By Rashmi Saksena, IANS,
New Delhi : Bharatiya Janata Party’s Uttar Pradesh candidate Varun Gandhi may have sparked off a controversy by his allegedly provocative speeches, but the Election Commission’s action against him has been in haste and beyond jurisdiction, says former election commissioner G.V.G. Krishnamurthy.
“The Election Commission has no jurisdiction to take action against Gandhi” for his alleged inflammatory speeches, Krishnamurthy told IANS in an interview.
Krishnamurthy says this is because the model electoral code of conduct comes into effect only after President Pratibha Patil notifies the elections in the official gazette. Till then Gandhi cannot be considered an Election Commission recognised candidate.
“Till then, there are no official candidates at all,” he added. The presidential notification is expected Monday.
Krishnamurthy says the commission has acted in haste in moving against Gandhi for violation of the model code of conduct under the provisions of the Representation of Peoples Act 1951. Only the police can move against him under the Indian Penal Code (IPC) for inciting communal passions, he says.
The Election Commission this week issued a notice to Gandhi, the BJP candidate from Pilibhit in Uttar Pradesh, for allegedly making anti-Muslim campaign speeches.
A first information report (FIR) has been registered against Gandhi under the Indian criminal laws and under Section 125 of the Representation of the People Act.
Krishnamurthy, who has undertaken a detailed study of election laws for 60 years, explained that the Election Commission is authorised to take action under the model code of conduct only against a candidate and a political party recognised by it.
“As of now Varun is only a probable candidate and an ordinary citizen against whom action can be taken only under the IPC if he makes inflammatory statements. The Election Commission has no role to play till the notification of elections by the president,” said Krishnamurthy, whose tenure as election commissioner (1994-99) was controversial.
The Representation of Peoples Act, according to Krishnamurthy, categorically provides in eight paragraphs guidelines to the commission on the implementation of the model code of conduct.
“Action under the model code of conduct can be taken in the conduct of a political party registered with the Election Commission and candidates, at public meetings by a candidate and political party, processions by candidates and political parties, on polling day, at polling booths and election observers,” he said.
Krishnamurthy says the model code of conduct can be implemented only in the case of political parties registered with it and not in the case of probable candidates.
“Probable candidates can be recognised by the commission only after the notification of elections by the president, followed by filing of nominations and its scrutiny. Once this formality is over, only then the Election Commission recognised candidates come into being. And it is only after this that the commission can take action against them for violation of the model code of conduct,” he said.