Legal Narrative
Introduction
Whenever we come across the word election, we tend to think that it is a western concept of choosing something or someone over others, but we will be astonished to know that electoral and democratic processes existed in ancient India as well. From popular vedic assemblies and republican polities (Gana Sanghas) in ancient India to sophisticated local election system recorded in medieval inscriptions.
During the Rigvedic times, the democratic principles operated through community assemblies and not through adult and universal suffrage as in the present times. In this period, Sabha and Samitee were two of the oldest and most important institution in the governance structure. The sabha was essentially a council of elders or the elite class. It was made up of wise, older individuals of the tribe or community. The primary role of Sabha was to oversee judicial matters. Samitee on the other hand, was a broader assembly of common people. It functioned as the central political assembly. The chairman was known as Ishan, his work was to appoint, remove and control the king. Women could also participate in the Sabha and Samitee. Several hymns in the Rigveda, mentions, people collectively choosing their king to ensure stable governance.
In the sixth century BC, northern part of India, featured non-monarchical republican states, Gana –Sanghas or Gana Rajyas, alongside kingdoms. Gana Sanghas were governed collectively by an assembly of people or council of representatives. In the literal sense, Gana means, "people" or "group of equals." and Sanghas means "assembly," "federation," or "republic." Together Gana sanghas or Gana Rajya meant a state governed by the people or a collective body rather than a single monarch.
The most detailed historic evidence of local election in India comes from Tamil Nadu, during the Chola period, at the time of king Parantaka 1. The Uthiramerur inscription at Vaikunda Perumal Temple details a self-governing system called Kudavolai, that means( palm leaf ballot). In history Chola empire is most popular for its local self -governance.
Free and fair election under Indian Constitution
The concept of free and fair election under Indian Constitution, is not merely a democratic provision or a preference but a bedrock and a mandate of our Constitution basic structure doctrine. In the historic judgement of Indira Nehru Gandhi vs. Raj Narain1, 1975, free and fair election formed a part of basic structure doctrine. It was for the very first time, when a state High court (Allahabad High court) summoned the then Prime Minister Of India, Smt. Indira Gandhi, often referred to as the Iron lady of India over some discrepancy in electoral matters.
In our Constitution, Article 324 to Article 329, forms the foundation and institutional pillars for free and fair election. Article 324 talks about Election Commission of India being an autonomous constitutional authority granted with overall superintendence, direction and control over election to Parliament, State Legislature and the offices of President and Vice President. Likewise Article 326 tells us about Universal Adult Suffrage. Every citizen of India, being 18 years of age or above has the right to take part in election and choose the candidate of their choise without making any discrimination based on religion, race, caste, sex or place of birth.
As under the Constitution of India, the statutory provisions are codified, but for concrete rules, administrative machinery and legal framework governing how voters vote and how candidates contest election, we have to refer Representation of People act, 1950 which talks about pre-election machinery.
Hence we can conclude that free and fair election forms the basic structure doctrine and in no case we can compromise with our constitution foundational norms. The landmark judgement of Indira Nehru Gandhi vs. Raj Narain, sheds light on the fact that whether a person who is even the Prime Minister of the largest democracy in the world, if they mess up with our constitution basic norm, (electoral inconsistency in this case) the courts in India has the power to summon them no matter what their position or power is, proving to the entire world and to the people of India, that it is our Constitution which is supreme Grundnorm and in no case we are going to substitute it. We always refer to Constitution of India as “OUR CONSTITUTION”, this means this constitution does not belong to a single person who holds a specific position but to every person who is the citizen of India, and it is “WE THE PEOPLE OF INDIA”2 from whom the constitution derives its power.
Election Commission of India as the Constitutional Watchdog
The Election Commission of India is defined under Article 324 of our constitution to safeguard the integrity of the electoral process. It is an autonomous constitutional authority granted with overall superintendence, direction and control over election to Parliament, State Legislature and the offices of President and Vice President. The framers of the Constitution of India, designed the Election Commission in such a way that it is insulated and immune towards executive and external political power. Election Commission of India holds a plenary power when it comes to election matters and electoral constituencies.
In this era, where electoral battles are occurring at an alarming rate, and with high intensity, where leaders of opposition and the left wing keep on targeting the current government citing election discrepancy and inconsistency, the Election Commission of India stands affirm as a neural arbitrator.
Thus we can conclude from the above paragraphs that Election Commission of India which is often referred to as Constitutional Watchdog, as it has the underlying authority, superintendence and control over election procedure in India. It is the one that makes sure that the power of ballot remains uncorrupted by the power of the state.
Model Code of Conduct: Law, Convention and Enforceability
In the grant architecture of Indian democracy, the Model Code of Conduct stands as a unique legal instrument. The Model Code of Conduct is a set of non statutory guidelines that carries the moral weight of law without being a formal statute. Moral code of conduct is not something that was born through legislative enactment rather it came because of political consensus. The primary objective of MCC is to ensure free and fair election, and preserve the playing field during election. Model code of conduct is administered through the Election Commission of India, under Article 324 of Constitution of India. It regulates everything necessary for fair election, from political speeches and rallies to even the conduct of the party in power.
If we have to define in easy and laymen term, the Model Code of Conduct, we can say that they are a set of guidelines issued by the Election Commission of India, to regulate and check upon the conduct of political parties and candidates taking part in election. The main objective of MCC is to ensure free and fair elections by maintaining a level playing field and preventing the party in power from misusing government machinery.
Although, MCC has defined set of powers yet as it lacks independent statutory penal sanctions, its enforceability rests on a delicate balance between swift administrative action, indirect statutory provisions under Representation of People Act, 1951 and moral suasion. As it is a non-statutory act, and it is evolved through political interventions among major political parties starting from the 1960, Kerala assembly election it lacks independent criminal penalties and thus many of its prohibitions and penal provisions align to those given under Representation of People Act, 1951 and Bharatiya Nyaya Sanhita3 or Indian Penal Code.4
The Moral Code of Conduct takes effect immediately after, when the Election Commission announces the schedule of poll in a press conference. MCC remains operational across the entire election cycle until the final results of election are declared.
From banning hate speeches and personal attacks towards opposition and also towards party in power or even a particular religion, caste, sex etc. or prohibiting bribery, voter intimidation and canvassing within 100 meters of polling station, the MCC comes into picture every time when there is something that is coming in way of free and fair election. It requires the permission of police before conducting rallies in a particular constituency, it also makes sure that two rival political parties are not made to cross each others way causing political rift and clashes. It restricts and bans government funded advertisements that highlights states achievements during campaign. It also restricts the announcement of new financial grants, welfare schemes and infrastructure projects that could influence the innocent voters.
The MCC upholds an election manifesto to align with the constitutional principles, and avoid promises that are never going to be fulfilled in future.
The enforcement mechanism of Election Commission relies upon the swift administrative action. If there is any discrepancy related to election it will show cause notices to party leaders or candidates for particular violations. It can impose temporary bans say 24 hours or even 48 hours ban from conducting rallies and campaigns related to election. It has the power to transfer such police officers and administrative officers that are favouring one party over other or are biased towards a single party. Although, there is no statutory penal provision, still it has the power to register cases under RPA or BNS.
Thus we can conclude that just as free and fair election forms the basis of our basic structure doctrine in the same way Model code of conduct remains one of the most remarkable innovation by our constitution framers, that not only ensures free and fair election but also strengthen our constitution basic structure doctrine.
FOOTNOTES
1 Indira Nehru Gandhi vs. Raj Narain1,AIR 1975, SCC 2299
2 WE THE PEOPLE OF INDIA, taken from the preamble of the Indian Constitution
3 Bharatiya Nyaya Sanhita, 2023
4 Indian Penal Code, 1860
