S.

No Judgement Brief Note

1. Bharatiya Janatha Yuva Morcha State Model Code of Conduct and the
General Secretary v. Chief Secretary, circulars issued by the Election
Commission do not prohibit the ongoing
A.P. State Govt., Secretariat, Hyd. and
developmental activities.
Ors. 1998 (1) ALD 566
2. Harbans Singh Jalal, Ex-MLA v. Union The Model Code of Conduct adopted to
be followed by all political parties
of India (UOI), through Secretary,
including the political party in Govt, can
Ministry of Home Affairs Ors. (1997) be directed to be followed by the
Election Commission and action of the
116 (2)PLR 778
Commission in this regard cannot be
faulted,
3. Indian Oil Corporation & Ors. v. Shri The purpose of the Model Code of
Conduct for being enforced is to ensure
Ujjal Chowdhury & Ors. (1999) 1
that the elections are held in a fair and
CALLT220 (HC) free atmosphere and that the party in
power does not exploit its official
position by doling out patronage to the
Electorate so as to influence their mind
while exercising their right of franchise.
4. Intelligence Decisions Systems (India) The object of model code of conduct is
not to stop all Governmental activities
P. Ltd. v. Chief Election Commissioner
in the State pending elections. The
AIR 2006 Ker 229 model code of conduct only comes into
play where with the intention of
influencing the voters of the State the
party in power declares any promises to
the people. Simply because a normal
Governmental function would also
result in some benefit to the public at
large that wouldn’t come within the
ambit of the model code of conduct.
5. Nutan Thakur (Dr.) v. Election Making statements as a measure of
allurement or appeasement to the
Commission of India, Nirvachan Sadan,
peoples after issuance of Election
New Delhi 2012 (3) ADJ 217 Notification, shall be nothing but an
instance of unfair practice and in
violation to the
Model Code of Conduct notified by the
Election Commission.
6. Rajaji Mathew Thomas v. The Election An analysis of Model Code of Conduct
indicated that same was meant to
Commission of India, The Chief
prevent ruling party from taking unjust
Electoral Officer, State of Kerala and advantage of its position, like
exclusively using infrastructural
Principal Secretary AIR 2011 Ker 109
facilities of State or spending
discretionary funds of State
7. Rajinder Kumar Sharma and Anr. v. Lt. The election commission was
competent to entertain the complaints.
Governor, Delhi and Ors. 63 (1996)
Unless the directions of the election
DLT 682 commissioner were arbitrary or
manifestly perverse or against the
principles of natural justice, interference
with the direction was not to be called
for for the purpose of Model Code of
Conduct.
8. S. Subramaniam Balaji v. The An exception can be made in regard to
the purpose of election manifesto if it is
Government of Tamil Nadu and Ors.
directly associated with the election
(2013) 9 SCC 659 process. A separate head for guidelines
for election manifesto released by a
political party can also be included in
the Model Code of Conduct for the
Guidance of Political Parties &
Candidates.
9. Secy., Min. Of Information& The Election Commission or a
Designated Officer should be applied
Broadcasting V. M/S Gemini Tv Pvt.
for any advertisement on television
Ltd. & Ors. SLP(C)No. 6679 OF 2004 channel and/or cable network if
proposed to be issued not later than
Item 2
three days prior to the date of the
proposed commencement of the telecast
of such advertisement.
In case of any other person or
unregistered political parties, they will
have to apply not later than seven days
prior to the date of the telecast.” It will
be open to the Election Commission or
Designated Officer to direct
deletion/modification of any part of the
advertisement.
10. Secy., Min. Of Information& No cable operator or T.V. Channel shall
telecast any advertisement, which does
Broadcasting V. M/S Gemini Tv Pvt.
not conform to the law of the country.
Ltd. & Ors. SLP(C)No. 6679 OF 2004 The telecast shall be monitored by the
Election Commissioner of India and the
Item 47
modalities whether such advertisements
are in conformity with law shall be laid
down by the Election Commissioner of
India.
11. State Election Commission v. State of The Model Code of Conduct does not
include those restrictions which after
Jharkhand and Ors. 2008 (2) JCR 100
coming into force brings the entire
(Jhr) functioning of Government to a
standstill.
1. Bharatiya Janatha Yuva Morcha State General Secretary v. Chief Secretary, A.P. State
Govt., Secretariat, Hyd. and Ors. 1998 (1) ALD 566

The writ petition was filed to declare all the policy decisions including ''Janma Bhoomi"
programme and other schemes taken by the A.P. State Government after proclamation of
1998 Lok Sabha elections as illegal, arbitrary and violative of Model Code of Conduct issued
by the Election Commission. The State Government proclaimed schemes and developmental
programmes on the eve of elections "after proclamation of elections" and after Election
Commission's directions not to violate the Model Code of Conduct.
State Govt. in its counter-affidavit mentioned, “Janma bhoomi” is an ongoing developmental
project launched in the Stale which is under implementation from January, 1997 and which is
evolved out of the experience of Prajala Vaddaku Palana (PVP) launched in November, 1995.
Four Rounds of Janmabhoomi have already been held in January, May, August and October,
1997 and the 5th round of Janmabhoomi is scheduled to be held from 1st to 7th January,
1998. No new schemes/ projects have been announced as a part of the 5th Round of
Janmabhoomi process scheduled to be held from 1st to 7th January, 1998.

Court held that “it is an ongoing developmental programme. Model Code of Conduct and the
circulars issued by the Election Commission do not prohibit the ongoing developmental
activities. It is not as if the Government remains in suspended animation and goes into deep
slumber either on the eve of the elections or oven after announcement of the election
schedule. The Government's constitutional obligation and duties are not kept under
suspension. The Court is precluded from making such pronouncement upon policy matters
unless demonstrated in clear terms that implementation of such policy would result in
negation of Rule of Law or the Policy itself could be characterised as unconstitutional.”

2. Harbans Singh Jalal, Ex-MLA v. Union of India (UOI), through Secretary, Ministry of
Home Affairs Ors. (1997) 116 (2)PLR 778

The ruling party Congress announced various welfare measures for the people of the State on
December 22, 1996. The ruling party also announced that some of the schemes formulated by
them would be implemented with effect from January 1, 1997. Subsequently, Election
Commission announced the poll dates on December 30, 1996 and issued certain
guidelines/instructions. Immediately after the announcement, commission in its fax message
to CEO mentioned that any violation of instructions regarding non-transfer of officers,
 payment of grants out of discretionary funds and guidelines enumerated in Model Code of
Conduct for political parties and candidates will be viewed very seriously and necessary
action as deemed appropriate would be taken on each case of violation. Petitioner contended
that the Election Commission had no authority to impose any restriction whatsoever in the
functioning of the Government in power with effect from the date of announcement of
election up to the date of issue of notification. The argument of the petitioner is that unless a
notification is issued by the Governor, as contemplated by Section 30 of the Act, Election
Commission cannot exercise any power in the conduct of election.

Court dismissed the petition and held that the Election Commission is entitled to take
necessary steps for the conduct of a free and fair election even anterior to the date of issuance
of notification, from the date of announcement of the election. While doing so, the Model
Code of Conduct adopted to be followed by all political parties including the political party in
Govt, can be directed to be followed by the Election Commission. Action of the Commission
in this regard cannot be faulted, for the Model Code of Conduct adopted by the political
parties does not go against any of the statutory provisions. It only ensures the conduct of a
free and fair election which should be pure.

3. Indian Oil Corporation & Ors. v. Shri Ujjal Chowdhury & Ors. (1999) 1 CALLT220 (HC)

In this case, advertisement was issued on 23 October 1995 inviting applications for
appointment of distributors for LPG. Interviews were held on 29-02-96 and all eligible
candidates including writ petitioners were interviewed. As per the Circular dated 9-6-94
laying down. The guidelines, the time for finalisation of the Merit Panel by the OSB and for
advising the same to the State Level Coordination Committee expired on 1st March,

1996 and the time for the State Level Co-ordinator for sending the Panel to the Indian Oil
Corporation expired on 3 March, 1996. On 20th March, 1996 that the Election Commission
announced the Schedule for the 11th Lok Sabha and Legislative Assemblies elections of
some of the States. Model Code of Conduct, admittedly, came into effect only from 20
March, 1996 and not from any earlier date.

Court concluded and held that “Undoubtedly, as on 23 October, 1995 when the advertisement
was issued and on 29th February, 1996 when the interviews were held, the Model Code of
Conduct was not in force. Hence, the right was still vested with the petitioner. Court further
held that “The purpose of the Model Code of Conduct for being enforced is to ensure that the
 elections are held in a fair and free atmosphere and that the party in power does not exploit its
official position by doling out patronage to the Electorate so as to influence their mind while
exercising their right of franchise.”

4. Intelligence Decisions Systems (India) P. Ltd. v. Chief Election Commissioner AIR 2006
Ker 229

Petition was filed by a company in present matter after the direction was issued by the
Election Commission to Govt. that signing of agreement to set up 'Smart City' at Kochi be
deferred till completion of election. Petitioner’s contention was that the decision to sign the
agreement was taken before election notification was issued, and that the signing of the
agreement will not amount to announcement of any financial grant which may influence the
electorate and hence there is no violation of model code of conduct. On the other side,
Election Commission contended that since the agreement would create 33,000 direct job
opportunities in Smart City, the agreement would come within the ambit of Clause 6 (a) of
Part VII of model code of conduct.

Court allowed the writ petition and held, “Merely by signing of the agreement, the party in
power is not announcing any financial grants in any form or promises thereof to the people of
Kerala. Moreover, the Government did not give any financial grant to TECOM (with whom
agreement was signed). The object of model code of conduct is not to stop all Governmental
activities in the State pending elections. Notwithstanding the elections, the normal
Governmental functions should go on. It is only where with the intention of influencing the
voters of the State the party in power declares any promises to the people that the model code
of conduct comes into play. Simply because a normal Governmental function would also
result in some benefit to the public at large that wouldn’t come within the ambit of the model
code of conduct.

5. Nutan Thakur (Dr.) Vs. Respondent: Election Commission of India, Nirvachan Sadan,
New Delhi 2012(3) ADJ217

The Election Commission of India by clause VII (VI) (a) (c) Model Code of conduct
prohibits the Minister and Constitutional authorities to make promise after the notification of
the election. It further prohibits to make promise for construction of roads, provision of
drinking water facilities etc.
 Petitioner’s contention was that such restriction imposed by the Election Commission of
India is unreasonable and prevent the Government authorities or the Ministers to discharge
their obligation while holding the office hit equality clause contained in Article 14 of Indian
Constitution.

The Court held that, Article 324-of the Constitution of India confers the power on the
Election Commission with regard to superintendence, direction and control of the elections. It
further makes it obligatory on the part of the Election Commission of India to ensure the just
and fair election in the country. The condition imposed by the Election Commission seems to
be reasonable one. It is not necessary that the person, who is holding the public office as
Minister or alike, may be elected to come to the office again. Promise made thereon may be
an allurement to the peoples of the country, where more than 35% population is illiterate and
below poverty line. Promises are made keeping in view the financial viability of the
Government and other related factors. In case it is on unfounded ground, then it is to allure
the voters and may affect the fair election process. Accordingly then making statement as a
measure of allurement or appeasement to the peoples after issuance of Election Notification,
shall be nothing but an instance of unfair practice on their part. Election Commission of India
has rightly imposed these conditions.

In case, the Model Code of Conduct notified by the Election Commission is violated, the
violator must be punished severally to maintain the fairness in the election process of the
country.

6. Rajaji Mathew Thomas vs. The Election Commission of India, The Chief Electoral
Officer, State of Kerala and Principal Secretary

In this case writ petition was filed to issue a writ in the nature of mandamus commanding the
Respondents 1 and 2 not to interfere with the implementation of the subsidized rice The
Election Commission of India (1st Respondent) announced the election schedule on 1st
March, 2011. And the Government of Kerala issued an order in G.O. (MS). No. 11/2001
dated 25.2.2011Pursuant to the issuance of the said order, it appears that some complaints
were received by Respondents 1 and 2. The complaint referred to above is to the effect that
the decision of the State of Kerala evidenced by the above mentioned dated 25.2.2011 and the
implementation of the same after the coming into force of the Model Code of Conduct is in
contravention of the norms contained in the Model Code of Conduct. The second Respondent
 on 7.3.2011 directed that the implementation of the Government Order in issue be deferred
till the election process is over. The first Respondent by its letter dated 11.3.2011 approved
the action taken by the second Respondent. The Petitioner is that the decision of the State
Government contained in the Government order does not lay down any new policy, but it
only extends an existing policy to larger number of new beneficiary. It is further argued that
the impugned decision is not only unauthorized by law but also subverts the constitutional
scheme of the governance by the Government duly elected.

It was held that, object of model code of conduct was not to stop all governmental activities
in State pending elections. Simply because a normal governmental functioned would also
result in some benefit to public at large that would not come within ambit of model code of
conduct. Policy decisions taken by State prior to issuance of election notification could be
implemented and necessary steps for implementation of same could be continued even during
subsistence of election notification. Activity that State was combining official activity of
State that was implementation of policy, with political propaganda was absent. An analysis of
Model Code of Conduct indicated that same was meant to prevent ruling party from taking
unjust advantage of its position, like exclusively using infrastructural facilities of State or
spending discretionary funds of State - Impugned decision of Respondents 1 and 2 to defer
implementation of 3rd Respondent's decision was arbitrary. A decision of Respondents 1 and
2 interdicted implementation of a decision of State of Kerala which was otherwise within
jurisdiction and authority of State conferred by Constitution. Therefore, impugned order was
set aside.

7. Rajinder Kumar Sharma v. Lt Governor Delhi an ors. 63(1996)DLT682

The case involves cancellation of nomination of board under Sections 5 (1) (b), 5(5) & 5 (7)
of the Delhi Agricultural Produce Marketing (Regulation) Act, 1976. In this case Petitioners
were nominated by the Administrator under Clause (b) of Section 5(1) of the Act to be non-
official members for a period of three years 1993. By sheer co-incidence the notification for
holding the election for Delhi Legislative Assembly was also published on 6 October, 1993.
It appears that against the said nominations, a complaint was made to the Election
Commission of India objecting to the said nominations on the ground that announcement torn
holding the election for the Delhi Legislative Assembly having been made on 21 September,
1993, by making petitioners' nominations, on 6 October, 1993, the Government of Nct of
Delhi had violated the Model Code of Conduct issued by the Election Commission of India.
 According to the petitioners, taking cognizance of the complaint, the Election Commission
directed the Government of Nct of Delhi to withdraw its notification dated 6 October 1993.
The Government of Nct of Delhi promptly complied with the direction. Meanwhile case
complaints were pending before election commission against the members of the board.
Petitioners challenged cancellation of their nomination on various grounds.

The Court held that, cancellation of nomination was merely on the basis of communication
by election commission calling for factual report about the complainants. Also, no finding of
election commission arrived at regarding violation of model code of conduct. It was held that
the removal of members on the basis of such communication was illegal.

It was further held that,

“’the election commission was competent to entertain the complaints. It was adjudged that
unless the directions of the election commissioner were arbitrary or manifestly perverse or
against the principles of natural justice, interference with the direction was not to be called
for.”

8. S.SubramaniamBalajivsGovt.Of Tamil Nadu & Ors. (2013)9SCC659

The case relates to distribution of 'freebies' by political parties. In the Assembly Elections
2006 and the Assembly Elections 2011, DMK and AIDMK promised free gifts like colour
TV sets, fans, mixer grinders and laptops in their manifestos.

The deal was that they would distribute these gifts if they won the election Prayer of the
appellant Writ of mandamus to forbear the respondents from incurring any expenditure out of
the public exchequer for the purchase and distribution of freebies within the State of Tamil
Nadu. Contentions of the appellant Article 282of the Constitution of India only permits
defraying of funds from the Consolidated Fund of the State for “public purpose” distribution
of freebies is violative of Article 14 since there is no reasonable classification Promises of
free distribution of non-essential commodities in an election manifesto amounts to electoral
bribe under Section 123 of the RPAct. The CAG has a duty to examine expenditures even
before they are deployed

It was held that,

a) That the promises in the election manifesto cannot be read into Section 123 for
declaring it to be a corrupt practice. Thus, promises in the election manifesto do not
constitute as a corrupt practice under the prevailing law. It is not violative of Article
14 and falls within the realm of fulfilling Directive Principles of State Policy.

b) The mandate of the Constitution provides various checks and balances before a
Scheme can be implemented. Therefore, as long as the schemes come within the
realm of public purpose and monies withdrawn for the implementation of schemes by
passing suitable Appropriation Bill, the court has limited jurisdiction to interfere in
such schemes.

c) Although promises in election manifesto do not constitute as corrupt practice under

prevailing law reality cannot be ruled out that distribution of freebies of any kind,
undoubtedly, influences all people. It shakes root of free and fair elections to large
degree. The Election Commission, in order to ensure level playing field between the
contesting parties and candidates in elections and also in order to see that the purity of
the election process does not get vitiated, as in past been issuing instructions under the
Model Code of Conduct. The fountainhead of the powers under which the
commission issues these orders is Article 324 of the Constitution, which mandates the
commission to hold free and fair elections. It is equally imperative to acknowledge
that the Election Commission cannot issue such orders if the subject matter of the
order of commission is covered by a legislative measure.

d) Considering that there is no enactment that directly governs the contents of the
election manifesto, the Court directed the Election Commission to frame guidelines
for the same in consultation with all the recognized political parties as when it had
acted while framing guidelines for general conduct of the candidates, meetings,
processions, polling day, party in power etc. In the similar way, a separate head for
guidelines for election manifesto released by a political party can also be included in
the Model Code of Conduct for the Guidance of Political Parties & Candidates. The
Court was also mindful of the fact that generally political parties release their
election manifesto before the announcement of election date, in that scenario, strictly
speaking, the Election Commission will not have the authority to regulate any act
which is done before the announcement of the date. However, it was suggested that
 an exception can be made in this regard as the purpose of election manifesto is
directly associated with the election process.

9. Secy, Min. of Information& Broadcastingv. M/S Gemini Tv Pvt. Ltd. & Ors. SLP(C)No.
6679 OF 2004 Item 2

Court considered it necessary to mention the following provisions of Cable Television

Networks (Regulation) Act, 1995 with respect to modalities adopted by the Election
Commission regarding advertisements to be telecast on electronic media, by cable operators
and television channels:-

Section 11 of the Act provides that “if any authorised officer has reason to believe
that the provisions of the Act have been or are being contravened by any cable
operator, he may seize the equipment being used by such cable operator for operating
the cable television network.”Section 12 of the Act provides for “confiscation of the
equipment in the event of any violation of the provisions of the Act.”Section 13 of the
Act provides for “seizure or confiscation of the equipments and punishment.”Section
16 further provides for “punishment for contravention of the provisions of the
Act.”Section 19 lays down that “an authorised officer, if he thinks necessary or
expedient so to do in the public interest, may, by order, prohibit any cable operator
from transmitting or re‐transmitting any advertisement which is not inconformity with
the prescribed programme and advertisement code and it is likely to promote enmity
on grounds of religion, race, language, caste or community or any other grounds
likely to disturb public tranquillity.”

Court held that “Every registered, National and State, political party and every contesting
candidate proposing to issue advertisement on television channel and/or cable network will
have to apply to the Election Commission/Designated Officer [as designated by the Election
Commission] not later than three days prior to the date of the proposed commencement of the
telecast of such advertisement. In case of any other person or unregistered political parties,
they will have to apply not later than seven days prior to the date of the telecast.” Court
further held that “While disposing of such applications, it will be open to the Election
Commission/Designated Officer to direct deletion/modification of any part of the
advertisement.” "Authorised officer" shall be the officers prescribed under Section 2-A of the
Act and Section 28-A of the Representation of People Act, 1951.
 Moreover, Court held, “The Chief Electoral Officer of each State or Union Territory may
appoint a committee for entertaining complaints of any party or candidate or any other person
in regard to the decision to grant or to refuse certification of an advertisement. The committee
so appointed shall communicate its decision to the Election Commission. The committee so
constituted will function under the overall superintendence, direction and control of the
Election Commission of India. The decision given by the committee shall be binding and
complied with by the political parties, candidates or any other person applying for
advertisements. The comments and observations for deletion or modification, as the case may
be, made, shall be binding and complied with by the concerned political party or contesting
candidate or any other person within twenty four hours from the receipt of such
communication and the advertisement so modified will be re‐submitted for review and
certification.”

10. Secy, Min. Of Information& Broadcasting v. M/S Gemini Tv Pvt. Ltd. & Ors. SLP(C)No.
6679 OF 2004 Item 47

Court while dealing with the petition, passed the following order:-
a) No cable operator or T.V. Channel shall telecast any advertisement, which does not
conform to the law of the country and which offends the morality, decency and
susceptibility of views or which is shocking, disgusting and revoking;
b) The telecast shall be monitored by the Election Commissioner of India;
c) The modalities whether such advertisements are in conformity with law, shall be laid
down by the Election Commissioner of India.
11. State Election Commission vs. Respondent: State of Jharkhand and Ors [2008(2)
JCR100(Jhr)]

Petitioner in this case was Jharkhand State Election Commission, made a prayer for issuance
of appropriate writ for quashing the order issued under the direction of the State Government,
whereby demand of the Commission for deputing 35 officers of the rank of Joint Secretary as
observers has been turned down. A further prayer has been made for issuance of appropriate
direction upon the State Government to implement the Model Code of Conduct issued by the
State Election Commission.

Respondent State contended that the State is willing to provide all assistance/cooperation to
the petitioner Commission for conducting fair and peaceful election in the State of Jharkhand.
Further it is stated that since the election relates to municipalities including Nagar
Panchayats, Municipal Councils, and Municipal Corporations is a party-less election,
question of enforcement of Model Code of Conduct does not arise and there is no need of
independent observer.

The Court held that, it is necessary for all the State Governments to recognise the significance
of the State Election Commission, which is a constitutional body and it shall abide by the
directions of the Commission in the same manner in which it follows the directions of the
Election Commission of India during the elections for Parliament and the State Legislatures.

The Court partially allowed writ petition and upheld the submission of petitioner in which it
contested that similar request for deputing observers was made by the Commission when the
process of holding of panchayat election was going on and as many as 25 Officers were
deputed for discharging the duty of observer. This fact was not disputed by the respondents-
State. Therefore the Court allowed at least, depute 25 officers as observers for the purpose of
holding free and fair elections of municipalities and municipal corporations

As far as Model Code of Conduct was concerned, respondents-State raised serious objection
under Clauses 2, 3, 4 and 7 of the Model Code of Conduct. Clause 2 prohibits transfer and
posting of even those officers and employees who are not connected with election work
without its prior permission. Clause 3 of the Model Code of Conduct puts a ban on
appointment of officer and employees in all the Departments and the process of appointment
will have to await the declaration of election result. Clause 4 puts complete ban on tenders,
auction of liquor shops, hat, bazaar, mela animal fare, auction of forest produce and execution
of lease of new mines. Clause 7 of Model Code of Conduct prohibits distribution of artificial
limbs to any handicapped person by non-governmental organizations.

Held, restrictions and prohibitions were not warranted inasmuch as admittedly election of
municipalities was not being held on party basis and there was no involvement of political
parties. However, if these restrictions came into force, entire functioning of Government
would come to a standstill. Since, Respondents State had objection only to restriction and
prohibitions contained under Clauses 2, 3, 4 and 7 of the Model Code of Conduct, rest of the
provisions contained in Model Code of Conduct should be implemented by Commission.