Md Habibur Rehman, convener of a Kolkata based organization on minority rights believes that there is enough legal reason for the Supreme Court to prevent Modi from running for elections. (He also thinks that ironically, the Gujarat Congress is unwilling to go down that path.)

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The Constitutional Bench of the Supreme Court had observed in the famous Keshavananda v State of Kerala (AIR1973 SC 1461) that free, fair, fearless and impartial elections are the guarantee of a democratic polity. 

The Constitutional mandate given to the Election Commission under Article 324 is to hold free and fair elections to the legislative bodies. 

The Election Commission in its order No 464/GJ-LA/2002 dated 16.08.2002 observed that a very important aspect of a free and fair election is ‘the existence of a climate devoid of apprehension and fear of threat to life and property of an individual or a community in exercise of the right to free and fair franchise.’ 

Thereafter the Election Commission elaborates on how this climate devoid of apprehension and fear can be achieved. It states that ‘the people have lost confidence in the local police, civil administration and political executive. In this election campaigns evoking passions will only shatter the fragile peace unless adequate confidence building measures are taken up in earnestness and with urgency. Foremost among these would be to arrest and punish the guilty, irrespective of their status and rank, for their crimes.’  

The crimes against humanity were committed to gain political/electoral advantage of polarizing the secular polity on communal lines in our first past the post electoral system. If the principle of res ipsa loquitor (affair speaking for itself) is applied the role of Narendrabhai Damodardas Modi, the then CM of Gujarat (and now the acting CM) and his cabinet in actively promoting and participating in the violence and mass killings, rape and burning of innocent women and children and destruction of property will be visible for all to see. 

Section 8 of the Representation of People Act, 1951 provides for disqualification for being chosen as a member of a legislative bodies if a person is convicted under section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language etc., and doing acts prejudicial to maintenance of harmony)…………………..or sub-section (2) or sub-section (3) of section 505 (offence of making statements creating or promoting enmity, hatred and ill will between classes or offence relating to such statements in an assembly engaged in the performance of religious worship or religious ceremonies of the Indian Penal Code (45 of 1860)…… 

The Law Commission of India in its 170^th Report to the Government of India observed that providing for disqualification on the ground of framing of charge-sheet would be neither unjust nor unreasonable or arbitrary because the offences referred to above are serious offences affecting the society and that the persons committing these crimes are mostly persons having political clout and influence. The Law Commission has recommended amendment of section 8 of the Representation of People Act, 1951. 

The Government through The Representation of People (Amendment) Bill, 2002 makes an attempt to convey that its purpose is to debar criminals from entering into legislatures.  It adds Section 8B to the principal Act, which would have the effect of disqualifying a person against whom (i) charges have been framed by a competent court (ii) in two separate criminal proceedings, showing his involvement (iii) in “heinous offences” and this should have been done at least (iv) six months prior to the date of filing nomination papers.   

There are three peculiar features of this amendment, which need to be noted.  One, the person to be disqualified must be involved in two separate criminal proceedings.  One is not enough.  If a person is charged by a court with having committed “heinous offences” in only one criminal proceeding, he will not be disqualified.  Two, the offence must be heinous; an ordinary offence will not do.  Three, the “heinous offences”, as defined in the Bill, includes waging or attempting or abetting waging of war against the Government of India, murder, kidnapping or abducting in order to murder, or for ransom, rape, custodial rape, drug peddling and a few specified offences under POTA.  The person concerned can jolly well keep on committing other offences under IPC, like robbery, arson, riots, grievous hurt, extortion etc or under other local and special laws, like possessing or manufacturing arms and explosives, trafficking in women, illicit bootlegging, smuggling or amassing assets disproportionate to his income through corrupt means etc.  He can rest assured that he will not be disqualified under this Bill.  

Moreover for a criminal case against a politician to reach the court, it is necessary to have a police force, which is insulated from illegitimate political control and pressures.  Do we have such a police force?  One need not go to Gujarat to say NO.  Thus presently, it will be one of the rarest of rare cases when a politician still holding some position of power is taken in a criminal proceeding to a stage where he has to face charges framed by a court of law not once but twice.  

Thus the scope and the operation of the provisions of section 8 of the Representation of People Act, 1951 in its present form, as explained in the preceding paragraphs, are such that they are mostly not able to effect the arrest or punishment of the guilty irrespective of their status and rank, for their crimes. 

Whereas according to the Election Commission’s order dated 16.08.2002 the environment for a free and fair election cannot be created in the absence of amongst others ‘arrest and punishment of the guilty irrespective of their rank and status.’ 

Here lies a vacuum. It is a situation where the law as enacted by parliament is not able to meet the challenge posed. If Modi and co are allowed to move with impunity an important aspect for a conducive law and order situation i.e. existence of a climate devoid of apprehension and fear of threat to life and property of an individual or a community in exercise of the right to free and fair elections cannot be created. 

The following extract of the Objectives Resolution moved by Pt. Jawaharlal Nehru in the Constituent Assembly on 13 December 1946 will come to our rescue: - 

This Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and draw up for her future governance a Constitution;………………….. 

Wherein shall be granted and secured to all the people of India Justice, social economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and  

Wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and  

Whereby shall be maintained the integrity of the territory of the Republic and its Sovereign rights on land, sea, and air according to justice and law of civilized nations; and  

This ancient land attains its rightful and honored place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind. 

This Objectives Resolution is the spirit behind the Constitution and the constitution should be interpreted in that light. Moreover the Supreme Court has inherent powers under Article 142 of the Constitution of India to see that ‘complete justice’ is rendered in every ‘cause or matter’ pending before it. 

The Supreme Court of India itself in its order dated 2^nd May, 2002 (Union of India v Association for Democratic Reforms and Another) in Civil Appeal No. 7178 of 2001 held as follows “ Cumulative reading of plethora of decisions of this court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this court would have ample jurisdiction under art 32 read with arts 141 and 142 of the Constitution to issue necessary directions to the executive to sub-serve public interest.” 

To the specific queries raised by the Election Commission with the Chief Secretary on the number of FIRs filed, charge-sheets filed and the progress of cases, the State Government says that out of 4208 FIRs filed as on 31 July 2002 a total of only 1360 cases have been charge-sheeted. “The other cases are either pending investigation or final report has been filed details of which will be provided separately.” 

The Election Commission states that the State Government have “on the Commission’s queries subsequently been avoiding giving a clear picture on the number and identity of persons complained against, similar details of persons included in the FIRs, similar details of persons who have been arrested, similar details of persons named in the FIRs who have been enlarged on bail, similar details of persons enlarged on bail as against whom appeals have been filed for cancellation of their bail bonds.” 

The Election Commission observes in paragraph 31 of its said order dated 16.08.2002 that “everywhere there were complaints of culprits of the violence still moving around scot-free including some prominent political persons and those on bail. These persons threaten the displaced affected persons to withdraw cases against them, failing which they would not be allowed to return to their homes. In Dakor (Kheda District), the team was told by a delegation, in the presence of senior police officers and the district administration authorities, that the culprits had been identified before the police but no arrests had taken place and the main culprits continued to threaten the villagers to withdraw their FIRs. The team has cited many other such cases from almost all the 12 districts covered by them. [In Ahmedabad, the Commission itself observed that a large group of Muslim families could not move to their houses because the culprits of the riots had blocked the accesses to their houses.]”  
 

The Supreme Court of India under its direct monitoring should order a time bound inquiry by the CBI into the role of Narendra Modi and his cabinet/administration in promoting mass killings, rape of innocent women and targeted destruction of property of a particular community. Modi, his then minister of state for home Gordhanbhai Pragjibhai Jhadaphia, the then minister of state for revenue Haren Pandya and the chief secretary and others should be asked to pass a lie detector test. The Election Commission should also be asked to probe the matter independently.  

Pending inquiry Modi and his cabinet colleagues should be prevented from running for, or campaigning in, the elections in Gujarat if held at any point of time. Orders thereafter should be passed to initiate criminal proceedings against him and others involved. It would be construed as a matter of failure of the Indian justice system if Narendrabhai Damodardas Modi could not be tried here in India but in the courts in England, Belgium and The Hague.

Md Habibur Rehman, (Convener), ASSOCIATION OF INDIAN MINORITIES