THE Election Commissions unanimous order on March 22 censuring Varun Gandhi, the Bharatiya Janata Partys candidate for the Pilibhit Lok Sabha constituency, for violating the Model Code of Conduct (MCC) was an unprecedented intervention of the Commission to ensure free and fair elections. This is the first time in Indias electoral history that the E.C. has censured a candidate for communalising his campaign, even before the period of campaign officially started. This is also the first time that the E.C. has appealed to political parties not to sponsor the candidature of a person on the grounds of his violation of the MCC.
Varun Gandhis speeches delivered in the course of his unofficial election campaign in Pilibhit district, Uttar Pradesh, on March 7 and 8, posed a serious challenge to the E.C., as the BJP had not declared him the partys candidate then. The party made the declaration on March 14. As the MCC is meant to be a guide for political parties and candidates, the E.C.s examination of Varun Gandhis speeches as carried in a CD led to questions about the Commissions jurisdiction.
The E.C. proceeded on the assumption that the issue fell within its jurisdiction as the MCC had legally come into force with the announcement of the election schedule on March 2. Although Varun Gandhi was not yet a candidate when he made the hate speeches, it is apparent that the E.C. considered him a member of the BJP and, therefore, he was bound to follow the MCC.
The term political party is wide enough to include within its ambit leaders, members and workers of the party, some of whom may be aspiring for the partys ticket. Thus, by issuing notices separately to Varun Gandhi, BJP President Rajnath Singh, and the partys Uttar Pradesh president Rampati Ram Tripathi, the E.C. implicitly rejected the BJPs reply in which the party sought to distance itself from Varun Gandhis speech, even while declaring him as its candidate. The E.C. rightly assumed that the MCC is applicable to parties and candidates even before election campaign formally begins.
The E.C.s order strengthened the view that the MCC is enforceable, despite the absence of statutory backing for it. It vindicates the E.C.s current view that bringing the MCC on to the statute book would be a self-defeating exercise because any violation of the code must have a quick reaction and remedy. This may not be possible if the MCC has statutory backing, which makes it possible for the affected side to seek judicial remedy.
Thus, the EC made a fine distinction between the criminal cases registered against Varun Gandhi on its initiative, under the Indian Penal Code and the Representation of the People Act (RPA), 1951, and its suo motu cognisance of his violations of the MCC. Two criminal cases were registered against Varun Gandhi under Sections 153A, 295A and 505(2) of the IPC and Section 125 of the RPA, in the police stations in Pilibhit. The Commission directed the State government to investigate the matter expeditiously with utmost alacrity. It promised to keep a close watch on the progress of the investigation and take all legally permissible steps for the expeditious trial of the matter until it reaches its logical conclusion.
The E.C. admitted that it was conscious of its limitations under the law, as it stands at present, that it cannot disqualify Varun Gandhi and debar him from contesting elections unless he was convicted or held guilty by a competent court of law in an appropriate legal proceeding. Therefore, the E.C. confined itself to strongly condemning and censuring him.
While the E.C. has to await the courts verdict in the cases registered against him, it can independently examine evidence and come to a swift conclusion whether he violated the MCC. The MCC is a unique document to which all the political parties subscribe voluntarily. The MCC has been evolving since the late 1960s, and its present form was finalised in 1991.
The Commission considered Varun Gandhis speeches, read in their entirety, a grave violation of Clauses (1) and (3) of Item 1 (General Conduct) of the MCC. Clause 1 says: No party or candidate shall indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic. Clause 3 says: There shall be no appeal to caste or communal feelings for securing votes. Mosques, churches, temples or other places of worship shall not be used as forum for election propaganda.
The Commission also concluded that Varun Gandhis speeches amounted to promoting feelings of enmity and hatred between different classes on the grounds of religion, outraging the religious feelings of a particular community, and promoting hatred and ill-will between two classes of citizens and provoking a section of the citizens to indulge in violence.
The thrust of Varun Gandhis defence was that the CD in question was morphed and doctored so as to politically malign him. Unconvinced, the Commission pointed out that he had not denied that he held the meetings, and made speeches there as recorded in the CD. The copy of the CD was duly furnished to him and the onus was on him to prove that it was not genuine. He did not even indicate which portion of the CD was morphed or interpolated.
The Commission found his speech highly dangerous, threatening the very survival of democracy and communal harmony basic tenets enshrined in the Constitution. Therefore, the E.C. concluded that he, as a candidate, could not subscribe to an oath that he would bear true faith and allegiance to the Constitution and that he would uphold the sovereignty and integrity of India.
It is the second part of the E.C.s order that proved to be contentious. In Paragraph 18, the E.C. recounted the BJPs reply that it stood by the MCC in its entirety and that the party was independently looking into the matter. The Commission also recorded the partys view that it had already disapproved and disassociated itself from the contents (of the speeches) even before the E.C. notice.
The Commission then said: In view of the above stand of the party, the Commission expects that the least that the party must do is to deny the party nomination to Shri Feroze Varun Gandhi as its candidate in the present general election to the Lok Sabha. This will be fully in keeping with the assertion of the party that it completely disagrees, disassociates, and disapproves the views of Shri Feroze Varun Gandhi and that the party stands by the MCC in its entirety.
While the above part suggests that the E.C.s order may well be interpreted as advisory, the E.C.s comment in the same paragraph carries the import of a binding order. The E.C. said: Any sponsorship of his candidature by the BJP or any other political party at this election would be perceived as endorsing his unpardonable acts of inciting violence and creating feelings of enmity and hatred between different classes of citizens of India, destroying the social, democratic and plural fabric of the country, as enshrined in the Constitution of India which all the political parties have undertaken to uphold, at the time of their registration with the E.C. under Section 29A of the RPA, 1951.
Under Section 29A (5) of the RPA, inserted in 1989, parties seeking registration with the E.C. should specifically state in their memorandum of rules and regulations that they shall bear true faith and allegiance to the Constitution as also to the principles of socialism, secularism and democracy, and that they would uphold the sovereignty, unity and integrity of India.
Will the Commission be a silent spectator if the consequences outlined in the last paragraph of its order become a reality? To a question emailed to him on his reported remark that he considered the March 22 order as a mere advisory, and that it was up to the respondents to take it or leave it, the Chief Election Commissioner, N. Gopalaswami said:
It can only be an advisory because he [Varun Gandhi] being not a convicted person, under the law as existing, namely the RP Act, which does not specify a disqualification on a persons candidature if he is not convicted, he is not barred from filing his nomination and becoming a candidate; so E.C. cannot, by taking recourse to the symbols order, issue a binding order that is contrary to law as it exists.
Later, the CEC explained over phone to Frontline that the March 22 order (especially Paragraph 18 of the order) must be construed as an appeal to ethical and moral sentiments of the parties. It must be understood in the context of the E.C.s earlier explanation that it could not debar Varun Gandhi because of clear provisions with regard to acceptance and rejection of nominations.
However, as Shanti Bhushans article in The Hindu (March 28) makes it clear, the powers and obligations of the Election Commission to ensure a proper election which is free and fair, and to maintain a proper atmosphere conducive to such an election, are derived from Article 324.
The Supreme Courts judgment in Mohinder Singh Gill vs The Chief Election Commissioner [AIR 1978 S.C. 851.] is especially relevant to address the E.C.s current dilemma. The court observed in that case: An express statutory grant of power or the imposition of a definite duty carries with it by implication, in the absence of a limitation, authority to employ all the means that are usually employed and that are necessary to the exercise of the power or the performance of the duty.
The E.C.s March 22 order is silent on how the existing laws limit its power to issue a binding directive to the BJP to refrain from nominating Varun Gandhi. In reality, there is no such limitation.
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