The Varun Gandhi issue dominates the news now and wonder how much of this is legal and how much else is political? Well, as I see it, the applicable law has been thoroughly messed up here. People are utterly confused and driven to think that there is no dividing line between law, politics and morality here. There is, but.
I know a few things about Election laws in our country and let me assert here that what we are seeing around is utterly laughable at.
Let me profess first by saying that, if the statements attributed to Varun Gandhi indeed be true, he commits grave and egregious offenses against the people of this country and so deserves the fullest prosecution and punishment under the applicable law.
Having said thus, let us turn our attention to the direction by the EC to the BJP to not field Varun Gandhi as its candidate. Is the EC authorised under the law to so direct? No. Not at all.
You will see a discussion below in ‘Question and Answer’ format. You guessed it right. I put the questions and I supply the answers. Some of it is hilarious and the rest is, unless you are a politician, relevant for good governance.
The Election Commission cannot direct a Political Party to not field a Candidate in an election?
No. Not at all.
Where’s the authority to the Election Commission to do so?
There are many things that the Election Commission cannot do. It cannot direct that a person who is merely charged with heinous offences (and is facing trial and lodged behind bars) be not fielded as a candidate. This is because, the law on who is qualified to and disqualified from contesting an election is made by the Parliament and Parliament holds the field there. What’s more, the Parliament and the Constitution have clearly legislated on several topics and the Election Commission is not authorised to over ride such legislation.
This means, all that the Election Commission can do is to watch as a mute spectator?
Yes and No. If a candidate engages in practice that the law declares to be a ‘corrupt’ practice (the definition of a ‘corrupt practice’ includes bribery, gift, offer or promise of improper gratification, undue influence or indirect interference on the free exercise of an electoral right, threat to a candidate or to his agents, threat of social ostracism, ex-communication or expulsion from any caste or community, appeal to vote or to abstain to vote on grounds of religion, race, caste, community or language, promotion of feelings of enmity or hatred between different classes on one or more grounds, practice or promotion of Sati, knowingly making false statements on a candidate’s contest…Well, the bunch of offences is so long, you will likely fall asleep by the time it takes to read it all. So, let me cut it short here), there is a remedy at law. However, in order to get that remedy, one has to wait for the election to get over.
This is ridiculous. Why should one wait for the elections to get over in order to broom a corrupt candidate?
Well, you see, for who is it to decide that a candidate is ‘corrupt’? It is for a Court of law. So, the law states that, any redressal of a ‘corrupt practice’ by a Candidate is available after an election is over. Any candidate or an elector may bring forth a complaint to a High Court and ask for a trial of alleged offenses and, if such offenses could be proved to the satisfaction of the Court, the Court may strike down the outcome of the election and offer an appropriate relief to the petitioner.
But then, if this is the state of the law, what hope is there for citizens?
You see, we have what is known as the Indian Penal Code. And you certainly have seen a Policeman. If a person commits an offence under the Indian Penal Code, it is for the Police to charge such an offender and to enforce the Penal Code and to have a Court convict him on terms prescribed by the Penal Code. So, why are the people of this Country expecting the Election Commission to act like secondary police? The Election Commission is not entrusted with the enforcement of the Indian Penal Code. The jurisdictional police is.
This means that the Election laws in this country are in a state of chaos?
Not at all. The Election laws are certain and specific. It is just that they don’t do enough to deter ‘factually criminal’ people from contesting elections.
But, what good argument is there to tie the hands of the Election Commission now and to let the elections become a farce?
The law reasons that, any candidate who commits a ‘corrupt practice’ does so for a gain – to win an election. When a person engages in a ‘corrupt practice’, he does two things. One, he commits some offense that is chargeable under some criminal law or the other. Irrespective of whether he wins in the election or not, he could be charged, tried and convicted of those offenses. The Election laws think that there is already a deterrent here. However, the Second thing is, the Election Laws themselves provide for a post-election remedy. If ‘corrupt practice’ can be proved in a Court of law, even if such a person might have swept the election clean and emerged a big winner, the Court could strip him of his title and declare someone else as the winner (subject to certain conditions). So, the Elections laws aren’t all that unreasonable. It is just that they operate in a set-up where the criminal justice system has become a disaster.
This means, until we reform our Criminal justice system, we cannot march ahead in elections reform?
Take a bet. We cannot. Neither can any country have a stellar election law and a pathetic criminal justice system. They go together. Some election reforms are always possible however.
Now, the BJP could dismiss the EC’s suggestion to not field Varun Gandhi and not incur any penalty or consequence?
Well, the EC merely made a suggestion, not a direction. Some lawyers have argued that the EC could now go ahead and threaten to de-recognise the BJP as a political party in purported exercise of upholding the Model Code of Conduct. Well, the Model Code of Conduct is not enforceable in a manner inconsistent with the provisions of the Representation of People Act, 1951. So, the EC has no legal authority to direct the BJP to not field Varun Gandhi as a candidate. Neither is the BJP under any legal compulsion to oblige the EC here.
Do all lawyers agree on the above view?
Certainly not. I am sure that the lawyers who advised the EC to do what it did, think otherwise.
What is the possibility that the EC can now go ahead and impose a big penalty upon the BJP for violating its ‘direction’?
Well, the EC has no legal authority to do so. However, if only the EC could do so, the EC may have to very well issue similar ‘directions’ to all other political parties to do things like – to not field candidates who, though not disqualified under the law, in the opinion of the EC, on appreciation of evidence before it, ‘do not deserve to contest’. Remember, the EC would then be flooded with petitions and evidence on every tainted candidate and they would have to take on the function of a parallel judicial court and to issue directions accordingly. The Election Commission of India is not vested with a judicial function of such kind.
I don’t understand!
You see, the EC cannot say that, between two persons who commit the same offence under the Indian Penal Code at different times – say, inciting hatred between religions, the one who commits such an offence during the elections is a bigger criminal than the one who commits it prior to the election. So, the EC cannot say that they are only concerned with bigger or fresh criminals. If they are not allowed to so distinguish under the law, they will have to examine evidence against every tainted candidate. Evidence already reviewed by a Court of law will have to be re-reviewed by them wherever conviction is yet to become final. Such a power or a duty is plainly absurd and the EC cannot profess to wield a power that leads them in this direction.
So, all this means, the EC cannot impose its direction on the BJP?
Yes. It has no legal authority to issue such a direction in the first place.
Why are senior lawyers quiet on this issue?
Well, the EC is advised by some of the finest lawyers in the country and outside lawyers are wondering if the EC could be so far off the mark. Most lawyers feel that the EC has some legal authority or the other and that, without adequate preparation, they would not have embarked on such a step. I have no such faith in scrupulous adherence to laws in this country. I say that the EC got it completely wrong this time.
Is it not the function of a lawyer to distort, spin, twist and do whatever is necessary to achieve a desired objective?
What better objective than to prevent undeserving people from contesting the polls?
Why don’t lawyers spin something and just keep undeserving people from the polls?
Oh Please! Grow up! You just forgot that you are not the only one who can hire a lawyer to distort. The other side too will hire a lawyer to do just the same – to distort. When both sides are finished distorting, we get a judge to discover facts and most often, we have a layer of appeal. So, in the long run, distortions just do not work. Further, distortion is sometimes rewarded only in case of a law that is in its infancy and the elections laws have great antiquity and history. Open up any Election Law Manual and you will see.
Does all this mean that Varun Gandhi can get away with what he is seen saying on TV?
Absolutely Not. If the statements attributed to Varun Gandhi are indeed true, he commits despicable and grave offenses and deserves to be prosecuted and convicted to the fullest extent prescribed under the law. It is just that the EC is not the body entrusted to enforce the applicable law here. It is for the jurisdictional police. Now, pardon my language – what the hell is the Uttar Pradesh Police doing there?
Advocate, Supreme Court of