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.