The foundation of the Indian republic is based on democracy, which demands transparency, accountability and credibility from all the constitutional authorities in discharge of their functions. They must function within defined parameters.
The Election Commission (EC) of India is a constitutional authority under Article 324 and is the agency that the country trusts to hold free and fair elections according to the Constitution and the laws concerned. The law includes the Representation of the People Act, 1951; the Conduct of Elections Rules, 1961; and the Election Symbols (Allotment and Reservation) Order, 1968. There is also the ‘model code of conduct for the guidance of political parties and candidates’. This is formulated with the agreement of political parties to ensure a level-playing field in elections. It is not a law.
In holding polls, there are two stages. The first is the release of a press note containing the “recommendations of the Election Commission to the President under Section 14 of the Representation of the People Act, 1951 to issue one or more official notification accepting the recommendation of the Election Commission, and publish the same in the Official Gazette of India”. The Supreme Court specifically stated: “The word election denotes the entire procedure for returning candidates to the legislature from the stage of nomination till results are declared” (Ponnuswamy vs Returning Officer, Namakkal constituency).
Since the President and the Governor usually recommend the dates and the phases of the election schedule for the Lok Sabha and state Assembly, respectively, the EC imposes the model code that continues even after notification and runs till the date of the completion of polls.
Any person becomes a candidate only after polls being notified by the President, which itself takes place after the candidate files his or her nomination before the returning officer concerned. Till then, the person is only a citizen, never mind if he or she is a member of any political party registered with the EC under Section 29A of the Representative of People Act, 1951. The model code applies to political parties from the day the press release is made by the EC. It applies to the candidates only after the date of notification by the President and after a nomination is filed by the person.
If anyone makes a ‘hate speech’ — as Varun Gandhi did — before the presidential notification, the law of the land, namely Section 153-A of the Indian Penal Code, 1860, governs. Nobody else, either before the elections or after elections, has jurisdiction over that person. Equality of law and equal protection of law is guaranteed in Article 14 of the Constitution. Only the police have jurisdiction under this; no one else.
A case against Varun Gandhi for delivering a ‘hate speech’ could have been registered by the election authorities under Section 125 of the Representation of the People Act, 1951, only after the presidential notification of election schedules was issued on March 23; not earlier. Any direction to the district authorities to register a case against any person under Section 125 of the Representation of the People Act before the presidential notification is without jurisdiction and, therefore, void.
The EC’s jurisdiction to act under laws to ensure a free and fair election starts from the date of presidential notification and ends with the date of completion. If any citizen — even if he is a future candidate — violates the law before the date of presidential notification in the Official Gazette, the general law of the land governs. If he contests as a candidate, only an election petition in the High Court after the election can be entertained. The EC has no jurisdiction to entertain any petition against the election results.
People who make hate speeches, irrespective of the community they belong to, must be convicted with maximum punishment under the law as they indulge in attempting to destroy the unity and harmony of our country. But the EC ‘advising’ a political party not to give a ticket to someone guilty of delivering a hate speech is without jurisdiction.
G.V.G. Krishnamurthy is a former Election Commissioner of India. He was also Secretary, Union Ministry of Law, and Member Secretary, Central Law Commission.