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2017 DIGILAW 730 (ALL)

AJMAL KHAN v. ELECTION COMMISSION OF INDIA

2017-03-08

A.P.SAHI, SANJAY HARKAULI

body2017
ORDER : 1. Heard Sri Ajmal Khan in person in PIL Civil No.3439 of 2017 and Sri H.S. Jain learned counsel for the petitioners in Writ Petition No.3462 (M/B) of 2017. 2. These two petitions have been filed in relation to a subject matter that goes to the root of powers of the Election Commission of India to be exercised after elections have been notified. 3. The prayer made in writ Petition No.3439 (PIL)) of 2017 is that a mandamus be issued to the Election Commission of India for issuance of prohibitory orders including a direction to the Ministry of Information and Broadcasting for taking steps to curtail any promotion of ill-feeling by speech or otherwise on the ground of religion or religious rhetoric and prohibitory orders should also be issued to individuals or parties in this direction and to take effective action in order to prevent any such activity, more so, keeping in view of the latest decision of Apex Court in the case of Abhiram Singh v. C.D. Commachen (dead) by Lrs. & Ors., decided on 02.01.2017 (Civil Appeal No.37 of 2991). 4. The second Writ Petition No.3462 (M/B) of 2017 has been filed praying that the registration of a particular political party named therein, be cancelled for having made false promises inducing voters in the name of religion in the manifesto and also being depicted through media which are in violation and utter derogation of the Fundamental rights and the laws on the subject and therefore, the petitioner seeks invoking of the provisions of Section 29-A of the Representation of Peoples Act, 1951 alleging violation of the provisions of Section 123 (3), (3-A) and Section 125 of the 1951 Act. 5. We had adjourned the matter to enable the Election Commission of India to respond to the same. 6. Sri O.P. Srivastava, learned Senior Counsel assisted by Sri V.K. Dubey and Dr. 5. We had adjourned the matter to enable the Election Commission of India to respond to the same. 6. Sri O.P. Srivastava, learned Senior Counsel assisted by Sri V.K. Dubey and Dr. Deepti Tripathi for the Union of India have produced the circulars of the Election Commission of India dated 05.01.2017 and 24.01.2017 to urge that keeping in view the recent Assembly Election in 5 States, directions have been issued and in particular to the political parties recognised under the Representation of Peoples Act to take due note of the same, as also the judgment of the Apex Court in the case of Abhiram Singh (supra) and to instruct their candidates and party workmen to desist from indulging into any such activities which may amount to violation of the aforesaid provisions. It was also instructed therein that this should be taken to be a direction in relation to the Model Code of Conduct promulgated by the Election Commission of India. 7. Sri Ajmal Khan in the first writ petition also invited the attention of the Court to two such orders that had been passed previously dated 11.04.2014 and 22.04.2014 by the Election Commission of India in relation to the complaint received against three individuals named in the said letters and had sought a compliance report in this regard from the respective State Government. He therefore, submits that the Election Commission has been exercising the said power in the past and therefore this exercise should also be undertaken whenever such complaints are received by it in this regard. 8. He also submits that even otherwise, prohibitory orders should be issued in order to secure free and fair elections and also to keep the political parties their leaders and their supporters within the bounds of the guidelines and the Model Code of the Election Commission and the provisions of the Representation of Peoples Act, 1951 as well as directions and circulars of the Election Commission of India. 9. We have considered the aforesaid submissions raised. Sri O.P. Srivastava, learned Senior Counsel for the Election Commission of India submits that the Election Commission of India enjoys plenary powers under Article 324 of the Constitution of India and all possible steps in order to secure the interest of free and fair elections as also preventing the violation of the laws applicable are being undertaken from time to time. He therefore contends that the issuance of circulars to which the attention of the Court has been invited, take care of the situation and consequently, the same is being effectively dealt with. The circulars that have been relied upon dated 05.01.2017 and 24.01.2017 are extracted hereinunder:- "Election Commission of India Nirvachan sadan, Ashoka Road, New Delhi-110001 No.ECI/PN/4/2017 Date: 5th January, 2017 PRESS NOTE Sub: General election to Legislative Assemblies of Goa, Manipur, Punjab, Uttar Pradesh & Uttarakhand, 2017- Media Coverage during the period referred to in Section 126 of RP Act, 1951. 10. The schedule for calling general election to the Legislative Assemblies of Goa, Manipur, Punjab, Uttar Pradesh & Uttarakhand has been announced on 4th January, 2017. Poll is scheduled to be held in seven phases. Section 126 of Representation of the People Act, 1951 prohibits displaying any election matter by means, inter alia, of television or similar apparatus during the period of 48 hours before the hour fixed for conclusion of poll in a constituency. The relevant portions of the said Section 126 are re-produced below :- (126. Prohibition of public meeting during period of forty-eight hours ending with hour fixed for conclusion of poll- (1) No person shall- (a) ----.. (b) Display to the public any election matter by means of cinematograph, television or other similar apparatus; (c) ....... (2) Any person who contravenes the provisions of subsection (1) shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both. (3) In this Section, the expression ''election matter'' means any matter intended or calculated to influence or affect the result of an election.) 2. During elections, there are sometimes allegations of violation of the provisions of the above mentioned Section 126 of Representation of the People Act, 1951 by TV channels in the telecast of their panel discussions/debates and other news and current affairs programmes. As above mentioned, the said Section 126 prohibits displaying any election matter by means, inter alia, of television or similar apparatus during the period of 48 hours ending before the hour fixed for conclusion of poll in a constituency. "Election matter" has been defined in that Section as any matter intended or calculated to influence or affect the result of an election. "Election matter" has been defined in that Section as any matter intended or calculated to influence or affect the result of an election. Violation of the aforesaid provisions of Section 126 is punishable with imprisonment upto a period of two years, or with fine or both. 3. The Commission once again reiterates that the TV/Radio channels and cable networks should ensure that the contents of the programme telecast/broadcast/displayed by them during the period of 48 hours referred to in Section 126 do not contain any material, including views/appeals by panelists/participants that may be construed as promoting/prejudicing the prospect of any particular party or candidate(s) or influencing/affecting the result of the election. This shall, among other things, include display of result of any opinion poll and of standard debates, analysis, visuals and sound-bytes. 4. In this connection, attention is also invited to Section 126A of the R.P. Act, 1951,which prohibits conduct of Exit poll and dissemination of their results during the period reckoned from the commencement of polls in the first phase and till half an hour after the close of poll for the last phase in all the States. 5. During the period not covered by Section 126 or Section 126A, concerned TV/Radio/Cable/FM channels are free to approach the state/district/local authorities for necessary permission for conducting any outdoor broadcast related events which must also conform to the provisions of the model code of conduct and the programme code laid down by the Ministry of Information and Broadcasting under the Cable Network (Regularization) Act with regard to decency, maintenance of communal harmony, etc. They are also required to stay within the provisions of Commission's guidelines dated 27th August, 202 and subsequent instructions regarding paid news and related matters. Concerned Chief Electoral Officer/District Election Officer will take into account all relevant aspects including the law and order situation while extending such permission. As regards political advertisements, the same needs pre-telecast/broadcast certification by the committees set up at the State/District level as per the Commission's order No. 509/75//2004/JS-I dt 15.04.2004. 6. Attention of all print media is also drawn to the following guidelines issued by Press Council of India to be followed for observance during the election : (i) It will be the duty of the Press to give objective reports about elections and the candidates. 6. Attention of all print media is also drawn to the following guidelines issued by Press Council of India to be followed for observance during the election : (i) It will be the duty of the Press to give objective reports about elections and the candidates. The newspapers are not expected to indulge in unhealthy election campaigns, exaggerated reports about any candidate/party or incident during the elections. In practise, two or three closely contesting candidates attract all the media attention. While reporting on the actual campaign, a newspaper may not leave our nay important point raised by a candidate and make an attack on his or her opponent. (ii) Election campaign along communal or caste lines in banned under the election rules. Hence, the Press should eschew reports, which tend to promote feelings of enmity or hatred between people on the ground of religion, race, caste, community or language. (iii) The Press should refrain from publishing false or critical statements in regard to the personal character and conduct of any candidate or in relation to the candidature or withdrawal of any candidate or his candidature, to prejudice the prospects of that candidate in the elections. The Press shall not publish unverified allegations against any candidate/party. (iv) The Press shall not accept any kind of inducement, financial or otherwise, to project a candidate/party. It shall not accept hospitality or other facilities offered to it by or on behalf of any candidate/party. (v) The Press is not expected to indulge in canvassing of a particular candidate/party. If it does, it shall allow the right of reply to the other candidate/party. (vi) The Press shall not accept/publish any advertisement at the cost of public exchequer regarding achievements or a party/government in power. (vii) The Press shall observe all the directions/orders/instructions of the Election Commission/Returning Officers or Chief Electoral Officer issued from time to time. 7. Attention of the electronic media is also invited to the "Guidelines for Election Broadcasts" issued by NBSA dt 3rd March, 2014., (iii) News broadcasters should endeavour to inform the public in an objective manner, about relevant electoral matters, political parties, candidates, campaign issues and voting processes as per rules and regulations laid down under The Representation of the People Act 1951 and by the Election Commission of India. (ii) News channels shall disclose any political affiliations, either towards a party or candidate. (ii) News channels shall disclose any political affiliations, either towards a party or candidate. Unless they publicly endorse or support a particular party or candidate, news broadcasters have a duty to be balanced and impartial, especially in their election reporting. (iii) News broadcasters must endeavour to avoid all forms of rumor, baseless speculation and disinformation, particularly when these concern specific political parties or candidates. Any candidate/political party, which has been defamed or is a victim of misrepresentation, misinformation or other similar injury by broadcast of information should be afforded prompt correction, and where appropriate granted an opportunity of reply. (iv) News broadcasters must resist all political and financial pressures which may affect coverage of elections and election related matters. (v) News broadcasters should maintain a clear distinction between editorial and expert opinion carried on their news channels. (vi) News broadcasters that use video feed from political parties should disclose it and appropriately tag it. (vii) Special care must be taken to ensure that every element of a news/programme dealing with elections and election related matters is accurate on all facts relating to events, dates, places and quotes. If by mistake or inadvertence any inaccurate information is broadcast, the broadcaster must correct it as soon as it comes to the broadcaster's notice with the same prominence as was given to the original broadcast. (viii) News broadcasters, their journalists and officials must not accept any money, or gifts, or any favour that could influence or appear to influence, create a conflict or interest or damage the credibility of the broadcaster or their personnel. (ix) News broadcasters must not broadcast any form of 'hate speech' or other obnoxious content that may lead to incitement of violence or promote public unrest or disorder as election campaigning based on communal or caste factors is prohibited under Election laws. News broadcasters should strictly avoid reports which tend to promote feelings of enmity or hatred among people, on the ground of religion, race, caste, community, region or language. (x) News broadcasters are required to scrupulously maintain a distinction between news and paid content. All paid content should be clearly marked as "Paid Advertisement" or "Paid Content" : and paid content must be carried in compliance with the "Norms & Guidelines on Paid News" dated 24.11.2011. (x) News broadcasters are required to scrupulously maintain a distinction between news and paid content. All paid content should be clearly marked as "Paid Advertisement" or "Paid Content" : and paid content must be carried in compliance with the "Norms & Guidelines on Paid News" dated 24.11.2011. (xi) Special care must be taken to report opinion polls accurately and fairly, by disclosing to viewers as to who commissioned, conducted and paid for the conduct of the opinion polls and the broadcast. If a news broadcaster carries the results of an opinion poll or other election projection, it must also explain the context, and the scope and limits of such polls with their limitations. Broadcast of opinion polls should be accompanied by information to asses viewers to understand the poll's significance, such as the methodology used, the sample size, the margin of error, the fieldwork dates, and data used. Broadcasters should also disclose how vote shares are converted to seat shares. (xii) The Election Commission of India (ECI) will monitor the broadcasts made by news broadcasters from the time elections are announced until the conclusion and announcement of election results. Any violation by member broadcasters reported to the News Broadcasting Standards Authority (NBSA) by the Election Commission will be dealt with by the NBSA under its regulations. (xiv) Broadcasters should, to the extent possible, carry voter education programmes to effectively inform voters about the voting process, the importance of voting, including how, when and where to vote, to register to vote and the secrecy of the ballot. (xv) News broadcasters must not air any final, formal and definite results until such results are formally announced by the Returning Officer, unless such results are carried with clear disclaimer that they are unofficial or incomplete or partial results or projections which should not be taken as final results. The above guidelines should be duly observed for compliance by all concerned. sd/- s illegible (Dhirendra Ojha) Director" ---0--- "ELECTION COMMISSION OF INDIA Nirvachan Sadari, Ashoka Road, New Delhi 110001 No. 56/LET/FUNC/PP/PPS-11/2017 Dated: 24th Jan, 2017 To The President/General Secretary/Chairperson/Convener, of all recognised National and State Political Parties. Sub: Judgment dated 02-01-2017 of the Hon'ble Supreme Court in CA Nos. 37 of 1992 and C.A. No. 8339 of 1995 (Abhiram Singh v. C.D. Commachen & Ors)—Seeking votes in the name of religion, caste, etc,. Sub: Judgment dated 02-01-2017 of the Hon'ble Supreme Court in CA Nos. 37 of 1992 and C.A. No. 8339 of 1995 (Abhiram Singh v. C.D. Commachen & Ors)—Seeking votes in the name of religion, caste, etc,. Sir/Madam, I am directed to invite your attention to the judgment of the Constitution Bench of seven judges in C.A. No. 37 of 1992 and C.A. No 8339 of 1995 (Abhiman Singh v. C.D. Commachen & Ors), on the issue of use of religion, caste, etc in election campaign. By the majority judgment, the Apex Court has held that any appeal to vote or to refrain from voting for a candidate on the ground of religion, caste, race, community or language of the candidate, election agent, any person making the appeal with the consent of the candidate or on the ground of the religion, caste etc of the electors would amount to corrupt practise. 2. The relevant extracts from the judgment are quoted below for the information and reference of your party:- "23. The upshot of the above discussion clearly is that under the constitutional scheme mixing religion with State power is not permissible while freedom to practise profess and propagate religion of one's choice if guaranteed. The State being secular in character will not identify itself with any one of the religions or religious denominations. This necessarily implies that religion will not play any role in the governance of the country which must at all times be secular in nature. The elections to the State legislature or to the Parliament or for that matter or any other body in the State is a secular in both outlook and practise. Suffice it to say that the Constitutional ethos forbids mixing of religions or religious considerations with the secular functions of the State. 28. There is thus ample authority for the proposition that while interpreting a legislative provision, the Courts must remain alive to the constitutional provisions and ethos and that interpretations that are in tune with such provisions and ethos ought to be preferred over other. Applying that principle to the case at hand, and interpretation that will have the effect f removing the religion or religious considerations from the secular character of the State activity ought to be preferred over an interpretation which may allow such considerations to enter, effect or influence such activities. Electoral processes are doubtless secular activities of the State. Applying that principle to the case at hand, and interpretation that will have the effect f removing the religion or religious considerations from the secular character of the State activity ought to be preferred over an interpretation which may allow such considerations to enter, effect or influence such activities. Electoral processes are doubtless secular activities of the State. Religion can have no place in such activities for religion is a matter personal to the individual with which neither the State nor any other individual has anything to do. The relationship between man and God and the means which humans adopt to connect with the almighty are matters of individual preferences and choices. The State is under and obligation to allow complete freedom for practicing, professing and propagating religious faith through which our citizen belongs in terms of Article 25 of the Constitution of India but the freedom so guaranteed has nothing to do with secular activities which the State undertakes. The State can and indeed has in terms of Section 123 (3) forbidden interference of religion and religious beliefs with secular activities of elections to legislative bodies. To sum up: [Emphasis Supplied] 29. an appeal in the name of religion, race, caste, community or language is impermissible under the Representation of the People Act, 1951 and would constitute a corrupt practise sufficient to annul the elections in which such an appeal was made regardless whether the appeal was in the name of the candidate's religion or the religion of the election agent or that of the opponent or that of the voter's. The sum total of Section 123 (3) even after amendment is that an appeal in the name of religion, race, caste, community or language is forbidden even when the appeal may not be in the name of the religion, race, caste, community or language of the candidate for whom it has been made. So interpreted religion, race, caste, community or language would not be allowed to play any role in the electoral process and should an appeal be made on any of those considerations, the same would constitute a corrupt practise. With these few lines I answer the reference in terms of the order proposed by Lokur, J." ................ "49. So interpreted religion, race, caste, community or language would not be allowed to play any role in the electoral process and should an appeal be made on any of those considerations, the same would constitute a corrupt practise. With these few lines I answer the reference in terms of the order proposed by Lokur, J." ................ "49. On a consideration of the entire material placed before us by learned counsels, we record our conclusions as follows: (1) The provisions of sub-section (3) of Section 123 of the Representation of the People Act, 1951 are required to be read and appreciated in the context of simultaneous and contemporaneous amendments inserting sub-section (3A) in Section 123 of the Act and inserting Section 153A in the Indian Penal Code. (2) So read together, and for maintaining the purity of the electoral process and not vitiating it, subsection (3) of Section 123 of the Representation of People Act, 1951 must be given a broad and purposive interpretation thereby bringing within the sweep of a corrupt practise any appeal made to an elector by a candidate or his agent or by any other person with the consent of an candidate or his election agent to vote or refrain from voting for the furtherance of the prospects of the election of that candidate pr that prejudicially affecting the election of any candidate on the ground of the religion, race , caste, community or language of (i) any candidate or (ii) his agent or (iii) any other person making the appeal with the consent of the candidate or (iv) the elector. 3. The Commission has instructed that all political parties shall take due note of the directions in the judgment for strict compliance. The political parties may also suitably brief and inform their lower formations and party cadres and all their candidates about the ruling of the Supreme Court and ask them to desist from any activities that would amount to soliciting both in the name of religion, caste, etc in any manner, in their own interest and in the interest of the party. Such appeals may also fall within the ambit of sub-paras (3) (4) of Part-I of the Model Code of Conduct. 4. Pleas acknowledge receipt of this letter. Yours faithfully, (K.F. Wilfred) Principal Secretary" 11. Such appeals may also fall within the ambit of sub-paras (3) (4) of Part-I of the Model Code of Conduct. 4. Pleas acknowledge receipt of this letter. Yours faithfully, (K.F. Wilfred) Principal Secretary" 11. What we find is that it has been urged by the learned counsel in both the cases, that the Election Commission of India apart from the plenary powers under the Constitution is also aided during elections by all the government officials in terms of Section 28-A of the Representation of Peoples Act, 1951. The officials therefore being on deputation to the Election Commission of India are under the control, superintendence and discipline of the Election Commission. Thus, the Election Commission can issue necessary directions to such officials for taking appropriate action in the light of what has been stated by the Hon'ble Supreme court in the judgment of Abhiram Singh (supra) and also keeping in view the provisions in relation thereto as contained in Section 123, (3), (3-A) as also with regard to taking action in relation to offences under Section 125 of the Representation of Peoples Act, 1951. 12. The aforesaid provisions therefore do indicate the source of power available to the Election Commission of India after the elections have been notified for undertaking any such exercise for the fulfilment of the objectives of the aforesaid provisions effectively. Mere issuance of Circulars and directives would be of no avail unless the Commission takes positive covert action. 13. Since the Election commission of India has issued circulars and it has taken notice of such activities for detrimental to the cause of elections, we further direct the Election Commission of India to take such positive and effective steps as and when any matter is reported to it without any differentiation between either of the political parties or their candidates or any sect or religion and issue such directions that may be necessary to ensure the prevention of any such violation as mentioned in the provisions referred to herein above, if required by issuing prohibitory orders as well. 14. 14. Apart from this, the Election Commission of India for taking action in relation to the registration or recognition of a political party, may also undertake this exercise by framing its own procedure in order to enforce it's orders that may be necessary so that the discipline of political parties, their agents or anyone else connected thereto, would be subject to the control and direction of the Election Commission of India. 15. Petitions are disposed of with the aforesaid observations.