Recently in the Democracy Index India was categorized as a ‘Flawed Democracy’ and was ranked at 51st position out of 165 countries. The rank of Indian democracy slipped 10 ranks by the previous year, the reason behind this has been due to the fundamental weakness which the country has been facing due to various reasons.
Requirements for free and fair Elections
The Constitution of India has established some mandatory requirements that are essential to conducting a free and fair election. These are mentioned as follows:
• The free and independent authority
• Rules and regulations
• Redressal mechanism.
Election Commission of India
More than a few methods have been adopted by the lawmakers in order to ensure free and fair elections and one of them is appointing an Election commission the main function of this commission is to conduct free and fair elections. The Constitution provides provisions that appoint the election Commission and vests various functions in it. (Article 324 of the India Constitution)
Functions of the Election Commission
The election commission is vested with various functions by the Indian constitution. The wide ranges of functions are:
• Updating and regulating the voters’ list.
• Regulating the election schedule and timings.
• Ensuring free and fair poll takes place
• Model of conduct
• Re-polling or Re-counting.
• Giving recognition to political parties and their respective symbols.
Election Laws in India
There are various laws that regulate the conduct of elections in India. In India, the State and centre Elections are conducted differently but these elections are governed by the same set of laws. These Laws are as follows:
The Representation of the People Act, 1950
In this Act provisions for the allocation of seats in Lok Sabha and Legislative Assemblies, delimitation of constituencies, qualifications of voters, manner of filling the seats of Rajya Sabha by Union Territory representatives are dealt with.
• The Commission appoints or nominates a Chief Electoral Officer for every state with the consultation of the State Government.
• The Central government has the authority to make rules under this Act but with the consultation of the Election Commission.
• This Act limits the power of the Civil Courts to question the legality of actions taken by the Electoral Registration Officer in regards to the revision taken under the electoral roll.
The Representation of the People Act, 1951
In Act deals with the provisions regarding the conduct of elections to the Parliament and State Legislatures, qualifications, disqualifications, various offences, various doubts and disputes. Following are some of the rules laid down under this Act:
• A candidate who is standing in the elections has to get them registered with the Election Commission of India. The registration of the candidate or the party is a discretionary power of the Commission.
• Any changes of the candidate or the political party in regards to the name and address should be communicated to the Election Commission.
• A person is not eligible to stand as a candidate in either Lok Sabha or Rajya Sabha if he is not eligible to vote.
The Registration of Electors Rules, 1960
The Act has provisions regarding the preparation of Electoral Rolls, their periodic updating and revision. The process for registration of eligible voters as well as the issuing of voter ID cards with the photograph of the voter is provided in the Act.
Conduct of Election Rules, 1961
This Act deals with the steps involved in conducting elections in detail. The Act governs the following:
• Issuing of writ notification for conducting elections
• Filing of nominations
• Scrutiny of nominations
• Withdrawal of candidates
• Counting of votes
• Regulation of the poll booths
Election Symbols Order, 1968
This Order empowers the Election Commission to give political parties recognition and allot them symbols accordingly. The Commission under this order also has the power to decide disputes that may arise among rival groups or sections of a political party. (As per Para 15 of Election Symbols Order, 1968)
Presidential and Vice-Presidential Rules, 1974
This Act is made for the conducting of elections of the President and Vice-President. This Act consists of provisions that provide the whole process for conducting elections such as:
• Voting by electors under preventive detention
• Adjournment of the poll in emergencies
• Place and time for counting of votes
• Maintenance of secrecy of voting
• Production and inspection of election papers
• Copies of return of election.
Anti-defection Law, 1985
This law was introduced during the 52nd Constitutional Amendment Act and is enshrined in the Tenth Schedule of the Constitution which is also known as the Anti-defection Law. A member of a House belonging to a party if voluntarily gives up the membership of his political party or votes or abstains from voting, contrary to the directions of his political party or if an independent member joins a political party after the election then that particular member will come under the situation of defection.
A political party cannot spend the election campaigns according to their desires but there is a limit set by the Election Commission. As mentioned in Rule 90 of Conduct of Election Rules, 1961. The candidates are supposed to keep a separate account for their election expenses and file it to the concerned authority.
Universal Adult Suffrage
Adult Suffrage (Article 326 of the Indian Constitution) means that any citizen of India either male or female who is over 18 years of age has a Right to Vote. The rule of Adult Franchise was adopted in the Constitution of India. The minimum age for a person to be eligible to vote was 21 years during the implementation of the Constitution but was later amended from 21 years to 18 years the 61st Amendment Act.
Right to Vote
Right to vote (Article 326 of the Indian Constitution) has been enshrined in the constitution. This right is neither a fundamental nor a constitutional right though it is a statutory or legal right. This right has been enshrined in the Constitution but the right has been shaped by the Representation of People Act, 1951.
Model Code of Conduct
The Supreme Court (SC) is discussing the need for the voluntary code of conduct for cabinet ministers who will cover their private activities as well as their public activities. There is already a code of conduct that applies to the union as well as the state government. The existing code of conduct is largely focused on promoting financial discipline among the cabinet ministers. Some of the provisions in the current Model Code of Conduct (MCC) are that all cabinet ministers have to declare their assets and liabilities to the prime minister or the chief minister respectively. Further before obtaining the seat, they have to let go of any financial interest in private companies and organizations. They cannot accept gifts exceeding a certain value. The current MCC lags the regulation of all the activities taken place by the cabinet ministers.
Currently, the constitutional bench has been concerned with some of the cases where the petitioners are demanding a new voluntary code of conduct for cabinet ministers of both the union and state governments. In order to ensure that the rules apply to all the private and public activities of the cabinet ministry. The petitioners have demanded to impose greater restrictions on the Right to Free Speech for cabinet minis in order to ensure that their statements do not cause a hindrance in the fundamental right of the citizens. Further, the petitioners are requesting the SC with directions which will help in the drafting of a new MCC for the cabinet ministers. Further, the petitioner’s proposal of MCC is based on moral and ethical values that have been enshrined in the Indian constitution and the values of good governance.
What is the model code of conduct?
Model code of conduct is enforced by the Election commission and are a set of rules that all political parties have adhered to follow it until the votes are counted. The MCC comes in force from the date the elections are announced until the date results are out. The basic idea of MCC is to provide a fair and clash-free election process.
Main provisions of MCC
1. General conduct if a party is to be criticized than it has to be limited to policies, programs, past record and work. A party cannot use caste or communal incitement’s to get votes. Cannot bride or indicate voters.
2. Meetings the parties must inform local authorities of meetings in advance.
3. Procession it must be ensured that if two candidates are campaigning in the same area it should be ensured that their rallies do not clash.
4. Polling day authorized party workers at the polling booths are to have identity badges that do not contain their parties name, symbol or candidates names.
5. Polling booth only voters and those with a valid pass from election commission are allowed in the voting booths.
6. Observers the election commission ensures that there are some people present on the polling day that can help guide the voter if any problem arises
7. Party in power ministers must not combine an official visit with election work or use official machinery, advertise using public money. Or use official mass media for publicity.
8. Election manifesto this prohibits the candidates from making any promise that exerts undue influence on the voters.
Is MCC legally binding?
The biggest challenge with the MCC is that they are not legally binding. The following of these guidelines are completely voluntary if one fails to adhere to them the Election commission uses “Moral Sanctions” for its enforcement. The EC can issue a notice to a politician or a party basis as a complaint. Once a notice is issued the party must reply in writing either accepting fault in tendering an unconditional apology or rebutting the allegations.
Certain parts of the MCC can be enforced by invoking relevant portions of the Indian Penal Code, CrPC, Representation of People Act, 1951.
A common man can help the EC by reporting the violations in the MCC by reporting them on an app regulated by the EC called civil.
Are MCCs effective?
Though MCCs are very strict in nature as discussed above not enforceable in nature which leaves it to be just a basic guideline for the political parties to follow is they wish. In the recent election, there were more than a few complaints regarding the code of conduct of the campaigners. MCC was first followed in 1960s Kerala Assembly Elections, but before 1962s Lok Sabha Election all political parties were consulted later in the same year it was applied on the Lok Sabha Elections they were stated to be effective at the time of enforcement but with time the MCC has been reduced to just a set of mere suggestions to follow.
The main provisions under the current MCC are
1. The MCC ensures that the party in power does not have an unfair advantage. During the election, the ruling party cannot announce any new financial policy during the campaign cannot use government funds or machinery.
2. To regulate money spent by the party on the election. Where strictly prohibiting giving money or freebies to the voters.
3. Normal lives of the citizens are not affected due to the electoral campaigns. It is ensured that the campaign does not run past 10’o clock at night or that campaign does not take place in any religious place.
It has been argued that a code of conduct should reflect the constitutional morality& values of good governance. The acts of the persons holding public offices should be subjected to better & meaningful public scrutiny, which in turn would ensure democratic accountability further it has been noted that the current model code of conduct is more focused on the financial aspects of the ministers rather than public and private relations in the 2019 Lok Sabha more than 40% of the MPs have had a dealing with the crime and have a criminal case against them.
“The views of the authors are personal“
Frequently Asked Question
What are the requirements of a free and fair election?
• The free and independent authority
• Rules and regulations
• Redressal mechanism.
What are the laws that govern the election in India?
• The Representation of People Act, 1950
• The Representation of People Act, 1951
• Conduct of Election Rules, 1961
• Election Symbols Order, 1968
• Presidential and Vice-Presidential Rules,1974
• Anti-Defection Law, 1985
• Universal Adult Suffrage
• Right to Vote