Bench, however, gives Congress MP Sushmita Dev the liberty to challenge afresh, if she so desired, the merit of the ECI orders clearing Modi and Shah of violating the Model Code of Conduct by delivering alleged hate speeches and misuse of the armed forces for political propaganda.

The Supreme Court on Wednesday agreed with the contention of the Election Commission of India (ECI) that its clean chit to Prime Minister Narendra Modi and BJP president Amit Shah for their poll speeches may be right or wrong, but the court certainly cannot examine the merit of its decisions on the basis of a public interest litigation (PIL) petition filed by Congress MP Sushmita Dev.

A Bench led by Chief Justice of India Ranjan Gogoi, however, gave Ms. Dev the liberty to challenge afresh, if she so desired, the merit of the ECI orders clearing Mr. Modi and Mr. Shah of violating the Model Code of Conduct by delivering alleged hate speeches and misuse of the armed forces for political propaganda.

The hearing saw the Bench fundamentally agreeing to the objection raised by the poll body that Ms. Dev's present plea dealt solely with the issue of delay shown by it in deciding complaints against Mr. Modi and Mr. Shah. The ECI said Ms. Dev cannot later improve on her PIL plea through affidavits challenging the merits of its orders.

“The PIL has become infructuous. The complaints have been decided by us, rightly or wrongly. Our orders have been communicated to the Congress party, to Mr. Randeep Surjewala... This petition is only about delay. The petitioner cannot expand the petition and go into the merits of our orders,” senior advocate Rakesh Dwivedi, for the ECI, raised a preliminary objection.

“Obscene” remarks

Ms. Dev’s latest affidavit, filed on May 7, accuses Mr. Modi of making “obscene” remarks to “malign” the image of former Prime Minister Rajiv Gandhi, the late father of Congress president Rahul Gandhi. Rajiv Gandhi was killed in a terror attack in 1991.

“Political statements are made in this affidavit... All this when neither the petition nor the reliefs sought by her have been amended,” Mr. Dwivedi argued. He said Ms. Dev should not bother on the merits of the ECI orders in the court. “Mr. Surjewala, who filed the complaints in the ECI, has not filed any petition here, has he?” he asked.

Chief Justice Gogoi agreed, observing that the court cannot proceed on the merits of the ECI orders in this PIL plea.

“Rightly or wrongly, orders have been passed. You [Dev] have to challenge them separately, individually... They [ECI] have decided and now it is for you to challenge... File independent writ petitions," the CJI addressed senior advocate A.M. Singhvi.

In its order, the court said it cannot address the merits of the ECI orders “in the absence of specific averments in a petition.”

Mr. Singhvi argued that it took the court's intervention to push the ECI to finally decide on the complaints. “They took 31 days to decide... What do I do? It took me two days to even file this affidavit (May 7),” he said.

“Now it would only take you half a day to file a new petition,” said Chief Justice Gogoi, disposing the PIL plea.

In the May 7 affidavit, Ms. Dev said Mr. Modi’s words, “Your father may have been declared Mr. Clean by his courtiers. But he died as Bhrashtachari No.1”, was “derogatory” to the high office he held.

The affidavit was filed on the basis of a Supreme Court order allowing Ms. Dev to make good her claims that the ECI had dealt with several complaints of hate speech against Mr. Modi and Mr. Shah in an off-hand manner through cryptic orders of dismissal. It was both “unfortunate and unbecoming” a statement for a Prime Minister to make, the affidavit stated.

Charge against ECI

It accused the ECI of failing to “appreciate that the hate speeches delivered by the Prime Minister, Mr. Narendra Modi and Mr. Amit Shah are ‘corrupt practices’ under Section 123A of the Representation of People Act, 1951 which ex-facie promote feelings of enmity and hatred between different classes of the citizens of India on grounds of religion.”

It said Mr. Modi’s speeches were punishable under Section 153A of the Indian Penal Code, 1860 as they “blatantly promote disharmony and feelings of enmity on the grounds of religion and such acts are also likely to prejudice the maintenance of public harmony and tranquility between religious communities”.

The Congress had voiced apprehensions in the court about how the ECI had a different set of rules for Mr. Modi and Mr. Shah. Other leaders who have delivered speeches of a similar “tenor, tone, meaning, purport and intention” have been punished for violation of the Model Code of Conduct and the Representation of People Act. Among them are even BJP candidates and ministers, including Pragya Singh Thakur and Maneka Gandhi, Uttar Pradesh Chief Minister Yogi Adityanath and BSP supremo Mayawati.