Open letter to President of India: Why did Election Commission condone star campaigners for hate speeches?

Chief Election Commissioner’s reported statement that the Commission condoned certain “special” star campaigners from penal action against hate speeches raises serious concerns- Appeal to Rashtrapatiji for intervention

To

Smt. Droupadi Murmu

Hon’ble President of India

Respected Rashtrapati Ji,

I invite your attention to my letter of 12th April, 2024 in which I had raised concerns about the independence and effectiveness of the Election Commission of India (ECI) and appealed to you exercise a direct oversight on the functioning of the Commission (https://countercurrents.org/2024/04/open-letter-to-president-of-india-take-control-of-election-commission-and-other-regulatory-bodies/) I am not sure as to the action taken on my appeal.

Over the last few months, the manner in which the Election Commission had conducted elections left many of the concerns expressed by me and several others left much to be desired. There have been serious apprehensions expressed about the willingness of the Commission to fulfill its mandate under Article 324 and its commitment to ensure that the star campaigners of political parties, especially those in power, comply with the provisions of the electoral laws and the other laws relevant to electioneering.

In my letter of 2nd June 2024 addressed to the Election Commission, I raised ten important questions concerning the effectiveness of the Commission as a Constitutional authority and its political neutrality and capability to conduct elections in a free and fair manner (https://countercurrents.org/2024/06/questions-posed-on-behalf-of-the-people-to-election-commission-of-india-to-provide-answers/), calling upon the Commission to provide answers to the same in the public domain, so that it could have an opportunity to elicit public trust and credibility with reference to its role. The Commission is yet to address my concerns and clarify on the issues raised. I get the impression that the Commission has no satisfactory answers to the questions raised by me.

In my letter of 2nd June cited, in particular, I questioned the Commission about its inaction against the hate speeches delivered by star campaigners of political parties, especially those occupying high public offices, including Prime Minister Modi and Union Home Minister Amit Shah, as such hate speeches amount to invoking religion/ caste/ creed etc. for votes, coming within the meaning of a “corrupt practice”, as defined in Sections 123 & 125 of the Representation of the People Act (RPA) and a penal offence under the IPC (and Bharatiya Nyay Samhita), in addition to its amounting to an outright violation of the Model Code of Conduct (MCC). In addition, hate speeches being divisive tend to cause fissures in the society and hurt social harmony in the long run. Electioneering based on hate speeches also vitiates democratic processes which are part of the basic structure of our Constitution. The Commission’s inaction on hate speeches delivered by star campaigners of political parties encouraged those very same campaigners to repeat similar hate speeches again and again, tainting the 2024 elections.

While I am yet to find any response from the Commission on the way it dealt with hate speeches, I have come across a news report (https://scroll.in/article/1068728/cec-on-modis-anti-muslim-speeches-we-decided-not-to-touch-top-two-leaders-of-bjp-and-congress) in which the Chief Election Commissioner (CEC) has been quoted,, “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…..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,” Kumar told Scroll after the poll body’s press conference at Delhi’s Rang Bhavan. “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.”

If what has been reported thus is factually correct, it shows that the Commission’s purported statement has the following serious, disturbing implications:

1. The Commission deliberately decided not to take action against four star campaigners, namely, Prime Minister Modi, Union Home Minister Shah, Rahul Gandhi and Priyanka Gandhi for violations of the MCC, though such violations amounted to committing a “corrupt practice” under Sections 123 & 125 of the RPA and the relevant penal provisions of the IPC (Bharatiya Nyay Samhita). In other words, the Commission deliberately chose to become a willing party to those four campaigners openly and blatantly violating the law of the land and allowed them to continue making such potentially dangerous statements that would have caused irreparable harm to India’s democracy and its society
2. If the reported statement attributed to the CEC is correct, the conduct of the Commission has been in violation of the letter and the spirit of Article 14 (“ Equality before law.—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”), as the Constitution of India does not permit discrimination among the citizens. Each and every citizen of India is as much a stakeholder as those very “special” campaigners are. It is unfortunate that the Commission should openly infringe Article 14
3. According to the above cited news report, the Election Commissioners had “deliberated” the poll code violations by the four campaigners and took the above unfortunate decision. Under Article 19 and Section 4 of the Right To Information Act, the Commission ought to have recorded the proceedings of that discussion and made a public disclosure of the same along with minutes of dissent, if any. To the best of my knowledge, no such disclosure has yet been made, violating the transparency norm of Article 19.
4. If the Commission had thus chosen not to exercise its authority selectively against some senior leaders of BJP and Congress, it amounts to a lack of fairness and is reflective of brazen discrimination against other parties, their campaigners and candidates, amounting to the Commission openly breaching its own mandate under Article 324 that it should ensure fairness and a level-playing ground among the parties and candidates.
5. In all, the statement purported to have been made by the CEC amounts to an open admission that the current elections have not been fair as they ought to be, raising serious questions on its integrity and validity.
6. While the higher institutions have generally adopted a “hands-off” approach to the Commission while elections are going on and rightly so, the Election Commission derives its authority under Article 324 but that Article does not give it license to condone anyone, however high they may be, from the rule of law, nor to divide campaigners into two unreasonably defined categories, one who need to be unduly “exempted” from the operation of the law of the land and another, the rest subject to the rule of law. The decision of the Commission, as explained by the CEC himself amounts to the Commission unauthorisedly arrogating to itself a non-existent authority to trifle with the law of the land and discriminate among campaigners and political parties.
   

This calls for an independent enquiry, as the conduct of the Commission, as reportedly admitted by the CEC himself, raises questions about its fairness, political neutrality, effectiveness and even competence. If what has been reported is factually correct, the selective inaction on the part of the Commission against a few star campaigners would have vitiated the electoral process significantly, hurt the basic democratic values of our Constitution and caused an irreparable damage to the harmony that unites the society. No institution in the country, entrusted with the responsibility of upholding the Constitution and its values can afford to ignore or condone the role played by the Commission, as reported. Non-interference in such a vital matter in itself would hurt our democracy and our society in the long run.

While a few political parties may win and others lose in elections, the people at large would expect the elections to be conducted in a free and fair manner, for which the Election Commission is the custodian. When the Commission fails to play its expected role and the basic democratic values that characterise our Constitution stand breached, as a nation, we cannot adopt a “hands-off” approach and allow such a situation to continue.

I earnestly believe that the office of the President of India, in consultation with the Hon’ble Supreme Court, should order a judicial enquiry on the conduct of the ongoing elections and the role played by the Commission, for appropriate corrective action.

Resp[ectfully,

E A S Sarma

Former Secretary to the Government of India

Visakhapatnam