over the rest of the media — sections of electronic media and print media — people get a lot of information through social media. Therefore, yes, there should be some healthy regulation, but otherwise social platforms are certainly serving a very important purpose, particularly in a situation like this.

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