BJP asks Election Commission to withdraw order against Narendra Modi

New Delhi, 2 May, 2014

Holding that Narendra Modi’s interaction with the media after casting his vote in Ahmedabad was “impromptu” and not pre-planned, BJP today urged the Election Commission to withdraw its order against him and also issue clear guidelines with regard to such sound bytes and media interactions.

The party also complained to the EC against Rahul Gandhi for his comments against BJP made in Solan, Himachal Pradesh, during campaigning that there will be more riots if BJP comes to power.

“Based on the above submissions, we request the Commission to review and withdraw the impugned orders in reference.

Pending review and possible withdrawal of the orders, the Commission may kindly direct the Chief Secretary and DGP of Gujarat to hold the earlier instructions in abeyance till further orders,” the BJP said in a letter to the EC.

It also asked the poll body to enunciate clear guidelines for the future in regard to press meetings, interactions and sound bytes so that this does not continue to be a “grey area”.

“The Commission ought to have considered the wider implications of ordering the registration of FIR in the instant case, since there have been scores of such and similar indiscretions which have appeared in the visual media such as the sound byte given by Prime Minister Manmohan Singh observing that there is no Modi wave soon after he cast his vote in Guwahati and the broadsides against Modi made by Amartya Sen, soon after he cast his vote,” Convener of BJP’s Election cell R Ramakrishna said.

The party has contended that when Modi emerged with the tie pin still held in his hand, the media which had collected outside the booth engaged him in a sound byte.

“The entire episode was impromptu; the interaction was not preplanned or organised. In fact, it was the lapse on the part of the local election authorities to have allowed audio video equipment in the vicinity of the polling station, in which a celebrity was registered as a voter,” the party said, adding that “certainly sound bytes are not public meeting”.

It also asked the EC if it can legally extend the scope of Section 126 to cover anything other than public meetings like Press Conferences, Press Briefings, workers meeting. “It is feared the Commission does not have the powers to do so. Any such addition would fall within the legislative competence of the Parliament alone,” Ramakrishna said.

“Section 126 is a clearly enunciated law which confines itself only to a prohibition of a public meeting. Invoking Article 324 of the Constitution also amounts to over reaching by the Election Commission of India since residuary jurisdiction which is all permitted to the ECI by Article 324 cannot impact areas already occupied by law,” he said.

Full text of the letter

To,

Attention: Shri V.S. Sampath, Chief Election Commissioner
Shri H.S Brahma, Election Commissioner
Dr. Nasim Zaidi, Election Commissioner

Sir,

This has reference to the orders of dated 30.04.2014 of the Hon’ble Commission directing the concerned authorities of the State Govt. of Gujarat to file appropriate FIRs / Complaints against Shri Narendra Modi for the alleged violation of Section 126 of the RP Act.

Section 126 of the RP Act contains certain prohibitions during a period of 48 hours ending with the closing hours of the poll.

The alleged incident is reported to have occured outside the following booth at Nishan School at Ranip (Gandhinagar, Gujarat) where Shri Modi is registered as a voter. The Hon’ble Commission apparently saw a TV Channel showing Shri Modi speaking to media outside the booth soon after he cast his vote inside the booth. He was seen waving his hand which was holding the Lotus Symbol, which he usually wears on his lapel. Obviously he would have dislodged it from his lapel and holding in his hand while casting the vote, in deference to the norms of decorum and propriety, of not wearing an election symbol while voting, unlike the multitude of AAP followers who are allowed inside the booth wearing their party caps.

When he emerged with the tie pin still held in his hand, the media which had collected outside the booth engaged him in a sound byte. The entire episode was impromptu; the interaction was not preplanned or organised. In fact, it was the lapse on the part of the local election authorities to have allowed audio video equipment in the vicinity of the polling station, in which a celebrity was registered as a voter. During the election process, it is well known that you need the permission of election authorities even for sneezing. If media equipment was thus allowed outside the booth, even ordinary citizens are attracted, not to speak of people in active politics, for whom the presence of media triggers a Pavlovian reflex. It is unethical on the part of the Election functionaries not to have taken preventive steps but accuse moths which get attracted to the flame.

Coming to the law itself, Sec 126(1)(a) only says that “No person shall convene, hold or attend, join or address any public meeting or procession in connection with elections” Meeting the Press or for that matter any specified target group, such as party workers is not synonymous with a public meeting. Certainly sound bytes are not public meeting.

There has been no clear instruction or guide line prescribed by the Commission, at any point of time till now, specifically prohibiting a conference, meeting or interaction with the Press during the period specified in Sec 126. In fact organised meetings with the Press used to take place regularly till 2006. After a 14 day campaign spell, press is usually thirsty for a review of the campaign and this gets quenched by a regular press meeting at the end of the campaign and before the poll.

In 2006, Assam assembly elections took place. The prabhari for BJP was Late Shri Pramod Mahajan and the Congress Party had sited Shri Man Mohan Singh, the then Prime Minister at Guwahati. Since there was no prohibition, Shri Pramod Mahajan went ahead to hold a press meet. Shri Man Mohan Singh, who customarily does nothing without consultation or approval, sought permission in writing from the ECI. A subordinate official in the Commission promptly denied the permission, as is wont by the lower bureaucracy which never lets down the majesty of the Executive and consequently always responds in the negative, especially when in doubt. The Commission, faced with this delicate balancing between an ordinary citizen like Shri Mahajan who acted as everyone else acted in the past and a Prime Minister who has been held back by a subordinate official, acted quick by clamping a FIR on Shri Mahajan. When I protested with the Commission that this FIR was not in conformity with any clear instruction or guideline to the contrary, the Commission explained their predicament as outlined above justifying their action. But even then the Commission did not issue any new instruction or guideline to prohibit media interactions during the sterilisation period. Within weeks of that FIR, Shri Mahajan passed away and the Commission treated it as a closed chapter.

In the circumstances, we strongly feel that it is preposterous on the part of the Hon’ble Commission to use a sledge hammer to crack a nut, especially in the absence of the clear cut law on the subject. Section 126(1)(a) prohibits only public meetings and an interaction with a specified group and particularly sound bytes can by no stretch of imagination be designated as a public meeting.

It is also for consideration whether the Hon’ble Commission can legally extend the scope of Sec 126 to cover anything other than public meetings like Press Conferences, Press Briefings, workers meeting etc. It is feared the Commission does not have the powers to do so. Any such addition would fall within the legislative competence of the Parliament alone.

Any addition or alteration to the scope of Sec 126 falls solely within the law making powers of Parliament. The same area cannot be occupied both by Parliament and the Hon’ble Commission even with its residuary jurisdiction permissible under Art 324.

Section 126 is a clearly enunciated law which confines itself only to a prohibition of a public meeting. Invoking Art 324 of the Constitution also amounts to over reaching by the Hon’ble Election Commission of India since residuary jurisdiction which is all permitted to the ECI by Art 324 cannot impact areas already occupied by law.

Section 126(1)(b) is also not attracted. Section 126(i)(b) is invoked when a person through a prearranged or planned appearance through Cinema or Television displays any election matter. In the instant case the interaction was impromptu. Shri Modi happened to have the Lotus tie pin in his hand since he had dislodged it from its usual place on the lapel which he had removed as violative of the decorum to be maintained while voting. He was caught unawares by the media soon after he cast his vote and the tie pin was visible since it had still not been restored to his lapel and he was waving his hands which is unavoidable while talking to the media. The display was thus accidental and intentional.

Before concluding, it appears appropriate to rule out any possibility of extending the scope of the notice to Section 130 R.P. Act, as some such attempts are currently being made in the media and elsewhere. The Commission should appreciate that the space for the media with all its electronic equipment would not have been permitted by the Commission within 100 metre radius of the booth. In that case the question of invoking Section 130 R.P. Act does not arise.

Incidentally, the Hon’ble Commission ought to have considered the wider implications of ordering the registration of a FIR in the instant case, since there have been scores of such and similar indiscretions which have appeared in the visual media such as the sound byte given by Prime Minister Shri Man Mohan Singh, observing that there is no Modi wave, soon after he cast his vote in Guwahati and the broadsides against Shri Modi, made by Prof. Amartya Sen, soon after he cast his vote.

Based on the above submissions, we request the Hon’ble Commission to (i) review and withdraw the impugned orders in reference. Pending review and possible withdrawal of the orders, the Hon’ble Commission may kindly direct the Chief Secretary and DGP of the Gujarat Govt. to hold the earlier instructions in abeyance till further orders.

and (ii) to enunciate, clear instructions / guidelines for the future, in regard to press meetings, interactions and sound bytes such that this does not continue to be a grey area.

Thanking you,

(R. Ramakrishna)