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The PM’s speeches fall foul of the Model Code of Conduct

The nation is in the grip of the Lok Sabha elections. Political manifestos are in the news, not for their good content, but for what they don’t contain. The Prime Minister’s recent statement that the Congress wants to take away properties, including gold and mangalsutra, from the people and distribute it among members of the minority community reflects the quality of the narrative in the ongoing election. The Prime Minister, who is the leader of the world’s largest democracy, and his advisors are expected to know the facts.

The contents of the two manifestos

The Congress in its manifesto titled ‘Nyay Patra’ has listed out the various issues facing the country and has declared its aims and objectives in dealing with them if voted to power. The manifesto covers diverse topics such as equity; religious and linguistic minorities; senior citizens, persons with disabilities, and LGBTQIA+; health; youth; education; sports, women’s empowerment; farmers, workers; art, culture, and heritage; economy; taxation and tax reforms; and defending the Constitution.

Under the head ‘wealth’, the manifesto says, “Wealth and wealth creation are the goals of any business… The Congress is committed to rapid growth and generation of wealth. We have set a target of doubling the GDP in the next 10 years.” Under ‘welfare’ it says, “Welfare of all is the goal of all work and the creation of wealth. Under a Congress government, the welfare of the poor will be the first charge on all government resources… The Nav Sankalp Economic Policy will aim to build a fair, just and equal-opportunity economy and bring prosperity to all sections of the people.” Under ‘equity’, it says, “The people belonging to the SC, ST and OBC communities have not yet been able to catch up with the rest and are still left behind. While OBC, SC and ST constitute nearly 70 per cent of India’s population, their representation in high-ranking professions, services and businesses is disproportionately low… Congress will conduct a nation-wide Socio-Economic and Caste Census to enumerate the castes and sub-castes and their socio-economic conditions. Based on the data, we will strengthen the agenda for affirmative action.” Nowhere does it suggest that wealth will be taken from the people and redistributed to others. The Congress is not Robin Hood.

This manifesto echoes the Preamble of the Constitution which resolves “to constitute India into sovereign, socialist, secular, democratic republic and to secure to all its citizens: justice, social, economic and political; liberty of thought, expression, belief, faith and worship; and equality of status and of opportunity. The Supreme Court has declared that the Preamble is the basic structure of the Constitution.

Article 39 of the Constitution, a Directive Principle of State Policy, inter alia provides that, “the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood; that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.” Article 38 empowers the State “to secure a social order for the promotion of welfare of the people, and to “strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities”. Article 46 provides for the promotion of educational and economic interests of the weaker section of the people and, in particular, of the Scheduled Castes and the Scheduled Tribes.

The Bharatiya Janata Party (BJP) is aggressively pushing the agenda for a uniform civil code, which is also a Directive Principle, under Article 44. If this be so, the Prime Minister and the BJP should not have any reservations, much less objection, to the Congress manifesto. It is unfortunate that a serious document has been turned upside down to misguide the nation.

The BJP’s manifesto, ‘Sankalp Patra’, begins with ‘10 years of good governance and Vikas’. Under the title Garib Parivar Jan, it declares that “80+ crore citizens are receiving free rations since 2020 through PM Garib Kalyan Anna Yojana”. It also says the party “empowered citizens by transferring ₹34 lakh crore directly to their accounts”, “34+ crore citizens are receiving free health insurance of ₹5 lakh under Ayushman Bharat”, and “4+ crore families now have pucca houses under the PM Awas Yojana and other initiatives”. These declarations coupled with guarantees on other issues, including to continue to provide free rations for the next five years, reflect the BJP’s commitment to the goals set out in the Preamble. Therefore, the Prime Minister and the BJP should be the last to accuse the Congress on its commitments in its manifestos.

No law to govern manifesto

In S. Subramaniam Balaji v. Government of Tamil Nadu & Ors. (2013), the Supreme Court had bemoaned the absence of a law to govern the contents of the election manifesto and directed the Election Commission of India (ECI) to frame guidelines in consultation with all recognised political parties. The ECI held a meeting on August 12, 2013, with various political parties on the formulation of guidelines on election manifestos. It then issued ‘Instructions to political parties on manifestos’ on April 24, 2015, outlining ‘Guidelines on election manifestos’, which says: “Although, the law is obvious that the promises in the election manifesto cannot be construed as ‘corrupt practice’ under Section 123 of the RP (Representation of the People) Act, the reality cannot be ruled out that distribution of freebies of any kind, undoubtedly, influences all people. It states the root of free and fair elections to a large degree”.

The Model Code of Conduct (MCC) issued by the ECI on March 16, 2024, expressly provides under the heading ‘General Conduct’ that “no party or candidate shall include in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic”. It also says “criticism of other political parties, when made, shall be confined to their policies and programme, past record and work. Parties and candidates shall refrain from criticism of all aspects of private life, not connected with the public activities of the leaders or workers of other parties. Criticism of other parties or their workers based on unverified allegations or distortion shall be avoided. And “there shall be no appeal to caste or communal feelings for securing votes.” It prohibits activities which are “corrupt practices and offences under the election law”.

In a series of judgments in 1996, the Supreme Court declared speeches of religious nature to influence voters as corrupt practices, such as statements by Bal Thackeray that “we are fighting this election for the protection of Hinduism. Therefore, we do not care for the votes of the Muslims. This country belongs to Hindus and will remain so”. The Supreme Court in 2017 interpreted Section 123 of the Representation of People Act, 1951. Dr Justice Thakur, speaking for the Court, held, “An appeal in the name of religion, race, caste, community or language is impermissible under the Representation of the People Act, 1951 and would constitute a corrupt practice sufficient to annul the election in which such an appeal was made…” So interpreted, religion, race, caste, community or language would not be allowed to play any role in the electoral process and should an appeal be made on any of those considerations, the same would constitute a corrupt practice.

The Prime Minister’s tirade against the Opposition and minority community only show that he has no positive issues to persuade them to vote for him. His statements clearly fall foul of the MCC and also amount to corrupt practice as declared by the Supreme Court. The Prime Minister must scrupulously adhere to the MCC in letter and spirit. If he ceases to be the role model, nothing will be left of our great democracy.

Yet, the malaise continues because of the weak rule of law. The holding of free and fair elections is the constitutional mandate of the ECI. It has miserably failed in its duty, only to prove that composition of the ECI as approved by the Supreme Court is defective.

Dushyant Dave is Senior Advocate and former president of the Supreme Court Bar Association.

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