Will the judiciary watch silently as the ECI abdicates responsibility to curb hate speech by the PM?

If the Election Commission of India continues to fail its duty, the judiciary must intervene to take action against hate speech by Prime Minister Narendra Modi, writes S.N. Sahu.

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THE Election Commission of India (ECI) has taken no action on Prime Minister Narendra Modi's communally divisive speech delivered in Banswara, Rajasthan on April 21 in violation of the Model Code of Conduct (MCC) and several Sections of the Representation of the People Act, 1951.

It clearly shows that the ECI is guided by the doctrine of differential rights followed by colonial rulers who ruled India for several centuries.

That doctrine prescribed a set of rights for those who ruled India and the same was denied to Indians who were subjugated and discriminated against by them.

Communally divisive narrative

Modi said in Banswara that opposition parties on assuming office after winning the mandate of the people would snatch away even mangalsutras (the gold ornaments worn by married Hindu ladies) and other wealth owned by mothers and sisters and hand them over to the Muslims, who he said produce more children and are infiltrators.

What the Prime Minister delivered cannot be described as anything other than unadulterated hate speech against Muslims. He who saw the "imprint of Muslim League of a pre-independent era" in the Congress manifesto was now claiming that it contained provisions to acquire the gold of mothers and sisters and pass it on to others who professed Islamic faith.

He completely distorted the eighteen-year-old speech of Prime Minister Manmohan Singh who had said that Scheduled Castes, Scheduled Tribes, children, women and minorities, including Muslims, had the first claim on resources of the country.

With mischievous intent, Modi twisted the statement of Singh and said that the latter had accorded Muslims the first right on property.

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"Brothers and sisters," Modi stated, "these people with Urban Naxal ideology will not let even your mangalsutra alone, they will go this far."

The letter and spirit of what he said were riddled with the intent to divide people on communal lines and consolidate a section of the electorate on the basis of their religious creed to garner their precious votes in favour of his party.

Dual standards of ECI

Scores of people and concerned citizens, including the Congress party and other parties approached the ECI to lodge complaints against Modi's highly polarising utterances.

The ECI, instead of promptly acting against the speech, gave no comments and it is yet to take any action against him.

While the ECI quickly issues notices to opposition leaders for their alleged violation of the MCC and other laws and regulations during their election campaign, the same standard is not applied to the Prime Minister on the complaints that he delivered speeches using religious slogans and sought votes of the electorate on that very ground.

A few instances in this regard would drive home the point effectively. It may be recalled that Modi, while campaigning in the 2023 Karnataka assembly elections, blatantly recited "Jai Bajrangbali" (Victory to Lord Hanuman!) to appeal to voters to cast their votes for the BJP, and even exhorted them to press the EVM button by reciting the same slogan.

Such employment of religious slogans for seeking votes is prohibited by law, yet Modi wilfully breached it and the ECI took no action against him based on the complaints filed with it.

Similarly, in 2019, Modi sought votes in the name of Pulwama martyrs disregarding the ECI guidelines which prohibit political parties to appeal for votes and support in the name of soldiers who have attained martyrdom.

While Modi faced no action from the ECI on the issue, other opposition leaders were charged by it for breaching the MCC. This dual standard of the ECI clearly signifies that it upholds the doctrine of differential rights, one set of rights for the Prime Minister and another set for opposition leaders.

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Such duality displayed by the ECI in applying the rights and standards clearly testifies to its subordination to the executive of the day. It unmistakably signals that differential standards, one standard for Prime Minister Modi and the other for opposition leaders, negates the purity and integrity of elections and contravenes the principles of free and fair elections held by the Supreme Court as the concomitant of democracy and the basic structure of the Constitution.

Judiciary must intervene for upholding purity and integrity of the electoral process

Now that the ECI is deafeningly silent on the issue, the responsibility rests with the judiciary, which must act promptly to put a check on Modi's communal rantings which continue uninterrupted in his election speeches.

The Supreme Court, in its February 15 judgment declaring the electoral bond scheme unconstitutional, reiterated its earlier stand that free and fair elections denote equal opportunity to all people.

By applying the proportionality of that logic, the inaction of the ECI in the case of Modi's Banswara speech and its prompt action against opposition leaders violating MCC is in clear contravention of the principle of equal opportunity.

In the judgment on the electoral bond scheme, the Supreme Court recalled that a free and fair election is one which is not "rigged and manipulated and the candidates and their agents are not able to resort to unfair means and malpractices".

The judiciary has held that an appeal on grounds of religion and the use of religious symbols for votes is a 'corrupt practice' under the Representation of the People Act, 1951.

So it can be interpreted that Prime Minister Modi's Banswara speech falls under the category of corrupt practice. Therefore, the judiciary must promptly intervene and take action as deemed fit against Modi for his hate-filled speech.

It has been observed while declaring the electoral bond scheme as unconstitutional that securing the purity and integrity of the electoral process is not the sole duty of the ECI; other organs of the government, including the legislature, executive and the judiciary, also have key roles to play to secure the integrity of the electoral process.

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So when the ECI has failed to secure the purity and integrity of the electoral process by taking no action against Modi's divisive speech, the judiciary must take suo motu action against the acts of omission and commission of Modi in targeting a section of population on the basis of their faith.

A servile commission

In Anoop Baranwal versus Union of India, the Supreme Court prescribed that till a law is enacted by the Parliament to appoint election commissioners and Chief Election Commissioners, a committee consisting of the Prime Minister, Chief Justice of India and leader of Opposition in the Lok Sabha or leader of the Opposition party with largest number of members of Parliament would select candidates for those posts in the ECI.

It did so to ensure that the ECI should never become a "servile commission".

Does the silence of the ECI on flagrant violations committed by Modi by delivering a hate-filled speech in Banswara not mean that it has become a 'servile commission' at the service of the government of the day?

Therefore, nothing is expected from such a commission to maintain the purity and integrity of the electoral process and it is now a categorical imperative for the judiciary to intervene immediately and uphold the cause of free and fair elections.