On Monday, the Election Commission of India barred Uttar Pradesh Chief Minister Yogi Adityanath and BSP chief Mayawati for three days and two days respectively for making “highly provocative” speeches that could “aggravate existing differences and create mutual hatred between different religious communities”.
Later in the evening, the Commission issued orders also barring Azam Khan of the Samajwadi Party and Maneka Gandhi of the BJP from campaigning for three days and two days respectively starting 10 am on Tuesday.
Such action by the Election Commission is rare — and it came on a day it told the Supreme Court that its power to act against violations of the Model Code of Conduct was limited to “issuing of notice” and “advisories”, and “in case of repeated violation of the advisories,… to file a First Information Report with the Police for initiation of criminal proceedings”.
The court responded that it would “like to examine the matter”, and asked the Commission to send a “representative… who is well conversant with the issues raised” to the court on Tuesday.
The ban on campaigning by Adityanath and Mayawati begins at 6 am on Tuesday. It means the leaders will miss the last day of the campaign ahead of the second phase of elections on April 18. Eight UP constituencies — Nagina, Amroha, Bulandshahr, Aligarh, Hathras, Mathura, Agra, and Fatehpur Sikri — will vote in the second phase.
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Mayawati was scheduled to address a rally in Agra on Tuesday, which she will not be able to do now. Yogi was to address rallies in Nagina and Fatehpur Sikri, and was expected to campaign outside UP on April 17 and 18.
The EC has censured Mayawati for her speech in Deoband on April 7, in which a “special mention was made to the minority community of Muslims to vote in a consolidated manner in favour of the candidate of coalition parties”; and Adityanath for his ‘Ali and Bajrang Bali’ comment in Meerut on April 9, and for referring to the “hara virus”, indicating Muslims. The EC said that as senior leaders they “should have desisted… (from) making statements that have the undertone and propensity to polarize the elections”.
Khan has been punished for making derogatory remarks against the BJP candidate from Rampur, Jaya Prada; Maneka for telling Muslims that if they do not vote for her, they should not expect help after she wins.
The only other occasions on which the EC has acted in a similar manner against violations of the Model Code have been in 2014.
It had banned Azam Khan and BJP president Amit Shah from holding public meetings, processions, or road shows in UP, and had directed the state chief secretary to initiate criminal proceedings against them in case there was a violation. The ban on Shah was lifted after he wrote to the Commission promising that he would not disturb public tranquility or law and order. According to the poll panel, Shah vowed not to use “abusive or derogatory language”.
Also during that Lok Sabha election campaign, the EC had banned BJP leader Giriraj Singh from campaigning in Jharkhand and Bihar for saying that those who did not vote for Narendra Modi, then the prime ministerial candidate of the BJP, would have to go to Pakistan.
Code and Court
When the elections were announced, the EC had issued a detailed 286-page Code of Conduct for parties. On April 5, it issued a general advisory, seeking “strict compliance” of instructions such as “No appeal shall be made on the basis of caste/communal feelings of the voters; no activities which may aggravate existing differences or create mutual hatred or cause tension between different castes/communities/religious/linguistic groups shall be attempted; and no temples/mosques/churches/gurudwaras or any place of worship is to be used for election propaganda, including speeces, posters, music etc or electioneering”.
Separately, the Commission has asked parties and candidates to desist from displaying photographs of defence personnel or photographs of functions involving defence personnel, in campaign advertisements. However, it did not issue any order after Opposition parties complained that BJP leaders were “politicising” the armed forces.
An EC official said action depended on the “gravity of the offence” and on whether the accused was a “serial offender”. However, hate speech would attract several provisions under the Indian Penal Code, the Code of Criminal Procedure, and The Representation of the People Act.
“The EC could separately file a complaint with the police under IPC provisions. If no one approaches the court, election officials can do so themselves,” the EC official said. “The court can refer charges of corrupt practices to the President, who can seek the views of the Election Commission. The Election Commission can advise barring the individual from casting his/her vote for six years.”
In 1999, Shiv Sena supremo Bal Thackeray was banned by the EC from casting his vote and contesting elections for six years with effect from 1995. Thackeray had delivered an inflammatory speech at a rally in Mumbai in 1987 while campaigning for an Assembly bypoll. The Commission’s order, which came after 12 years, was based on a 1995 judgment of the Supreme Court, which confirmed the Bombay High Court order that found Thackeray guilty.
The Model Code of Conduct, which evolved from a draft code voluntarily approved by representatives of leading political parties in Kerala in February 1960, has been in place since 1962, when the Election Commission circulated it to all recognised parties. “But a lot of time has passed, and the nature of elections and electioneering have undergone many changes. It is time to revise it thoroughly,” the EC official said.