Context

Campaign for the Delhi Assembly election in which the development debate was overshadowed by hate-mongering and outpouring of communal vitriol underscores need to do more.

Understanding the Model Code of Conduct (MCC)

• Behavioural guidelines: It is a set of behavioural guidelines for political parties and candidates for-
  • The peaceful conduct of elections.
  • To prevent hate speech.
  • Malpractices.
  • Corruption and
  • Misuse of government machinery by the ruling party.
• Not judicially enforceable: Since it is not an Act passed by Parliament, the Code is not judicially enforceable.
  • The action against a violator usually takes the form of an advice, warning or censure.
  • No punitive action can be taken.
  • No wonder, many consider the Code as toothless.
• Moral authority: It is not toothless though. Its moral authority far outweighs its legal sanctity.
  • Political leaders worth their salt are scared of inviting a notice for a violation, as it creates negative public opinion.
  • Besides, unlike the legal processes, its impact is instant.

The legality of the MCC

• Test of legality in the courts: The legality of the code has been judicially tested.
  • First legal acceptance: Its first judicial acceptance came in 1997 when the Punjab and Haryana High Court gave the EC the power to enforce the code.
  • “Such a code of conduct when it is seen that it does not violate any of the statutory provisions can certainly be adopted by the Election Commission for the conduct of free and fair election, which should be pure as well,” the Court said.
  • The SC has repeatedly held that this must be enforced strictly.

Parallels between the MCC and other legal provision

• The first section of the MCC lays down that-Part 1 (1) “ No party or candidate shall include in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic.”
• “…Criticism of other parties or their workers based on unverified allegations or distortion shall be avoided.”
• Parallels with RPA: The Representation of the People Act (1951) categorically defines the above two as corrupt practices in Section 123 (3A) and Section 123 (4) respectively.
  • Section 125 of RPA provides for punishment for similar violations.
• Parallels with IPC: It is important to note that Section 153A of the Indian Penal Code has a similar provision:
  • Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.

 Refreshing change

• Prompt action: It must be appreciated that the EC was prompt in its action against the leaders accused of hate speech in Delhi election campaign.
  • While it instantly, suo moto, deprived the two leaders of their star campaigner status, it also punished them with a gag order, using the ultimate weapon provided by Article 324.
  • The EC flexing its muscle outside the so-called “toothless” MCC and invoking Article 324 is indeed a refreshing change.
  • In earlier instances, it often had to let the culprits go with a mere “warning, caution or censure”.
  • In its notice to a leader, the EC cited Sections 123 and 125 of the RP Act.

Conclusion

• Historically, the EC has always taken simultaneous action under the Model Code of Conduct and the other two provisions. While the MCC produces instant results, the penal provisions involve endless judicial processes. Not taking action under the IPC encouraged violators to commit repeat offences.

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