In law, the addition or deletion a single punctuation or a single word can have a major impact on the effect of that law.  One such example can be seen from the recommended changes in the Civil Liability for Nuclear Damage Bill, 2010 by Parliament’s Standing Committee. The Civil Liability for Nuclear Damage Bill, 2010 was introduced in the Lok Sabha on May 7, 2010.  The Bill was referred to the Parliamentary Committee on Science and Technology, Environment and Forests, which submitted its report on the Bill yesterday (August 18, 2010).  The Committee has made a number of recommendations regarding certain clauses in the Bill (See summary here).  One of these may have the effect of diluting the provision currently in the Bill.  The main recommendations pertain to:

  • Preventing the entry of private operators.
  • Allowing the government to increase the total liability for a nuclear incident by notification, but not decrease it.
  • Increasing the liability of the operator to Rs 1,500 crore from Rs 500 crore.
  • Increasing the time limit for claiming compensation to 20 years from 10 years.
  • Changing the provision giving operators a right of recourse against persons actually responsible for causing damage.

Clause 17 of the Bill which gives operators a right of recourse against those actually causing damage had been opposed as it was felt that it was not strong enough to hold suppliers liable in case the damage was caused by them.  Clause 17 gave a right of recourse under three conditions.  The exact clause is reproduced below: The operator of a nuclear installation shall have a right of recourse where — (a) such right is expressly provided for in a contract in writing; (b) the nuclear incident has resulted from the wilful act or gross negligence on the part of the supplier of the material, equipment or services, or of his employee; (c) the nuclear incident has resulted from the act of commission or omission of a person done with the intent to cause nuclear damage. Under this clause, a right of recourse exists when (a) there is a contract giving such a right, or (b) the supplier acts deliberately or in a grossly negligent manner to cause nuclear damage, or (c) a person causes nuclear damage with the intent to do so.  If any of the three cases can be proved by the operator, he has a right of recourse. The Committee has stated that “Clause 17(b) gives escape route to the suppliers of nuclear materials, equipments, services of his employees as their willful act or gross negligence would be difficult to establish in a civil nuclear compensation case.” It recommended that Clause 17(b) should be modified to cover consequences “of latent or patent defect, supply of sub-standard material, defective equipment or services or from the gross negligence on the part of the supplier of the material, equipment or service.” The Committee also recommended another change in Clause 17.  It recommended that clause 17(a) may end with “and”. This provision may dilute the right of recourse available to operators.  The modified clause 17 would read as: The operator of a nuclear installation shall have a right of recourse where — (a) such right is expressly provided for in a contract in writing; and, (b) the nuclear incident has resulted as a consequence of latent or patent defect, supply of sub-standard material, defective equipment or services or from the gross negligence on the part of the supplier of the material, equipment or services.; (c) the nuclear incident has resulted from the act of commission or omission of a person done with the intent to cause nuclear damage. This implies that for Clauses 17(b) or (c) to be applicable, the condition specified in clause 17(a) has to be compulsorily satisfied.  Two examples highlight the consequence of the recommended change in Clause 17(a) of the Bill:

  1. A person X deliberately commits sabotage in a nuclear plant and causes damage.  Under the Bill, the operator has recourse under Clause 17(c).  If the recommendation regarding clause 17 is accepted, the operator may also have to also prove the existence of a pre-existing contract with X in addition to clause 17(c).
  2. If a supplier supplies defective equipment, but does not have a contract in writing stating that he will be liable for damage caused by defective equipment, the operator may not have a right of recourse against the supplier under 17(b).

The effect of the changes recommended by the committee may thus dilute the provision as it exists in the Bill.  The table below compares the position in the Bill and the position as per the Standing Committee’s recommendations:

Right of recourse - The Bill gives operators a right to recourse under three conditions:  (a) if there is a clear contract; (b) if the damage is caused by someone with intent to cause damage; (c) against suppliers if damage is caused by their wilful act or negligence. In the Bill the three conditions are separated by a semi-colon.  The Committee recommended that the semi-colon in clause 17(a) should be replaced by “and”. This might imply that all three conditions mentioned need to exist for an operator to have recourse.
Right to recourse against suppliers exists in cases of “willful act or gross negligence on the part of the supplier”. (Clause 17) The Committee felt that the right of recourse against suppliers is vague.  It recommended that recourse against the supplier should be strengthened.  The supplier is liable if an incident has occurred due to (i) defects, or (ii) sub-standard material, or (iii) gross negligence of the supplier of the material, equipment or services. The variance with the Convention continues to exist.

Yesterday, the Election Commission announced the dates for the 2019 Lok Sabha elections.  The voting will take place in seven phases between April 11, 2019 to May 19, 2019.  With this announcement, the Model Code of Conduct (MCC) has comes into force.  In this blog, we outline the key features of the MCC. 

What is the Model Code of Conduct and who does it apply to?

The MCC is a set of guidelines issued by the Election Commission to regulate political parties and candidates prior to elections, to ensure free and fair elections. This is in keeping with Article 324 of the Constitution, which gives the Election Commission the power to supervise elections to the Parliament and state legislatures. The MCC is operational from the date that the election schedule is announced till the date that results are announced.  Thus, for the general elections this year, the MCC came into force on March 10, 2019, when the election schedule was announced, and will operate till May 23, 2019, when the final results will be announced. 

How has the Model Code of Conduct evolved over time? 

According to a Press Information Bureau release, a form of the MCC was first introduced in the state assembly elections in Kerala in 1960.  It was a set of instructions to political parties regarding election meetings, speeches, slogans, etc. In the 1962 general elections to the Lok Sabha, the MCC was circulated to recognised parties, and state governments sought feedback from the parties.  The MCC was largely followed by all parties in the 1962 elections and continued to be followed in subsequent general elections.  In 1979, the Election Commission added a section to regulate the ‘party in power’ and prevent it from gaining an unfair advantage at the time of elections.  In 2013, the Supreme Court directed the Election Commission to include guidelines regarding election manifestos, which it had included in the MCC for the 2014 general elections. 

What are the key provisions of the Model Code of Conduct?

The MCC contains eight provisions dealing with general conduct, meetings, processions, polling day, polling booths, observers, party in power, and election manifestos.  Major provisions of the MCC are outlined below.

  • General Conduct:  Criticism of political parties must be limited to their policies and programmes, past record and work.  Activities such as: (a) using caste and communal feelings to secure votes, (b) criticising candidates on the basis of unverified reports, (c) bribing or intimidation of voters, and (d) organising demonstrations or picketing outside houses of persons to protest against their opinions, are prohibited.
  • Meetings:  Parties must inform the local police authorities of the venue and time of any meeting in time to enable the police to make adequate security arrangements.
  • Processions:  If two or more candidates plan processions along the same route, organisers must establish contact in advance to ensure that the processions do not clash.  Carrying and burning effigies representing members of other political parties is not allowed.
  • Polling day:  All authorised party workers at polling booths should be given identity badges.  These should not contain the party name, symbol or name of the candidate.
  • Polling booths:  Only voters, and those with a valid pass from the Election Commission, will be allowed to enter polling booths.
  • Observers:  The Election Commission will appoint observers to whom any candidates may report problems regarding the conduct of the election.
  • Party in power:  The MCC incorporated certain restrictions in 1979, regulating the conduct of the party in power.  Ministers must not combine official visits with election work or use official machinery for the same.  The party must avoid advertising at the cost of the public exchequer or using official mass media for publicity on achievements to improve chances of victory in the elections.  Ministers and other authorities must not announce any financial grants, or promise any construction of roads, provision of drinking water, etc.   Other parties must be allowed to use public spaces and rest houses and these must not be monopolised by the party in power.
  • Election manifestos:  Added in 2013, these guidelines prohibit parties from making promises that exert an undue influence on voters, and suggest that manifestos also indicate the means to achieve promises.

What changes have been recommended in relation to the MCC since the last general elections?

In 2015, the Law Commission in its report on Electoral Reforms, noted that the MCC prohibits the issue of advertisement at the cost of public exchequer in newspapers/media during the election period.  However, it observed that since the MCC comes into operation only from the date on which the Commission announces elections, the government can release advertisements prior to the announcement of elections.  It noted that this gives an advantage to the ruling party to issue government sponsored advertisements that highlights its achievements, which gives it an undue advantage over other parties and candidates.  Therefore, the Commission recommended that a restriction should be imposed on government-sponsored advertisements for up to six months prior to the date of expiry of the House/Assembly.  However, it stated that an exception may be carved out for advertisements highlighting the government's poverty alleviation programmes or any health related schemes.

Is the Model Code of Conduct legally binding? 

The MCC is not enforceable by law.  However, certain provisions of the MCC may be enforced through invoking corresponding provisions in other statutes such as the Indian Penal Code, 1860, Code of Criminal Procedure, 1973, and Representation of the People Act, 1951. The Election Commission has argued against making the MCC legally binding; stating that elections must be completed within a relatively short time (close to 45 days),  and judicial proceedings typically take longer, therefore it is not feasible to make it enforceable by law. On the other hand, in 2013, the Standing Committee on Personnel, Public Grievances, Law and Justice, recommended making the MCC legally binding.  In a report on electoral reforms, the Standing Committee observed that most provisions of the MCC are already enforceable through corresponding provisions in other statutes, mentioned above.  It recommended that the MCC be made a part of the Representation of the People Act, 1951.

Note that this is an updated version of a previous blog published in 201