The Tamil Nadu Congress Committee (TNCC) on Wednesday requested the Madras High Court to direct the Election Commission of India (ECI) to seek an explanation from Prime Minister Narendra Modi for allegedly making hate speeches during the election campaigns.

TNCC President K Selvaperunthagai filed a petition before the High Court alleging that even though multiple complaints were lodged with the ECI against hate speeches by PM Modi, the Commission has only issued one show cause notice to the Bharatiya Janata Party (BJP) instead of directly addressing Narendra Modi.

The matter was mentioned before the Vacation Bench of Justice AD Jagadish Chandira and Justice R Kalaimathi on Wednesday, which directed the petitioner to get the matter numbered by the Registry first.

Selvaperunthagai contended before the High Court this morning that the Prime Minister had made unsavoury remarks against Muslims in multiple election meetings since April 21.

Calling the Prime Minister an “individual culprit” for the hate speeches, the plea added that Modi was solely responsible for these inflammatory remarks, derogative and divisive speeches.

This leniency of the ECI sent a wrong signal to the citizens and undermined the integrity of our nation’s whole electoral process, it noted.

Selvaperunthagai alleged in the petition that BJP was attempting to win the 2024 Lok Sabha elections by hook or by crook and therefore, was indulging in a divisive campaign along communal lines.

He said the Prime Minister himself had termed Muslims as “infiltrators” and those who “have more children.”

The petitioner further stated that Modi has made misleading and derogatory remarks about the Congress party’s manifesto, and that the BJP leader should be restrained from making such derogatory comments.

He said a protest was also registered to alleged remarks by Modi that the “opposition’s victory would mean Hindus’ wealth going into Muslim’s hands.”

He said that he submitted a representation to the Chief Electoral Officer’s office in Chennai on May 1, calling for immediate and decisive action against Modi’s “derogative statements and communal rhetoric.”

However, no response was received. Therefore, the TNCC president has now moved the High Court calling for directions to the ECI to call for an explanation from Modi.

The petition contended that Modi’s derogatory remarks about specific communities such as Muslims, including his recent comments regarding the ‘mangalsutra’ and birth rates among Muslims, were not only disrespectful but also shameful and treacherous as they could fuel communal tensions and sow division among the people of India.

It said these communal tensions were not exclusive to the States among which the Prime Minister has made these speeches, rather the blatant disrespect of Muslims was targeted to all the Muslims residing all over India.

Modi was trying to create a fear psychosis in the minds of the people and trying to whip up communal passions. He wanted the Indian citizens to fight among themselves and shed blood in the streets of India to force the majority to vote for BJP, it alleged.

The Supreme Court on Tuesday dismissed a plea seeking a direction to the Election Commission of India to cease from conducting eight-phase elections in West Bengal because it was violative of Article 14 and Article 21 of the Constitution.

The petition has been filed by Advocate Manohar Lal Sharma in response to the Election Commission’s decision to hold Assembly elections over eight phases in West Bengal. The bench of Chief Justice S.A. Bobde, and Justices A. S. Bopanna and V. Ramasubramanian was hearing the matter.

The Chief Justice on perusal of the petition asked Sharma to approach the High Court. Sharma, however, insisted that the petition is not an election petition and according to the Constitution bench’s judgement in Mohinder Singh Gill, the High Court cannot entertain an election petition under Article 226 after an election notification.

The CJI, however, said that it did not remember having passed such an order where the High Court is constrained in hearing a petition under Article 226.

While Sharma read the SCR headnote in Mohinder Singh’s judgment, Chief Justice said that he had read the whole case but did not agree with Sharma and hence dismissed the petition.

Sharma sought for a direction to the CBI to register an FIR into the alleged chanting of religious slogans during the election campaign in West Bengal. It has been submitted that

“the chanting of Jai Shri Ram, other religious slogans are creating disharmony in the state and is an offence under the IPC and the Representation of the People Act, 1951”.

Sharma has further questioned “whether using a provocative religious slogan Jai Shri Ram is for electoral benefits as well as others is not violated S.123(3) and 125 of the Representation of the People Act, 1951”.

Further, the petitioner has sought directions to debarred political party/parties, Central government and Home Minister Amit Shah from participating in any election in the country for using religious slogan Jai Shri Ram and others being unconstitutional and contra to the Representation of the People Act in the interest of Justice.

The petitioner has contended that there is no law has been framed yet empowering the election commission to adopt an unequal treatment of election among the 5 states as per their whim.

Conducting election in 8 phases while other states in 1 phase especially when West Bengal is not facing any terrorist attack or under disputed war zone. It’s a clear case of violation of Article 14 of the Constitution. Without disclosing valid reasons respondent can not declare voting in different style/phase/manner to facilitate political demand for a specific party, the BJP.

Also Read: Delhi High Court seeks response from Centre on plea challenging new IT rules for digital news portals

He further submitted that Election Commission and Parliament did not frame any law and rule to conduct election in different phases to facilitate any one of the political parties in any state. “Hence impugned decision of the ECI is unlawful and violated Article 21. It must be quashed and election must be held in one phase in Bengal as well as in Assam like Tamil Nadu, Kerala and Puducherry,” the plea said.

The petition filed by Advocate Manohar Lal Sharma stated that using religious slogan, effort, provocation of citizen of India by a person, party, group of persons is strictly prohibited u/s 123 (3) of the Representation of the People Act.

Many chief ministers and ministers appoint MLAs as secretaries. As this is violative of the constitution, 21 Delhi MLAs appointed in this manner have been issued notices by the Election Commission
By Devender Singh Aswal

Parliament, in exercise of its constituent power and responding to public demand, put a ceiling on the size of the council of ministers. It amended Articles 75 and 164 and inserted a new sub-clause (1A) to each article vide the 91st Constitution (Amendment) Act in 2003. This ordains that the total number of ministers shall not be more than 15 percent of the total number of a particular legislature.

The proviso to sub clause 1A of Article 164 further provides that the number of ministers, including the chief minister, in a state shall not be less than 12, thus taking care of the states with MLAs less than 100. But, politics, perhaps the most ingenious calling, always finds new ways and means to circumvent the law so as to further parochial politics. Many chief ministers, unable to induct more legislators in the council of ministers due to constitutional constraints, appoint their MLAs as parliamentary secretaries in order to assist them or the ministers, ostensibly, in the discharge of their legislative functions.

LURING MLAs

A parliamentary secretary is neither a minister nor does he remain an uncompromisingly ferocious legislative watchdog once he is offered luring crumbs of power or the largesse of the executive. He cannot be privy to cabinet discussions; in the absence of that, he is bound to remain an errand boy of the chief minister or the minister concerned.

Before a minister enters office, the president, in the case of the Union and the governor, in the case of a state, administers to him the oaths of (a) office and (b) secrecy according to the form set out for the purpose in the Third Schedule of the constitution. A minister is sworn not to communicate or reveal directly or indirectly to any person or persons any matter which is brought for his consideration. In this regard, a parliamentary secretary is not a constitutional functionary and therefore, cannot be privy to any discussions in the cabinet. Nor is he responsible to the legislature as members of the council of ministers are.

The office of a minister is not an office of profit in view of the express constitutional provisions, whereas a member incurs disqualification if he holds an office of profit under the government, be it the Union or the state. In case a question of such disqualification arises, the president in the case of an MP and the governor in case of an MLA can declare it so after obtaining the opinion of the Election Commission (EC). If it is established that the legislator was occupying an office under the government and the office was an office of profit, i.e., capable of giving pecuniary gain or material benefit regardless of the quantum of gain, the membership is liable to disqualification, unless specifically protected by the Parliament (Prevention of Disqualification) Acts granting exemptions to certain offices.

OFFICE OF PROFIT

Besides, by way of a writ petition, a member can be disqualified by the court as happened in the case of Jaya Bachchan and Shibu Soren who were disqualified for holding office of profit under the state governments of UP and Jharkhand, respectively. Sonia Gandhi re-signed from the 14th Lok Sabha as her membership was under challenge.
The Kolkata High Court only last year struck down the appointment of 24 parliamentary secretaries by the West Bengal government. The message was loud and clear—the ceiling imposed by the constitution with respect to the size of the council of ministers cannot be exceeded by way of appointment of parliamentary secretaries.

The sword of Damocles also hangs over 21 MLAs of the Delhi Legislative Assembly who were appointed as parliamentary secretaries by the Kejriwal government. The EC, based on a petition filed last year, had issued notices to all 21 asking them to explain not later than April 11, the validity of their appointment.

SPECIOUS ARGUMENT

The matter is under consideration of the EC. But the situation is grave, as in view of the clear constitutional provisions and judgments of the Supreme Court, the advice of the EC and the decision of the lieutenant-governor are bound to be on obvious lines. The plea that parliamentary secretaries assist ministers in legislative work is a specious argument. It is also in direct conflict with the principle of separation of powers and violative of the constitutional restraint on legislators not to accept any office of profit under the government.

MLAs, being legislators and entrusted by the constitution to secure accountability of the executive to legislature and mount effective and unremitting legislative oversight over the executive, cannot be subordinate to ministers or act as their chaperones or errand boys. Legislators are parliamentary watchdogs and any attempt to make them subservient to the executive must be opposed tooth and nail. What is explicitly prohibited by the constitution cannot be circumvented indirectly by the executive.

In the words of Ronald Dworkin, one of the leading jurist and political philosopher of modern times, “legislatures must be free to make policy, which is a utilitarian calculation of the greatest good for the greatest possible number”. Where any authority infringes the constitution or resorts to extra-constitutional measures to strangulate its soul, it is incumbent upon constitutional institutions to discharge their functions, issue appropriate orders and uphold the statute.

—The writer is additional secretary, Lok Sabha

(This article features in India Legal – May 15 issue)