One of the heartening features of the press briefing by the Election Commission of India (EC) on the day general elections 2024 were announced was its emphasis on level playing field (LPF). The CEC said that the EC had circulated the Model Code of Conduct (MCC) to all political parties, requesting them to bring it to the notice of their
star campaigners. It would be ruthless in dealing with complaints of action that disturbed the LPF, he said.
LPF is an expression that doesn’t apply in sports or wars. It cannot be anybody’s case that only two teams that are equally matched should play against each other. In cricket, home teams are known to tailor the pitch to their advantage but this “unfair practice” is grudgingly condoned because the visiting teams await their turn. Similarly, it is not considered unfair if a mighty army pummels a tiny opposition in combat. Everything, they say, is fair in love and war. No wonder the phrase “Fair is Foul, Foul is Fair” has confounded human beings, pointing to the possibility of the truth being the opposite of what it might appear to be.
Why is it, then, that LPF should be a sacred precept for free and fair elections? One reason could be that an election in a democracy is neither a war nor an amorous contest. It is the most crucial event of a democracy where different parties and independent candidates vie with each other to earn the voters’ mandate to represent them in the House of elected representatives. A vote is meant to be a social contract based on faith and facts.
In order for this contest to be fair, the availability of LPF is considered a sine qua non during elections even if it is acknowledged that the contestants might not be equal otherwise. It is neither for the political parties nor for the candidates themselves to even out the field by not trying to be one-up on each other. If inherent inequality is recognised as part of the game, it is the responsibility of the regulator to ensure that there is LPF during elections when they endeavour to influence the voters in their favour.
A closer look at the application of this principle of LPF shows that the “levelling” is specific to the advantage that the ruling party enjoys vis a vis Opposition candidates. That is at the heart of the feeling that the field is “unlevelled”. In sports the weakest team might contest against the strongest. In fact, in the initial rounds of a competition in games like tennis, the weakest unseeded players are pitted against the players who rule the ranking tables. No tears are
shed if they are trounced by those that have superior skills and prowess because sports don’t claim to be democratic. Election in a true democracy, however, is a different ball game.
Although there are common laws to govern ordinary civic behaviour in normal times, political parties and candidates are expected to observe a certain decorum during elections, which they have voluntarily agreed to under the superintendence of the EC. Not all the prescribed restraint is strictly inscribed in law. Sometimes it is a mark of their commitment to decent public behaviour; at others, it is a display of the EC’s even-handed approach. That indeed is the genesis of the MCC that the EC is expected to enforce during elections.
A scrutiny of the MCC shows that there are four principal players covered by the Code; candidates, political parties, ruling party and bureaucracy. The last two are part of the ruling dispensation but the code applies to them separately too. The bulk of the code covers violations otherwise covered in law, such as, not to “aggravate existing differences or create mutual hatred or cause tension between different castes and communities”, or not to level “unverified allegations” and launch personal criticism, or not appealing “to caste or communal feelings for securing votes”, or parties and candidates not resorting to “corrupt practices”. The Code stipulates that parties and their workers will not disrupt the activities of rival parties. There are sections on campaign meetings, processions, polling booths
and election manifestos.
The noteworthy thing, however, is that the MCC devotes a separate section on the “party in power whether in the Centre or state”, enjoining it to “ensure that no cause is given for any complaint that it has used its official position for the purposes of its election campaign”. The misuse, as covered by the Code, is essentially pertaining to the use of government facilities such as guest houses, transport or public infrastructure, and the use of its authority to utilise public funds for issuing advertisements or granting new sanctions. The MCC doesn’t go beyond this.
The routine functioning of the state machinery and the legal system is in no way restricted by the letter of the current MCC. It is a moot point if it is even desirable for the EC to interfere in the due process of law such as court hearings, or whether routine investigation by law enforcement agencies be subject to adjudication by the EC, as it might make the situation more untenable. Perhaps, misuse of authority by state agencies was not even conceived or flagged by the stakeholders when the MCC was initially drafted.
The MCC, however, is an evolving document just as human behaviour is.
Cognisant of this, in the wake of the General Elections in 2009, the EC vide its letter dated March 19, 2009, clarified that the applicability of the MCC extended to commissions such as the Electricity Regulatory Commissions, which are statutory autonomous bodies discharging their authority under an Act. Similarly, regarding the applicability of the MCC on the presentation of Budget, an unambiguously annual sovereign function, the EC clarified vide its letter dated March 9, 2009, that “the prevalent convention” was that “instead of presenting full budget, only a vote on account is taken… in cases where a General Election is imminent… and the MCC is in operation” because it “contributes to a healthy democratic practice.” The Commission, in deference to the state legislatures, refrained from laying “down a precept or prescribe a course of action”.
Perhaps, the current environment and the refrain of LPF being queered by the establishment warrants the EC to examine the facts and circumstances leading to the complaints as it had done in 2019 when it issued an advisory to the Department of Revenue. It should determine whether the series of unprecedented actions by the enforcement
agencies violate any “healthy democratic practice.”
The unenviable dilemma of the EC would be whether to go by the book or to rewrite the script in deference to its sole responsibility of conducting “free and fair elections” — a term not mentioned in the Constitution but pervading the spirit of “superintendence, direction and control of… the conduct of all elections”. The MCC, too, is much more than what is understood; it encompasses a spirit of fairness that needs to be fully grasped and convincingly enforced.
The writer is a former Election Commissioner
EC should determine whether the series of unprecedented actions by the enforcement agencies violate any 'healthy democratic practice'.
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01.04.2024
One of the heartening features of the press briefing by the Election Commission of India (EC) on the day general elections 2024 were announced was its emphasis on level playing field (LPF). The CEC said that the EC had circulated the Model Code of Conduct (MCC) to all political parties, requesting them to bring it to the notice of their
star campaigners. It would be ruthless in dealing with complaints of action that disturbed the LPF, he said.
LPF is an expression that doesn’t apply in sports or wars. It cannot be anybody’s case that only two teams that are equally matched should play against each other. In cricket, home teams are known to tailor the pitch to their advantage but this “unfair practice” is grudgingly condoned because the visiting teams await their turn. Similarly, it is not considered unfair if a mighty army pummels a tiny opposition in combat. Everything, they say, is fair in love and war. No wonder the phrase “Fair is Foul, Foul is Fair” has confounded human beings, pointing to the possibility of the truth being the opposite of what it might appear to be.
Why is it, then, that LPF should be a sacred precept for free and fair elections? One reason could be that an election in a democracy is neither a war nor an amorous contest. It is the most crucial event of a democracy where different parties and independent candidates vie with each other to earn the voters’ mandate to represent them in the House of elected representatives. A vote is meant to be a social contract based on faith and facts.
In order for this contest to be fair, the availability of LPF is considered a sine qua non during elections even if it is acknowledged that the contestants might not be equal otherwise. It is neither for the political parties nor for the........
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