The Constitution of India has bestowed responsibility of conducting election on the Election Commission of India (ECI) under article 324, the article which provides clear instructions that superintendence, direction and control of elections should be vested in an Election Commission.

"The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every state and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to as the Election Commission)," it says.

Thus the ECI has been given constitutional status so that it could conduct the election in a free, fair and peaceful manner.

The independence of the Commission has been guaranteed under 324(5) of the Constitution which says: "Provided that the Chief Election Commissioner (CEC) shall not be removed from his office except in like manner and on the like grounds as a judge of the Supreme Court and the conditions of service of the CEC shall not be varied to his disadvantage after his appointment."

Election is the pivot and corner stone of any democracy and therefore it is has to be conducted in a free, fair and peaceful manner. For this purpose, the Parliament enacted the Representation of People Act in 1951 and subsequently the conduct of election rules was also framed in 1961.

India went on poll for the first time in 1951 for 489 constituencies across 26 Indian states and it was a huge success both in terms voters turn out and peacefulness—making tryst with destiny in the real sense of the term as dreamed by Jawaharlal Nehru in his famous midnight speech on 14 August, 1947.

Model Code of Conduct: The first few steps
While the first general election in the country was a huge success, the ECI was quick enough to realize the importance of formal guidelines for a smooth poll in years to come. Soon, the ECI issued an order to regulate the activities of the political parties and their candidates and also to take punitive actions for violations if any.

The ECI, in exercise of the powers conferred on it under article 324 of the Constitution, section 29A of the Representation of the People Act, 1951 (Act 43 of 1951) and rules 5 and 10 of the Conduct of Elections Rules, 1961 made an order called the Election Symbols (Reservation and Allotment) Order, 1968.

This step of ECI was a milestone in the electoral history of Indian democracy in the sense that it laid the foundation stone of model code of conduct.

After every election, parliamentary or state legislative, the ECI felt the need to add more teeth into its jaw and gradually some sort of a set of regulatory guidelines with regard to political parties especially those in power and ministers, officers etc was required to be framed.

First step towards evolution of a set of code to regulate and monitor the activities related to the process of election was taken by T N Seshan in 1991, when he issued a set of instructions called Model Code of Conduct (MCC).

Although this set of instructions did not have any legal or statutory backing, it was advisable on part of political parties, particularly those in power, and officials related to conduct of poll to adhere to these instructions.

This actually sowed the seed of the present day model code of conduct or MCC. There was a lot of hue and cry as to whether or not ECI or for that matter CEC can issue such advisory or instruction and whether it can have some statutory effect at all.

Legal luminaries may have been divided on this issue but the Supreme Court ruling in this regard is worth mentioning.

A five Judge constitutional bench of the Supreme Court in a matter between Mahinder Singh Gill and CEC in 1978 clearly said that the comprehensive responsibility of superintendence, direction and control of the conduct of elections was vested in the hads of the ECI.

"This responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances,” the apex court ruled clearing all doubts whatsoever about the powers and functions of the ECI.

It is perhaps due this fact the committee responsible for framing the Indian Constitution had made provisions in article 329 of the constitution for debarment from interference by courts in matters of elections.

Even then the matters of dispute did arise especially when Seshan played tough on the political parties.

Keeping in view the growing tendencies ruling parties to take undue advantage of being in power, the ECI in 1994 inserted a new section called section 16A in the Election Symbols (Reservation and Allotment) Order, 1968 (Notification No O N 42(E) 18th February, 1994).

In fact the insertion of this new section marked the beginning of the process of giving statutory and legal touch to the MCC.

By virtue this section, the ECI assumed power to withdraw recognition of a recognised political party for its failure to observe model code of conduct or follow lawful directions and instructions of the commission.

This is how the model code of conduct in its present form came into being.

ECI, elections and issues
The Supreme Court ruling and constitutional provisions notwithstanding, and despite insertion of the new provision in the Election Symbols (Reservation and Allotment) Order, 1968, the model code of conduct could not be made a statute, perhaps because the said order itself in a way was an executive order issued by the ECI by virtue of powers conferred on it by article 324 and Acts enacted therein.

This MCC therefore, remained exposed to judicial scanning.

The first legal opportunity to examine this code came in 1997, when a petition was filed in Punjab and Haryana HC challenging the EC's powers which it drew by inserting section 16A in the Election Symbols (Reservation and Allotment) Order, 1968.

The Court dismissed the petition and upheld the validity of the amendment made in the said order. The court observed that EC can issue directions to the government and ask them to follow the model code of conduct.

The court further said that the EC is entitled to take such steps for the conduct of free and fair election.

Clarifying the confusion as to what would be the date from which the MCC would come into vogue the court ruled that the commission can invoke MCC even before the issuance of notification of dates of polls.

Again, in year 2000, the Union Government moved the apex court against the ruling of the ECI regarding the date of model code of conduct coming in force after the above order of Punjab and Haryana High court, and sought a favourable decision from the apex court.

And while the legal battle continued, a compromise was reached between the ECI and Centre with regards to the date from which the MCC would come in force. Eventually the Government of India withdrew its application from the apex court.

As per this compromise reached between the Union Government and the ECI, it was agreed upon that the Commission would announce the poll schedule two weeks prior to the notification of the election and the code will came into force from the date the EC announces the schedule.

What makes model code of conduct?
The model code of conduct is in fact a compendium of circulars and instructions issued by the Commission invariably before every election and contain dos and don'ts for political parties and contestants


It has basically been categorised in terms of general conduct, conducts for meetings, processions, poll day and at polling booth. It also includes dos and don'ts for observers, parties in power and frequently asked questions (FAQs).

Although model code of conduct as such is not enforceable as it lacks any legal vertebra, it directs the officials especially District Election Officers (DEOs) to lodge FIRs as and when instructions under this code are violated.

The ECI directs the concerned authorities to lodge cases under different penal provisions of prevailing national or local laws.

MCC Vs IPC
It would be interesting to know that the then British rulers had included a separate chapter in way back in the Indian Penal Code (IPC) way back in 1920 to deal with poll related violations soon after the election in the same year that aimed at increasing the number of Indian members to the Viceroy's Executive Council.

Chapter IX A of the IPC that was inserted by Election Laws (amendment) Act, 1920 (Act 30 of 1920) contains section 171 only but over a period of time, depending upon exigencies, sub-sections were added to it.

As on now, this section 171 contains nine sub-sections—171-A till 171-I. Besides, two amendments have so far been made—one in 1975 adding clause (a) and (b) in sub-section A of section 171 and the other in 2003 wherein a provision in section 171-D was made to enable duly authorised persons to cast proxy votes.

Thus for most of the violations of MCC, cases are registered under the provisions of this chapter of IPC.

Similarly for violating prohibitory orders invoked under section 144 of Criminal Procedure Code of 1974, cases under section 188 of IPC are registered, which is a cognisable but bailable offence.

This law has become almost toothless and people make mockery of it because even if you violate the prohibitory orders, police would have to set you free as soon as you are taken into custody.

In fact cases are registered under this section 188 for any kind of act of disobedience of order issued by a public servant who is legally authorised to promulgate such orders.

Therefore, technically speaking, if the model code of conduct is violated, FIRs can be lodged under section 188 of IPC as well because the ECI is empowered to issue or promulgate such instructions by virtue of powers conferred on it under Article 234 of Indian Constitution.

Besides, cases are also registered for violation of the model code of conduct in sections other than chapter IX of this code depending upon the nature of offence.

Writing on the wall
Political parties and candidates are also barred from literally painting  the town, or rather the walls red—by either writing slogans and paintings or even pasting poster and pamphlet—as per the instructions of MCC subject to certain conditions.

Besides, raising hoarding and banners are also prohibited. If such things come to the notice of the concerned authorities cases are required to be registered.

However, authorities at times face problem about the laws and sections under which they can book a violation.

The EC has furnished a list that instances for which cases under Defacement of Public Property Act should be registered. This is a local law and almost every state government has its own law related to defacement of property.

Delhi, for instance, has its own Prevention of Defacement Act, 2007, while West Bengal goes by its own Defacement of Property Act, 1976 and Bihar swears by its Prevention of Defacement of Property Act, 1985.

Besides having multiple laws, the same act of violation is a cognisable and non-bailable offence, whereas in others it is bailable and non-cognisable.

Such instance of disparity of law also causes a lot of technical problem for the ECI to issue one uniform direction to all states.

Similarly there is a plethora of Acts providing rules for the use of loud speakers across the country.

Under the above circumstances the enforcement of MCC in letters and spirits often becomes difficult and officials mostly have to use their discretion; no brainer mentioning that discretion often begets discrimination.  

MCC & the RP Act 1951
In order to help the ECI to conduct free and fair election as enshrined in article 324 of the constitution, the Parliament of India in 1951 enacted a comprehensive law called the Representation of People Act.

In fact it contains provisions to regulate the activities and conduct of both political parties as well as poll officials. It therefore can be said to be the precursor of MCC.

A quick look at this law and one realizes that it clearly stipulates the provisions related to violation of MCC. These provisions are inserted in Part VII and titled as Corrupt Practices and Electoral Offences.

The first chapter of this Part contains provisions related to corrupt practices and has one section 123 only. Chapter III of part-VII of this Act is titled Electoral Offences and contains sections like 125, 125 A, 126, 127, 127 A and 128.

While section 125 deals with violations related to promoting enmity between classes in connection with election, section 125A talks about penalty for filing false affidavit and submission of wrong information.

Similarly section 126 prohibits holding of public meetings during the forty-eight hour period in the run up to the elections, ending with hour fixed for conclusion of poll.

Section 127 on the other hand deals with disturbances at election meetings, while section 127A puts a restriction on the printing of pamphlets, posters, and publicity materials. Section 128, meanwhile talks about the maintenance of secrecy of voting.

Last but not the least is section 8 of RP Act deals with disqualification on conviction for certain offences. The Act very clearly spells out that a person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

The Act is further strengthened by the fact that it excludes offences under to sub-section (1) and sub-section (2) of the Act.

According to legal experts, while offences listed under the two section—like violation under Protection of Civil Rights Act 1955, Customs Act 1962, FERA 1973, Narcotic, Drugs And Psychotropic Substances Act 1985, Religious Institutions (Prevention of misuse) Act 1988 and Prevention of Insults to National Honour Act 1971—may qualify for less than two years of conviction, the convicted person still cannot contest the election till a period of six years after being released.

The way ahead It is amply clear that the RP Act of 1951 has become almost obsolete especially due to amendment made in section 41 of Criminal Procedure Code that now prohibits arrests for an offence, the quantum of punishment for which is less than seven years.

The plethora of penal laws, rules and orders with regard to violation of MCC has become a vexed problem both for the election related officials as well as for the political persons.

Many a time acts of disobedience are committed due to non-acquaintance of laws pertaining to a particular action.

No wonder then experts have time and again said raised question over the use of such directions or code which themselves are not codified.

It is therefore advisable on part of the government as well as ECI to take steps for enacting a comprehensive legislation incorporating therein all relevant provisions connected with entire gamut of election processes.