Violations of the Model Code of Conduct in India: Constitutional Position, Enforceability, and Judicial Control

Violations of the Model Code of Conduct in India: Constitutional Position, Enforceability, and Judicial Control

Introduction

The Model Code of Conduct (“MCC”) has become a defining feature of Indian electoral governance. Though non-statutory, its observance is regarded as indispensable to ensuring a level playing field in the sensitive interval between the announcement of an election schedule and the declaration of results. This article critically analyses the legal nature of the MCC, examines the jurisprudence that has developed around alleged violations, and evaluates the remedial architecture available to citizens, candidates and political parties.

Normative Framework: Constitutional and Statutory Context

Article 324, Conduct of Elections Rules and the MCC

Article 324 of the Constitution vests the superintendence, direction and control of elections in the Election Commission of India (“ECI”). Although the Representation of the People Act, 1951 (“RP Act”) and the Conduct of Elections Rules, 1961 prescribe detailed procedures, they are silent on the MCC. The Code emanates from a consensual political understanding first articulated in 1960. In R. Sai Bharathi v. J. Jayalalitha, the Supreme Court reaffirmed that such codes are “guidelines” or “conventions”, not “law” within the meaning of penal provisions that employ the phrase “legally bound”[1].

Non-statutory Character but Binding Force

Despite its non-statutory pedigree, the ECI has treated the MCC as binding by drawing normative support from Article 324. Two seminal Supreme Court decisions sustain this position:

Consequently, an MCC directive gains obligatory force through Article 324 even if it lacks a statutory source.

Taxonomy of Violations

The MCC regulates behaviour under broad heads: (i) general conduct of parties and candidates; (ii) meetings and processions; (iii) polling-day activities; (iv) party in power; and (v) election manifestos. Typical violations include:

  • Use of official machinery for campaign advantage;
  • Announcements of new schemes or financial grants after the Code is in force (cf. Kerala Consumerfed case)[4];
  • Distribution of cash or material inducements, overlapping with “corrupt practices” under s.123 RP Act;
  • Hate speech, communal appeal or inflammatory propaganda;
  • Misuse of government premises for partisan purposes (see K.G. Uthayakumar)[5].

Enforcement Mechanisms within the Election Commission

Administrative Sanctions

The ECI ordinarily issues notices and affords an opportunity of hearing before imposing censure, reprimand, or prohibition on campaigning. It may also withdraw or freeze party symbols[6]. Importantly, in Indian National Congress (I) v. Institute of Social Welfare, the Supreme Court curtailed the ECI’s power to deregister a party, allowing revocation of registration only in three narrowly tailored circumstances, thereby fencing the range of sanctions available for MCC breaches[7].

Recourse to Criminal and Electoral Offences

Certain code infractions may simultaneously amount to:

  • Electoral offences under ss.125–136 RP Act (e.g., promoting enmity, undue influence);
  • Penal offences under the Indian Penal Code—particularly Chapter IX-A (e.g., s.171C – undue influence, s.171E – bribery);
  • Contempt of lawful authority under s.188 IPC, but prosecution must comply with s.195 CrPC (as highlighted in K.G. Uthayakumar)[5].

Judicial Review of MCC-Related Controversies

Pre-election Intervention: Limited and Exceptional

The Supreme Court in Ashok Kumar crafted a calibrated doctrine: courts should seldom interfere mid-process because Article 329(b) bars litigation that “calls in question” an election. Intervention is justified only when it furthers, rather than hinders, the progress of the electoral process[3]. High Courts have echoed this restraint (see Varla Ramaiah v. State Election Commission)[8].

Post-election Challenge through Election Petitions

Where MCC violation is alleged to have materially affected the result, the proper forum is an election petition under Part VI RP Act. However, if the legislature is dissolved before adjudication, such disputes often become academic, as illustrated in Bashiruddin Halhipparga v. Rajashekhar Basavaraj Patil[9].

MCC, Election Manifestos and “Freebies”

Clause VIII of the MCC, inserted in 2013 after recommendations in S. Subramaniam Balaji v. State of Tamil Nadu, requires political parties to avoid promises that vitiate electoral fairness. The Supreme Court held that welfare schemes, even when reiterated in manifestos, do not per se constitute corrupt practices because s.123 RP Act is confined to candidates, not parties[10]. Nevertheless, the Court mandated the ECI to frame guidelines, thereby locating manifesto oversight within the MCC framework.

Interface with Administrative Law and Natural Resource Allocation

Decisions on public resource allocation can incidentally trigger MCC issues when announcements are made during the Code period. The coal-block allocation verdict in Manohar Lal Sharma v. Principal Secretary—though not an MCC case—highlights the judicial intolerance towards opaque, ad-hoc distribution of largesse[11]. MCC clause VII(a) is often invoked to defer such allocations to avoid the perception of electoral quid pro quo.

Critical Assessment

Strengths

  • Flexibility: The non-statutory nature allows rapid ECI responses to novel situations (Gill principle).
  • Autonomy: Judicial deference under Article 329(b) preserves electoral timelines.
  • Inclusivity: Consensus-based evolution fosters political ownership of ethical norms.

Weaknesses

  • Sanction Deficit: Absence of legislative penalties may embolden repeat transgressors.
  • Over-breadth Risk: Administrative over-reach—e.g., blanket suspension of statutory welfare schemes (see Maharashtra BOCW)—can infringe legitimate governance functions[12].
  • Uneven Enforcement: Reliance on public shaming and media visibility yields inconsistent deterrence.

Reform Proposals

  1. Codify core MCC obligations in the RP Act with calibrated civil penalties, leaving peripheral ethical exhortations as conventions.
  2. Establish a fast-track appellate forum within the election dispute resolution structure for MCC determinations to mitigate due-process concerns.
  3. Clarify, via subordinate legislation, the distinction between routine statutory benefits and discretionary largesse to curb administrative inertia.

Conclusion

Violations of the MCC occupy a doctrinally sui generis space: neither purely political nor fully justiciable, yet deeply consequential for democratic legitimacy. The Supreme Court has consistently fortified the ECI’s authority to enforce the Code, while simultaneously imposing constitutional constraints on judicial interference during the electoral process. The resulting equilibrium—administrative flexibility tempered by post-election judicial scrutiny—has served India’s democracy reasonably well. Nevertheless, the normative maturation of the MCC now warrants partial statutory crystallisation to enhance certainty, fairness and deterrence. Until such reform occurs, vigilant but proportionate enforcement by the ECI, backed by informed judicial oversight, remains the principal safeguard against electoral malpractice.

Footnotes

  1. R. Sai Bharathi v. J. Jayalalitha, (2003) Supreme Court; see also Vidadala Harinadhababu v. N.T. Ramarao, AIR 1990 AP 20 (FB).
  2. Shri Mohinder Singh Gill v. Chief Election Commissioner, (1978) 2 SCR 272.
  3. Election Commission of India v. Ashok Kumar, (2000) 8 SCC 216.
  4. Kerala State Co-operative Consumers’ Federation Ltd. v. Chief Election Commissioner, Kerala HC (2024).
  5. K.G. Uthayakumar v. State, 2015 SCC OnLine Mad 423.
  6. Symbols can be frozen under para 15 of the Election Symbols (Reservation and Allotment) Order 1968.
  7. Indian National Congress (I) v. Institute of Social Welfare, (2002) 5 SCC 685.
  8. Varla Ramaiah v. State Election Commission, AP HC (2021).
  9. Bashiruddin Halhipparga v. Rajashekhar Basavaraj Patil, 2004 SCC OnLine Kar 332.
  10. S. Subramaniam Balaji v. State of Tamil Nadu, (2013) 9 SCC 659.
  11. Manohar Lal Sharma v. Principal Secretary, (2014) 9 SCC 516.
  12. Maharashtra Rajya Bandhkam Kamgar Sanyukt Kriti Samiti v. State of Maharashtra, Bombay HC (2024).