The E.C. has to prove that it can bite

Shanti Bhushan: If the BJP doesnt heed the E.C.s advice, its registration is at peril.-PTI

THE Election Commission is in the midst of a controversy over the nature of its March 22 order censuring Varun Gandhi for his hate speeches in Pilibhit, and for advising the BJP or any other party to refrain from nominating Varun Gandhi as a candidate in the elections. Has the Commission overreached itself or stopped short of exercising its vast powers in order to ensure free and fair elections?

Shanti Bhushan, former Law Minister and a senior advocate in the Supreme Court, dispels several misgivings about the E.C.s power to act against hate speeches. Excerpts from an interview he gave Frontline.

The Chief Election Commissioner N. Gopalaswami has said that the E.C.s March 22 Order is an advisory and that it is up to the respondents (Varun Gandhi and the BJP) to take it or leave it. Would you agree with him?

They gave an advice. They could have given a binding order. On that, he is accurate. It depends on the wordings.

It is clear from the last paragraph of the Order (Paragraph 18) that if the BJP sponsors Varun Gandhis candidature, it would be perceived by the Election Commission as endorsing his unpardonable acts. After this, the party has made it clear that it stands by his candidature. The E.C. is now called upon to take appropriate action in accordance with what they have expressed in the last portion of that order.

In my opinion, if the BJP defies this view of the E.C., the proper action expected of the E.C. would be to issue a formal notice to the BJP as to why its registration as a political party should not be cancelled, and give them sufficient time, say a week or so, to file a reply.

The E.C. should quote from the last paragrah of its order, saying that the BJP was expected not to sponsor Varun Gandhis candidature; otherwise, it would be perceived as endorsing his unpardonable acts. The E.C. should proceed to exercise its powers, in accordance with its own findings. If the BJP persists in its act, the E.C. should cancel its registration. Once the registration is cancelled, the common symbol which is allotted to it as a registered party, would stand withdrawn.

Though it is an advice, on mature consideration, and in view of what the E.C. has said subsequently, it does appear that it is a binding order, the defiance of which will make the E.C. take further action. Registration is a serious matter. By referring to it in its order, the E.C. has left no doubt that it would take the defiance of its order very seriously. It shows that the E.C. will be compelled to cancel the partys registration if it does not heed its advice.

Sometimes, it is said barking dogs dont bite. The Election Commission has to prove that it can bite. The implication is clear: if they dont heed this [advice], then their registration is at peril. Then they should proceed further and have it cancelled.

But can the E.C. withdraw the symbol allotted to a political party so easily?

Symbols Order 1968 says any political party can be allotted a common symbol. So it has to be a political party before it is allotted a common reserved symbol. Section 29A of the RPA [Representation of the People Act] is mandatory. Every political party has to be registered with the E.C. by complying with the requirements. Every political party which wants to function as a political party under the Conduct of Elections Rules is required to have itself registered.

Only those political parties can be registered which subscribe to the principle of secularism. If a political party shows by its conduct that it is not subscribing to the principle of secularism, it forfeits its registration, and its registration can be cancelled. Once its registration is cancelled, which is mandatory for the election purposes, it ceases to be a political party that is entitled to any benefits as a political party.

The grant of a reserved symbol is only a provision, a benefit for a political party which complies with the requirements of law. The candidates set up by that party will have to be regarded as independent candidates, and therefore, will be entitled to be allotted different symbols. This will be a big blow. This is the real sanction. The object of Sub-section 5 of Section 29A of the RPA, is this, namely, to take away the benefit of a common symbol and to fight an election as a recognised political party if a political party did not subscribe to these objectives of the Constitution, namely, secularism and democracy.

Under the General Clauses Act, if a power is given to pass an order, it includes a power to cancel the order in the absence of an express power to cancel it. Therefore, under Section 29A of the RPA, the E.C. can register a political party as well as cancel its registration.

Can the Commission take this extraordinary step in the midst of an election?

It can. Whether it would do so or not is a different thing. Because the E.C. has all the powers to conduct a proper election. In fact, the exercise of these powers is more important during the election. If, during the election, somebody is violating the model code, obviously it is called upon to take appropriate action, so that a proper election can be held.

The most important duty of the E.C. is to conduct an election, which the Constitution requires to be conducted, so that a government which is wedded to the constitutional principles can take charge and run the country. Therefore, if the E.C. finds that a particular individual or a particular political party is not subscribing to these things, in the perception of the Election Commission, it becomes its duty to prevent that political party from contesting elections as a political party.

The only way to do that is to cancel its registration. Once its reserved symbol goes, it will end up with a few seats. People who subscribe to a political party give votes on the basis of its symbol. So, unless the symbol is there, they wont get any seats.

This three-member Commission has been entrusted with vast powers. They must honestly exercise those powers. They must act, whatever is required on the basis of their conclusion, without any fear. The country will applaud them.

The E.C.s critics say that Varun Gandhi made the speeches before he filed his nomination as a candidate, and that the RPA applies only after nomination.

No, it is not the question of the RPA. It is the question of Article 324 of the Constitution. When the Constitution was enacted, there was no Conduct of Election Rules. Supposing if Parliament failed to enact RPA in 1951, then no election could be held. The duty to hold an election devolved on the E.C. the day Article 324 came into force. For the detailed provisions as to how different situations should be handled, Parliament has made a law. But this is not the situation which is contemplated by the Act.

The E.C.s powers under Article 324 are different. These are preventive powers. Supposing a political party distributes AK-47s to 1,000 members and tells them to go around the country and terrorise the voters, will the E.C. wait for the cases to be instituted etc. or step in to prevent the situation, so that elections are not held in those circumstances? This [Varuns hate speech] is something more harmful than that. You cant divide the country, create a situation of riots, and then hold an election.

The BJP says that the E.C. is not competent to verify the authenticity of the CD carrying Varuns speeches. The party appears to believe Varun Gandhis version that the voice in the CD is someone elses.

The lip movements and the voice of the speaker can easily be matched, to ascertain whether the CD is authentic. If somebody dubs it, it wont be accurate. It doesnt require a special test. Any person can do it. No synchronisation can be done in such a manner that a person [the speaker] can be fooled.

There is no such law that it is not open to the Commission to reach a finding by listening to the tape. Even a court cannot record a finding beyond total doubt. So, you have to be reasonably satisfied. The world functions on reasonable satisfaction, not on the basis of scientific truth.

Can the E.C. refuse to accept Varun Gandhis nomination?

Since there are specific provisions in the Act regarding nominations and rejection of nominations, it can be said that the E.C. is bound and cannot go beyond the Act. But there is no need to reject the nomination. The proper thing would be to direct him not to make any hate speeches, and if he refuses to abide by it, the E.C. will be fully entitled to prevent him from making the speeches, by directing the State government to detain him till the elections are over.

This is an area where the E.C. can devise any method for achieving the objective of Article 324. The E.C. has inherent powers under Article 324 even in the absence of Model Code of Conduct to maintain a conducive atmosphere for holding free and fair elections. Once this power is there, any procedure to have it enforced is also part of that power.