I draw the readers' attention to Soli Sorabjee's article in Indian Express on the E.C.'s order (Who'll silence Varun?). My comments on it are as follows:
1. Sorabjee says: Before elections are announced, by the issuance of notifications required under the Representation of the People’s Act (RPA), neither the model code of conduct nor the RPA ‘s provisions are triggered.. Obviously, he is mixing up announcement of schedule and the issuance of notification, which follows the former. The MCC comes into force after the announcement of schedule, whereas it is debatable whether the RPA provisions can be invoked only after the issuance of notification. In this case, March 1 was the date of announcement of schedule of elections, and Varun made the speeches on March 7 and 8. Can a candidate take advantage of non-issuance of notification to violate RPA provisions? In Suryakant Venkatrao Mahadik's case, the Bombay High Court said no, but the Supreme Court said yes; Since Supreme Court convicted the appellant for a speech he made after the notification, its observations on the HC's judgment regarding the pre-notification speeches are not binding, as they were not relevant to the Supreme Court's final decision.
2. Sorabjee says that the EC's 'advice' (despite the CEC's disclaimer, I still prefer to view it as an order) was certainly beyond its purview and is not legally binding. But he does not explain how.
Here too, he has seemingly mixed up the E.C.'s power to restrict a political party from nominating a person found guilty of violating the Model Code of Conduct, with the E.C.'s imagined power to injunct a person or a potential candidate from making hate speeches. For the latter, he correctly suggests that an ordinance to amend the laws to provide such power to injunct a person from making hate speeches would be necessary.
If you read the EC's March 22 order, it does not seek to injunct Varun Gandhi from making hate speeches. It only seeks his prosecution under the IPC and the RPA, and restrain him from contesting on a party ticket, and deprive him a party symbol, which has a definite advantage in an electoral arena over the candidature of an independent. In other words, Varun Gandhi is free to make hate speeches, and contest as an independent. Prosecution under the laws, and the denial of party ticket are the twin punishments which the E.C. seeks to impose on him for the hate speeches. The E.C. knows that it can't stop him from making hate speeches, or from contesting. But it wants to ensure that it could inflict whatever punishment that is possible on him, so as to minimise the damage that his action caused to the electoral process.
Even while pleading its helplessness to debar Varun because of RPA provisions, the EC, in fact, made the subtle point that parties' recognition and symbols are available to a contesting candidate only if the candidate respects the model code of conduct in letter and spirit. The EC is well within its powers to make this point bluntly rather than couch it in subtleties. For the RPA is silent on the conditions under which parties can be granted recognition and those under which the EC can withdraw it. The RPA is equally silent on the conditions under which a candidate can hope to get a party symbol. The EC can fill this void in order to promote the observance of MCC.
UDPATE: In today's (March 28) The Hindu, Shanti Bhushan explains why the E.C.'s March 22 order must be understood as a binding directive, and not as an advisory.