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Errors of Commission

The EC’s pretensions to power and authority must be laid to rest before the next elections to the Lok Sabha, writes AG Noorani.

india Updated: Jan 01, 2008 22:14 IST
A.G. Noorani
A.G. Noorani

The Election Commission’s rulings on December 22 regarding the Congress President Sonia Gandhi and Gujarat’s CM Narendra Modi, are devoid of legality and good sense. They are based on its showcause notices which were an arrogant intrusion into the political sphere and the electoral process. On the law the two cases are alike. But the fundamental right to freedom of speech of Sonia Gandhi and all who agreed with her were violated during the election campaigns by the notice.

They were bases on the Model Code of Conduct which the Chief Election Commission (CEC) N. Gopalaswami admits “has no legal force. It is a ‘moral’ code created by political parties”. The rulings fall with the unlawful notices. The code itself says that it is “for the guidance of political parties and candidates”. He adds, “there is no punishment — only a rebuke is possible.” The illiteracy is appalling. Rebuke is a form of punishment and no punishment can be inflicted without the authority of the law.

The notices publicised the threat in the midst of the election campaign. “We’ll examine whether [Sonia Gandhi’s statement] violates the model code.” A complaint was received from the BJP “and we issued a notice on its basis”, without a proper scrutiny. Can a citizen be debarred from making the Gujarat pogrom an election issue?

The notice stifled the right. N. Gopalaswami behaves like a vitamin-starved T.N. Seshan. Section 123 of the Representation of the People Act makes it a “corrupt practice” for a candidate, or any person with his consent, to appeal to voters on the ground of religion, caste, race, etc. or promote feelings of enmity on these grounds.

The Act is precisely worded and has legal consequence. The code is vague and sweeping: “No party or candidate shall indulge in any activity which may aggravate any existing differences or create mutual hatred or cause tension between different castes and communities... Criticism of other political parties, when made, shall be confined to their policies and programmes, past record and work... refrain from criticism of... private life... criticism of other parties or their workers based on unverified allegations or on distortion shall be avoided.” Further, “there shall be no appeal to case or communal feeling for securing votes.”

In June 1989, Section 29A was inserted in the Representation of the People Act, 1951, to provide for registration of political parties with the EC. An identical provision, Section 3B in an Ordinance promulgated by Zia in 1979, was struck down unanimously by an 11-member Bench of Pakistan’s Supreme Court on June 20, 1988, on Benazir Bhutto’s petition. The requirement of registration was violative of the fundamental right to form associations. Drawing liberally on rulings of our Supreme Court, Chief Justice Mohammad Haleem said, “if the political party is disabled to participate in an election, it loses its political texture and to all intents and purposes it will suffer extermination.” Registration becomes, in effect, a condition for the party’s existence. “This function could not be, by law entrusted to the Election Commission.” Section 29A is, therefore, unconstitutional.

It did not empower the EC de-register a political party. CEC, T.N. Sheshan, usurped this power on February 18, 1994, by adding para 16A to the Election Symbols (Reservation and Allotment) Order, 1968. It empowers the EC to withdraw recognition of a political party if it did not comply with the Model Code. An Act of Parliament in these terms would be unconstitutional. More so, an executive order by the EC which had nothing to do with election symbols.

In 2004, the EC issued a showcause notice to the Congress President on charges of misuse of aircraft belong to the state of Chhattisgarh. Para 16A was invoked and the Congress was asked, on the strength of such a law, to showcause “why its recognition as a national party may not be suspended or withdrawn for the aforesaid violation of the Model Code of Conduct”.

CEC N. Gopalaswami’s believed disavowal of ‘legal force’ will fool nobody. The crucial issue brooks no evasion — is a citizen to be barred from asking the electorate not to vote for Modi because he had presided over a pogrom? Because, tersely, he was a maut ka saudagar (merchant of death)? Why did the EC rush to send and publicise a showcause notice to Sonia Gandhi in the midst of the election campaign without bothering to consider whether a case at all existed? It behaved like an unlettered aunt upbraiding her nephew for using language beyond her understanding. Was the EC ignorant of the certificate ‘Nero’, which Modi had earned from the Supreme Court? It is stupid to call the charge an attack on “personal” character. It concerned public affairs.

Nero was emperor of Rome (37 AD-68 AD). In 64 AD, half of Rome was destroyed in a fire. He took advantage of it to build himself a magnificent palace, the Domus Aurea (Golden House). But the fire and his fiddling do not complete the picture —or the analogy. Nero made the Christian minority scapegoats for his Godhra and persecuted it savagely. According to tradition, St. Peter and St. Paul suffered martyrdom at this time.

Justices Doraiswamy Raju and Avijit Pasayat of the Supreme Court advisedly mentioned Nero in their judgment in the Best Bakery case, delivered by Pasayat J. on April 12, 2004. “Those who are responsible for protecting life and properties and manning that investigation is fair and proper seem to have shown no real anxiety. Large number of people had lost their lives. Whether the accused persons were really assailants or not could have been established by a fair and impartial investigation. The modern-day ‘Neros’ were looking elsewhere when Best Bakery and innocent children and helpless women were burning and were probably deliberating how the perpetrators of the crime can be saved or protected.” The Nero here is the one at the apex of power; like the emperor himself. What else is a Nero if not indeed a “merchant of death”.

The EC’s pretensions to power and authority must be laid to rest before the next elections to the Lok Sabha. Any notice or ruling it has sent, conveying it’s a royal ‘displeasure’ should be rebuffed with the words Pitt the Elder used on a famous occasion in the House of Commons on March 10, 1741. He had attacked the corrupt PM Robert Walpole in stinging words and was rebuked by a toady. Pitt replied, “Order may sometimes be broken by passion, or inadvertency, but will hardly be re-established by monitors like this who cannot govern his own passion, whilst he is restraining the impetuosity of others. Happy, sir, would it be for mankind if everyone knew his own province… nor would this gentleman assume the right of dictating to others what he has not learned himself. That I may return in some degree the favour which he intends me I will advise him never hereafter to exert himself on the subject of order; but whenever he finds himself inclined to speak on such occasions to remember how he has now succeeded, and condemn in silence what his censures will never reform.”