Saturday, March 21, 2009

Varun Gandhi's hate speech: The correct option for the E.C. if it finds him guilty

FLASH: I am glad the EC has heeded my advice! (March 23). Readers can access the full text of the EC's Order here

My last post on the subject rightly drew a few rejoinders in the Comments section of that post pointing out that I might be wrong in suggesting that the E.C. could direct the R.O. to reject Varun Gandhi's nomination on the ground that he violated the MCC. This is because although E.C.'s powers under Article 324 are very wide, it cannot exercise those powers in contravention of the existing laws, governing the field. As S.33 and S.36 of RPA deal with all the grounds of a valid nomination, and how the R.O. must scrutinise the nominations, before accepting or rejecting, the violation of M.C.C. cannot be cited as an additional ground, not found in the R.P.A. To suggest that the E.C. can still use its powers under Article 324, because these sections under RPA are not exhaustive enough, will be a bit of a stretch. This much is clear.

Is there then no remedy against those who wilfully defy the MCC? The only weapon available with the E.C. to enforce the MCC is Paragraph 16A of the Symbols Order, 1968. This Paragraph, inserted by the former CEC, T.N.Seshan on February 16, 1994, has not been used even once, but remains a powerful deterrent against wilful defiance of the MCC. Therefore, if the EC finds Varun guilty of violating MCC, then it could direct the BJP, which is a party to this case, not to field Varun as a candidate. This will be a lawful direction, which the BJP has to comply with. If it does not comply, then the E.C. can freeze its symbol, and deprive it the required recognition as a national party. As the E.C. is expected to announce its decision on March 23, we will have an opportunity to know whether the E.C. takes its threat to its logical conclusion.
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