Election Commission: Orders and Constitutional Chaos
Updated: Oct 19, 2020
This is Part III of the Election Series
- Hrishika Jain*
In the run up to the 2019 elections, the Election Commission’s [‘the Commission’] interventionist responses to communally appealing speeches and violent conflict during political rallies sparked considerable controversy.
The Commission passed orders against prominent figures banning them from campaigning for limited periods, on the basis of violations of various provisions against corrupt practices like promotion of communal hatred and solicitation of votes through religious appeals, and against ad-hominem remarks against opponents. Further, in West Bengal, in response to incidents of violence and vandalism during the campaigns, the Commission prolonged the campaign silence period by an additional 19 hours, over the statutory period of 48 hours before the poll concludes.
Amid rising concerns about partisanship in the Commission’s orders, there has been a marked absence of discussion around the constitutional/legal validity of these orders, even as the Supreme Court dismissed objections against the Commission’s interventions. I seek to address this.
First, I examine the jurisprudence on the scope of the Commission’s powers under A.324 of the Constitution [I]. Second, I look at the treatment of political speech in free speech jurisprudence, and examine if election speech warrants differential treatment from other political speech [II]. Third, I assess the validity of campaign bans and the extension of the silence period on two bases - the Commission’s scope of authority under A.324, and a fundamental right [‘FR’] review under A.19(1)(a) [III]. In the end, I conclude that the remedy to election hate speeches lay in a finding of ‘corrupt practice’ by the appropriate judicial remedy and disqualifications subsequent to the offending speech, thus disincentivising such speech – not in prior restraint orders that ban such speech altogether.
I. Commission’s powers under Article 324
The Supreme Court has held that the Commission enjoys wide plenary powers under A.324 to ensure free and fair elections and that these were subject to only two limitations. First, any order passed by the Commission in pursuance of its powers under A.324 must comply to principles of natural justice. Second, while A.324 is a reservoir of all residuary powers to ensure free elections, it may only supplement parliamentary law, not supplant it. These decisions were related to grounds for re-poll and regulation of election symbols.
An important principle underlying this interpretation is that powers granted to a body by the Constitution must be liberally construed to achieve its constitutional goals. In this light, I argue that this set of precedents is not, in its full extent, applicable to cases such as campaign bans and silence which involve a competing constitutional goal other than free and fair elections - freedom of speech and expression. Thus, the power of the Commission cannot be as wide as described in Mohinder Gill, in cases where the exercise of such power involves restrictions on FRs. I develop this further in Section III to argue that the Commission did not have jurisdiction to pass these orders.
II. Locating election speech in free speech jurisprudence
It is notable that the test under Article 19(2) is not satisfied by the proof of a mere nexus between the restriction placed and the grounds of public order, etc. stated in the sub-section. Apart from the nexus, the restriction itself must also be reasonable. This, then, allows the judiciary to balance the competing values of social order and liberty, in accordance with the Constitution. The Court’s history of this balancing exercise in the context of political speech has been chequered - with decisions ranging from progressive ones like Shreya Singhal, to regressive ones like Re Arundhati Roy. Developments in US free speech jurisprudence can contribute significantly to this exercise. US courts have recognized political and ideological speech as ‘high-value’ speech forming the core of the First Amendment, with any regulation thereof generally meriting the strictest standard of scrutiny.
Proponents of ‘election law exceptionalism’, however, argue that election speech, as a sub-set of political speech, must be subject to heavier regulation than other political speech, on account of its special sociological function in a democracy and the importance of informed voting unaffected by irrelevant considerations. This principle seems to have been occasionally endorsed by US courts as well. However, I argue that Article 19(1)(a) must have its “fullest and most urgent application in campaigns for political office.” Freedom of speech and expression must not be read as only intended at achieving informed collective decision-making, but also at achieving democratic legitimacy through free flowing public discourse and engagement with all kinds of opinions, however disagreeable and distasteful. While the latter requires every person to have a right to expression - the former merely requires that every idea worth discussing must be allowed to be expressed, thus typically excluding non-violent hate speech or communal appeals from the bounds of its protection and from public engagement. I argue that both these conceptions play an equally crucial role in political speech and generating public discourse, especially towards ensuring democratically legitimate elections, through democratic engagement with and rebuttal of fringe opinions.
Thus, in the next section, I will assess the validity of the Commission’s orders in light of the significant position that election speech holds among high-value political/ideological speech - thus, warranting an equally or more strict standard of A.19(1)(a) scrutiny of any order restraining such speech.
III. Validity of the Commission’s orders
I argue that the Commission did not have the jurisdiction/authority to pass the orders for campaign bans or extension of silence period, and thus, the orders lack legal validity.
In Mohinder Gill, the Court held that the Commissioner’s order forcing a re-poll on grounds other than those provided for in S.58 of the Act, is valid since it merely supplements the grounds in the Act. As argued before, the Court must restrain from holding the scope of A.324 to be similarly wide in a case where the order would impinge on FRs. This is because the presumption is that the statutory provision is a deliberated policy decision reflecting the appropriate balance between the FR and the need to regulate it. This is further affirmed by the position that only a legislative act can create and impose any reasonable restrictions on a FR, reflecting the prioritization of legislative judgment in regulating FRs. This is reflected in the Allahabad High Court’s decision in Kunwar Singh, wherein it held that the Commission may not pass orders that drastically affect FRs unless it is in compliance with existing law.
In this light, the Commission’s order extending the campaign silence period in West Bengal by another 19 hours, effectively amounted to supplanting the 48-hour period mentioned in S.126 of the Act with a 67-hour period. This is an improper exercise of the Commission’s powers under A.324 even within the Mohinder Gill interpretation. However, this becomes more egregious where the Commission supplants the balance between freedom of speech and public order during elections created by the legislature - the only body that is constitutionally authorized to make this decision.
Further, the Commission’s campaign bans were justified by citing violations of MCC that amounted to ‘corrupt practice’ under S.123 of the Act. However, the Act expressly provides both for the body empowered to make a finding of ‘corrupt practice’, as well as the consequences of such a finding. S.99 empowers the High Court to make a finding on whether there has been any corrupt practice. Once a finding under S.99 is made, Sections 100(1)(b) and 8A provide for avoiding of the election result by the High Court or disqualification of the candidate by the President upon consultation with the Commission. It is clear that, in unilaterally issuing notices and orders declaring candidates guilty of corrupt practices, the Commission usurped the proper power of the High Courts, and violated the division of powers envisage by the Act. Further, the Act creates specific consequences for corrupt practices and thus occupies that field - it would be impermissible for the Commission to ‘supplement’ anything in that area through A.324, in a way that would encroach on other constitutional provisions.
I argue that, in any case, the campaign ban orders amount to a pre-emptive ban and an unreasonable restriction of the rights under A.19(2). In light of the strict scrutiny that is warranted in cases of restrictions on election speech, as argued before, I will consider various factors that are relevant towards considering the ‘reasonableness’ of the restriction.
First, it is notable that both the orders - campaign bans and extension of election silence - amount to prior restraint orders. These are orders that pre-emptively ban speech, as opposed to subsequently punishing or disincentivizing offending speech - with the former generally being considered a more egregious form of free speech violation, and thus admitting of a narrower set of exceptions. This hierarchy was, to a certain extent, recognized by the Supreme Court as well in its recent decision in Sahara India.
Second, it is important to note that both the orders are content-based restrictions on free speech, which must generally be treated with stricter scrutiny than content-neutral restrictions.However, the campaign speech ban orders (unlike the generally applicable campaign silence order) go a step further, and are viewpoint-based, that is - when only some ideological perspectives are regulated on an otherwise permissible content-matter.
I argue that while the extension of campaign silence order pass strict scrutiny, the orders for campaign bans do not. The threefold test for such scrutiny is - the presence of a compelling state interest, nexus between the means and the ends, and the absence of an alternative that is less intrusive than the restriction.If the ends are to ensure democratic legitimacy of elections, it is difficult to justify completely banning certain perspectives from the marketplace of ideas without appropriate judicial findings. Even if it may be conceded that the bans were justified in these specific circumstances, this sets a dangerous precedent providing immense power to a single fallible institution. The nexus is better established in case of a general period of campaign silence to give the voters some time to deliberate on their decision and cool off from the barrage of view-points that come in election speeches - the prior restraint may be permissible as long as it can be shown that it was the least restrictive solution to a compelling state interest.
Thus, I conclude that the both the orders are legally invalid due to lack of proper authority of the Commission under A.324 to pass these. Further, even if the Commission did have proper jurisdiction - while the order for extending the silence period would have survived A.19(2) scrutiny on account of being view-point neutral, the order for campaign bans would regardless be unconstitutional as an unreasonable restriction on the freedom of speech, by virtue of the fact that it was in the nature of a prior restraint order on certain viewpoints. The correct remedy for these speeches in election law would be a finding of ‘corrupt practice’ by the appropriate judicial forum and imposing disqualifications subsequent to the offending speech that will act as disincentives for such speech – not prior restraint orders that clash dangerously with A.19(1)(a) rights.
*Hrishika Jain is a 5th year student at the National Law School of India University, Bangalore.
 S.123(3A), Representation of People Act, 1951 [‘the Act’]; Part I(1), Model Code of Conduct for the Guidance of the Political Parties and Candidates [‘MCC’]; S.125, the Act.
 S.123(3), the Act; Part I(3), MCC.
 Part I(2), MCC.
 Election Commission of India, Order F.No. 576/Misc/2019/SDR (May 15, 2019).
 S.126, the Act.
 Harpreet Mansukhani v. Election Commission of India, W.P. (Civil) No. 364/2019 (Supreme Court of India).
 Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405.
 A.C. Jose v. Sivan Pillai, (1984) 2 SCC 656.
 Kanhaiya Lal Omar v. R.K. Trivedi, (1985) 4 SCC 628.
 N.K. Bajpai v. Union of India, (2012) 4 SCC 653.
 Gautam Bhatia, On Reasonable Restrictions and the First Amendment, Indian Constitutional Law and Philosophy (June 27, 2016) available at https://indconlawphil.wordpress.com//?s=reasonable+restrictions+19%282%29&search=Go.
 The Court recognized the distinction between advocacy and incitement, to hold that A.19(2) operates only when there is an immediate threat of incitement of violence. Shreya Singhal v. Union of India, (2015) 5 SCC 1.
 In a contempt case, the Court expanded the grounds under A.19(2) in stating that there needs to be a balance between freedom of speech and the public interest in dignity of the judiciary - otherwise not a recognized ground under A.19(2). Arundhati Roy, In Re, (2002) 3 SCC 343.
 West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943); Congressional Research Service, The First Amendment: Categories of Speech (January 16, 2019) available at https://fas.org/sgp/crs/misc/IF11072.pdf.
 R. Post, Regulating Election Speech Under the First Amendment, 77 Texas L.R. 1837 (1999).
 Burson v. Freeman, 504 U.S. 191 (1992), as cited in W. Marshall, False Campaign Speech and the First Amendment, 153 U.Pa.L.Rev., 285 (2004).
 Brown v. Hartlage, 456 U.S. 45, 53 (1982).
 Secretary, Minister of I&B v. Cricket Association of Bengal, 1995 SCC (2) 161.
 Post (n 14) 1841.
 A. Meiklejohn, Free Speech and its Relation to Self-Government 25 (1948).
 N.K. Bajpai v. Union of India, (2012) 4 SCC 653.
 Kunwar Raghuraj Pratap Singh v. Chief Election Commissioner, AIR 1999 All 98.
 This is different from the judiciary’s power to reviewthe balance arrived at by the legislature on the metric of ‘reasonableness’ of the restriction.
 Thomas I. Emerson, The Doctrine of Prior Restraint, Law and Contemporary Problems, available at https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2658&context=lcp; Near v. Minnesota, 283 U.S. 697 (1931).
 Sahara India Real Estate Corporation v. Securities and Exchange Board of India, (2012) 10 SCC 603. The Court stressed on the requirement of absence of reasonable alternatives before a prior restraint order is passed.
 Turner Broad Sys. Inc. v. FCC, 512 U.S. 622, 642 (1994). By this logic, a rule banning all loudspeaker usage after 10 PM will enjoy more protection than a rule only barring loudspeakers for campaigning, since the latter would be content-based.
 L.G. Jacobs, Clarifying the Content-Based/Content-Neutral and Content/Viewpoint Determinations, 34 McGeorge L.Rev., 595 (2003).
 Congressional Research Service (n 14).