ETHICAL AND MODEL CODES FOR THE CONDUCT OF FREE AND FAIR ELECTIONS: ESSENTIAL PRACTICES FOR ELECTORAL ADMINISTRATION IN INDIA
Volume 2Issue II Year 2023
Sarath Mohan
Research Scholar, School of Legal Studies, Cochin University of Science and Technology, Kochi, Kerala.
sarathmohanprofessor@gmail.com
Table of Contents
Sarath Mohan
Research Scholar, School of Legal Studies, Cochin University of Science and Technology, Kochi, Kerala.
sarathmohanprofessor@gmail.com
Free Elections- Fair Elections- Election Administration- Ethical Values- Code of Conduct- Ethical Codes
1. [1]John P. Pelissero, what is Government Ethics? MARAKKULA CENTER FOR APPLIED ETHICS (Jul. 22, 2023,10:30 PM)
2. The Constitution of India 1950, Third Schedule.
3. Supra note 1.
4. The concepts found in the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, African Charter on Human and Peoples Rights and the European Convention on Human Rights signifies the need for the conduct of elections to be genuine, with universal adult suffrage and secrecy of vote permeating through the electoral process.
5. Anoop Baranwal v. Union of India 2023 S.C.C. ONLINE SC 216 (India).
6. Ethical and professional administration of elections, 8 (International Institute for Democracy and Electoral Assistance ed., Repr ed. 1999).
7. Id
8. Ethical and professional administration of elections, supra note 6 at 9.
9. Id. at 10.
10. Id.
11. This could range from neutral to all political parties, candidates, voters or media members. Election administration should act in a way that is devoid of any actions favouring any political party or candidate.
12. This indicates that the election administrators should not accept any gift or favour from a political party, organisation or person involved in the election. They must reject any improper influences and avoid participating in any unauthorised activity private activities with any candidate, not express any political view and not carry, display or wear any obvious partisan symbols or colours supporting any political parties.
13. Ethical and professional administration of elections, supra note 5 at 13.
14. This implies that the election administration should ensure that agents of each political party or candidate can fully and effectively exercise their legal rights and explain their decision as a part of the general administration of the election.
15. Ethical and professional administration of elections, supra note 5 at 14.
16. For instance, the design should allow voters with special needs living in remote areas to participate in the election
17. Supra note 5. The independence of the election commission, though it may be an ethical standard, may not be legally endorsed. So, apart from fulfilling the legal framework, it is always necessary and succinct that the ethical parameters be laid down so they can be administered.
18. Samuel Issacharoff, Pamela S. Karlan & Richard H. Pildes, The Law of Democracy: Legal Structure of the Political Process (University Case Book Series Rev. 2nd ed. 2002).
19. DOMENICO TUCCINARDI & MANUEL WALLY, INTERNATIONAL OBLIGATIONS FOR ELECTIONS: GUIDELINES FOR LEGAL FRAMEWORKS, (IDEA 17 eds., 2014).
20. Id.
21. Id. at 18
22. Constitution of India 1950(give special emphasis to the preamble and Part XV dealing with election), Representation of Peoples Act 1950, Representation of Peoples Act 1951, The Conduct of Election Rules 1961, The Delimitation Commission Act 1991, Anti Defection Law ( X Schedule, Constitution of India 1950), The Election Symbols(Reservation and Allotment) Order, 1968, The Aadhaar( Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016.
23. Id.
24. Representation of Peoples Act 1951, Part IV and Part V.
25. Id.
26. The Conduct of Election Rules, 1961
27. Representation of Peoples Act 1951, Section 20, 20A.
28. Id. at Section 20B.
29. Id. at Section 21.
30. The phrase Law of Democracy includes the statutes and executive orders and the judicial pronouncement in this regard. The statutes and their interpretation by the Judiciary are also to be considered while examining the legal framework of elections. Elections and their conduct are crucial to the Law of Democracy in India. For a better analysis of the theoretical and conceptual understanding of the law of democracy see, See, Issacharoff, Karlan, and Pildes, supra note 17.
31. Supra note 26 at Section 26.
32. Id. at Section 27,28.
33. Supra note 24.
34. See, Representation of Peoples Act 1951, Part V, Chapter I
35. Id. at Section 38 and 39.
36. Id. at Section 40 and 41.
37. Id. at Section 49.
38. Supra note 26.
39. For a detailed discussion on the right to vote, Sarath Mohan, Representation Through Access: The Genesis of the Right to Vote in India, I in Freedom As a Right: The New Perspectives (1 ed. 2023).
40. Representation of Peoples Act 1950, Chapter V.
41. Id. at Part VI.
42. Supra at note 18.
43. See, Election Commission of India, Model Code of Conduct for the Guidance of Political Parties and Candidates, ELECTION COMMISSION OF INDIA, (Oct.12,2023,10:40 PM) https://eci.gov.in/mcc
44. The model code of conduct was first tested and successfully implemented in Keralas 1960 legislative assembly elections. This is often evolved with the consensus of the political parties to observe certain standards necessary for the conduct of free and fair elections.
45. Constitution of India 1950, Part XV.
46. Supra note 22. It is to be noted that Election Administration in India derives its power from the Constitution of India. Thus, they are empowered to take action to prevent the hampering of the election process. The Election Commission could thus bar the leaders of political parties from holding rallies, making communal speeches, submitting false affidavits, conducting public meetings in the silence period, etc. For the corrupt practices and electoral offences, see Representation of Peoples Act 1951, Part VII.
47. For instance, the Lok Sabha polls were cancelled in Tamil Nadus Vellore after a massive cash haul of around twelve crore rupees. This was seized from a party leader associate. The Election Commission of India requested the president to call off the poll in Vellore. This decision was made as unaccounted wealth had been seized in the constituency.
48. Supra note 43.
49. Subramaniam Balaji v. Govt of Tamil Nadu and Others 2013 S.C.C. 9 659 (India).
50. Id.
51. Id.
52. Supra note 43.
53. Constitution of India 1950, Preamble.
54. The difference is theoretical. However, India can be technically attributed to following a democratic constitution; at the same time, it can also be attributed to the features of constitutional democratism. See the Indian Independence Act 1947, which provides for the legislative sanctity of founding the constituent assembly through indirect elections and nominations, as well as the newly enacted Constitution of India and the General Election, which followed under the supervision of the Election Commission of India to understand the value attributes of the scheme of constitutionalism that Indian follows.
55. Indira Nehru Gandhi v. Raj Narain 1975 SUPP SCC 1(India).
56. Id.
57. There are interventions by the Judiciary on the political thicket through various judgments. This, however, has yet to be to the extent of scrutiny. This is true, especially in the matter of the regulation of political parties in India
58. Constitution of India 1950, Art. 324.
59. Supra note 5
60. Constitution of India 1950, Art. 327.
61. Constitution of India 1950, Art.329. This bar, however, cannot prevent the Court from interfering when the right of free and fair elections under democracy, which is a basic structure, is infringed.
62. South African Local Government Association, Charter of Election Ethics, (2016).
63. Id.
64. Navin Chawla, Every Vote Counts: The Story of India�s Elections (HarperCollins India 2019).
65. Supra note 5.
66. CLAUDIA ARANDA, HANDBOOK ON JOURNALISTIC ETHICS IN MEDIA COVERAGE OF ELECTORAL PROCESSES, (2011
67. Id at 27.
68. Id at 31.
69. Elena L. Boldyreva, Natalia Y. Grishina & Yekaterina Duisembina, Cambridge Analytica: Ethics and Online Manipulation With Decision-Making Process 91RESEARCH GATE, (2018).
70. The data was gathered and analysed using the five-factor model, which was known as the dispositional model of personality. It could unravel the traits of a person, such as benevolence, conscientiousness, emotional characteristics, extraversion, etc.
References
1. [1]John P. Pelissero, what is Government Ethics? MARAKKULA CENTER FOR APPLIED ETHICS (Jul. 22, 2023,10:30 PM)
2. The Constitution of India 1950, Third Schedule.
3. Supra note 1.
4. The concepts found in the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, African Charter on Human and Peoples Rights and the European Convention on Human Rights signifies the need for the conduct of elections to be genuine, with universal adult suffrage and secrecy of vote permeating through the electoral process.
5. Anoop Baranwal v. Union of India 2023 S.C.C. ONLINE SC 216 (India).
6. Ethical and professional administration of elections, 8 (International Institute for Democracy and Electoral Assistance ed., Repr ed. 1999).
7. Id
8. Ethical and professional administration of elections, supra note 6 at 9.
9. Id. at 10.
10. Id.
11. This could range from neutral to all political parties, candidates, voters or media members. Election administration should act in a way that is devoid of any actions favouring any political party or candidate.
12. This indicates that the election administrators should not accept any gift or favour from a political party, organisation or person involved in the election. They must reject any improper influences and avoid participating in any unauthorised activity private activities with any candidate, not express any political view and not carry, display or wear any obvious partisan symbols or colours supporting any political parties.
13. Ethical and professional administration of elections, supra note 5 at 13.
14. This implies that the election administration should ensure that agents of each political party or candidate can fully and effectively exercise their legal rights and explain their decision as a part of the general administration of the election.
15. Ethical and professional administration of elections, supra note 5 at 14.
16. For instance, the design should allow voters with special needs living in remote areas to participate in the election
17. Supra note 5. The independence of the election commission, though it may be an ethical standard, may not be legally endorsed. So, apart from fulfilling the legal framework, it is always necessary and succinct that the ethical parameters be laid down so they can be administered.
18. Samuel Issacharoff, Pamela S. Karlan & Richard H. Pildes, The Law of Democracy: Legal Structure of the Political Process (University Case Book Series Rev. 2nd ed. 2002).
19. DOMENICO TUCCINARDI & MANUEL WALLY, INTERNATIONAL OBLIGATIONS FOR ELECTIONS: GUIDELINES FOR LEGAL FRAMEWORKS, (IDEA 17 eds., 2014).
20. Id.
21. Id. at 18
22. Constitution of India 1950(give special emphasis to the preamble and Part XV dealing with election), Representation of Peoples Act 1950, Representation of Peoples Act 1951, The Conduct of Election Rules 1961, The Delimitation Commission Act 1991, Anti Defection Law ( X Schedule, Constitution of India 1950), The Election Symbols(Reservation and Allotment) Order, 1968, The Aadhaar( Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016.
23. Id.
24. Representation of Peoples Act 1951, Part IV and Part V.
25. Id.
26. The Conduct of Election Rules, 1961
27. Representation of Peoples Act 1951, Section 20, 20A.
28. Id. at Section 20B.
29. Id. at Section 21.
30. The phrase Law of Democracy includes the statutes and executive orders and the judicial pronouncement in this regard. The statutes and their interpretation by the Judiciary are also to be considered while examining the legal framework of elections. Elections and their conduct are crucial to the Law of Democracy in India. For a better analysis of the theoretical and conceptual understanding of the law of democracy see, See, Issacharoff, Karlan, and Pildes, supra note 17.
31. Supra note 26 at Section 26.
32. Id. at Section 27,28.
33. Supra note 24.
34. See, Representation of Peoples Act 1951, Part V, Chapter I
35. Id. at Section 38 and 39.
36. Id. at Section 40 and 41.
37. Id. at Section 49.
38. Supra note 26.
39. For a detailed discussion on the right to vote, Sarath Mohan, Representation Through Access: The Genesis of the Right to Vote in India, I in Freedom As a Right: The New Perspectives (1 ed. 2023).
40. Representation of Peoples Act 1950, Chapter V.
41. Id. at Part VI.
42. Supra at note 18.
43. See, Election Commission of India, Model Code of Conduct for the Guidance of Political Parties and Candidates, ELECTION COMMISSION OF INDIA, (Oct.12,2023,10:40 PM) https://eci.gov.in/mcc
44. The model code of conduct was first tested and successfully implemented in Keralas 1960 legislative assembly elections. This is often evolved with the consensus of the political parties to observe certain standards necessary for the conduct of free and fair elections.
45. Constitution of India 1950, Part XV.
46. Supra note 22. It is to be noted that Election Administration in India derives its power from the Constitution of India. Thus, they are empowered to take action to prevent the hampering of the election process. The Election Commission could thus bar the leaders of political parties from holding rallies, making communal speeches, submitting false affidavits, conducting public meetings in the silence period, etc. For the corrupt practices and electoral offences, see Representation of Peoples Act 1951, Part VII.
47. For instance, the Lok Sabha polls were cancelled in Tamil Nadus Vellore after a massive cash haul of around twelve crore rupees. This was seized from a party leader associate. The Election Commission of India requested the president to call off the poll in Vellore. This decision was made as unaccounted wealth had been seized in the constituency.
48. Supra note 43.
49. Subramaniam Balaji v. Govt of Tamil Nadu and Others 2013 S.C.C. 9 659 (India).
50. Id.
51. Id.
52. Supra note 43.
53. Constitution of India 1950, Preamble.
54. The difference is theoretical. However, India can be technically attributed to following a democratic constitution; at the same time, it can also be attributed to the features of constitutional democratism. See the Indian Independence Act 1947, which provides for the legislative sanctity of founding the constituent assembly through indirect elections and nominations, as well as the newly enacted Constitution of India and the General Election, which followed under the supervision of the Election Commission of India to understand the value attributes of the scheme of constitutionalism that Indian follows.
55. Indira Nehru Gandhi v. Raj Narain 1975 SUPP SCC 1(India).
56. Id.
57. There are interventions by the Judiciary on the political thicket through various judgments. This, however, has yet to be to the extent of scrutiny. This is true, especially in the matter of the regulation of political parties in India
58. Constitution of India 1950, Art. 324.
59. Supra note 5
60. Constitution of India 1950, Art. 327.
61. Constitution of India 1950, Art.329. This bar, however, cannot prevent the Court from interfering when the right of free and fair elections under democracy, which is a basic structure, is infringed.
62. South African Local Government Association, Charter of Election Ethics, (2016).
63. Id.
64. Navin Chawla, Every Vote Counts: The Story of India�s Elections (HarperCollins India 2019).
65. Supra note 5.
66. CLAUDIA ARANDA, HANDBOOK ON JOURNALISTIC ETHICS IN MEDIA COVERAGE OF ELECTORAL PROCESSES, (2011
67. Id at 27.
68. Id at 31.
69. Elena L. Boldyreva, Natalia Y. Grishina & Yekaterina Duisembina, Cambridge Analytica: Ethics and Online Manipulation With Decision-Making Process 91RESEARCH GATE, (2018).
70. The data was gathered and analysed using the five-factor model, which was known as the dispositional model of personality. It could unravel the traits of a person, such as benevolence, conscientiousness, emotional characteristics, extraversion, etc.