Story of a hot war of letters between Election Commission and Subramanian Swamy
By Mumtaz Alam Falahi, TwoCircles.net,
Between 1st September and 15th October 2011, there was a hot war of letters between Election Commission of India and Dr Subramanian Swamy, president of Janata Party, all beyond the media and public glare. The letters reveal that when ECI, one of the most powerful constitutional bodies in the country, asked explanations from Dr Swamy on the two written complaints over his infamous DNA newspaper article, Dr Swamy pounced on ECI and asked it to study law first and take action against its officials for issuing the notice to him. He did not reply to any issue raised in the two complaints, rather he said whatever he wrote was within the parameters of the Constitution of India.
Background
Dr. Subramanian Swamy, President of the Janata Party, in his capacity as such had authored a venomous, hate-filled article in the Mumbai-based DNA newspaper on 16th July 2011. The article was shamelessly promoting and inciting violence, hatred, ill-will and enmity between two religious communities. The article was published just 3 days after the Mumbai bomb blasts on 13th July 2011. The hateful article bordering serious violation of the word and spirit of the Constitution of India was condemned across the board and it even resulted in an overwhelming decision by the Harvard University to discontinue the courses taught by him.
Earlier, an FIR was sought to be registered by Shehzad Poonawalla, law student of Delhi, under the relevant provisions of the IPC. The National Commission for Minorities (NCM) was also petitioned by him to take appropriate action in the said matter. The Election Commission of India (ECI) was also petitioned to take appropriate action against the Janata Party since the article, which is not only unlawful but also contrary to the secular ideals of the Indian Constitution, towards which every political party has an inalienable, statutory commitment under the provisions of the Representation of People’s Act in order to be qualified for registration by the ECI. The article was authored by Dr. Swamy in his capacity as the President of the Janata Party (and appeared with this byline). Moreover, no other functionary of the Janata Party contested that the views expressed by the author were merely personal views and not that of the party. Instead, the official website of the Janata Party continues to carry this article to date. It would be pertinent to add that Dr. Swamy, in his capacity as the President of the Janata Party, has written quite a few similar hateful, distorted articles.
The Delhi Police, after having made a preliminary enquiry, went ahead and registered an FIR under the various provisions of the IPC including 153-A and a cognizable offence is prima facie made out.
The NCM too has taken necessary action and has strongly condemned the article terming it to be “unlawful”. Then NCM wrote to the ECI. Dr. Zafarul Islam Khan of All India Muslim Majlise Mushawarat and Shehzad Poonawalla filed written complaints and urged the ECI to deregister Janata Party.
The war of letters
The ECI, in its wisdom, issued a show cause notice (1st Sept. 2011) to the Dr. Swamy in his capacity as the President of the Janata Party calling for a reply on the contentions stated therein based upon the complaints of Poonawalla and Khan.
Show cause notice of Election Commission dated 1st Sep. 2011 (Page 1)
Show cause notice of Election Commission dated 1st Sep. 2011 (Page 2)
“I am directed to state that two complaints have been received in the Commission – one from Dr. Zafarul Islam Khan of AIMMM and the other from Shri Shehzad Poonawalla through a reference from the National Commission for Minorities. These complaints are against your article published in the DNA Newspaper on 16.07.2011. The complainants have requested the Election Commission to deregister your party (Janata Party) on the grounds of your views expressed in the above article,” the ECI said in the letter.
If further said: “The reference from the National Commission for Minorities is self-contained and the contention therein is that the contents of the article are against the constitutional provisions and principles of secularism and the provisions of Section 29A(5) of the Representation of the People Act, 1951.”
The Commission asked the Janata Party to file its reply by 9th September 2011.
Dr Swamy responded on 5th Sep. 2011. Instead of replying to complaints he said written complaints are vague and bland accusation and asked ECI if it can hold a hearing and if it can ask complainants to file submission on affidavits.
Dr Swamy’s 13th Sept reply to Election Commission (Page 1)
Dr Swamy’s 13th Sept reply to Election Commission (Page 2)
After one week, Dr Swamy shot another letter (13th Sep.) and said he stood by his views in the article. Instead of making a denial and rebuttal of the allegations and contentions stated in the notice of the ECI, (which usually forms the substratum of any reply to a legal notice) Dr. Swamy responded by making some allegations against the ECI itself. He said: “In view of delay from ECI his stand on concerned matter is this: “I stand by my views stated in the article published in DNA… It is my submission, the ideas expressed therein are squarely within the parameters of the Constitution of India in which sacred document I have always had full faith and belief.”
He did not stop at it. He said in the same letter that he wasted his time to foolish call and asked if ECI had done homework before issuing the notice.
Dr. Swamy wrote: “I deplore having to waste my time to reply to every ignorant and foolish call for my prosecution and/or explanation for such views. Further he questioned whether the ECI and NCM before taking cognizance of such “vapid” complaints made an attempt “to understand and analyse the law on the subject” He further alleged that the “ECI failed to do elementary homework on the two complaints”.
In the last paragraph of his reply he states: “I would like to refrain from actually stating that the Election Commission’s aforesaid notice amounts to misfeasance in office and a malafide exercise of its powers, but I do require you to withdraw your notice forthwith. Officials of the ECI who decided to flout the Supreme Court judgment by sending this notice must be taken to task and made accountable.”
It would be pertinent to note here that Dr. Swamy has made these defamatory charges and imputing motives against a Constitutional authority. Clearly this is nothing short of an attempt to undermine the ECI for having sent a Notice to him.
The ECI in its response on 12th Oct to Dr. Swamy’s unsubstantiated and uncharitable remarks expressed its displeasure by stating that Dr. Swamy’s letter “attempts to belittle the action taken by the Commission”.
ECI’s reply to Dr Swamy dated 12th Oct. 2011 (Page 1)
ECI’s reply to Dr Swamy dated 12th Oct. 2011 (Page 2)
The commission said: “The complaints contained several allegations of violation of the provisions of the Constitution, the principles of secularism etc in the views and suggestions in the article. However, his reply gave only a plain denial of the allegations and has not dealt with various issues and allegations in the complaints. The letter also attempts to belittle the action taken by the commission to call for reply of the Janata Party to the allegations in the complaints which is a well established normal practice in dealing with such complaints and petitions.”
The ECI firmly reminded Dr. Swamy that the Commission “had not asked Dr. Swamy’s reply to any calls for his prosecution or for his views expressed in the article” and “directed the Janata Party to submit its para-wise reply”.
It also pointed out that there was no flouting of any direction of the Hon’ble Supreme Court in asking the Janata Party to file its reply to the complaints.
“In your letter dated 13the Sep. a reference has been made to the judgment of the SC in Indian National Congress vs Institute of Social Welfare and ors, and it has been stated that Janata Party does not fall within any of the three exceptions made in the judgment. It is relevant to draw attention to one of the three exceptions laid down in the said judgment–
There are exceptions to the principle stated in paragraph 2 above where the ECI is not deprived of its power to cancel the registration. The exceptions are these—Where a registered political party amends its nomenclature of association, rules and regulations abrogating therein conforming to the provisions of section 29A(5) of the Act or intimates the ECI that it has ceased to have faith and allegiance to the Constitution or to the principles of socialism, secularism and democracy or it would not uphold the sovereignty, unity and integrity of India so as to comply the provisions of section 29A(5).”
The ECI further wrote in this letter: “The complaints and the reference from the NCM contained several averments and allegations that the article in question contained views and ideas which are opposed to various provisions of the constitution and the principles of secularism.”
The commission asked a para-wise reply by 31st October 2011.
Dr Swamy replied on 15th Oct and said I have not violated constitution. Rather than replying to complaints parawise, he asked Election Commission to tell him which paragraphs of his article can invite deregistration.
Dr Swamy’s 15th Oct. reply to Election Commission
“I have searched my article published in the DNA titled “How to wipe out Islamic Terrorism’ and do not find anywhere or in any correspondence with the Election Commission having taken any of the above stated positions. Hence I request you to go through my article and tell me which of the paragraphs will entitle you to invoke Exception 3 in the said SC judgment.”
Viewpoint of Shehzad Poonawalla
Reacting to the attitude of Dr Swamy over ECI show cause notice, law student and political activist Shehzad Poonawalla told TCN: “Dr. Swamy has failed to give a satisfactory reply to the ECI until now. In fact, the last reply by Dr. Swamy seeks to put the onus on the ECI to give him an explanation rather than the other way around! Clearly, it reflects an attitude that Dr. Swamy considers himself to be higher than a Constitutional Authority. One wonders how Dr. Swamy would deem it fit to contest an election conducted by the very same ECI which he feels works inefficiently, without understanding the law and with an obvious malafide.”
Poonawalla was the first and original complainant over Dr Swamy’s article. He was the first and only to approach police to file FIR.
Poonawalla said: “It is disappointing yet not surprising that Dr. Swamy, has chosen to make totally baseless allegations of malafide and misfeasance against a Constitutional Authority like the ECI which is highly respected for its integrity and independence. Clearly, Dr. Swamy believes that he is vested with a power to sit in judgment on the actions of the ECI merely because they choose to send him a Notice. One wonders whether he would also allege malafide and misfeasance against the ECI if he were to lose an election conducted by them! This contemptuous reply to the ECI notice along with the 16th July hate-article, for which Dr. Swamy has been booked by the authorities and shown the door by Harvard University, only seem to reconfirm a forty year old long trait of him being a ‘political stunt-man of sorts’ as observed by several political commentators but his latest stunt of demeaning the ECI unfortunately does very little for resurrecting his fast balding credibility.”
Offending parts of Dr Swamy’s article highlighted by NCM
National Commission for Minorities in its letter to Election Commission on 30th July 2011, based on the written complaint from Shehzad Poonawalla, had highlighted various objectionable points in Dr Swamy’s article, which in NCM’s view constitute a criminal offence.
Some of them are as follows:
–Hindus cannot accept to be killed in this halal fashion, continuously bleeding every day till the national finally collapses…
–Muslims of India are being programmed by a slow reactive process to become radical and thus slide into suicide against Hindus…
–That they do I will not believe unless they acknowledge with pride that though they may be Muslims, their ancestors were Hindus. If any Muslim acknowledges his or her Hindu legacy, then we Hindus can accept him or her as a part of the Brihad Hindu Samaj (greater Hindu Society) which is Hindustan. India that is Bharat that is Hindustan is a nation of Hindus and others whose ancestors were Hindus. Others, who refuse to acknowledge this, or those foreigners who become Indian citizen by registration, can remain in India but should not have voting rights (which means they cannot be elected representatives)…
–Strategy: Remove the masjid in Kashi Vishwanath temple and the 300 masjids at other temple sites…
–Declare India a Hindu Rashtra in which non-Hindus can vote only if they proudly acknowledge that their ancestors were Hindus…
–Annex land from Bangladesh in proportion to the illegal migrants from that country staying in India…
–Goal 5: Denigrate Hinduism through vulgar writings and preaching in mosques and churches to create loss of self respect amongst Hindus and to make them fit for capitulation.”
NCM said the article “promotes or attempts to promote, on the ground of religion, disharmony and feelings of enmity, hatred, and ill-will between Hindus and the minorities. It promotes hatred against Muslims which is prejudicial to the maintenance of harmony between Hindus and Muslims and it is likely to disturb public tranquility. The article imputes that Muslims cannot, by reason of their being Muslims, bear true faith and allegiance to the Constitution of India or uphold the sovereignty and integrity of India. The article asserts and propagates that Muslims, by reason of their being Muslims, should be denied and deprived of their rights as citizens of India to vote. According to the article, all minorities must be told to acknowledge their Hindu ancestry failing which they should be denied voting rights. The article asserts and pleads that all Muslims are under an obligation to acknowledge their Hindu ancestry and this causes and is further likely to cause disharmony, feelings of enmity, hatred and ill-will between Muslims and Hindus. The article and its publication is a deliberate and malicious act intended to outrage the religious feelings of Muslims and deliberately and maliciously distorts history and facts to insult the Muslim religion and the beliefs of the Muslims. The article was written and published with the intent to cause fear and alarm to the public in general and Muslims in particular because it seeks to induce sections of the public to remove 300 masjids and deprive Muslims of their right to vote. The article and its publication were intended to incite persons to commit offences against the state and against public tranquility. The article and its publication was intended to incite Hindus to commit offences against Muslims by removing their masjids and denying Muslims the right to vote and further promotes international odium by calling on the public to promote hostilities against Bangladesh for the annexation of land.”
The NCM had urged the ECI to have the registration of the Janata Party granted under section 29 A of The Representation of the People Act, 1951 cancelled, and gave the reason.
“The requirement of law is that a political party while obtaining registration or to continue to maintain its registration is required to abide by the principle of secularism and bear faith and allegiance to the Constitution of India. The article of Subramanian Swamy abovementioned clearly shows that he and his Party does not abide by secularism as set out in the judgments of the Supreme Court , that the Party stands for “Hindu Rashtra”, that the Party has a pronounced anti Muslim stand which is hostile to secularism and therefore, since the stand of the Party is contrary to the Constitution of India and actively opposed to constitutional provisions, the Janata Party has lost the right to continue to enjoy registration under the Act and must be deregistered by the Election Commission of India,” the NCM had written in the complaint.