The Election Commission of India (ECI) has no jurisdiction over citizens of India; and, only after the Presidential notification calling for election has been issued the ECI gets jurisdiction over those citizens who file their nomination papers before a Returning Officer. The election procedure is set into motion from the date the Presidential notification is published in the gazette of India which for the 15th Lok Sabha was done only on March 23, therefore, the ECI had no jurisdiction over speeches of Varun Gandhi delivered before this date of March 23.
It is true that after the announcement of election schedule by the ECI the model code of conduct enters into force but it applies only to the Government Ministers, to office bearers of recognised political parties and to the public servants detailed for election work. The model code of conduct in any case has no force of law. Therefore, all the directions issued by the ECI prior to March 23 against Varun Gandhi for his speeches made before March 23 are illegal ab initio and en toto for want of jurisdiction, and, represent colourable exercise of power by the ECI. On these grounds Varun should have refused to reply to illegal notice of the ECI as Mrs Indira Gandhi had done to the Shah Commission.
It is unfortunate that criminal cases have been initiated against Varun Gandhi by the UP Government on unlawful advice/direction of the ECI as some parts of speeches made by Varun at Mohalla Dalchand on March 7, and, at Kasba Barkheda on March 8 have been incorrectly and arbitrarily judged by the ECI and by some jaichandi newspapers to be communal and offensive to Indian Muslim community.
In fact, on March 17 the ECI in indecent haste had asked the UP Chief Election Officer to file a FIR against Varun u/s 153A (inciting communal hatred) and 188 (unlawful assembly) of the IPC, and, sec 125 of the Representation of People'sAct. Two illegalities on part of the ECI are apparent. Firstly on March 17 the ECI had no jurisdiction over activities of citizen Varun so it had no business to direct UP CEO to file FIR against Varun. Secondly, the ECI unilaterally condemned Varun on March 17 without giving him a fair and reasonable opportunity to be heard. It is a serious breach of the principle of natural justice by the ECI. If records show that the district authorities did not applied their mind but had registered FIR mechanically on instructions of the ECI, the FIR is liable to be cancelled by a High Court.
On March 18, the ECI issued a notice to Varun directing him to file his reply by March 20. It was an empty formality and amounted to another breach of the principle of natural justice as on March 17 the ECI had already revealed its mind holding Varun guilty by directing UP CEO to file FIR against Varun. It is reported that Varun was not supplied with all relevant material by the ECI, and, that, the ECI decided to rely upon CDs despite Varun stating that the CDs were doctored. Transparency demanded the ECI first to seek opinion from government forensic experts about genuineness of CDs before giving its decision especially when aggrieved party has claimed that CDs were doctored. But the ECI did not do so. The India TV claimed that CDs had at least 16 cuts.
On March 18, the ECI had got suspended the Additional District Magistrate and Additional SP of Pilibhit and also took away election duties from the District Magistrate and Supdt of Police on charges of failing to act against Varun for his alleged ?inflammatory speeches?. These actions of the ECI, on one hand show ?bias? against Varun (holding him guilty before hearing); and, on the other hand made Election Commissioners disqualified (on ground of having predetermined mind) to sit over judgment on reply to be filed by Varun by March 20.
On March 18 Varun had said: ?I am proud of my faith and not apologetic about it. I am a Gandhi, a Hindu and an Indian in equal measure… I stand by what I have said and what I have not said, I will strongly refute… It'sa sad day in Indian politics when anyone who speaks for Hindus is branded communal… Those (in the second CD) are not my words and that is not my voice.? (Indian Express, March 19)
Varun'squestions as to who made these CDs, and, why these appeared 12 days after making speeches have remained unanswered.
By issuing notice to BJP even before Varun acquired the status of a BJP candidate, the ECI has shown its bias against the BJP too.
On April 6, Shri Raj Nath Singh, national President of BJP visited Varun in jail and extended ?complete support? of BJP to him.
The pseudo-secular block has been hyper critical of Varun. The Congress Party is making all efforts through good offices of its appointees to politically remove a Gandhi competitor of Rahul Gandhi. Kapil Sibbal, a Congress leader advised Varun to apologise to Indian Muslims for what Sibbal claimed were anti-Muslim statements of Varun whereas Lalu Prasad Yadav has boasted at Kishanganj (April 6) that he would have got Varun crushed by a roller had he been the Union Home Minister. District authorities of Kishanganj filed an FIR against Lalu Prasad for inciting violence & communal passions. D. Srinivas, chief of Andhra Pradesh Congress declared that he would cut off hands of those who pointed a finger at the minority community. Lalu and Srinivas have tried to put one Indian community against another Indian community so they are liable to attract Sec 153A of IPC as well as NSA.
Many newspapers and TV channels without going through the complete text of Varun'sspeeches which were delivered in rustic Hindi language dubbed these communal and ?hate speeches? against Indian Muslims. The Indian Express in its editorial ?Shocking Language? (March 18) hastily concluded: ?Suffice to say that they (speeches) targeted Muslims in no uncertain terms.?
One may ask The Indian Express ?which Muslims were targeted by Varun Gandhi?? whether Indian Muslims or foreign Muslims; Pakistan ISI Muslims or Al Qaeda Muslims or Bangladesh HUJI Muslims or illegal Muslim infiltrators!
As may be seen from some excerpts of his speeches given below, Varun targeted foreign Muslims, ?galat tatva? from Pakistan, Bangladesh, Al Qaeda etc which the ECI, the district administration and jaichandi journalists by misrepresentation diverted towards Indian Muslims putting the Ganga on fire.
It is not a crime under Indian laws to promise tougher actions against foreign (ISI/Al Qaeda/Huji) Muslims who are killing Hindus in India. In fact Manmohan Singh Government is widely perceived to be soft on Islamic terrorists so it is legitimate politics on part of non-Congress and non-Communist candidates to promise tougher actions against Islamic terrorists in their election speeches. One may recall Rajiv Gandhi had threatened Pakistan, nani yaad dila denge; and, Vajpayee had threatened aar paar ki ladai.
Let us look at some excerpts which appeared in English media. According to Indian Express (March 18) Varun said: ?If any one raises a hand against Hindus and if they thought Hindus were weak and leaderless he would cut off his hand? Hindustan Times (March 18) reported it a bit differently: ?agar koi Hindu ke khilaf ungali uthaiga, ya sochega ki Hindu kamzoor hai??to main Gita ki kasam khata hoon ki main unke haath kaat doonga.? Here Varun has used phrase ?anyone? who harms Hindus and, it includes gangsters, Islamic terrorists, ISI and HUJI Muslims and is not directed at any particular community of India. But jaichandi journalists and jaichandi politicians quote these excerpts to claim that his speeches were directed against Indian Muslims.
On the internet video, Varun is shown saying: ?agar kisi aadami ne Hinduoon par hath uthaya to main Gita ki kasam uus haath ko kaat daloonga? In another statement: ?jo haath hindoon ke upar uthenga uus haath ko Varun Gandhi kaat dalenga.? In Indian Express excerpt (March 18) Varun has used phrase ?agar kisi ne, kisi galat tatva ke aadami ne?. Again these are not directed against any particular community of India.
Indian Express (March 18) attributes another statement to Varun: ?Maine kaha beta Osama bin Laden ko America pakad nahi liya lekin Varun Gandhi ke to pakad mein bahut anne waale hain chunaav ke baad!? Varun is promising his voters that he would be more tough on Osama men than the UPA Government and get them all arrested. It can not be said that this statement is directed against Indian Muslims. In this very speech Varun is alleged to have said that: ?badey daraawane naam hotey hain inke?.karimullah, mazharullah ??.? Varun is clearly referring to Osama people and not Indian Muslims. Can any body claim that these names are exclusive monopoly of Indian Muslims? Can any body claim that there are no Karimullahs, Mazharullahs in employ of ISI, HUJI and Al Qaeda?
In another excerpt Varun says: ?chhetra ko Pakistan hone se bachao?. It means he is calling upon his voters to help prevent illegal infiltration of foreign Muslims from Pakistan, Bangladesh and Nepal. Even the Supreme Court has called upon the government to take more stringent actions to prevent infiltration.
According to Indian Express (March 22) Varun said: ?mujhe ek bhi musalmaan vote nahin chahiye?.Na khalistan se, na Pakistan se? Varun is thus saying that unlike Congress and communist politicians he does not want votes of infiltrators from Pakistan or Bangladesh or from anti-India block of Khalistanies. This excerpt proves that Varun has not targeted any community from India and that he wants to have votes of only pro-India people.
In yet another excerpt (IE March 18) Varun is quoted using word katua [circumcised] which the media has misused to target Indian Muslims. Well the truth is that word katua can not mean Indian Muslims alone as circumcision is practiced among Muslims in Pakistan, Nepal, Bangladesh etc; and, among other religions too, for example among Jews.
On April 5, 2007, a three Judges Supreme Court Bench in Manzar Sayeed Khan vs State of Maharashtra & Anr (Criminal Appeal No.491 of 2007) held that ?the intention to cause disorder or incite the people to violence is the sine qua non of the offence under Section 153A, IPC and the prosecution has to prove prima facie the existence of mens rea on the part of the accused????.. The matter complained of within the ambit of Section 153A must be read as a whole. One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning?.
Therefore selective excerpts can not be relied upon to charge Varun under Sec 153A. His speeches have to be read in full. References to galat tatva, Osama bin Laden, Pakistan, Khalistan show his target to be of foreign origin and anti-India, and not any community of India, this aspect can not be overlooked. As Varun has targeted foreign elements he can not be charged under the IPC and the NSA.
On March 22, the ECI issued an order saying Varun'sPilibhit speeches contained highly derogatory references and seriously provocative language of a wholly unacceptable nature against a certain community. Censuring Varun the ECI advised BJP not to give BJP ticket to him. The ECI again erred; it equated foreign and anti-India elements being targeted by Varun with certain Indian community.
Shri GVG Krishnamurti, former Chief Election Commissioner has also opined that the ECI had no jurisdiction to act over Varun'sspeeches delivered before Varun had filed his nomination after issue of Presidential notification. Therefore censure of March 22 against Varun by the ECI is null and void.
The BJP rightly rejected the ?recommendation? of the ECI not to give ticket to Varun as it would have set most un-democratic precedent of Election Commissioners advising political parties about who should or should not be their candidates. The ECI attempted to convert the Indian democracy into a ?guided democracy? which the BJP leaders bravely resisted.
Pilibhit district authorities served the National Security Act notice on Gandhi on Sunday night (March 29) after the NSA decision was taken by the BSP government. Additional Cabinet Secretary Vijay Shanker Pandey told reporters in Lucknow that the order was issued under section 3 (2) of the National Security Act 1980. Giving details on the basis of which NSA was slapped on Gandhi, Pandey said, “Charges of inciting communal passion by making provocative and inflammatory speeches during meetings held on March 7 at Dalganj and on March 8 at Barkhera area of Pilibhit district have been confirmed.” Pandey added that ?on March 18 deviating from the programme sent to the Superintendent of Police Varun Gandhi changed his route and timing in a planned manner, thus affecting general administration adversely. Besides, he also gave provocative statement outside the court (yesterday) which affected the general administration.” These are subjective and weak grounds to invoke NSA.
As the ECI without jurisdiction hastily got filed FIR under criminal laws, Varun may file criminal defamation cases u/s 120B, 500 and 34 IPC against each of the three Election commissioners who, among others, under the case law of the Uphaar cinema can be tried individually and personally as the alibi of working in good faith or in public interest is no more available to them if it is shown that they acted illegally or in casual and cavalier manner disregarding the law including the principles of natural justice.
[The writer retired in the rank of Secretary in the Indian Foreign Service, 1971 batch. He is accessible at www.opgupta.org]