A CODE FOR EXCESS

T.N. SESHAN, former Chief Election Commissioner.-S. THANTHONI

MEHRAJ SIRAJ, manager, Kashmir Fair Tour and Travel, complained: It is difficult to attract high-end tourists unless television and Internet facilities are running. We desperately need uninterrupted power supply and Internet connectivity. Omar Abdullah said his government was aware of these problems and would do everything to help the tourism industry. Our hands were tied because of the Code of Conduct. Now that the elections are over, we will certainly take all measures to improve the tourism infrastructure (Indian Express, June 1, 2009).

The Model Code of Conduct must, indeed, be a fiendish document if it prevents the government from helping the tourism industry in a State where the poor depend on tourism. Such a thing was unheard of in India formerly and is unthinkable in any other democracy in the world.

Do not be shocked. There is a lot worse to come. A team comprising R. Prasannan and 10 other correspondents documented it in a detailed expose in The Week (May 24, 2009): The Election Commission ordered that pictures of national leaders, including Subhas Chandra Bose and Rabindranath Tagore, be removed from government offices. Following a strong protest from Chief Minister Buddhadeb Bhattacharjee, the E.C. meekly withdrew the order.

When Prime Minister Manmohan Singh went to London to address the G-20 summit, the E.C. asked the External Affairs Ministry to remove the PMs photograph and speech from its website. Only after a prolonged and stiff resistance by the Ministry did the Commission relent. When the All India Democratic Students Organisation celebrated Bhagat Singhs death anniversary on March 23 with an exhibition on his life in Vadodara, the E.C. asked it to wind up the expo, as it violated the Model Code of Conduct.

They rightly remarked: Come elections, and India ceases to be a political democracy. Bureaucrats take over the country, interpreting its laws as per their whims, holding elected representatives and election candidates to ransom. At times they interfere in routine administrative matters. Bihar Director-General of Police D.N. Gautam and his deputy, Neelmani, were issued a notice by the E.C. for visiting the Chief Minister on Holi. Apparently, the Commission was not impressed by their explanation that they went to brief him about law and order in Saran where three people were killed.

Assam Chief Minister Tarun Gogoi was informed by his police chief that he was told not to brief him even on the Ulfa [United Liberation Front of Asom] threat or accompany him on official tours. I do not cease to be Chief Minister during the Model Code period. I need to discharge my duties as Chief Minister. I need to pass on secret messages and receive the same. How do I do it without an officer? asked Gogoi.

In several polling booths in Kerala, the E.C. ordered the removal of ceiling fans. The reason? The election symbol of one of the candidates was a ceiling fan.

Only in Kerala and West Bengal were candidates bold enough to put up posters and hoardings. In Srinagar the Awami National Conference candidate Khalida Shah found her posters torn down and she blamed her brother and rival Farooq Abdullah for the act. Farooq put the blame on Commission officials.

M. Veerappa Moily, now Union Law Minister, complained: The Commission talks about creating awareness among voters. This job should be left to parties. But with no posters, banners, wall writings or party flags, how are we supposed to create awareness? How will people know who the candidates are?

Some of this may well be the handiwork of the local satrap. But the inspiration has undoubtedly come from the top. The E.C.s high-handed ways set a bad example to the men below. None of them, apparently, has been pulled up for these excesses. Having obeyed orders all their bureaucratic lives, they now revel in ordering politicians about.

On June 12, 2000, the then CEC, M.S. Gill, correctly stated that the Code was a unique voluntary Indian political agreement (The Hindu, June 13, 2000). How can such an agreement authorise the E.C. to act the way it does?

The Code itself gives it no such power. It has no sanction at all in the law, the Representation of the People Act, 1951, or in Article 324 of the Constitution, which confers on the E.C. the power to conduct elections. The Supreme Court has ruled that where the Act is silent, Article 324 is a reservoir of power. But it cannot be abused to acquire legislative power or executive powers of the kind the E.C. wields today. For long the E.C. demanded statutory sanction for the Code. An attempt was made in 1990 to do just that by a Bill. The E.C. performed a somersault and opposed conferment of statutory sanction, just as the CEC had opposed the expansion of the E.C. to a three-member body.

The Model Code of Conduct was evolved by the Commission on the eve of the elections in 1972. An endeavour to provide a Model Code of Conduct for political parties was, for the first time, made in 1960 in Kerala prior to the election to the Legislative Assembly of that State. The Commission circulated this code to all the recognised political parties in India and to State governments on the eve of elections in 1962, requesting them to secure its acceptance by all parties contesting the elections in their State. By and large, the code was followed by the political parties and the candidates.

On the eve of elections to certain Legislative Assemblies held in 1968-69, the then CEC convened meetings of the leaders and representatives of various political parties functioning in each State that went to the polls and placed before them a code for observance during the election period. He appealed to the political parties to follow certain principles during the course of elections. The principles enunciated by the Commission led to the formulation of a Model Code of Conduct for the elections in 1972. The Model Code evolved by the Commission was amplified from time to time, especially on the abuse of state machinery.

In their Minutes of Dissent to the Report of Parliaments Joint Committee on Amendments to Election Law, dated January 11, 1972, Atal Bihari Vajpayee and L.K. Advani advocated legislation to prohibit the abuse of government machinery by members of the ruling party (Report, Part I, page 74).

Dinesh Goswami, Law Minister in the National Front government headed by V.P. Singh, was the best Law Minister India had had since B.R. Ambedkar. He set up an All-Party Committee on Electoral Reforms, which reported in May 1990.

The report said: The Committee is of the view that only such of the provisions of the Model Code as are vital and important in nature should be brought under the statute. The Committee feels that to make any violation of the Model Code by Ministers and others as a corrupt practice would result in penalising the contesting candidate who ought not to have any part to play in regard to such violation. However, the Committee agrees that the items enumerated in para 11.6 of the Notes should be brought under the statute as an electoral offence instead of corrupt practice.

Note, first, that the Committee did not suggest legislative sanction for the loosely worded Code of the E.C. but only for such of its provisions as are vital and important. Secondly, not any violation of the Code by a Minister would be a corrupt practice vitiating the poll. Violation would, instead, be made an electoral offence. It recommended 10 precisely worded offences to be brought within the ambit of that offence (paragraphs 6.2 and 6.3, page 26).

On May 30, 1990, Dinesh Goswami introduced in the Rajya Sabha the Representation of the People (Amendment) Bill No. XXV of 1990. Clause 15 of the Bill inserted a new Chapter II in the Act on Illegal Practices. All the 10 offences listed in the report were set out verbatim, with suitable changes in drafting legislation. They are set out here in full: (a) combining of official visit with work relating to the election or making use of official machinery or personnel in connection with any such work; (b) using government transport, including official aircrafts, vehicles, machinery and personnel in connection with any work relating to the election; (c) restricting or monopolising the use of public places for holding election meetings or use of helipads for air flights in connection with any work relating to the election; (d) restricting or monopolising the use of rest houses, dak bungalows or other government accommodation or the use of such accommodation (including premises appertaining thereto), as a campaign office or for holding any public meeting for the purposes of the election propaganda; (e) issuing of advertisements at the cost of the public exchequer in the newspapers and other media; (f) using official mass media for partisan coverage of political news and publicity of achievements; (g) announcing or sanctioning of any financial grants in any form or making payments out of discretionary funds; (h) laying of foundation stones of projects or the inauguration of schemes of any kind or the making of any promises of construction of roads or the provision of any facilities; (i) making of any ad hoc appointments in government or public undertakings; (j) entering any polling station or place of counting except in the capacity of a candidate, a voter or an agent of a candidate or as a person duly authorised in this behalf under this Act or the rules made thereunder; (k) ordering transfer of any officers and staff referred to in Section 28A in violation of the instructions of the Election Commission in that behalf.

Violation of these bars entailed imprisonment for a maximum term of two years or a fine, or both. It did not entail vitiation of the election.

Nearly a decade after Dinesh Goswamis 1990 Bill, the E.C. published its Views and Proposals on Electoral Reforms. Its comments on statutory sanction to Part VII of the Code were disingenuous, if not worse. It said: In the initial stages of its enforcement, when the Model Code of Conduct was generally lying dormant, it was thought that the Code will have more teeth if it was given a statutory backing. The present experience has however been otherwise. The experience was not described, significantly.

Note that the reason it cited had been refuted by the All-Party Committee on Electoral Reforms in 1990: The Commission feels that it may not be correct to take the view that each and every ill, that impinges on the election process, can or should be corrected only through the judicial process. Corrective executive action, resulting from the well considered opinion of the multi-member Commission after weighing fully the pros and cons of the situation, has its own place in the scheme of elections. This is because such system of operation envisages quick reaction to a Model Code violation and remedial measures in respect thereof. This is legal illiteracy and administrative nonsense. Sir John Simon, a distinguished Attorney-General and later Lord Chancellor, said in the House of Commons, on December 1, 1925: There is no greater nonsense talked about the Attorney-Generals duty than the suggestion that in all cases the Attorney-General ought to decide to prosecute merely because he thinks there is what the lawyers call a case. It is not true. No one ever suggested that each and every ill should be corrected only through the judicial process. The E.C.s imputation of the suggestion to advocates of statutory sanction, who had never made it, alone suffices to reveal its lack of bona fides. The Committee had rejected this in 1990.

In any case, it would be for the E.C. to propose and perhaps launch the prosecution. Quick reaction can be by launch of a case. More excuses were doled out: The swiftness with which the violations under the Model Code are taken note of and remedial steps taken in relation thereto by the Commission is largely on account of such actions being taken by executive fiat. Judicial process of examination of a Model Code violation would necessarily entail delay. It has to be remembered that the entire process of election campaign, etc. where the Model Code of Conduct is in play, is over within 14 days. To expect that a Model Code violation, taking place even on the 1st day of campaign, would result in a judicial pronouncement and remedial action taken before the close of campaign, would, in all humbleness [sic.] be expecting too much. The net result would be a plethora of cases in various courts of law, which would have little relevance after elections as the candidates or the parties which violated the Model Code of Conduct would already have reaped the benefits of those violations.

The real reason was that by then the E.C. had tasted power, thanks to T.N. Seshan, enjoyed it immensely and refused to part with it. Seshan was gone. Seshanism held sway.

Mark the rakes progress and the collapse of the checks. On April 4, 1994, Justices J.S. Verma and S.P. Bharucha of the Supreme Court heard a petition by the Andhra Pradesh government on an issue of crucial importance the E.C.s power to enforce the Model Code of Conduct though it had no statutory sanction. The Judges sharply drew the attention of Seshans counsel to his public utterances. They directed: If the Election Commission is of the view that any activity of a State government is in breach of the requirement of the Model Code of Conduct and is liable to legal consequences, it is at liberty to seek the necessary directions from this court instead of taking action by itself.

On April 12, 1994, the Supreme Court heard an appeal by the Commission against the Madras High Courts order staying the operation of the E.C. imposing curbs on the use of loudspeakers. The issue, surely, was not whether they were beneficial, but whether they were legal. A Bench consisting of Chief Justice M.N. Venkatachaliah and Justices J.S. Verma and S.P. Bharucha set aside the High Courts stay in a judgment delivered by Justice Venkatachaliah which would have done Humphrey Appleby proud:

On a consideration of the matter, we are, prima facie, of the view and we abstain from making any final pronouncement one way or the other in view of the pendency of the writ petition that though the specifications in the preamble of the grounds for the need and justification for the restrictions are stated in a manner susceptible to the contentions advanced for the respondents the plenitude of those powers under Article 324 in the matter of conduct of fair and free elections, however, cannot put out of consideration the element of public inconvenience caused by the election campaign. This prima facie position and the balance of inconvenience seem to be in favour of the aspect of public good in a matter which cannot be said to be unrelated to the area of the powers of the Election Commission under Article 324.

On January 9, 1995, Seshan made an Order telling the Central government that, in the E.C.s view, the presentation of the General or Railway Budget should not be undertaken till the polling is completed on March 11. It warned that infringements of the norms of the pre-election conduct will have a major bearing on the notification of these elections (in the five States).

It was a quaint mixture of request and threat. The government may like to reconsider in the light of the above rescheduled programme when the government would like to present the new General and Railway Budgets. The tone changed three days later. On January 12, Seshan told the press in Madras (now Chennai): I have told the government to do this [postpone the budget presentation]. If you dont want to do this and if it has the effect of damaging the purity of the election, I shall bring into effect Article 324 of the Constitution if the budget is used for purposes other than making the election fair and free, the consequences will follow he would postpone the elections, a threat he had made earlier in 1993.

On January 13 came a second order asking Bihar to postpone the implementation of the Jharkhand Area Autonomous Council Act a law made by the State Assembly and assented to by the President. Indeed, under his guidelines, Ministers must not hoist the national flag on Republic Day.

There was no knowing when he would stop. It is preposterous to talk of a vote-on-account. Articles 112 to 115 contain an elaborate and precise procedure for presentation of the Budget. A vote-on-account is permitted by Article 116 in exceptional emergency situations, as Ambedkar explained in the Constituent Assembly on June 8, 1949. Hence, the provision to meet an unexpected demand upon the resources, or to make an exceptional grant, or if time is needed in exceptional circumstances for the completion of the procedure prescribed in Article 113. The 1991 vote-on-account was an abuse of the Constitution.

Both on Article 324 and on the law on election incentives, Seshan acted in conscious indifference to the Supreme Courts rulings. The court ruled in 1977 that Article 324, which vests in the E.C. the superintendence, direction and control of . the conduct of all elections is designed to take care of surprise situations. That is, situations which enacted law has not provided for. When a law exists, the Commission shall act in conformity with, not in violation of, such provisions, but where such law is silent, Article 324 is a reservoir of power to act for the avowed purposes of, not divorced from, pushing forward a free and fair election with expedition.

It was not intended to create a constitutional despot beyond the pale of accountability, the court warned. In 1984, in the electronic voting machines case, the Supreme Court further circumscribed the E.C.s powers in an important respect. Even if the law is silent, the E.C. cannot itself legislate to fill the void. Its powers are intrinsically executive, not legislative at all. This is fundamental. The Commission in the garb of passing orders for regulating the conduct of elections cannot take upon itself a purely legislative activity which has been reserved under the scheme of the Constitution only to Parliament and the State legislatures.

In a case decided by the Supreme Court in 1969, it ruled that an Ordinance passed by the Madhya Pradesh government giving certain reliefs to agriculturists did not constitute bribery. How then, could a budget? Surely, Seshan knew of this ruling.

On September 29, 1989, the Supreme Court ruled on the election advertisements that the then Chief Minister of Andhra Pradesh, N.T . Rama Rao, got published in newspapers through the State governments Publicity Department. The advertisements contained statements that were alleged to constitute bribery. They referred to the auspicious gifts made by the Government of Andhra Pradesh to the States poor on the eve of New Year and Sankranti. The government, run by the Telugu Desam Party, was giving to people whose income was below Rs.6,000 a year, a kilo of rice at Rs.2 a kg. Other schemes were also mentioned.

The court opined that the provisions of Section 123 have to be interpreted, keeping in mind that dictates of common sense require that they never could have been intended to treat normal election promises made in election manifestos or usual election speeches by members of various political parties aspiring to power and by different candidates aspiring to get elected to legislative bodies concerned as corrupt practices. We are of the view that these advertisements and speeches amount to nothing more than statements extolling the achievements of the Government of the State of Andhra Pradesh contain normal election promises and these statements do not amount to corrupt practices falling within Section 123 (1) (A) (b) of the Act. This is precisely what Seshan did, despite this clear ruling.

The court added: Moreover, the offer in the advertisements, for the sale of dhotis and sarees at discount rates was in the nature of a benefit offered to poor persons in the State. When a government announces the measures which are intended for the benefit of any of the classes for whose amelioration the government can normally be expected to work, like the poor or the economically backward classes, it is only in rare circumstances that such a promise can be said to amount to a corrupt practice within the meaning of Section 123 (1) (A) even though such a promise might be made on the eve of elections.

In a democracy, everything cannot be left to the law or to the state. Judgment on propriety, politicians sense of responsibility, and the soundness of policies must be left to the people, not to the babus on the E.C. And the E.C. itself must obey the law.

Seshan used a sleight of hand to amass power. His successors profited by it. On February 18, 1994, he inserted paragraph 16-A in the Election Symbols (Reservation and Allotment) Order, 1968, to confer on himself the power to derecognise a political party if it violated the Model Code of Conduct or the E.C.s directions. It is manifestly void for three reasons. He had legislated and thereby usurped Parliaments power. The amendment was beyond the scope of an Order on symbols. It flouted the fundamental right to form associations. Section 29-A of the Act of 1951, inserted in 1989, empowered the E.C. to register a party but gave it no power to deregister it. Seshan sought to acquire that power by these devious means.

Section 29 A itself is of doubtful validity. In June 1989, Section 29 A was inserted in the Representation of the People Act, 1951, to provide for the registration of political parties with the E.C. An identical provision, Section 38B in an Ordinance promulgated by Zia-ul-Huq in 1979, was struck down unanimously by an 11-member Bench of Pakistans Supreme Court on June 20, 1988, on Benazir Bhuttos petition. The requirement of registration was violative of the fundamental right to form associations. Drawing liberally on the rulings of the Indian Supreme Court, Chief Justice Mohammad Haleem said: If the political party is disabled to participate in an election, it loses its political texture and to all intents and purposes it will suffer extermination. Registration becomes, in effect, a condition for the partys existence. This function could not be, by law, entrusted to the Election Commission. Section 29 A is, therefore, unconstitutional.

Besides, it did not and does not empower the E.C. to deregister a political party. An Act of Parliament in these terms would be unconstitutional. More so, an executive order by the E.C. which had nothing to do with election symbols.

In 2004, the E.C. followed Seshans example. It issued a show-cause notice to Congress president Sonia Gandhi on charges of misuse of aircraft belonging to the State of Chhattisgarh. Paragraph 16A was invoked, and the Congress was asked, on the strength of such a provision, to show cause why its recognition as a national party may not be suspended or withdrawn for the aforesaid violation of the Model Code of Conduct. It was an empty threat.

Paragraph 16 A reads: Notwithstanding anything in this order, if the Commission is satisfied on information in its possession that a political party, recognised either as a National Party or as a State party under the provisions of this order, has failed or has refused or is refusing or has shown or is showing defiance by its conduct or otherwise (a) to observe the provisions of the Model Code of Conduct for Guidance of Political Parties and Candidates as issued by the Commission in January 1991 or as amended by it from time to time, or (b) to follow or carry out the lawful directions of the Commission given from time to time with a view to furthering the conduct of free, fair and peaceful elections or safeguarding the interests of the general public and the electorate in particular, the Commission may, after taking into account all the available facts and circumstances of the case and after giving the party reasonable opportunity of showing cause in relation to the action proposed to be taken against it, either suspend, subject to such terms as the commission may deem appropriate, or withdraw the recognition of such party as the National Party or, as the case may be, the State Party.

The show-cause notice ended thus: Take notice that in the event of default of the party to respond to the present notice within the time stipulated, it will be presumed that the party has nothing to say in the matter and the Election Commission will take appropriate action or decision without further reference to the party.

This is what became of Mohinder Singh Gills uniquely voluntary agreement among the political parties.

The Supreme Court ruled on April 26, 2001, that the Code comes into operation from the date of the announcement of the election schedule by the E.C., not from the date of the formal notification under the Act. But it did not pronounce on the wider issue that has been raised by the E.C.s abuse of the Model Code.

It has been able to get away with the abuse of power because in our divided polity no party risks questioning it. And the media have not cared much about it, either.