The article highlights the issue of lack of clarity on the extent of the power of the Election Commission of India.

Where ECI derives its power from

• Supreme Court held in Mohinder Singh Gill vs Chief Election Commissioner that Article 324 contains plenary powers to ensure free and fair elections.
• These plenary powers are vested in the ECI which can take all necessary steps to achieve this constitutional object.
• Thus, the model code of conduct has been issued in exercise of its powers under Article 324.
• Besides the code, the ECI issues from time to time directions, instructions and clarifications on a host of issues which crop up in the course of an election.

The model code of conduct

• The model code of conduct issued by the ECI is a set of guidelines meant for political parties, candidates and governments to adhere to during an election.
• This code is based on consensus among political parties.
• The model code is observed by all stakeholders for fear of action by the ECI.
• However, 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.

Issues with model code of conduct

1) Issue of enforceability

• As the code of conduct is framed on the basis of a consensus among political parties, it has not been given any legal backing.
• A committee of Parliament recommended that the code should be made a part of the Representation of the People Act 1951.
• However, the ECI did not agree to it on the ground that once it becomes a part of the law, all matters connected with the enforcement of the code will be taken to court, which would delay elections.
• But then the question about the enforceability of the code remains unresolved.
• 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 model code of conduct.
• But it is doubtful whether this provision is legally sustainable.
• When the code is legally not enforceable, how can the ECI resort to a punitive action such as withdrawal of recognition?

2) Transfer of officials

• Observers of ECI report to it about the conduct of certain officials of the States where elections are to be held.
• Transfer of an official is within the exclusive jurisdiction of the government.
• It is actually not clear whether the ECI can transfer a State government official in exercise of the general powers under Article 324 or under the model code.
• Transfer of an official is within the exclusive jurisdiction of the government.
• It is actually not clear whether the ECI can transfer a State government official in exercise of the general powers under Article 324 or under the model code.
• Further, to assume that a police officer or a civil servant will be able to swing the election in favour of the ruling party is extremely unrealistic and naive.

3) ECI’s intervention in administrative decisions

• According to the model code, Ministers cannot announce any financial grants in any form, make any promise of construction of roads, provision of drinking water facilities, etc or make any ad hoc appointments in the government. departments or public undertakings.
• These are the core guidelines relating to the government.
• But in reality, no government is allowed by the ECI to take any action, administrative or otherwise, if the ECI believes that such actions or decisions will affect free and fair elections.
• A recent decision of the ECI to stop the Government of Kerala from continuing to supply kits containing rice, pulses, cooking oil, etc is a case in point.
• The Supreme Court had in S. Subramaniam Balaji vs Govt. of T. Nadu & Ors (2013) held that the distribution of colour TVs, computers, cycles, goats, cows, etc, done or promised by the government is in the nature of welfare measures and is in accordance with the directive principles of state policy, and therefore it is permissible during an election.
• So, how can the distribution of essential food articles which are used to stave off starvation be electoral malpractice?

Consider the question “The model code of conduct issued by the Election Commission of India is in the forms of guidelines and lacks legal backing. In light of this, examine the issues that arise due to the lack of legal backing.”

Conclusion

There is no doubt that the ECI, through the conduct of free and fair elections in an extremely complex country, has restored the purity of the legislative bodies. However, no constitutional body is vested with unguided and absolute powers.

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