Tuesday, March 24, 2009

EC's Order on Varun Gandhi: Advice or direction?

While watching various channels debate the E.C.'s order on Varun Gandhi's hate speech, I could see that the participants completely missed the real issue. The core issue is not whether Varun is innocent till proved guilty in a court of law. No one has disputed that as far as the cases against him under IPC and RPA are concerned. But the E.C.'s order is significant because it makes a fine distinction between these cases which it has initiated, and its responsibility to enforce the Model Code of Conduct. In this news analysis, I explain this subtle distinction which the E.C. has tried to make in its order.

I've also explained how, despite Varun not being a candidate, his hate speech still came under the mischief of the MCC provisions, because he happened to be a party man first, and a candidate later. If MCC was applicable to the party to which he belonged, even though he was not yet declared a candidate, he was still liable, as the MCC had come into force on March 1. The E.C. did not deal with this issue in its order, but its implications are apparent.

Lastly, the E.C.'s order, is an order. It cannot be an advice. Therefore, after censuring Varun Gandhi, if the BJP is asked not to field him as a candidate in a very clear language, it has to be construed as a direction, and not an advice or a suggestion. A direction to a political party, not complied with, must attract the rigours of Paragraph 16A of the Symbols Order. The order makes it clear that if the BJP does not comply with it, it will be deemed to have violated the MCC itself, and that it is applicable to other parties who might be thinking of nominating Varun. Obviously, the E.C. expects the BJP and other parties to do more than refrain from nominating him, but it is the minimum step which it expects them to do. Therefore, it cannot be an advice, but a direction to adhere to the MCC. The BJP's defiance notwithstanding, I hope the E.C. takes its order to its logical conclusion.

The E.C. has not sought to disqualify Varun Gandhi, by inventing another ground not found in the R.P.A. or the Constitution. Varun Gandhi is free to contest as an independent. The E.C. has only sought to inflict a punishment on him, by depriving him of symbols of any recognised party.

Is the E.C. not expected to issue similar notices to candidates of other parties who might be facing criminal charges? Is the E.C. singling out Varun Gandhi? Not at all. If others have expressly violated MCC during this campaign, obviously, the E.C. is bound to issue notices to them as well. But that is not the case so far.

UPDATE: I just watched the CEC saying it was an advisory, and a recommendation, and it is for the BJP to accept or reject it. Clearly, the E.C. missed an opportunity to test its powers, by following the 'willing to strike, but afraid to wound' policy.
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