In its notice to BJP leader Anurag Thakur, the EC cited Sections 123 and 125 of the RP Act. In its notice to BJP leader Anurag Thakur, the EC cited Sections 123 and 125 of the RP Act.

Twelve days of campaigning for elections to the Delhi Assembly have come to an end. Most Indians were, no doubt, waiting for the culmination of this campaign in which the development debate was overshadowed by hate mongering and outpouring of communal vitriol. Shaheen Bagh remained the bone of contention, a protest site that incited many of our politicians to make sinister comments like “Desh ke gaddaron ko…”, there were references to “suicide bombers”, and the incumbent chief minister was accused of being a terrorist. Such language should not be used in private space, let alone in public forums.

After the flurry of such hate speeches, I have been flooded with queries about the nature of the Election Commission’s (EC) response. I was asked whether the Model Code of Conduct is toothless or the EC is ineffective and whether these offences are also under the purview of other laws of the land. My answer is these offences violate not only the MCC but also the Representation of People Act (1951) and Indian Penal Code, 1860.

Let’s first understand the Model Code of Conduct. It is a set of behavioural guidelines for political parties and candidates for the peaceful conduct of elections, to prevent hate speech, malpractices, corruption and misuse of government machinery by the ruling party. Since it is not an Act passed by Parliament, the Code is not judicially enforceable. The action against a violator usually takes the form of an advice, warning or censure. No punitive action can be taken. No wonder, many consider the Code as toothless. That, however, is not true. Its moral authority far outweighs its legal sanctity. Political leaders worth their salt are scared of inviting a notice for a violation, as it creates negative public opinion. Besides, unlike the legal processes, its impact is instant.

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The legality of the code has been judicially tested. Its first judicial acceptance came in 1997, when the Punjab and Haryana High Court gave the EC the power to enforce the code. “Such a code of conduct when it is seen that it does not violate any of the statutory provisions, can certainly be adopted by the Election Commission for the conduct of free and fair election, which should be pure as well,” the Court said. The SC has repeatedly held that this must be enforced strictly.

The very first section of the MCC lays down the following:

Part I (1): “ No party or candidate shall include in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic.” (Emphasis mine, throughout the article).

(2): “…Criticism of other parties or their workers based on unverified allegations or distortion shall be avoided.”

The Representation of the People Act (1951) categorically defines the above two as corrupt practices in Section 123 (3A) and Section 123 (4) respectively. With hate speech, the Act goes a step further and prescribes punitive measures in Section 125: “Promoting enmity between classes in connection with election — Any person who in connection with an election under this Act promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred, between different classes of the citizens of India shall be punishable, with imprisonment for a term which may extend to three years, or with fine, or with both.”

It is important to note that Section 153A of the Indian Penal Code has a similar provision: “Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. Whoever (a) by words …or otherwise, promotes or attempts to promote, on grounds of religion, race…caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious … groups or castes or communities, or (b) commits any act which is prejudicial to the maintenance of harmony between different religious … groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, or (c) … whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,shall be punished with imprisonment which may extend to three years, or with fine, or with both.”

Now that we are well-equipped with the provisions of the laws and the Model Code of Conduct, we must analyse the action taken by the Election Commission.

It must be appreciated that the EC was prompt in its action against the leaders accused of hate speech. While it instantly, suo moto, deprived the two leaders of their star campaigner status, it also punished them with a gag order, using the ultimate weapon provided by Article 324. Moreover, the Commission categorically noted that it “strongly condemned” the statements by the two leaders.

The EC flexing its muscle outside the so-called “toothless” MCC and invoking Article 324 is indeed a refreshing change. In earlier instances, it often had to let the culprits go with a mere “warning, caution or censure”. In its notice to BJP leader Anurag Thakur, the EC cited Sections 123 and 125 of the RP Act. What is baffling, however, is that if the Commission had found them guilty of offences deserving punishment, why did it stop short of filing FIRs?

Historically, the EC has always taken simultaneous action under the Model Code of Conduct and the other two provisions. While the MCC produces instant results, the penal provisions involve endless judicial processes. Not taking action under the IPC encouraged the worthies like Parvesh Sahib Singh Varma to commit a repeat offence of indulging in a vitriolic diatribe against the Delhi CM for which the EC indicted him a second time within a week. That such small-time leaders repeatedly defy the Commission should be a matter of concern. The answer also lies with the EC.

This article first appeared in the print edition on February 8, 2020 under the title “A weak rebuke”. Quraishi is a former chief election commissioner of India and author of An Undocumented Wonder: The Making of the Great Indian Election.

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