"Ensure adherence to model code in future"

Election Commission tells Modi and Sonia they violated the Model Code of Conduct

This is the text of the unanimous decision of the Election Commission of India on the complaints of violations of the Model Code of Conduct in the recent election speeches in Gujarat by Gujarat Chief Minister Narendra Modi, Congress president Sonia Gandhi and Congress general secretary Digvijay Singh.

Shri Narendra Modi,
Chief Minister,
Gujarat,
Gandhi Nagar.

You were called upon to submit your reply on the complaint filed by Ms. Teesta Setalvad, Secretary, Citizens for Justice and Peace, and on news reports for violation of provisions of Model Code of Conduct for guidance of political parties and candidates vide its letter of even Number, dated 6th December 2007. The representation dated 8th December, 2007, submitted by you in reply to its letter referred to above, has been duly considered by the Commission.

The Model Code of Conduct for guidance of political parties and candidates embodies the consensus among the political parties. The model code lays down broad guidelines as to how the political parties and candidates should conduct themselves during an election campaign. It clearly lays down, inter-alia, that political party and candidates shall not indulge in slander against each other and any criticism based on unverified allegation or distortion shall be avoided and that parties and candidates shall not indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic. The Model Code of Conduct is intended to maintain and uphold democratic traditions of ‘issue based’ election campaign. It is, therefore, expected from all the stakeholders to adhere to the provisions of the Model Code of Conduct so that free, fair and peaceful elections are conducted by the Commission as is expected of it, to ensure the vibrant working of the democracy in India. The Supreme Court, in the case of Gadakh Yashwantrao Kankarrao (AIR 1994 SC 678), had the occasion to advise that —

“The duty at the top echelons of leadership at the State and national level of all political parties is to set the trend for giving the needed information to the electorate by adopting desirable standards so that it percolates to the lower levels and provides a congenial atmosphere for a free and fair poll. A contrary trend of speeches by the top leaders tends to degenerate the election campaign as it descends to the lower levels and at times promotes even violence leading to criminalisation of politics. The growth of this unhealthy trend is a cause for serious concern for the proper functioning of the democracy and it is the duty of the top leaders of all political parties to reverse this trend to enable movement of the functioning democracy in the proper direction.”

The Commission cannot help expressing its deep anguish over the fact that sagacious advice and high expectations of the Supreme Court seem to have been belied in the instant case. It can hardly be gainsaid that some of the impugned utterances in your speech under reference had the effect of aggravating the existing differences to create mutual hatred or cause tension between different castes and communities and amounted to an appeal to caste or communal feelings. The amount of controversy and national debate which those utterances created all over the country and which even attracted the attention of the Apex Court of the country bear ample testimony to the above fact of aggravating the existing differences between the main communities inhabiting the State of Gujarat. Your attention in this context may be invited to the following observation of the Supreme Court in Ziauddin Burhanuddin Bukhari vs. Brijmohan Ramdass Mehra (AIR 1975 SC 1788):-

“Our Constitution makers certainly intended to set up a Secular Democratic Republic the binding spirit of which is summed up by the objectives set forth in the Preamble to the Constitution. No democratic political and social order, in which the conditions of freedom and their progressive expansion for all make some regulation of all activities imperative, could endure without an agreement on the basic essentials which could unite and hold citizens together despite all the differences of religion, race, caste, community, culture, creed, and language. Our political history made it particularly necessary that these differences, which can generate powerful emotions, depriving people of their powers of rational thought and action, should not be permitted to be exploited lest the imperative conditions for the preservation of democratic freedoms are disturbed.”

The justification provided for the above referred utterances as reaction / counterblast to certain propaganda, as alleged by you, to have been carried out against you can also hardly be accepted. Dealing with a similar contention, the Supreme Court observed in T.K. Gangi Reddy vs. M.C. Anjaneya Reddy and Others [22 ELR 261 (SC)], as follows:-

“We do not find any force in the contention that exhibits P-3 and P-4 were published as a counterblast to exhibit D-62 and, therefore, the said documents are not hit by Section 123(4) of the Act (Representation of the People Act, 1951). Sub-section (4) of Section 123 defining a corrupt practice is not conditioned by any proviso to the effect that it would cease to be a corrupt practice if the statement was made to counteract the rival statement of an opponent.”

The Commission, after careful consideration of all aspects, has come to the conclusion that in the instant case, the Model Code of Conduct has been violated. The Commission, therefore, has conveyed its displeasure and advised you to be more cautious in future so that the salutary provisions of the Model Code of Conduct are adhered to and duly observed in letter and spirit.

Smt. Sonia Gandhi,
President,
Indian National Congress,
24, Akbar Road,
New Delhi.

You were called upon to submit your reply on the complaint filed by Shri Jayanti Lal S. Barot, General Secretary, BJP Gujarat State and on news reports for violation of provisions of the Model Code of Conduct for guidance of political parties and candidates vide its letter of even Number, dated 9th December 2007.

The representation dated 10th December, 2007, submitted by you in reply to its letter referred to above, has been duly considered by the Commission.

The Model Code of Conduct for guidance of political parties and candidates embodies the consensus among the political parties. The model code lays down broad guidelines as to how the political parties and candidates should conduct themselves during an election campaign. It clearly lays down, inter-alia, that political party and candidates shall not indulge in slander against each other and any criticism based on unverified allegation or distortion shall be avoided and that parties and candidates shall not indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic. The Model code of conduct is intended to maintain and uphold democratic traditions of ‘issue based’ election campaign. It is, therefore, expected from all the stakeholders to adhere to the provisions of the model code of conduct so that free, fair and peaceful elections are conducted by the Commission as is expected of it, to ensure the vibrant working of the democracy in India.The Supreme Court, in the case of Gadakh Yashwantrao Kankarrao (AIR 1994 SC 678), had the occasion to advise that —

“The duty at the top echelons of leadership at the State and National level of all political parties is to set the trend for giving the needed information to the electorate by adopting desirable standards so that it percolates to the lower levels and provides a congenial atmosphere for a free and fair poll. A contrary trend of speeches by the top leaders tends to degenerate the election campaign as it descends to the lower levels and at times promotes even violence leading to criminalisation of politics. The growth of this unhealthy trend is a cause for serious concern for the proper functioning of the democracy and it is the duty of the top leaders of all political parties to reverse this trend to enable movement of the functioning democracy in the proper direction.”

The sagacious advice and high expectations of the Supreme Court do not seem to have been given due respect in the instant case. Some of the impugned utterances in your speech under reference amount to an attack on the personal character or conduct of the political/administrative functionaries running the present Government of Gujarat. Your attention in this connection is invited to the following observation of the Supreme Court in T.K. Gangi Reddy vs. M.C. Anjaneya Reddy and Others [22 ELR 261 (SC)]:-

“The words ‘personal character or conduct’ are so clear that they do not require further elucidation or definition. The character of a person may ordinarily be equated with his mental or moral nature. Conduct connotes a persons actions or behaviour ... what is more damaging to a person’s character and conduct than to state that he instigated a murder and that he was guilty of violent acts in his political career.”

The Supreme Court also observed in Inder Lal Vs. Lal Singh (AIR 1962 SC 1156) that:

“If, for instance, it is said that the candidate is a cheat or murderer there can be no doubt that the statement is in regard to his private character and conduct … if the economic policy of the party to which the candidate belongs or its political ideology is falsely criticised and in strong words it is suggested that the said policy and ideology would cause the ruin of the country, that clearly would be criticism, though false, against the public character of the candidate and his political party.”

The Commission, after careful consideration of all aspects, has thus come to the conclusion that in the instant case, the Model Code of Conduct has been violated. The Commission, therefore, conveys its displeasure and expects that in future the salutary provisions of the Model Code of Conduct will be adhered to and duly observed in its letter and spirit.

Shri Digvijay Singh,
General Secretary,
Indian National Congress,
24, Akbar Road,
New Delhi.

You were called upon to submit your reply on the complaint filed by Shri Jayanti Lal S. Barot, General Secretary, BJP Gujarat State and on news reports for violation of provisions of the Model Code of Conduct for guidance of political parties and candidates vide its letter of even Number, dated 9th December 2007. The representations dated 11th and 15th December, 2007, submitted by you in reply to its letter referred to above, has been duly considered by the Commission. The Model Code of Conduct for guidance of political parties and candidates embodies the consensus among the political parties. The model code lays down broad guidelines as to how the political parties and candidates should conduct themselves during an election campaign. It clearly lays down, inter-alia, that political party and candidates shall not indulge in slander against each other and any criticism based on unverified allegation or distortion shall be avoided and that parties and candidates shall not indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic. The Model Code of Conduct is intended to maintain and uphold democratic traditions of ‘issue based’ election campaign. It is, therefore, expected from all the stakeholders to adhere to the provisions of the Model Code of Conduct so that free, fair and peaceful elections are conducted by the Commission as is expected of it, to ensure the vibrant working of the democracy in India.

The Supreme Court, in the case of Gadakh Yashwantrao Kankarrao (AIR 1994 SC 678), had the occasion to advise that —

“The duty at the top echelons of leadership at the State and national level of all political parties is to set the trend for giving the needed information to the electorate by adopting desirable standards so that it percolates to the lower levels and provides a congenial atmosphere for a free and fair poll. A contrary trend of speeches by the top leaders tends to degenerate the election campaign as it descends to the lower levels and at times promotes even violence leading to criminalisation of politics. The growth of this unhealthy trend is a cause for serious concern for the proper functioning of the democracy and it is the duty of the top leaders of all political parties to reverse this trend to enable movement of the functioning democracy in the proper direction.”

In keeping with the above sagacious advice and high expectations of the Supreme Court, you were expected to avoid all references to certain communities indulging in terrorism which had the effect of aggravating the existing differences or create mutual hatred or cause tension between different castes and communities and amounted to an appeal to caste or communal feelings. The Commission, after careful consideration of all aspects, has advised you to be more cautious in future so that the salutary provisions of Model Code of Conduct are adhered to and duly observed in its letter and spirit.

Customary payments, gifts not dowry: SC

NEW DELHI: The Supreme Court has ruled that demand for money and presents from parents of a married girl at the time of birth of her child or for other ceremonies, as is prevalent in society, may be deprecable but cannot be categorised as dowry to make it a punishable offence.

This means, if a daughter-in-law is being harassed for customary gifts by parents-in-law, then they could be booked under ordinary penal provisions but not under the tough anti-dowry laws providing stringent punishments.

Acquitting the parents-in-law of a woman who had accused them of harassing her for dowry, a Bench comprising Justices Arijit Pasayat and S Sathasivam took help of a 2001 judgment of SC to say that not all demands from the parents-in-law could be categorised as 'dowry' under the Dowry Prohibition Act. It said though the Act covers payment of money or articles during, before or after marriage by the girl's parent to her in-laws, the cash and presents given had to have a link with the marriage to become objectionable in law.

"Other payments which are customary payments, for example given at the time of birth of a child or other ceremonies as are prevalent in different societies, are not covered by the expression 'dowry'," said Justice Pasayat, writing the judgment for the Bench.

A Haryana trial court had continued the dowry harassment charges against the woman's husband while acquitting the parents-in-law, the married sister and brother of the husband. Though the high court allowed quashing of charges against the sister and brother, it said the parents-in-law were liable to be proceeded against.

The apex court said that when the trial court had held that an attempt had been made by the woman to rope in as many relatives of her husband as possible, the HC should have given some reasons while reversing a well-reasoned order.

It said judicial discipline demanded the HCs to give clear reasons when reversing a trial court order backed by facts. "Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutible face of the sphinx', it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudicating the validity of the decision," the Bench said.

dhananjay.mahapatra@timesgroup.com