[This column is based on a personal communication from the author.]
The political establishment has, for obvious reasons, not taken kindly to the attempts of the Election Commission to cleanse the electoral process of the ills of money and muscle powers. If elections are truly free and fair, the ability of political parties to take advantage of the infirmities of the "first-past-the-post" system will be drastically reduced.
The political establishment, under one pretext or another, has been trying to clip the wings of the Election Commission periodically over the last several years. One of these pretexts is to give legal/statutory status to the Model Code of Conduct (MCC). The idea, simply, is that once violations of the MCC come under the jurisdiction of the courts, the Election Commission will have to go to court to act against the violations, and the courts will take their own time, by which time the election will be over.
One of the most important reasons why the MCC has been so effective over the last 20 years is the swiftness of the actions taken by the Election Commission. Making the MCC part of the Representation of People Act will straightaway remove the capability of the Election Commission to take swift action. This is a straight-forward case of the political establishment using the most drastic Parkinson's Law: Delay is the deadliest form of denial.
The attached extract (see below) from the 52nd Report of the Parliamentary Standing Committee submitted on May 21, 2012, proposes yet another attempt at rendering the MCC completely ineffective.
Even more insidious is the observation in para 3.18 of the attachment that "the scope of Article 324 also needs to be examined". Article 324, as will be recalled is THE most critical one for the conduct of elections as it vests the plenary power of "superintendence, direction and control of elections in (the) Election Commission".
Putting the legal straightjacket on the Model Code of Conduct and any change in Article 324 will remove even the semblance of freedom and fairness from the election process, making it a plaything for political parties who have not covered themselves with glory in their collective behaviour toward elections in terms of choice of candidates, etc., in the last decade or so.
I therefore earnest request you to do whatever you think appropriate to stop this emasculation of the entire electoral process, and to save the Model Code of Conduct.
I will of course try and do what I can but your support to this cause will be very valuable.
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Extract from the 52nd Report of the Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice
May 21, 2012
Model Code of Conduct
3.16 Members were also of the considered view that some contents of the Model Code of Conduct, such as, the jurisdiction of applicability of the Code especially when elections were held not in the entire State, the mode of filing cases against candidates/parties on charges of violation of the Code of Conduct, the extent of publicity and broadcast during elections amongst many others call for a thorough review. In this context, the Committee recommends that the recommendations of the All-Party Committee on Electoral Reforms which submitted its report in May 1990 on the
subject matter may be taken into consideration.
3.17 The Committee observes that Model Code of Conduct is a voluntary agreement between the parties for regulating the conduct of political parties and its members etc., during the process of elections to Assemblies and Parliament. Its legal status, is a grey area. After hearing the views of the officials of the Ministry of Law and considering the problems which have erupted in the country, from time to time, in the last few years, the Committee feels that the Code, which was voluntary in nature at one time has not remained so after insertion of para 16 A in the Election Symbols (Reservation and Allotment) Order, 1968, which authorises the Election Commission, to suspend or withdraw the recognition of political parties in case of violation of Code of Conduct. Besides, some of the paras in the code attract penal provisions in other laws.
3.18 The Committee further observes that the power of cancellation of registration of a political party is substantive in nature and, therefore,
should not be regulated or provided for under an "Order" of the Commission. It should either be a part of the Representation of Peoples, Act 1951 or the Rules framed there under. Further, the scope of Article 324 also needs to be examined as, many of the aspects which should have been covered under the Rules framed under R.P Act 1951 are presently covered under instructions issued under Article 324 of the Constitution by the Commission.
3.19 Accordingly, in Committee's view, remedial legal steps are required to be taken in this regard.