Varun Gandhi's hate speech has been delivered under peculiar circumstances, and the EC is confronted with a new situation. He is yet to secure his party's nomination as a candidate for the Pilibhit Lok Sabha constituency. The very registration of a case against him, prior to his filing nomination papers,(if at all the BJP gives him a ticket) cannot be a factor for rejecting his nomination by the Returning Officer. Moreover, relief under RPA will be availabe to a losing candidate only after the election is over.
Varun Gandhi made his controversial speech after the Model Code of Conduct has come into force. Therefore, if the EC concludes that he has violated the Model Code of Conduct, then the Returning Officer will have valid reasons to reject his nomination under Section 36(6) of RPA.
However, a difficulty will still remain. The Model Code of Conduct (MCC) is for the guidance of political parties and candidates. The EC had taken stringent action, including postponement and annulment of election, on the ground of violation of MCC by the parties or candidates. Thus rejection of his nomination on this ground would be a valid exercise of EC's and R.O.'s powers. The EC has wide powers to enforce the MCC, even though it does not have statutory backing.
But Varun Gandhi was not a candidate when he allegedly made that hate speech, even if his speech comes within the mischief of Clauses (1) and (3)of Item 1 of the MCC, which says there shall be no appeal to caste or communal feelings for securing votes. One hopes that the E.C. will not let him exploit this loophole, but give a broader interpretation to the MCC. He should be deemed as a candidate when he made that offensive speech, as his party is already bound to follow the MCC, and to require its members to observe the MCC in letter and spirit. If the EC’s rejection of his nomination is challenged in a court, it can be a test case.
Having said this, I must point out a minor flaw in Vinay Sitapati’s well-written piece (Frame by frame) arguing for punishment for Varun Gandhi. He has written that no election has ever been invalidated because the winner made communal speeches. There is at least one. In Suryakant Venkatrao Mahadik’s case, the SC set aside his election on this ground. The judgment is worth reading.
In Dr.Ramesh Yashwant Prabhoo's case, which Vinay refers to in his piece, Prabhoo's election was declared void, because he was found to have given his implied consent to Bal Thackeray's hate speech. The E.C. recommended Prabhoo's disqualification for a period of six years from the date of the Supreme Court's order, viz., 11.12.1995, even though Prabhoo had completed two terms as M.L.A. after the by-election in December 1987 in which he had impliedly consented to Thackeray's hate speech.