'Does Not Deserve To Be A Candidate'

No. 464/UP-HP/2009 Dated : 22nd March, 2009.

In re : Notice to Shri Feroze Varun Gandhi and Bharatiya JanataParty for violation of the Model Code of Conduct on hisoffensive speeches on 7th and 8th March, 2009 in PilibhitDistrict, Uttar Pradesh.

Order

Two incidents of speeches given by Shri Feroze Varun Gandhi,a member of the Bhartiya Janta Party, and who, as per media reports, is alikely candidate for the current general election to the Lok Sabha, fromPilibhit Parliamentary Constituency in Uttar Pradesh, at two public meetingsin Mohalla Dalchand, Kotwali Pilibhit and at Kasba Barkheda on 7th March,2009 and 08.03.2009, respectively, were brought to the notice of theCommission on 17.03.2009, by the District Election Officer, Pilibhit. Acopy of a communication dated 09.03.2009 sent by the PoliceSuperintendent to the District Election Officer, Pilibhit, containing referenceto the aforesaid speeches and a video CD containing the recording of thespeeches were also furnished to the Commission.

2. The Commission went through the reports and viewed the videoCD of the two speeches. The two speeches contained highly derogatoryreferences and seriously provocative language of a wholly unacceptablenature against a certain community. The Commission considered thespeeches as a grave violation of the provisions of clauses (1) and (3) ofItem 1 (General Conduct) of the Model Code of Conduct, apart fromamounting to promoting feelings of enmity and hatred between differentclasses on the ground of religion, outraging the religious feeling of aparticular community, and promoting hatred and ill-will between two classesof citizens and provoking a section of the citizens to indulge in violence.

3. The Commission, taking suo motu cognizance of the incidents,on 18.03.2009, issued a notice to Shri Varun Gandhi, asking him to furnishhis reply in the matter by 20.03.09. Simultaneously, notices were also issuedto the Bharatiya Janata Party, both at the central level as well as at the Statelevel, asking the Party to submit its reply. The Commission also directed theChief Electoral Officer, Uttar Pradesh, to file criminal cases against ShriVarun Gandhi under the provisions of Sections 153A (promoting enmitybetween different groups on grounds of religion), Section 295A (deliberateand malicious acts intended to outrage religious feelings of any class ofIndian citizens by insulting its religion or religious beliefs), Section 505 (2)(statements creating or promoting enmity, hatred or ill-will between classes)and under Section 125 of the Representation of the People Act,1951(promoting enmity between classes in connection with elections).

4. In reply to the Commission’s notice, the Bharatiya Janata Party,submitted that the party was not aware of the speeches made by Shri VarunGandhi, and that the party completely disagrees, disassociates, anddisapproves the contents of the CD and that these do not represent the viewsof the party. The party also added that it had already disapproved anddisassociated from the contents (of the speeches) even before the notice fromthe Commission. They further submitted that the party stands by the ModelCode of Conduct in its entirety, and that the party is independently lookinginto the matter. The Uttar Pradesh state unit of the Bharatiya Janata Partysubmitted a reply stating that the state unit adopts the reply given by theCentral Office of the Party.

5. Shri Varun Gandhi, in his reply submitted on 20.03.2009, statedas follows:-

• He may be given access to the report of the DEO and thematerial on the basis of which the report was prepared and thename and details of the complainant, the number of persons andinstitutions who handled the CD before it reached theCommission, and those who allegedly photographed the event.
  
• Alleged speeches were made on 7th & 8th March, 09 but thecontroversy erupted 10 days later on the basis of some privateunofficial tape, which could have been put together for privateand political motives.
  
• What is happening appears to be a trial by the media to providea platform for political opponents and others to create anatmosphere of hostility against him. It seemed that politicalopponents provided the tapes to the media and for publiccirculation. The entire initiative was politically tainted,technically deficient and manipulated.
  
• Given the time in and during which the undisclosed report ofthe incident was received by the Commission it was notpossible that there was due application of mind after examiningall the materials.
  
• Any notice issued to him, inter alia affects his rights underArticles 19 and 21 of the Constitution of India, therebyrequiring rigorous scrutiny.
  
• The CD received by the Commission is not the original one butis allegedly an edited copy of the original. Without havingaccess to the original unedited recording of the speeches in theirentirely, the CD cannot be relied upon for any action againsthim.
  
• He firmly believes in all constitutional values and respect for allreligions and fully subscribes to the law of the land.

Shri Varun Gandhi submitted that all allegations in the notice dated18.03.2009, which are wholly unsubstantiated, are denied. However, he hasneither specifically accepted nor rejected the contents of the speeches andthe inflammatory and derogatory tone, tenor and language used in the twospeeches.

6. The Commission has carefully perused and duly examined theexplanation furnished by Shri Varun Gandhi (hereinafter, for short, therespondent). The Commission is not at all convinced with the explanationwhich the respondent has tried to take recourse to for wriggling out of thesituation which he has created by making the inflammatory and highlyderogatory speeches. The main plank of his defence is that the CDcontaining the recording of his impugned speeches is morphed and doctoredso as to politically malign him. The Commission is far from convinced withsuch bald assertions. He has not denied anywhere in his explanation that heheld the meetings covered and recorded in the CD and that he addressed theaudience at those meetings and made speeches thereat. The Commission hasseen the CD, not once but several times repeatedly, and is fully convincedand satisfied that the CD has not been tampered with, doctored or morphed,as alleged by the respondent. The copy of the CD in question was dulyfurnished to him with the Commission’s notice and the onus lay on him toprove his allegation that the CD is not genuine or authentic as is alleged byhim.

7. In regard to the stand taken by respondent that he should beshown the complaint received by the Commission and furnished with theinformation as to how and through whom the CD reached the Commission,the Commission would like to clarify that the Commission took suo motunotice of the impugned speeches of the respondent which were also widelyshown on several national TV channels. It is immaterial to know the sourcefrom which the CD reached the Commission or has been obtained by it.What is material and relevant are the contents of the impugned speechesmade by him and as recorded in the said CD. The said CD is only a piece ofevidence to prove that he made those speeches. As already observed above,the respondent has not denied having held the meetings under reference andmade speeches thereat. Nor has he shown or even indicated as to whichportions of his impugned speeches were morphed, doctored, manipulated orinterpolated. He was asked to explain his position with regard to thegenuineness or authenticity of the offensive statements made by him in hisspeeches and not with regard to the genuineness or authenticity of the CD.

8. The respondent’s next explanation is that the CD in questionsurfaced after a gap of about ten days after his meetings held on 7th and 8thMarch, 2009. This explanation too cuts no ice. Any delay in the surfacingof the CD does not lessen the gravity of the offensive statements made byhim. Also, the late surfacing of the CD does not by itself lead to anyconclusion that the CD was morphed or doctored meanwhile, unless provedotherwise by the respondent to the satisfaction of the Commission.

9. The Commission also sees no force in his contention that he isbeing tried by the media because exposure by media does not amount to trialby media. The Commission, in fact, viewed a more comprehensive CD, acopy of which was given to the respondent, than what was shown on someof the electronic media. The Commission monitors all inputs, includingmedia reports, and whenever it observes any serious violation of the ModelCode of Conduct or commission of any electoral offences being indulged inby any party or a person, the Commission is obliged under the Constitutionto take note of such violations and to initiate and take appropriate actions tobring such violators of the Model Code of Conduct and electoral laws tobook.

10. Now coming to the offensive statements made by therespondent in his impugned speeches, the Commission deliberately does notintend to repeat or quote here those offensive portions of his impugnedspeeches. The same have been seen very widely on the electronic media andread equally widely in the print media right across the whole country, whichhave stirred the nation’s conscience and aroused nation wide condemnation.

11. In this context, the Commission would like to remind therespondent of the sane advice given by the Hon’ble Supreme Court inZiauddin Burhanuddin Bukhari v Brijmohan Ramdass Mehra (AIR 1975 SC1788) that:

"Our Constitution makers certainly intended to set up a SecularDemocratic Republic the binding spirit of which is summed up by theobjectives set forth in the preamble to the Constitution. No democraticpolitical and social order, in which the conditions of freedom and theirprogressive expansion for all make some regulation of all activitiesimperative, could endure without an agreement on the basic essentialswhich could unite and hold citizens together despite all the differencesof religion, race, caste, community, culture, creed, and language. Ourpolitical history made it particularly necessary that these differences,which can generate powerful emotions, depriving people of theirpowers of rational thought and action, should not be permitted to beexploited lest the imperative conditions for the preservation ofdemocratic freedoms are disturbed.

…….. Due respect for the religious beliefs and practices, race, creed,culture, and language of other citizens is one of the basic postulates ofour democratic system. Under the guise of protecting your ownreligion, culture, or creed you cannot embark on personal attacks onthose of others or whip up low herd instincts and animosities orirrational fears between groups to secure electoral victories."

12. The Hon’ble Supreme Court had further observed in AbdulHussain Mir Vs. Shamsul Huda (AIR 1975 SC 1612) that ‘religious appealor communal appetite is stronger in a bigoted and backward population thanin an enlightened or indifferent or other area with a long tradition of peacefulco-existence of variegated religious groups or cosmopolitan people. It alldepends on the socio-political pathology or sensibility of each province orconstituency.’ It is well known that the area in which the impugnedspeeches were made by the respondent is highly communally sensitive andsurcharged with religious tensions.

13. Again, in the case of Dr. Ramesh Yeshwant Prabhoo Vs.Prabhakar Kashinath Kunte and Others [(1996) 1 SCC 130], the Hon’bleSupreme Court held that the speeches made by Shri Bal Thackeray, whereinhe appealed to the voters belonging to his religion to vote for the candidateof his party because he also belonged to the same religion and wherein healso made some derogatory references to the members of anothercommunity, were highly offensive and amounted to promoting or attemptingto promote feelings of enmity and hatred between different classes ofcitizens on the ground of religion and were of very serious and grave nature.

14. While tendering its opinion to the Hon’ble President of Indiaunder section 8A of the Representation of the People Act, 1951, in the abovereferred case of Dr. Ramesh Yeshwant Prabhoo on the question as towhether Shri Prabhoo should be disqualified and, if so, for what period, theCommission observed in its opinion dated 15th October, 1997 that :"There cannot be two opinions that such pernicious practices whichare highly dangerous and can threaten the very survival of democracymust be viewed with utmost concern and put down with a heavy handwithout any leniency. Persons indulging in such nefarious practicesmust be visited with the severest penalty permissible under the law, asany leniency shown to them would mean compromising with thosecorrupt practices which sully the purity of elections."

The same view was reiterated by the Commission in its opinion dated 22ndSeptember, 1998, to the Hon’ble President of India in the case of Shri BalThackeray and both Dr. Ramesh Yeshwant Prabhoo and Shri Bal Thackeraywere disqualified for the period of six years, i.e., the maximum period forwhich they could be disqualified by the President under the said section 8Aof the Representation of the People Act, 1951.

15. The above sane advice of the Hon’ble Supreme Court in theabove referred cases of Ziauddin Burhanuddin Bukhari and Abdul HussainMir (supra) has obviously been thrown to the winds and the impugnedspeeches by the respondent have been made by him in utter disregard of thesame and in blatant violation of the provisions and spirit of the Model Codeof Conduct and the law on the subject. The Commission would also like toreiterate its above quoted observations in its opinion dated 15th October,1997 and 22nd December, 1998 in the cases of Dr. Ramesh YeshwantPrabhoo and Shri Bal Thackeray (supra) and to emphatically state that theimpugned speeches of the respondent are also highly dangerous, threateningthe very survival of democracy and the communal harmony – the basictenets enshrined in the Constitution of India – and deserve to be condemnedin the severest terms.

16. In the considered opinion of the Commission, the respondentdoes not deserve to be a candidate at the present general elections sinceevery candidate must solemnly make and subscribe an oath under theConstitution that he will bear true faith and allegiance to the Constitutionand that he will uphold the sovereignty and integrity of India. However, theCommission is conscious of its limitations under the law, as it stands atpresent, that it cannot impose such disqualification on the respondent anddebar him from contesting elections unless he is convicted or held guilty bya competent court of law in an appropriate legal proceeding. In thecircumstances, the Commission strongly condemns and censures therespondent, Shri Feroze Varun Gandhi.

17. Here, it is pertinent to add that, on the initiative of theCommission, two criminal cases have already been registered againstShri Feroze Varun Gandhi, under sections 153A, 295A and 505(2) of theIndian Penal Code and section 125 of the Representation of the PeopleAct, 1951, in the concerned Police Stations – Kotwali Police Station,Pilibhit, and Police Station of Kasba Barkheda, Pilibhit, Uttar Pradesh. TheCommission hereby directs the State Government authorities concernedof Uttar Pradesh to expeditiously investigate the matter with utmostalacrity and the speed with which this matter deserves to be dealt withat all levels. The Commission would be keeping a close watch on theprogress in the investigation and would also be taking all legally permissiblesteps for the expeditious trial of the matter till it reaches its logicalconclusion. It is pertinent to add here that the Commission has directed theChief Electoral Officer, Uttar Pradesh to keep a close track of allprogrammes of Shri Feroze Varun Gandhi, and whenever and whereverpublic meetings and rallies involving his speeches are held a proper acontinuous video tracking would be done and the cameraman for such videotracking would be accompanied by a Magistrate to ensure proper videocoverage.

18. As regards the notice to Bharatiya Janata Party, as alreadyobserved in para 4 above, the party in its reply has stated that the party wasnot aware of the speeches made by Shri Varun Gandhi, and that the partycompletely disagrees, disassociates, and disapproves the contents of the CDand that these do not represent the views of the party. The party also addedthat it had already disapproved and disassociated from the contents (of thespeeches) even before the notice from the Commission. The party furthersubmitted that the party stands by the Model Code of Conduct in its entirety,and that the party is independently looking into the matter. In view of theabove stand of the party, the Commission expects that the least that the partymust do is to deny the party nomination to Shri Feroze Varun Gandhi as itscandidate at the present general election to the Lok Sabha. This will be fullyin keeping with the assertion of the party that it completely disagrees,disassociates, and disapproves the views of Shri Feroze Varun Gandhi andthat the party stands by the Model Code of Conduct in its entirety. Anysponsorship of his candidature by the Bharatiya Janata Party, or any otherPolitical Party at this election would be perceived as endorsing hisunpardonable acts of inciting violence and creating feelings of enmity andhatred between different classes of citizens of India, destroying the social,democratic and plural fabric of the country, as enshrined in the Constitutionof India which all the political parties have undertaken to uphold, at the timeof their registration with the Election Commission under section 29A of theRepresentation of the People Act, 1951.

S.Y. Quraishi Election Commissioner

N. Gopalaswami Chief Election Commissioner

Navin B. ChawlaElection Commissioner