EC’s decision on Narendra Modi has seeds of his likely disqualification

Narendra Modi’s emphatic return to power in Gujarat assembly elections led observers to interpret the various factors that led to his party’s victory. It was suggested that it was Moditva with its three ingredients of Hindutva, Gujarati asmita and development that led to such an overwhelming victory. All the post-election interpretations offered in the media, however, failed to explain how Moditva (with its USP being communal agenda) could succeed – or be allowed to succeed – in an election which is seemingly free and fair. Some observers have pointed out (I am tired of providing links, as there are too many of them) that communal agenda alone could not have given Modi this impressive scale of victory.

I would mostly agree with this analysis, and I also do not believe that Modi’s remarks on Sohrabuddin, or Sonia Gandhi’s ‘merchants of death’ speech tilted the scales suddenly during the campaign. Having said that, however, I feel proud of our R.P.Act, which has stringent provisions, to punish those who might have even attempted to communally polarize the electorate on the eve of an election, even if such an attempt did not ultimately succeed.

Therefore, from the viewpoint of our electoral law, the debate on whether Modi succeeded in communal polarization or not is not relevant. The relevant question is whether he attempted to do so, when he made that Sohrabuddin speech. That he referred to terrorism and not to Sohrabuddin as a Muslim is a ready explanation in his defence. However, having taken a different stand before the Supreme Court that he was not a terrorist, and that his killing was a fake encounter, Modi’s reference to Sohrabuddin must be considered as a plain and simple rabble rousing. Is this permissible under the law? What are the consequences?

The Election Commission found him guilty of violating the very first guideline in the Model Code of Conduct which says:
No party or candidate shall include any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic.

The Commission told Modi in its decision: “It can hardly be gainsaid that some of the impugned utterances in your speech under reference had the effect of aggravating the existing differences to create mutual hatred or cause tension between different castes and communities and amounted to an appeal to caste or communal feelings. The amount of controversy and national debate which those utterances created all over the country and which even attracted the attention of the Apex Court of the country bear ample testimony to the above fact of aggravating the existing differences between the main communities inhabiting the State of Gujarat. …The justification provided for the above referred utterances as reaction/counterblast to certain propaganda, as alleged by you, to have been carried out against you can also hardly be accepted….The Commission, after careful consideration of all aspects, has come to the conclusion that in the instant case, the Model Code of Conduct, has been violated.”

The E.C. perhaps thought (it did not say so explicitly) that Paragraph 16A of the Symbols Order, which empowers it to suspend or withdraw recognition of the parties for violation of the Code, is too drastic a punishment for Modi.

If the E.C.’s finding on Modi’s violation of Model Code is correct, Section 123 (3A) of RPA can be easily invoked against Modi, even though the filing of an election petition is the prerogative of a losing candidate or an aggrieved elector. The expression of “feelings of hatred” is common to both the Model Code of Conduct, and the RPA, even though the latter is more elaborate. (the promotion of , or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, etc.) Similar expression is also found in S.153-A of IPC. (Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. The word ‘hatred’ or ‘ill-will’ is found in S.153A (a).)

The objective of both S.123 (3A) of RPA and S.153-A of IPC is to curb any tendency to resort to divisive means to achieve success at the polls on the ground of religion, or narrow communal or linguistic affiliations. One could understand if E.C. pleads that it cannot invoke RPA against Modi, as it lacks competence. But S.153-A of IPC? In many previous instances of model code violation by other candidates, the E.C. felt free to seek registration of FIRs because the accused had prima facie committed offences under IPC sections also. In Modi’s case, the question why E.C. did not deem it necessary to do so, despite its clear finding, is indeed troubling.

In the Ramesh Yeshwant Prabhoo case,(1996 1 SCC 130)the Supreme Court not only upheld the validity of S.123(3A) holding it to be a reasonable restriction in the interest of `decency’ within the meaning of Article 19(2). It held in that case both Bal Thackeray and Ramesh Yeshwant Prabhoo (candidate) guilty under S.123(3A) of RPA. The E.C. later disqualified both Thackeray and Prabhoo from voting and contesting for six years.

The aggrieved voters or the losing candidates in Modi’s constituency, therefore, have an opportunity given on a platter by the E.C. through its finding on the Code violation, to challenge his election, and seek his disqualification later by the E.C.if the Courts found Modi guilty of corrupt practice. As the E.C. is the competent body to disqualify following the Court verdict,(its recommendations are binding on the President who disqualifies) its findings on code violation carry weight, and should not be dismissed as routine decisions.

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  • Dear VV,

    Good post. As you point out, the analysis holds true only if the EC’s finding is correct. Noorani, in his op-ed in HT last week, while arguing that it is not, inter alia notes a relevant point, namely, that section 123 of RPA is precisely worded whereas the model code of conduct is not: in particular, section 123 states that enemity cannot be promoted on specific grounds of religion, caste, etc. whereas the model code is vague and can include virtually anything that the commission feels will aggravate differences/ cause hatred/tension. Thus, even a statement judged to be violative of the model code may not necessarily fall foul of the RPA. Section 153A, IPC has language very similar to section 123, RPA – the same should therefore be true of the former as well. The EC’s announcement of its decision is a bald assertion of its conclusions bereft of a substantive explanation of its reasoning, so it is impossible to know what if any legal standard was applied to arrive at the same.

    I will post a reply to the interesting questions you raised in the last post hopefully later in the week.

  • Dear Dilip, You have attributed to AGN this: section 123 states that enmity cannot be promoted on specific grounds of religion, caste, etc. May be I am missing something, or perhaps it was an error. I could not find such an inference in AGN’s piece. Nor does the plain reading of S.123 (3A)suggest it.

    I agree not all code violations may fall foul of RPA and that the language of the Code is too broad etc. However, in the specific case of Modi’s Sohrabuddin’s speech, the EC has arrived at a finding (not just conclusion baldly asserted – the relevant paragraph cited in the post makes that very clear. The EC even referred to the relevant Supreme Court judgments to justify its stand, which provides the legal standard.

    Despite the different wordings used in Code, RPA, and IPC, the substance of these provisions is by and large the same,(as far as the Modi’s speech is concerned) and the EC’s finding in Code violation can be the basis to test Modi’s offence under RPA and IPC.

    AGN, to my understanding, does not suggest that EC’s decision on Modi’s speech is wrong. He does not deal with it in detail. He only finds the EC’s decision on Sonia Gandhi as unacceptable.

    I consider the EC’s decision on Modi as correct, even though it could have threatened the BJP with Para 16A of S.O.

    There is still scope to exercise power under this Paragraph as both the BJP and Modi have ridiculed the EC’s decision, thus showing contempt to its advice to Modi to be cautious in future. Wilful defiance of EC’s directives, apart from Code violation, is another ground for invoking Para 16A.

    I agree with AGN that EC’s decision on Sonia Gandhi is flawed. Her ‘merchants of death’ remark cannot by any stretch of imagination be described as a criticism of Modi’s private life, not connected with his public activities – the essence of guideline I (2) of the Code.

    Even if the EC’s decision on Sonia Gandhi is correct, it cannot readily attract the ingredients of offence described in S.123 (4) of RPA. This provision permits criticism of personal character or conduct of any candidate, provided the critic believes it to be true.

  • Dear VV,

    You are correct to point out that AGN did not state a specific difference between section 123 and the Model code – the inference regarding specific grounds was mine. It is true that AGN did not deal with Modi’s case in detail but he says in the very first paragraph both rulings are ‘devoid of legality and common sense’ and ‘on the law, the two cases are alike‘.

    You point out that the substance of section 123 of the RPA and the Model Code is the same. They are similar in many respects but the answer regarding the breadth depends on the standard applied and how the meaning is construed in either case. The EC, as you mention, did quote from SC judgments but they address the question of constitutionality of the law and perhaps its desirability and also refute one of Modi’s contentions that his speech was a reaction to opposition propaganda. The central question here is neither of those – rather, it is the basis upon which the permissibility or otherwise of his statements is judged under the RPA (as it stands). On this vital question, the EC’s order is silent. To just cite an example of what I mean, the Minnesota Supreme Court interpreted the phrase ‘arouse anger, alarm or resentment in others’ in a crime statute to be limited to fighting words, i.e. personally abusive epithets which, when addressed to the ordinary citizen, are likely to provoke violent reaction or incite an immediate breach of peace. Where an allegation of aggravating communal differences is made, one can easily come up with several requirements: the words used ought to be insulting or abusive; such language should be with reference to a religion or community mentioned by name, unique characteristics, or universally recognized symbols, deities or prophets; the verbal or physical actions of the audience ought to indicate a threat of violence and so on. I am not saying that the EC ought to adopt these very particulars. My point is simply that the EC ought to have either stated from some SC ruling or come up on its own with some grounds against which the lawfulness or otherwise of the statement could be measured. Nothing of the sort is to be found in the ruling.

    There was also the factual dispute with conflicting versions reported in the media about what he actually said. Which version did the EC finally accept and on what grounds? No specifics have been forthcoming.

    here are other issues as well. The Commission, in its notice to Sonia Gandhi, did not specify which particular provision she was alleged to have violated. But in its ruling, it chose to address the question primarily as one relating to private conduct (guideline 1(2)) rather than religion (1(1), 1(3)). Why so? I am not sure. I understand that 1(2) was not in issue in Modi’s case but if one looks at Sonia Gandhi’s case in terms of the provisions of the MCC related to religion, is there a difference? How is her reference to the pogrom any different from his reference to terrorism?

    In the face of such fundamental defects, one can very well argue that its conclusions are arbitrary and capricious, devoid of any foundation in law. The EC has only itself to blame if its order provokes ridicule. The BJP, despite its reaction, has not actually done anything that may be construed as defiance.