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Guest (n/a)     24 March 2009

Does the EC have legal authority to disapprove Varun Gandhi's candidature?

 Dear Friends,

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.   

Read on:

The Election Commission cannot direct a Political Party to not field a Candidate in an election?  

No. Not at all.

Why not?

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?



Regards,

K.V. Dhananjay.

Advocate, Supreme Court of India

+91-99029-09390

 



 17 Replies

Uma parameswaran (lawyer)     24 March 2009

16A Power of commission to suspend or withdraw recogination of a recognised political party for its failure to observe model code of conduct or follow lawfull direction and instruction of the commission.

Shashikant V. Patil (Lawyer)     24 March 2009

On mere addressing in election campaign by the candidate and talking a  sensetive  commnual things should not amount to cancellation of  his candidature  and  EC cannot give direction for this to a one big political party for this.  I am agreed with Mr. Dhananjay.

Prakash Yedhula (Lawyer)     24 March 2009

I Concur with the view of Dhananjay.


Varun Gandhi is not even a candidate so far. How the EC comes into the picture when the nomination hasn’t been filed is beyond comprehension? As of now, the law of the land should be allowed to take its own course.



The EC does not have any statutory authority to issue a directive of this nature. On the other hand, it’s purely based on the code of conduct which is not a statutory instrument. 


 

Rajendran Nallusamy (Advocate)     24 March 2009

 Even if the election commission is not convinced with Varun Gandhi's reply they can do little to stop him from contesting from Pilibhit.

Kalpana.S (-)     24 March 2009

 The commission considered the speeches as a grave violation of the model code of conduct, apart from amounting to promoting feelings of enmity and hatred between different classes on the ground of religion, outraging the religious feeling of a particular community, and promoting hatred and ill-will between two classes of citizens and provoking a section of the citizens to indulge in violence

K.C.Suresh (Advocate)     25 March 2009

Why this discrimination to Hindus only when others are free to talk about their caste and creed. At the moment when a hindu talks about any thing for the betterment of the community, nation immediately the media and other categories raise and starts hoo and cry. WHY? EC is wrong and attracted by the imotions of media or controled by forces which are behind the screen. What wrong Varun has done while in Kerala Madani, notoriopus for his terrorist activity and still in shadow of doubt  is a partner of CPM led LDF, Muslim league is a partner of Congress led UDF. Then why can't the BJP have all these facinated lovers of nation with them or atleast express the opinion of an ordinary Indian.

Ashey   25 March 2009

KC Suresh .. Hindus got no one to takecare or protect Hinduism .... In Tamilnadu ... the politicans are free to talk anything about Hindus but they dare to talk about other ... we are in a pathetic situation

JAGADEESH GOVIND (ADVOCATE)     25 March 2009

Dear Sir,


It is true that EC have no power to deny candidature of Mr.Varun Gandhi,until his offence is proved. 


But Mr.Varun Gandhi is representing a national party,which may rule India after the election and a descendant of a Great Family including freedom fighters.It is very deplorable fact that he had involved in such controversy. I fear that issues will be closed without any positive result.


Infact the recommendation of EC is correct.Mr.Varun has to retreat from the election till his innocence is proved.But unfortunately our politions are avaricious to power and we couldn't expect any such gentleman activity from them.


I have a simple question to all, Should a person become MP or MLA in India without the help of his s*x,caste,religion and party ? and still we are saying India is a secular abd civilized country.


JAGADEESH


 

JAGADEESH GOVIND (ADVOCATE)     25 March 2009

Dear Sir,


It is true that EC have no power to deny candidature of Mr.Varun Gandhi,until his offence is proved. 


But Mr.Varun Gandhi is representing a national party,which may rule India after the election and a descendant of a Great Family including freedom fighters.It is very deplorable fact that he had involved in such controversy. I fear that issues will be closed without any positive result.


Infact the recommendation of EC is correct.Mr.Varun has to retreat from the election till his innocence is proved.But unfortunately our politions are avaricious to power and we couldn't expect any such gentleman activity from them.


I have a simple question to all, Should a person become MP or MLA in India without the help of his s*x,caste,religion and party ? and still we are saying India is a secular and civilized country.


JAGADEESH


 

KamalNayanSaxena (lawyer)     25 March 2009

“law will take its course” stand with regard to the Varun Gandhi issue. It says “if the BJP has any modicum of political morality left in it, it should immediately withdraw the candidature of Varun Gandhi from Pilibhit Lok Sabha constituency for the crass communal venom that he spewed in his election meetings.”


Both the Indian Penal Code and the Representation of the People Act, 1951 are unambiguously clear that “promoting communal disharmony” or “seeking votes on the grounds of candidate’s religion” are corrupt political practices. The Indian Penal Code, irrespective of whether elections are taking place or not, lists in Section 153A as a cognisable offence: “Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language etc., and doing acts prejudicial to maintenance of harmony shall be punished with imprisonment which may extend to three years, or with fine, or with both.”

ritu bhadana (advocate)     25 March 2009

when wil we grow up and think beyond these castes and religion what i feel is politics and elections are for the betterment of a country as a whole and not for a particular community.when our own politicians are making absurd comments then how we can ever expect the basic motive of our constitution "EQUALITY FOR ALL".its high time we grow up otherwise india will soon go in to the dark clouds of hatred and unstable political system .it is us who have to change our thinking and approach otherwise there may be agin communal rites in which only the innocent will suffer and these people who call themselves as politicians will again be on a safer side of the pole

adv. rajeev ( rajoo ) (practicing advocate)     25 March 2009

In india everything happens, the person who has convicted for death punishment, that is not yet executed.  In india eveything is depended on caste, some parties take the benefit of the minority communities and some major communities.  It is gudielines given by the so called Ist prime minister who was not at all wanted to develop india they played with us. In my opinion we are fools again we vote for the politicians.  First we have to change.  For all the members I request you to read the Himalayan Blunder ( i read the kannada translated) book. 

V.V.RAMDAS (Advocate)     25 March 2009

Yes the EC of India has  got legal authority to disapprove Varun Gandhi's candidature  of  BJP. It is laind down in 16A of the Powers of the Commission. Uma has rightly answerd.

N.K.Assumi (Advocate)     08 April 2009

What is the actual meaning of Election under the Representation of the peoples Act?


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