Arti Raghavan 
Every election invites its share of consternation for violations of the Model Code of Conduct (MCC) by candidates. The 2024 general elections were no different. The Election Commission (ECI) received numerous complaints from parties, candidates and citizens. While the ECI was somewhat proactive in dealing with complaints against relatively low-ranking candidates, it has been reticent to confront “star campaigners” of the leading political parties. A notable instance was PM Modi’s speech in Banswara, Rajasthan on April 21, where he alluded to Muslims as “infiltrators” and “those who have many children”, and claimed that the Congress Manifesto proposed to confiscate the gold and mangal sutras of married Hindu women, and redistribute them to Muslims.
Responding to complaints by political parties against the Banswara speech, along with accusations by the BJP that Rahul Gandhi had made linguistically and culturally divisive speech, the ECI issued notice to both party presidents, requesting them to caution their “star campaigners” (who were conspicuously not named, nor were they issued notices directly). The ECI did however note that a star campaigner’s speech “…needs to be judged at a higher threshold of compliance.” Having issued notice, no further action was taken by the ECI. Modi on numerous instances on the campaign trail thereafter, made communally polarising speeches. Towards the end of the campaign, the ECI said it did not accept the explanations offered by the BJP president and reiterated the importance of campaigners adhering to the MCC. But it took no punitive action. Responding to a query at the end of the election , the Chief Election Commissioner ‘clarified’ that the ECI “deliberately decided” to “not touch” the top two leaders in each party.
Article 324 of the Indian Constitution confers the ECI with powers of superintendence, direction and control over the conduct of elections. In exercise of this, the ECI has formulated the MCC, and has enforced it through temporary bans on campaigning by a candidate. Neither Article 324, nor the MCC make exceptions for high offices, and the ECI’s diffidence in confronting star campaigners is questionable. However, for a violation of the MCC, the ECI’s powers are limited to that of censure or restrictions on campaigns. They cannot disqualify candidates, or prevent them from contesting elections for such violations.
This does not mean that candidates face no legal consequences for communally polarising campaign speeches (or other legal violations during the course of the election season). The legal reckoning occurs upon the declaration of election results, through the mechanism of an election petition under the Representation of People’s Act, 1951 (RPA). Section 123 of the RPA defines “corrupt practices” as (among other things) the promotion of hatred or enmity between classes of citizens on the grounds of religion, race caste or community. The election of a candidate found guilty of committing corrupt practices may be voided, pursuant to an election petition filed within 45 days of the declaration of election results, before the relevant High Court.
An election petition may be filed by an unsuccessful candidate, or a voter on the electoral rolls in the relevant constituency. The decision of the High Court can be appealed before the Supreme Court. Should the candidate be found guilty of a corrupt practice, the matter is referred to the President to determine whether the candidate ought to be disqualified (and if so, for what period). The President must then obtain the opinion of the ECI on such question, and is bound to act on its advice. A corrupt practice can result in a candidate’s disqualification from contesting elections, holding elected office and voting for a period of up to six years.
The RPA casts its net wide when it comes to corrupt practices in an election. It is not just the candidate themselves who are implicated. A corrupt practice by a candidate’s agent, or any person acting with the candidate’s consent can be grounds to void the election. It can also lead to the disenfranchisement of the agent/person acting on behalf of the candidate, and their disqualification from contesting elections or holding office. In the context of the 2024 elections for instance, any person who campaigned on behalf of a candidate (with their consent), and is found to have engaged in corrupt practices (such as communally divisive speeches), can face potential disqualification.
Such petitions are not without precedent: Indira Gandhi’s election to the Lok Sabha in 1971 from Rae Bareilly was challenged by her opponent, Raj Narain. The Allahabad High Court eventually found her guilty of corrupt practices, and voided the election. She challenged this decision before the Supreme Court and obtained a stay, following which she declared Emergency on the grounds of internal disturbance. Thereafter, she sought to thwart the challenge to her election by a constitutional amendment that provided that the election of the Prime Minister and the Speaker cannot be questioned in any court of law (and could only be challenged before a committee formed by the Parliament). In 1975, the Supreme Court struck down the amendment as unconstitutional, though it acquitted her of the charge of corrupt practices.
During the 1987 Maharashtra Assembly elections, Bal Thackeray made inflammatory speeches that targeted the Muslim community while campaigning for a candidate, Dr Ramesh Prabhoo. The speeches echo tropes that have been invoked by the certain political leaders in recent times, including vituperative references to members of the Muslim community, the necessity to vote for the (Hindu) candidate in order to protect Hinduism and preserve India for Hindus. It also included the allegation that should one dig up any mosque, the remains of a Hindu temple would be found underneath it. An election petition was filed by a candidate before the Bombay High Court, seeking Thackeray’s disqualification, and the voiding of Dr. Prabhoo’s election. The petition was allowed on both counts, and the decision was confirmed by the Supreme Court. The election of Dr Prabhoo was declared void, and Bal Thackeray was disqualified from contesting elections and voting for six years.
A successful candidate – even one occupying one of the highest constitutional offices – must be subjected to the scrutiny of the law. Constitutional courts and the ECI are meant to play a vital role in protecting the integrity of the electoral process, and election petitions are an important test of their commitment to the rule of law. None of this is to imply that Modi’s speeches necessarily invite disqualification or the voiding of his election from the Varanasi constituency. However, there appears to exist a reasonable case for the courts to assess (through a duly filed election petition) whether his actions amount to a corrupt practice.
Corrupt practices are not the preserve of any one political party or leader alone. Vituperative campaign speeches that seek to divide the country on communal lines ought not to be erased from our memories the minute the dust settles upon an election. Election speeches are designed to be amplified. Speeches that are hateful or divisive can inflict profound harm on a nation’s social fabric. It is for this reason that the law recognizes that a person who has engaged in such speech is not fit to hold political office. The election petition is a potent democratic tool for voters, and it is worth remembering that a voter’s role does not end with the exercise of their franchise. Citizens from every constituency (and not just unsuccessful candidates) must examine whether the victory of their elected representative has been secured through corrupt practices.
The elections of 2024 have been emblematic of the status of freedom of speech and expression in our country. The past decade has borne witness to the impunity of those in power. In 2019, at an election rally in West Bengal, the Home Minister referred to illegal immigrants as termites, and threatened to cast them into the Bay of Bengal. In January 2020, the Minister of State (Finance) referred to protestors in the context of anti-CAA protests in 2020 as traitors to the country, and exhorted that they be shot. In September 2023, a Member of Parliament from South Delhi hurled communally charged abuses at fellow Member of Parliament, Danish Ali, on the floor of Parliament. These are only a few such instances in which high ranking political leaders engaged in hate speech against a minority community, in brazen violation of the law, without facing any legal consequences. What made this particularly disquieting was the contemporaneous weaponization of speech laws against journalists and activists and opposition leaders. It is imperative that this trend be arrested, and that political leaders be reminded that they face not just electoral, but also legal consequences for communally polarising speech.
Arti Raghavan is an advocate at the Bombay high court.