[Representation of People Act] Provision on 48-hour campaign silence before polling day should be reexamined: Gauhati High Court

The Gauhati High Court recently suggested that Section 126 of the Representation of People (RP) Act which bars campaigning and publication of campaign material 48 hours before the day of voting, should be reexamined in view of the expansion of digital arena and the fact that elections are held in multiple phases [Dr Himanta Biswa Sarma vs Election Commission of India and ors]. .Justice Rumi Kumari Phukan said that there has to be deliberation as to violations with respect to the 48-hour 'silence period' of the model code of conduct (MCC) when it comes to elections held in multiple phases. "In the context of changing social scenario as well as the expansion of electronic/digital arena where the Election Commission itself has declared election in phased manner in certain constituencies, it is perhaps the high-time to re-visit the provision enunciated in the Section 126 of RP Act which was enacted far back in the year 1951," the judgment said.Violation of Section 126 can attract a two-year jail term. The single-judge passed the order while quashing a 2019 case against now Assam Chief Minister Himanta Biswa Sarma over alleged model code of conduct violations..Sarma had moved the High Court seeking quashing of the earlier orders as well as the entire proceedings before the Kamrup(M) Chief Judicial Magistrate (CJM). The original complainant was an additional chief electoral officer of the State who had filed the complaint against Sarma, then an MLA, and the channel that aired his interview a day before a part of the State was about to vote in the 2019 general elections. The plaint stated that the officer himself was the sole witness, and prayed for cognisance under Section 126(1)(b) [display to the public any election matter by means of cinematograph, television or other similar apparatus] of the RP Act.Even though the complainant did not produce himself before the CJM court further, the Magistrate issued notice to the Election Commission of India on January 10 this year. After examining the documents on record, the CJM on February 11 held that a prima facie case was made out, took cognisance and issued summons to Sarma and other accused.When Sarma could not appear, the CJM imposed a fine of ₹2,000, and on February 25 asked him to appear in three weeks. .Counsel for Sarma, Senior Advocate Devajit Saikia, argued that the trial court had not applied its mind and kept abreast with the jurisprudence as to Section 126. It was emphasised that no documents were filed at the time of filing the plaint, neither was the same initially called for. The CJM pursued the case without assistance from the original complainant nearly three years after the alleged offence.It was further submitted that the prohibition imposed under Section 126(b) of Representation of People Act is applicable only in any polling area during the period of 48 hours and ending with the hour fixed for conclusion of the poll for any election in that polling area. In the present matter, the interview of the petitioner was telecast at Guwahati where there was no polling scheduled to take place within 48 hours as indicated in Section 126(1)(b), Saikia argued.The proceedings suffer from illegality, irregularity and bias, given that the plaint was allegedly filed at the behest of Congress leaders, it was argued. It was also pointed out that Congress leader Rahul Gandhi was given leeway in a similar manner and matter in a mode code violation case in 2017. In this regard, it was further submitted the original complainant and ECI officials had hidden the stand of the poll body in its reply to Rahul Gandhi in the 2017 case. In that reply, apprehensions as to the enforceability of Section 126 in the digital age was expressed..The Court after considering the arguments, said that order of the CJM exceeded the jurisdiction, since the original complainant did not pursue the matter and the complaint was, therefore, liable to be dismissed for non-prosecution. "Being an officer of justice delivery system, no one can conduct the affairs of the prosecution as an inquiry officer. As the original complainant did not pursue the matter nor produced the relevant documents, as directed, such a complaint is liable to be dismissed for non-prosecution u/s.203 CrPC and/or other relevant orders as to whether complainant has been able to make out a prima facie case for proceeding etc. But a court of law is never assigned to undertake an inquiry to pursue the matter with the higher authority as has been revealed from various orders of the court," the High Court said. Hence, all the orders of CJM suffers from serious illegality, the High Court ruled.The judge discussed how the Magistrate passed orders not on the basis of evidence, or the presence of the original complainant, before him. The judgment places reliance on a statement by former Election Commissioner of India Dr SY Quraishi, who had said: “ ... it is impossible to implement the Model Code of Conduct in multi-phase elections in the age of the electronic media. If a speech is made outside the silence zone, legally it can’t be faulted.”The Court came down on the fine imposed on Sarma in the absence of wilful negligence on his part. "The Magistrate has totally failed to discharge its judicial discretion while conducting a proceeding. The conduct of a judicial officer must be above the personal whims and traits and every order should be founded on cogent and reasonable grounds, which is not reflected in the present case. It is said 'justice should not only be done but also seen to be done'," the Court held. In view of the above, the Court set aside the order of the CJM and also quashed the proceedings against Sarma. .Standing Counsel A Sarma and advocate P Baruah appeared for the Election Commission and its officials. Advocate R Dubey appeared for the State Election Commission. Advocate AI Ali appeared for the original complainant. [Read Judgment]