There are limits (read self-imposed) to what the Election Commission can do with regard to its powers to stop an ongoing corrupt behaviour of candidates to secure votes. Currently, the E.C. is examining the reply sent by the Gujarat chief minister, Narendra Modi to its notice sent on December 6 seeking his explanation on his alleged violation of Model Code of Conduct. Specifically, the E.C. pointed to his speech at Mangrol on December 4, and the complaint that it amounted to open exhortation to violence and misuse of religion for political ends, and so violative of the MCC. The EC also recorded its prima facie view that references to the late Sahrabuddin (who was killed in a fake encounter in Gujarat, and which incident is being probed under the direction of the Supreme Court), and linking his name to terrorism, made in the speech, amounts to indulging in activity which may aggravate existing differences , creating mutual hatred, and causing tension between different communities, and would involve violation of clauses (1) and (3) of Item I of the MCC.

In his reply to the E.C. Modi has admitted that he said the following:

Modi: You tell what should be done to Sohrabuddin?
People at the rally: Kill him, Kill him.

Modi denies he said the following, which has been attributed to him in the media reports, and which is not there in the video-recording of his speech, sent to the E.C.

Modi: Well, that is what I did. And I did what was necessary.

Modi’s other defences are as follows:

*That he is entitled to his right of free speech and reply to political opponents.

*His political opponents used expressions such as “merchants of death” and “Hindu Terrorism”, and despite complaints by the Gujarat unit of the BJP, the E.C. has not so far taken any action.

*E.C.’s obligation to conduct free and fair election will not extend to preventing him from expressing his strong views against terrorism.
* That he has made a reference to the Sohrabuddin’s case and mentioned the allegations against him, and that he accused the Congress of suggesting that he had engineered a fake encounter. He did not justify the specific encounter of Sohrabuddin’s case. He did not explicitly refer to the religion of any person.

Q.1: Is Modi’s reply acceptable?

If one accepts Modi’s reply on the face of it, this is what he should have said at the meeting:

Modi: The Congress accuses me of engineering a fake encounter in the Sohrabuddin’s case. Do you believe in it? (To which the crowd could have responded saying No). Had he said this, then there would not have been any problem and the E.C. would have no option but to accept his defence.

Modi’s very question to his audience – and the response it elicited from the audience – and the fact that he did not correct the audience’ response immediately – suggests that he believed Sohrabuddin was a terrorist and that killing was a natural response to such terrorists. What Modi denies having said, is something which can be easily inferred, even without his saying it.
While considering speeches, it is not what the exact words used by a speaker which must be considered, but their total effect on the audience.

Q.2. Did Modi violate Model Code of Conduct?

A: I would tend to agree with Modi that he did not intend to refer to Sohrabuddin’s religion, and therefore, did not violate MCC.

Q.3 But did he contradict his Government stand in the Supreme Court on the Sohrabuddin matter?

A: One would certainly think so. But it does not involve violation of the MCC, and therefore, no corrupt practice. The interview given by Mr.K.T.S.Tulsi to Tehelka makes it clear, he was not taken into confidence by Modi on this.

Q 4: Now, what are the E.C.’s options?A: Send notices to Sonia Gandhi and Digvijay Singh on the basis of the BJP’s complaint: This is the safe option, as it would help to cool the political temperature. Digvijay Singh has denied that she used the remark “merchants of death”, to accuse Modi personally, and therefore, there is no violation of MCC. He may well be correct. But E.C.’s linking these two notices, makes no sense. The E.C. must take an independent decision on Modi’s reply. The linkage is not explicit, but obvious. The notices are here.

B. Hold Modi guilty of violation of MCC. Possible, on the basis of its prima facie opinion. However, as Modi has said he reserves his right to give a detailed specific reply to the notice later, no immediate punitive action is possible by the E.C. even if it is dissatisfied with his preliminary response.

C. Reprimand both Modi and Sonia and close the matter: Very likely, as the E.C. had never taken any punitive measures against those held guilty of violating MCC.

Q. 5: Does it mean, if Modi or Sonia are indeed guilty of corrupt practices under the R.P.Act and the IPC, no remedy is available?

A: R.P.Act helps an aggrieved person to approach the court after the election is over, and the damage is done. IPC can help to register cases even during the elections, but unlikely unless the EC forms an opinion, and wants an investigation to further proceed in the matter. The particular example being cited by the complainant, the speech in which Modi is alleged to have appealed to communal feelings or that his speech might have aggravated in mutual hatred or tension between different communities may well be an offence under the RPA, but this seems to be a stretch , as his focus appeared to be on terrorism, and he did not make an allusion to Sohrabuddin’s religion.

Q.6: Could Modi’s speech be construed as open exhortation to mob violence and vigilante justice?

A: One can’t rule it out, because he did not care to correct the audience’s response to his question. The other view that both Modi’s question and audience response must be understood in the context of the campaign, and therefore, nothing much must be read into it also appears to be sensible.