Has the Election Commission violated the Constitution?

In a report in Scroll on June 3, Ayush Tiwari raises some very worrying issues. The piece opens with the following paragraph:

“Chief Election Commissioner Rajiv Kumar told Scroll on Monday that the Election Commission had deliberated over poll code violations during the 2024 general elections at length and had decided to not admonish two top leaders each from the Bharatiya Janata Party and the Indian National Congress – Narendra Modi and Amit Shah of the Bharatiya Janata Party and Rahul Gandhi and Priyanka Gandhi Vadra of the Indian National Congress.” (Italics added.)

Later in the piece, the chief election commissioner tells Tiwari:

“We deliberately decided – this is such a huge nation – that the top two people in both the parties we did not touch. Both party presidents we touched equally. … Why did we leave two this side and two that side? The persons in position in this huge country also have responsibility. We reminded them of their responsibility.” (Italics added.)

The headline of Tiwari’s piece “CEC on Modi’s anti-Muslim speeches” is unambiguous about the issue at hand – it is “anti-Muslim speeches”. The speeches in question were undoubtedly made in the context of the Lok Sabha election and therefore were violations of the Model Code of Conduct in which the Election Commission of India is technically the arbiter.

The speeches were also violations of two laws, the Representation of the People Act, 1951, and the Indian Penal Code. The Representation of the People Act relates to elections but the Election Commission is not the arbiter of this law. The Indian Penal Code is a general law covering all criminal offences, also applicable but not limited to elections.

That at least one of the speeches violated both the Representation of the People Act, 1951, and the Indian Penal Code is described in a complaint that I filed with the Election Commission on April 22 complaining about the speech made by Narendra Modi in Banswara in Rajasthan the previous day. I have not received any response, or even an acknowledgement, to this complaint from the Election Commission so far.

Article 14

Part III of the Constitution of India is titled Fundamental Rights. It says, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

Article 14 of this part of the Constitution, titled “Equality before law”, reads as follows: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

It is the provisions of Article 14 that the Election Commission prima facie appears to have violated as evidenced by the following statement reported by Tiwari: that the panel “… decided to not admonish two top leaders each…” from the two leading political parties in the country.”

Subsequently, to clarify, or to reinforce, the chief election commission is reported to have said, “We deliberately decided – this is such a huge nation – that the top two people in both the parties we did not touch. Both party presidents we touched equally.”

Let us take one party at a time. In his speech in Banswara, on April 21, Modi would seem to have violated Sections 123(3), 123 (3A) and 125 of the Representation of the People Act, 1951. These sections related to promoting or attempting to promote enmity or hatred between people of different classes. Modi also appears to have violated Section 153A of the Indian Penal Code, which punishes persons who attack the religion, race, place of birth, residence or language of any particular group or class or the founders and prophets of a religion.

It is not only me who has made this allegations. Several other individuals and organisations including political parties have done so too.

The critical question is: does the Election Commission of India, itself a constitutional body, have the power to treat four specific persons in the country differently from the rest of the population, particularly in matters pertaining to violations of law?

Tiwari also reports “The chief election commissioner added that the poll body ‘did not touch equally glaring things on the other side also’, meaning the Opposition parties.”

This statement reveals two things.

It clearly shows that in the judgment of the Election Commission, there were “glaring things”. This makes it obvious that the Election Commission was, in fact, actively aware of the fact that the alleged violations were far from trivial. The expression “glaring” is not amenable to being misunderstood or misrepresented.

In addition, the Election seems to believe that if it is even-handed in not applying the law to everyone, there is no problem. This is particularly distressing because it shows that the Election Commission is unaware of the saying: “Two wrongs don’t make a right.”

Excuses

Tiwari also reports, “The chief election commissioner added that the commission did not notify Modi because the Supreme Court and the Delhi High Court had rejected petitions that demanded the poll body to act against Modi.” He then quotes the chief election commissioner as saying, “Twice it went to court.... It is written in that order. Once to Delhi HC and once to SC. The thing which is judged…you cannot over and over say on that.”

The links to the Supreme Court and Delhi High Court orders given in Tiwari’s piece leads to reports published in The Hindu. The report about the Delhi High Court’s matter on May 30, mentions three separate orders of the Delhi High Court.

The first one refers to a petition by a, possibly former, pilot of Air India who had prayed for setting aside the “Candidature of Candidate Narender Modi from Varanasi Loksabha Seat, candidature of Amit Shah from Gandhi nagar Seat and Candidate Jyotiraditya Sindhia’s Candidature from Guna Lok Sabha Seat” in connection with the crash of an Air India flight in 2018 that the petitioner commanded as a pilot.

The other two do refer to violations of the Model Code of Conduct that lays down guidelines for candidates and parties during the elections.

The report on the Supreme Court order on May 14, says, “A Bench of Justices Vikram Nath and S.C. Sharma asked the petitioner to approach the authorities concerned for the redressal of the grievance.”

How the decision of the Supreme Court asking “the petitioner to approach the authorities concerned for the redressal of the grievance” can be interpreted to mean that the alleged violators should not be touched defies rational understanding.

Notices to party presidents

Another issue deserves mention here. In the context of Modi’s Banswara speech and some other speeches by Congress leaders, BJP and the Congress had lodged complaints with the Election Commission. In response to these complaints. the Election Commission sent almost identical notices to the presidents of the BJP and the Congress on April 25. The following paragraph finds mention in both these notices.

“Whereas, in view of the foregoing and the plenary power of political parties to nominate or withdraw the star campaigner’s status with associated authority and responsibility to control their star campaigners, the Commission has taken a view that while the individual star campaigner would continue to be responsible for speeches made, the Commission will address party President / Head of the political party, on case-to-case basis.” (Italics added.)

It is important to note the italicised part of the quote above. It shows that the Election Commission was indeed conscious of the fact that the responsibility of the individual star campaigner for the alleged violations did not abate just because the commission had “deliberately decided” to treat four individuals differently from other, supposedly lesser, citizens of the country.

It can be concluded that the Election Commission was aware that “glaring” issues had arisen. It know that the “star campaigners” were individually responsible for the speeches they had made.· It “deliberately decided” that four individuals deserved to be given preferential treatment even though it seemed to be clearly in violation of the principle of equality under law enshrined in Article 14 of the Constitution of India. The Election Commission thought that if it bestowed this preferential treatment to the two major political parties, this violation of the Constitution would be acceptable.

The violation of the Constitution by a constitutional authority is a very fundamental and vexing issue that raises the question of whether the rule of law still prevails in India. The matter deserves careful attention not just from the legal fraternity and the highest constitutional courts of the country but by the entire citizenry.

Jagdeep S Chhokar is a founder-member of Association for Democratic Reforms.

Also read:

Fact-checking five days of Narendra Modi’s speeches: A catalogue of lies

Modi’s campaign was the most hate-filled in India’s history. Why did it fail?

Modi’s dog whistle on Muslims not the only time EC has ignored contentious statements by BJP leaders

Over 17,400 citizens write to EC seeking action against PM Narendra Modi for hate speech