The vexed question is: what happens during the interregnum? Can a person go on making inflammatory speeches with impunity, vitiating the atmosphere until his conviction? As the law stands at present, the Election Commission (EC) cannot debar such a candidate from contesting an election. Election petitions and criminal trials take a long time; irretrievable damage may be caused if a person is not meanwhile restrained. Can a criminal court or the EC injunct a person or a potential candidate from indulging in making provocative speeches?

The view that the EC can pass such a restraining order is problematic. The necessity and urgency of preventing inflammatory speeches which disturb communal harmony are indisputable. Therefore, the appropriate course of action would be to promptly promulgate an ordinance to amend Section 153A IPC and the RPA and confer express power to injunct a person from making inflammatory speeches — provided of course there is sound factual basis and reasonable grounds for passing such an order.

If the statements attributed to Varun Gandhi have in fact been made by him, they are prima facie violations of the law. One can certainly defend Hinduism or Hindu society against unwarranted and malicious criticism — so long as that does not translate into reviling and ridiculing members of another religious community. It is unfortunate that the EC did not give reasonable time or a personal hearing to Gandhi to establish his defence, for whatever it is worth. The country would not have been aflame if a week’s time were granted. That would also have obviated grievance on account of paucity of time and breach of the principles of natural justice and fair play.

... contd.