Bans and Extensions: How far can the Election Commission go?
Updated: Oct 19, 2020
This is Part II of the Election Series
- Unnati Ghia*
In exercise of its powers under Article 324, the Election Commission of India [‘EC’] has recently taken 2 unprecedented measures. First, it has imposed temporary campaign bans on candidates for violations of the Model Code of Conduct [‘MCC’], and second, it has extended the silence period in West Bengal following unrest and violence before elections. This post analyses their validity on the touchstone of constitutional provisions and argues that they are justified restrictions on free speech under Article 19 of the Constitution of India.
Background to the issues
The EC is a constitutional body. Article 324 of the Constitution vests in the EC the power of ‘superintendence, direction and control’ over electoral rolls and of ‘conduct of all elections’ to legislative bodies. However, it leaves the scope of this power undefined. Courts have generally adopted a deferential attitude towards the EC and held that Article 324(1) confers a plenary power, thereby permitting the EC to issue orders as it deems necessary for its functioning.
The phrase ‘conduct of all elections’ in Article 324 has been held to extend to all necessary provisions to carry out free and fair elections. This interpretation justifies the EC taking actions with no textual grounding – for example, requiring the criminal history of candidates despite the absence of a legal provision to that effect.
In order to ensure free and fair elections, the EC introduced the MCC to regulate the behaviour of candidates. Notably, the MCC is a product of political acquiescence and lacks any statutory backing. However, the power of the EC to take action under the Indian Penal Code 1860 [‘IPC’] pursuant to MCC violations has been judicially recognised. Alternatively, the EC also has the ability to withdraw legal recognition granted to a political party under the Election Symbols Order, 1968 for MCC violations.
I. Justifiability of Temporary Campaign Bans under Article 324
The temporary bans on candidates such as Mayawati, Azam Khan, and Maneka Gandhi had been imposed for around 48-72 hours. The EC had largely found violations of 2 key provisions – paragraph 3 of part I of General Conduct under the MCC, which deals with appeals to caste or communal identities; and paragraph 4, which prohibits resorting to corrupt practices. Interestingly, the bans emphasise on the dangerous potential of speech given the instantaneous spread of information digitally, which creates an impact beyond the constituency in which the speech was made. This observation holds true especially for the comments made by Maneka Gandhi threatening the Muslim community, or Sadhvi Pragya supporting the demolition of Babri Masjid.
The issue at hand is that this kind of inflammatory speech has been statutorily prohibited as ;corrupt practice’ and an electoral offence under two key provisions of The Representation of the People Act 1951 [‘RPA’]. Section 123(3A) classifies the promotion of feelings of enmity or hatred on the grounds of religion, caste, language etc as a corrupt practice. Section 125 penalises any person who, in connection with an election, promotes or attempts to promote enmity or hatred on the above grounds.
Sections 153(A) and 295(A) of the IPC also pertain to the same kind of divisive speech that has been sanctioned by the orders. The purpose behind these provisions is to counter divisive factors and ensure a free environment during elections. The question is therefore whether the EC can act in a field covered by legislation. I argue that while this field is certainly within the authority of Parliament, there is perhaps scope for the EC to act under Article 324.
First, despite the plenary power granted to the EC, the authority to make laws regulating elections and the EC itself is conferred on Parliament. Crucially, the EC’s directions do not possess the force of law and cannot create rights, obligations or causes of action for third parties – they are solely binding on election authorities. It is unclear as to what the repercussions of disobeying the ban are aside from political derecognition under the Symbols Order. One may argue that these bans are tools of censure as opposed to an enforceable penalty. However, compliance is likely, given that the EC can take action under the RPA and IPC, and to that extent, MCC violations must be read with these statutory provisions.
While the judiciary has never approved the use of temporary bans by the EC, it must be noted that the SC itself has prevented individuals from accessing areas where their inflammatory speech resulted in communal disharmony. However, this is a judicial exercise of granting injunctions – and the EC possesses no such power.
Second, as per Mohinder Singh Gill v Chief Election Commissioner, the residuary power under Article 324 may supplement statutory provisions to account for unprecedented situations not envisaged by the statute. However, the actions cannot ‘stultify’ existing laws. The SC later clarified that the EC under Article 324 cannot violate an express provision in a manner that supplants the statute.
The 2018 constitutional bench decision in Public Interest Foundation v UoI is key in its interpretation of Article 324. The SC held that it was constitutionally impermissible for the EC to create additional grounds for disqualification in exercise of Article 324, because grounds of disqualification fell squarely within the authority of the Parliament. Moreover, actions under Article 324 must be ‘in conformity with’ existing laws, even if it may be a reservoir of power where the law is silent. This interpretation of Article 324 is a departure from the earlier standard of ‘not supplanting’ existing laws, because it actively requires compliance. It can be argued that the EC is not in conformity with the statutory procedure/remedy, which grants jurisdiction to the courts. Even so, it must be noted that the EC is acting on MCC violations and not the RPA, and to that extent is in compliance.
Notably, a corrupt practice is brought before courts through an election petition under Part VI of the RPA, and the court thereafter disqualifies the candidate. Second, Sections 123(3A) and 125 have been given a narrow interpretation such that even calls for a ‘Hindutva’ state have not constituted corrupt practices. Perhaps a proactive EC issuing temporary bans is a feasible supplementary mechanism for countering hate speech, given that the statutory framework lacks the ability to respond to and counter the more immediate socio-political impacts of such speech. The future disqualification of a candidate does little to reduce the disharmony and tensions during elections created by such speech in the present.
II. Analysis of the extension of silence period in West Bengal
West Bengal was one of the states that witnessed a tumultuous campaigning season this year. The highly polarised political environment in the state resulted in several instances of violence, including clashes between party workers and vandalism of statues. Alarmed by these concerns, the Election Commission of India [‘EC’] advanced the campaign silence period in the nine constituencies in West Bengal by 19 hours, while noting in its order that the multiple instances of non-cooperation and violence had resulted in around 100 people being arrested. The EC’s order states that the extension is in exercise of its power under Article 324, to ensure the conduct of elections is in a free and fair manner.
Section 126 of the RPA mandates a silence period for 48 hours in a polling area until the election concludes. It prohibits any meeting, procession, media display or performance that concerns any ‘election matter’, defined in sub clause (3) as any matter intended to influence the result of an election. This section bars any campaigning, but also any news or propaganda that could potentially influence voter choice. A silence period prohibits political campaigning before voting, ostensibly to allow a free, peaceful environment during polls. Interestingly, Section 126 does not include print media within its scope. However, it unambiguously mandates a period of 48 hours, and gives no discretion to either the EC or the government to modify the same.
The EC’s invocation of residuary power under Article 324 in this context is in exercise of its residuary power to address unexpected situations, which would include the disorder that took place in West Bengal. In fact, the EC’s power to cancel polls or call for re-polls in turbulent social contexts has been repeatedly upheld by the SC. However, the test under Article 324 is whether the EC is ‘in conformity with’ existing legislations, which it is clearly not because the extension violates the statutorily mandated 48-hour period. Moreover, the SC has held Article 324 is an executive and not a legislative power. Therefore an order/ notification by the EC cannot replace a legislative provision.
In some cases, courts have upheld the premature enforcement of the MCC, citing Article 324. However, in all such cases, they specifically noted that there was no provision contrary to the action of the EC. In the instant case however, there is a statutory provision limiting the silence period to 48 hours. Therefore, the decision on this question would depend on how the plenary power of the EC to deal with unforeseen disturbances is weighed against the statutory provision.
III. Free Speech Implications of Measures
Before examining the content of the speech, there are concerns as to the legality and non-arbitrariness of the measures themselves. The prohibition on arbitrary action under Article 14 today extends to actions without a ‘determining principle’ and ‘depending on will alone’. The plenary power conferred on it by Article 324 does not grant it reprieve from the prohibition against arbitrary action. Moreover, the tripartite European test of legality, legitimate aim and proportionality has recently been imported into Indian jurisprudence under Article 19(2). The EC’s bans may fail here on both counts — the temporary bans were imposed without any precedent, statutory basis or examination of how they mitigate the harm caused by divisive speech. It is clear from the EC’s order extending the silence period that it has neither examined why 19 hours is an appropriate extension, nor has it delineated the circumstances in which, in its opinion, an extension is warranted – vandalism and clashes during rallies are certainly not unprecedented in India. The EC’s actions have previously been subject to this standard of review in the past. For example, the Supreme Court has held that the EC cannot de-register a political party under Article 324 unless an explicit statutory provision addressing that penalty confers it with that power.
Freedom of speech during elections ensures public access to information that informs its choice. Advocacy and opinions are protected under Article 19(1)(a), and this would extend to advocacy during campaigns as carried out by the sanctioned candidates – the bans are thus a violation. Of course, the normative question of whether such speech possesses any social value as to deserve protection is independent of the violation of the constitutionally provided right. The extension of the silence period also violates Article 19(1)(a) — it prohibits free speech on all election matters in meetings, television, etc beyond the statutory restriction. Admittedly, restrictions may be justified where individuals may be impaired from evaluating the worth of the message on their own. However, this determination must be made under Article 19(2).
The question is therefore whether the measures are reasonable restrictions under Article 19(2), which relies on two components – first, an exception within Article 19(2), and second, whether there is a ‘proximate connection or nexus’ with the exception.
First, an exception under Article 19(2) that can potentially be invoked is ‘public order’. The SC interpreted the phrase ‘in the interests of public order’ in Article 19(2) to cover instances with a tendency to cause public disorder as well. The exception requires public interest to be actively endangered and disturbed. This determination gauges the impact of the speech in light of the socio-political context. Given the increasing incidence of communal speech and subsequent violence across India and the polarising and targeted speech made by candidates like Yogi Adityanath, this standard is likely to be met.
Second, a reasonable restriction under Article 19(2) possesses a ‘proximate connection or nexus’ with public order. In the case of both temporary bans and extensions, there is a proximate nexus. The measures seek to directly remove the problematic speech from the incendiary setting, thereby addressing the threat to public order. Therefore, both measures are reasonable restrictions under Article 19.
The EC’s bans can therefore be justified under Article 19 and 324 of the Constitution. Even so, it is questionable whether the bans serve as a deterrent against further use. The comments made by the censured candidates are by no measure rare – such communal and divisive speech is becoming increasingly normalised in Indian politics. For example, Azam Khan faced a similar ban in 2014 for such speech, only to resort to the same this year. Maneka Gandhi was issued a warning by the EC for an MCC violation in Sultanpur just after she faced a campaign ban. These instances clearly indicate that the bans have little impact, if any.
The democratic fallout of the extension must also be noted. Given the information asymmetry that reigns supreme during elections, as well as the regular dose of fake news and propaganda supplied to the public in the run up to elections, any opportunity to clarify the truth may be important. Admittedly, this opportunity may not be availed of by politicians – the larger concern with silence periods is the restriction on the ability of the media to hold candidates accountable. Comically, the most basic form of reportage (i.e. print media) is not covered by Section 126. However, that does not reduce the impact on public access to information, given that a large percentage of the Indian population now relies on television and social media for information. In performing its duty of ensuring free and fair elections, the EC must be cognizant of the effect its own remedial measures have on the ability of the public to meaningfully exercise the right to vote. The extension of the silence period appears to be a hasty stop gap measure taken by the EC, as opposed to a well thought out response to violence and polarisation during elections in India.
However, both measures do indicate the existence of a vigilant election authority cognizant of the impact of communal politics on Indian democracy. One can only hope that the EC grows to be a stronger watchdog in the coming years.
*Unnati Ghia is a 5th year student at the National Law School of India University, Bangalore.
 Mohinder Singh Gill v CEC (1978) 1 SCC 405, 25.
 Kanhiya Lal Omar v RK Trivedi (1985) 4 SCC 628, 16-17.
 Common Cause v UoI (1996) 2 SCC 752, 22.
 UoI v Association for Democratic Reforms (2002) 5 SCC 294.
 Aditya Sondhi, ‘Elections’ in Sujit Choudhary and others eds, Oxford Handbook of the Indian Constitution (OUP 2016) 202.
 S. Subramaniam Balaji v State of Tamil Nadu (2013) 9 SCC 659.
 Sadiq Ali v ECI (1972) 4 SCC 664.
 Maneka Gandhi, Election Commission of India, 29 April 2019, Order No. 437/UP-HP/2019.
 Navjot Singh Sidhu, Election Commission of India, 1 May 2019, Order No. 437/MP-HP/2019/Complaints.
 Indian Penal Code 1860, art 153A - Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.
 ibid, art 295A - Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs.
 Harcharan Singh v Sajjan Singh AIR 1985 SC 236.
 Constitution of India 1950, 7th Schedule, Entry 71, List I and Entry 37, List II.
 Lakshmi Charan Sen v AKM Hassan Uzzaman AIR 1985 SC 1233.
 State of Karnataka v Praveen Bhai Thogadia (2004) 4 SCC 684, 690, 6.
 Mohinder Singh (n 1) 39.
 AC Jose v Sivan Pillai AIR 1984 SC 921, 25.
 Public Interest Foundation v UoI (2019) 3 SCC 224.
 ibid 105-106.
 ibid 66.
 Ramesh Prabhoo v Prabhakar Kashinath Kunte (1996) 1 SCC 130, 161.
 Election Commission of India, Order No. 576/Misc/2019/SDR, 15th May 2019.
 Digvijay Mote v UoI (1993) 4 SCC 175, 12.
 AC Jose (n 19) 21.
 Harbans Singh Jalal v UoI, CWP No 270 of 1997 (P&H HC).
 Shayara Bano v Union of India (2017) 9 SCC 1, 25.
 K.S. Puttaswamy v Union of India (2017) 10 SCC 1, 325, 638-645.
 INC (I) v Institute of Social Welfare (2002) 5 SCC 685.
 Saaristo v Finland App no. 184/06 (ECHR 12 October 2010).
 Shreya Singhal v UoI (2015) 5 SCC 1, 13.
 Gautam Bhatia, Offend, Shock, or Disturb - Free Speech under the Indian Constitution (OUP 2016) 173.
 Ram Manohar Lohia v State of Bihar AIR 1966 SC 740.
 Ramji Lal Modi v State of UP AIR 1957 SC 620, 9.
 Shreya Singhal (n 32) 37.
 Ram Manohar Lohia (n 34).