IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 231 of 2012 With WRIT PETITION (PIL) No. 235 of 2012 With CIVIL APPLICATION No. 12348 of 2012 In WRIT PETITION (PIL) No. 231 of 2012 With CIVIL APPLICATION No. 12618 of 2012 To CIVIL APPLICATION No. 12626 of 2012 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= BHAGYODAY JANPARISHAD (REGISTERED NGO)THROUGH PRESIDENT - PETITIONER Versus STATE OF GUJARAT THRO CHIEF SECRETARY & 3 - RESPONDENT ========================================================= Appearance :
MR BHASKAR P. TANNA, LD.SENIOR COUNSEL APPEARING WITH MR.PM LAKHANI AND MR.KARTIKEYA B.TANNA for PETITIONER IN WPPIL NO.231 OF 2012.
MR MIHIR JOSHI, LD.SENIOR COUNSEL APPEARING WITH MR.C.B.UPADHYAY for PETITIONER IN WPPIL NO.235 OF 2012.
MR PK JANI, LD.GOVERNMENT PLEADER WITH MR.PARTH BHATT, LD.ASST. GOVERNMENT PLEADER for RESPONDENT : 1, MR PC KAVINA, LD.SENIOR COUNSEL APPEARING WITH MR.BIREN A VAISHNAV for RESPONDENT – ELECTION COMMISSION OF INDIA.
MR PS CHAMPANERI, LD.ASSISTANT SOLICITOR GENERAL OF INDIA FOR RESPONDENT-UNION OF INDIA.
========================================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 9/11/2012 COMMON CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) As common questions of fact and law are involved in the above captioned writ-applications, those were taken-up for hearing together and are being disposed of by this common judgment and order.
The Writ Petition (PIL) No.231 of 2012 in the nature of a Public Interest Litigation is at the instance of a registered N.G.O. and the Writ Petition (PIL) No.235 of 2012 is at the instance of the Gujarat Chamber of Commerce substantially challenging the provisions of Chapters 4 and 5 of the Instructions on Election Expenditure Monitoring (2012) issued by the Election Commission of India under the purported exercise of power under Article 324 of the Constitution of India.
The case made out in the two writ-applications may be summarised as under :
1. On 3rd October 2012, the Election Commission of India announced the State Assembly Elections of Gujarat, to be held in December 2012. According to the said programme, the official notification under the provisions of Section 15 of the Representation of the People Act, 1951 shall be issued on 17th November 2012. The Election Commission of India has issued Instructions on Election Expenditure Monitoring for the forthcoming Legislative Assembly Elections.
According to the Instructions, various teams, such as, flying squad, static surveillance team, expenditure monitoring cell, etc. have been constituted. The teams which have been constituted have been empowered to intercept and search indiscriminately any vehicle or any person/individual at any time. On search, if any cash of more than Rs.2.5 lac or any other articles, such as, gold, diamonds, etc. are found from the possession of such a person, then the members of the said team have been empowered to interrogate the particular person, and if unexplained cash, without proper documents is found in the possession of any person and is suspected to be used for bribing the voters, it would be seized and action would be taken under the provisions of the law. The Instructions further provide that if cash found is more than Rs.2.5 lac and no criminality is suspected, i.e., without any election campaign material and no party functionary or worker of the contesting candidates/parties are present in the vehicle, to prove the nexus, then the members of the team would intimate about the recovery of such cash to the Assistant Director of Income Tax in charge of the district. The Assistant Director would depute the Inspector or himself and would reach at the spot for taking appropriate action according to the provisions of the Income Tax Laws.
2. The Instructions also provides that the entire exercise of checking and seizure shall be videographed by a video team, and such a video team will have to submit a copy of the video C.D. to the Assistant Expenditure Observer.
3. It is the case of the petitioners that since 3rd October 2012, i.e., the date on which the Model Code of Conduct was made applicable to the State of Gujarat, the authorities, on the strength of such Instructions issued by the Election Commission of India, have created a havoc and people at large are being put to immense difficulties, harassment and embarrassment.
4. It is also the case of the petitioners that small businessmen, farmers, etc. who have to carry cash for their day-to-day business transactions are being harassed and humiliated by such surveillance team constituted by the Election Commission of India.
5. It is also the case of the petitioners that the overall population of the State of Gujarat consists of large number of farmers and agriculturists and ancillary activities provide for the major part of the GDP of the State. The farmers of the State, on a regular basis, carry their agricultural produce to the marketing yards situated in the vicinity of their particular rural areas. These agricultural produce are sold on a regular basis as against the cash consideration. As far as cash-crops are concerned, even if a small quantity is sold by the farmers, it would fetch cash much more than Rs.2.5 lac, i.e. the excess of the limit prescribed by the Election Commission. The farmers are not well versed with the taxation laws and they have been extended various privileges under the taxation laws of the country. In such a situation, if a farmer is intercepted and called upon to provide for supporting documents for the purpose of carrying cash which would be higher than the prescribed limit by the Election Commission, the same would not be in a position to satisfy the authorities as prescribed under the guidelines and hence would be proceeded against either under the Indian Penal Code or under the taxation laws, which otherwise would not make him liable for such penal actions. The activity carried out by the farmers is absolutely within the legal periphery and in spite of the same they are subjected to such hardships. Thus, the said guidelines prescribed by the Election Commission do not provide for any sort of categorisation, or formation of any subjective satisfaction before initiating action against a particular individual.
According to the petitioners any guidelines provided by the Election Commission has to be in conformity with the laws enacted either by the Central Legislation or by the Legislature of a State, and in the present case, the Election Commission could not be said to have issued such guidelines in form of filling-up of a vacuum or a grey area which is left out by a Legislation.
According to the petitioners, the Constitution of India guarantees the right to privacy of an individual. The right to privacy is a fundamental right and the same is required to be over-zealously protected. The directions issued by the Election Commission of India by way of the guidelines infringed the fundamental right of each and every citizen so far as the privacy is concerned.
In the aforesaid backdrop of the factual situation, the petitioners have raised the following points for consideration in this Public Interest Litigation:
(A) Whether the guidelines issued by the Election Commission of India, in purported exercise of powers under the provisions of Article 324 of the Constitution of India, are applicable and binding upon the general citizens although the citizens are nowhere involved in the election process except their right to vote.
(B) Whether the provisions of the Model Code of Conduct are intended to be made applicable to the general citizens or whether the same are framed and implemented for the purpose of monitoring the actions of the Government, the political parties, the political leaders and the candidates.
(C) Whether the provisions of the Model Code of Conduct and the guidelines issued by the Election Commission under the purported exercise of powers under Article 324 can be made applicable prior to the issuance of the notification for election under the provisions of Section 14 or 15 of the Representation of the People Act, 1951.
(D) Whether the Election Commission while issuing guidelines is entitled to prescribe rules, regulations, guidelines etc. which would amount to usurpation of fundamental rights of a citizen and whether it can issue any guidelines or rules or regulations or notifications which would amount to circumventing the provisions of any enactments in force in the country whether enacted by the Parliament or the Assembly of a State.
(E) What should be the precise period of time during which these guidelines should be implemented and the Model Code of Conduct shall be made applicable to a particular constituency for the purpose of election. And whether under the guise of conducting fair and free elections the Election Commission can take the general community, public, citizen and common man under the scope of the provisions of Article 324(1).
I. Submissions on behalf of the Petitioners :
The learned senior counsel appearing for the respective petitioners vehemently submitted that the impugned Instructions on Election Expenditure Monitoring are beyond the powers conferred on the Election Commission and without jurisdiction and authority of law since the same are sought to be implemented even before the statutory notification under Section 15 of the Representation of the People Act, 1951 has been issued and, therefore, such direction cannot be said to be relatable to the 'conduct of election' within the province of the Election Commission under Article 324 of the Constitution, in view of the provisions of the Representation of the People Act and more particularly Part V thereof.
It is also submitted that the impugned Instructions are beyond the authority of the Election Commission since they are not in consonance with the provisions of the Representation of the People Act, 1951 and amount to new legislation in the field which cannot be justified in the guise of filling in gaps or lacunae in the legislation inter alia for the following reasons :
a) The legislature has made comprehensive provisions for checking election expenditure by or on behalf of a candidate under Chapter VIII of the Representation of the People Act and has also provided for consequences of breach under Section 10A and Section 123 of the Representation of the People Act.
b) The legislature has consciously and expressly provided the termini within which the expenditure is to be monitored under Section 77(1) and the impugned Instructions expand the ambit thereof and is contrary to the statute.
c) The campaign expenditure incurred by a party is clearly excluded from the control mechanism and the justification that 'parties are in campaign mode justifying the Instructions, is also contrary to the Act.
d) The very concept of filling in gaps or lacuna means that it has to be within an established sphere. Article 324 and Article 327 have to be read harmoniously and the primacy of the Parliament to make the laws is paramount. Within the sphere laid down by the laws, if there and gaps or lacuna, the same could conceivably be filled in by the Election Commission, but issuing instructions beyond the ken of the legislation, on the pretext that what is kept out of the purview of the Act is a gap which has to be filled in by administrative direction is violating the constitutional scheme.
It is also submitted that the Instructions of searching vehicles and seizing property of citizens are clearly unconstitutional inter alia for the following reasons :
a) Search and seizure powers are considered serious invasion into the fundamental rights of citizens and can be justified only by a procedure established by law. Administrative instructions for search and seizure as set out in the Instructions do not meet this test as Instructions are not law. Moreover, such Executive/Administrative Instructions are not authorized by law including Article 324.
b) In any event, any such procedure must be fair, reasonable and meet with the constitutional parameters. These have been laid down by the Supreme Court as being existence of a reason to believe, which must be held in good faith and objective facts, which alone would provide the existence of a jurisdictional fact, empowering the authority to undertake search and seizure operation. All of the above is conspicuously absent in the impugned Instructions rendering them unconstitutional.
c) The justification of the Election Commission that since there is no law governing the exercise of its power, search and seizure is valid, overlooks the Constitutional imperative of rights of citizens and necessity of justifying infringement by a fair procedure established by law. Article 324 is not a carte blanche for violating the constitutional mandate and the Commission cannot function as a law unto itself.
Reliance has been placed on the following decisions:
1. Kharak Singh v/s. State of U.P. and others (AIR 1963 SC 1295);
2. Mohinder Singh Gill and another v/s. The Chief Election Commissioner, New Delhi and others (AIR 1978 SC 851);
3. A.C.Jose v/s. Sivan Pillai and others (AIR 1984 SC 921);
4. Common Cause, A Registered Society v/s. Union of India and others (AIR 1996 SC 3081);
5. Income Tax Officer, Special Investigation Circle – B, Meerut v/s. Messrs Seth Brothers and others (1969(2) SCC 324);
6. Malak Singh and others v/s. State of Punjab and Haryana and others (1981(1) SCC 420);
7. District Registrar and Collector, Hyderabad and another vs. Canara Bank and others ((2005)1 SCC 496;
8. Directorate of Revenue and another v/s. Mohammed Nisar Holia (2008(2) SCC 370);
9. Ramlila Maidan Incident, in RE (2012(5) SCC 1);
II. Submissions on behalf of the Respondent :
On the other hand, Mr.Percy Kavina, the learned senior counsel appearing for the Election Commission of India, made the following submissions :
1. The Guidelines framed for monitoring expenditure during elections are so done in exercise of plenary powers of the Election Commission under Article 324 of the Constitution of India.
2. The phrase “conduct of elections” in Article 324 cannot be used and restricted in its meaning to mean “conduct of elections” as used in the provisions of the Representation of the People Act, 1951. The “conduct of elections” means all or any of the following:
a. The decision of the Election Commission of India to hold elections in the State. According to the provisions of Article 174 of the Constitution, the election can be held at any time in a preceding period six months before the expiry of the term of the Legislative Assembly. Viewed in that light, the decision of the Election Commission of India is in consonance with the provisions of Law.
b. That the first, formal expression of the decision to hold elections is the “announcement of the elections” which in the present case was done on 3/10/2012 and the press note is issued in this regard and all stake-holders including the Government of the State are informed.
c. That the actual notification issued under Section 30 of the Representation of the People Act, 1951 is preceded by many vital steps for the conduct of the actual elections. The number of polling booths, the availability of staff, the fixing of locations of the polling booths, the provisions of vehicles and infrastructure of the staff, the provision of adequate security arrangements and the availability of security personnel and other myriad activities are to be carried out well before the issue of notification. (In the current Assembly Elections the elections have to be conducted in 182 Constituencies which will have 44,574 booths each manned by atleast 6 officers/staff i.e. the conduct of arranging staff of approximately 2.5 lac only for manning the polling booths).
3. The words used in Article 324 are “superintendence”, “direction” and “control” of elections and, therefore, the Article conferring a plenary jurisdiction cannot have a restrictive meaning to confine the superintendence, control, and direction of elections only from the dates as specified under Section 77 of the Representation of the People Act, 1951.
4. The Model Code of Conduct, framed in January 1991 has, though been framed with consensus of political parties, it does not necessarily govern the conduct of parties and candidates only. The Model Code of Conduct is a set of directions issued by the Election Commission of India and its universal acceptability is because of the consensus arrived at between all political parties. But, this consensus is not the source of power for the Election Commission of India. That source of power is clearly Article 324 of the Constitution of India and that power has been held to be of the widest amplitude and plenary. Further, it has been held to be quite proper that election process can be said to have commenced when it can be said that “the test being whether the contest is reasonably imminent”. Once the dates are announced, there would be a focus and motivation on the part of the prospective contesting parties, including individuals to seek to influence the voters other than by legal means and, therefore, the Model Code of Conduct has been always been held to be applicable on and from the date of the announcement itself.
5. “Corrupt Practice” as defined under Section 123 of the Representation of the People Act, 1951 does not include any expenses referred to in Section 78 of the Act. Therefore, the exertion of influence by money power (which would fall within the meaning of “bribery”) would be an offence impermissible even if done before the notification or after the announcement of elections. Similarly, the inducement referred to in sub-section 2 would also not have to be made only between the notification and announcement of result so as to fall of the said section. It is further clarified that the incurring or authorizing of expenditure in contravention of Section 77 of the Act would also amount to a corrupt practice.
Therefore, the two points of time, namely, the date of notification and the declaration of result are irrelevant for arriving at a definition of the word corrupt practice. As a necessary corollary thereto the actions of the Election Commission of India to curb corrupt practices indulged in or attempted to be indulged in from the date of announcement is in consonance with the mandate of law.
6. Under Article 324 the Election Commission of India is vested with a duty to maintain purity in elections. A voter is the centre of the entire process of elections and the “class” of voters can be from a political party or otherwise. The members of the public are the most important segment in the election as it is their will which the election seeks to ascertain and it is their mandate which political parties seek. But more importantly, all members of parties and prospective candidates are also, and first of all, members of the public. Therefore, the monitoring and checking has to be done of all so that the purity of the system can be maintained. If in exercise of discretion in monitoring of expenditure a member of the public is stopped/checked for the purposes of monitoring the movement of cash, it is done not with an aim to harass a citizen. The member of the public can be a voter and/or a member of a political party, and, therefore, if no “criminality” or linkage is established then that member of the public is not further restrained.
7. The search and seizure powers are Draconian because their exercise is not preceded by any “information obtained” or any “subjective satisfaction” recorded prior to the search. In the very nature of the inquiry, these pre- inquiry steps cannot be taken because then the search itself would not be possible in a single case; or each search would entail such a lengthy procedure that it would be very inconvenient. But more importantly, the existence of facts or information available about black money being used for election purposes is no longer a matter of conjecture or surmises.
8. From the judgments cited at the Bar such as that of “Common Cause” and “Association of Democratic Reforms: 1996(1) SCC 752 and AIR 2002 SC 2112 respectively, it is established that the Commission has plenary powers under the provisions to fill in the vacuum in the field where there is no legislation.
Reliance has been placed on the following decisions :
1. Gadakh Yashwantrao Kankarrao v/s. E.V. alias Balasaheb Vikhe Patil and others (AIR 1994 SC 678);
2. Union of India v/s. Association for Democratic Reforms and another (AIR 2002 SC 2112);
3. R.K.Garg v/s. Union of India and others ((1981)4 SCC 675);
4. Common Cause v/s. Union of India and others (1996(1) SCC 752);
III. PROVISIONS OF LAW
Before adverting to the rival submissions made by the either parties, it will be profitable to look into few relevant provisions of law.
THE REPRESENTATION OF THE PEOPLE ACT, 1951
15. Notification for general election to a State Legislative Assembly. - (1) A general election shall be held for the purpose of constituting a new Legislative Assembly on the expiration of the duration of the existing Assembly or on its dissolution.
(2) For the said purpose, the Governor or Administrator, as the case may be, shall, by one or more notifications published in the Official Gazette of the State on such date or dates as may be recommended by the Election Commission, call upon all Assembly constituencies in the State to elect members in accordance with the provisions of this Act and of the rules and orders made thereunder:
Provided that where a general election is held otherwise than on the dissolution of the existing Legislative Assembly, no such notification shall be issued at any time earlier than six months prior to the date on which the duration of that Assembly would expire under the provisions of clause (1) of article 172 or under the provisions of section 5 of the Government of Union Territories Act, 1963 (20 of 1963 ), as the case may be.
30. Appointment of dates for nominations, etc. - As soon as the notification calling upon a constituency to elect a member or members is issued, the Election Commission shall, by notification in the Official Gazette, appoint-
(a) the last date for making nominations, which shall be the seventh day after the date of publication of the first mentioned notification or, if that day is a public holiday, the next succeeding day which is not a public holiday;
(b) the date for the scrutiny of nominations, which shall be the day immediately following the last date for making nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday;
(c) the last date for the withdrawal of candidatures, which shall be the second day after the date for the scrutiny of nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday;
(d) the date or dates on which a poll shall, if necessary, be taken, which or the first of which shall be a date not earlier than the fourteenth day after the last date for the withdrawal of candidatures; and
(e) the date before which the election shall be completed.
77. Account of election expenses and maximum thereof. - (1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive.
Explanation 1. - For the removal of doubts, it is hereby declared that -
(a) the expenditure incurred by leaders of a political party on account of travel by air or by any other means of transport for propagating programme of the political party shall not be deemed to be the expenditure in connection with the election incurred or authorised by a candidate of that political party or his election agent for the purposes of this sub-section;
(b) any expenditure incurred in respect of any arrangements made, facilities provided or any other act or thing done by any person in the service of the Government and belonging to any of the classes mentioned in clause (7) of section 123 in the discharge or purported discharge of his official duty as mentioned in the proviso to that clause shall not be deemed to be expenditure in connection with the election incurred or authorized by a candidate or by his election agent for the purposes of this sub-section.
Explanation 2.- For the purpose of clause (a) of Explanation 1, the expression “leaders of a political party”, in respect of any election, means,
(i) where such political party is a recognised political party, such persons not exceeding forty in number, and
(ii) where such political party is other than a recognised political party, such persons not exceeding twenty in number, whose names have been communicated to the Election Commission and the Chief Electoral Officers of the States by the political party to be leaders for the purposes of such election, within a period of seven days from the date of the notification for such election published in the Gazette of India or Official Gazette of the State, as the case may be, under this Act:
Provided that a political party may, in the case where any of the persons referred to in clause (i) or, as the case may be, in clause (ii) dies or ceases to be a member of such political party, by further communication to the Election Commission and the Chief Electoral Officers of the States, substitute new name, during the period ending immediately before forty-eight hours ending with the hour fixed for the conclusion of the last poll for such election, for the name of such person died or ceased to be member, for the purpose of designating the new leader in his place.
(2) The account shall contain such particulars, as may be prescribed.
(3) The total of the said expenditure shall not exceed such amount as may be prescribed.
THE CONSTITUTION OF INDIA
324. Superintendence, direction and control of elections to be vested in an Election Commission.—(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).
(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.
(3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission.
(4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1).
(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:
Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:
Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
(6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1).
327. Power of Parliament to make provision with respect to elections to Legislatures.—Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.
328. Power of Legislature of a State to make provision with respect to elections to such Legislature.—Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from time to time by law make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses.
Instruction on Election Expenditure Monitoring (2002):
1. Introduction :
Section 77(1) of the Representation of the People Act, 1951 makes it mandatory for every candidate to the House of the People or a State Legislative Assembly to keep a separate and correct account of all expenditure incurred or authorized by him or by his election agent, between the date on which he was nominated and the date of declaration of the result of election, both dates inclusive. The total of the said expenditure shall not exceed such amount as may be prescribed under Section 77(3) of R.P. Act, 1951. Under Section 77(2), the account shall contain such particulars as may be prescribed. Rule 90 of the Conduct of Elections Rules, 1961 prescribes varying limits of election expenditure for Parliamentary and Assembly Constituencies in each of the States and Union Territories. Particulars, which have to be shown in the account, are prescribed in Rule 86 of those Rules. The ceilings on expenditure as prescribed are enclosed at Annexure 1. Failure to maintain the account is an electoral offence under Section 171-I of the Indian Penal Code.
The incurring or authorizing of expenditure in excess of the limit prescribed under Section 77(3) of R.P. Act, 1951 is a corrupt practice with reference to Section 123(6) of the R.P. Act, 1951. The beneficial object sought to be achieved by making the incurring or authorizing of election expenditure in excess of the prescribed limit as a corrupt practice was elucidated by the Supreme Court in Kanwar Lal Gupta vs Amar Nath Chawla (AIR 1975 SC 308), as follows:
“…The object of the provision limiting the expenditure is two fold. In the first place, it should be open to any individual or any political party, howsoever small, to be able to contest an election on a footing of equality with any other individual or political party, howsoever rich and well financed it may be, and no individual or political party should be able to secure an advantage over others by virtue of its superior financial strength….The other objective of limiting the expenditure is to eliminate, as far as possible, the influence of big money in the electoral process. If there was no limit on expenditure, political parties would go all out for collecting contributions… The pernicious influence of big money would then play a decisive role in controlling the democratic process in the country….”
According to Section 78 of R.P. Act, 1951, every contesting candidate is required to lodge a true copy of the account of his election expenses with the District Election Officer (DEO) within 30 days of the declaration of the result of the election. Failure to lodge the account of election expenses within the time and in the manner required by law without good reason or justification may result in disqualification of the candidate concerned by the Election Commission of India under Section 10A of R.P. Act, 1951. The Supreme Court has held in L.R. Shivaramagowde Vs. P.M. Chandrashekar – AIR 1999 SC 252 that the Commission can go into the correctness of the account of election expenses filed by the candidate and disqualify a candidate under Section 10A of the Representation of the People Act, 1951 in case the account is found to be incorrect or untrue. Thus not only a candidate is required to keep his election expenses within the ceiling prescribed by law, he has also to maintain a day to day and true account of his election expenditure in the prescribed manner, present the account for inspection by the Observer, RO or authorized person and submit it to the DEO concerned within 30 days of the declaration of the result. Exceeding the prescribed ceiling of expenditure can be a ground for an election petition against a winning candidate. The legal provisions regarding election expenditure are set out in Annexure-1 of this Compendium. Instructions have been issued by the Commission from time to time on monitoring of election expenditure and its scrutiny. This Compendium brings together at one place the relevant provisions of law and instructions to be followed scrupulously by election officers, observers, candidates and political parties for effective monitoring and scrutiny of election expenditure.
3. Election Expenditure Monitoring mechanism:
For monitoring day to day election expenditure incurred by the candidate, election expenditure mechanism will be put in place in each constituency. Maintenance of the day to day account of election expenditure by the candidate is mandatory. Though the account of election expenditure is required to be submitted within 30 days from the date of the declaration of the result, the monitoring has to be done on a regular basis during the campaign period for it to be of any use. After the campaign is over it will be difficult to get any evidence of election expenditure. Since, the DEO is required under the law to scrutinize and submit a report to the Commission after the election, it is primarily the duty of the DEO to collect proper evidence during election campaign, based on which it will be decided whether any expenditure is left out in the statements of accounts submitted by the candidates. The following will be the structure of the Expenditure monitoring mechanism:
3.1. Structure of Election Expenditure Monitoring Mechanism:
3. 1. 1. Expenditure Observers:
The Expenditure Observers drawn from the Indian Revenue Service and Indian Customs and Central Excise Service shall be appointed by the Commission for specified constituencies to observe the election expenses by the candidates. There shall be at least one Expenditure Observer for each district, but each Expenditure Observer ordinarily shall not have more than five Assembly Constituencies under his observation.
3.1.2. Assistant Expenditure Observers:
Assistant Expenditure Observers will be appointed for each constituency by the Expenditure Observer from a list of Central Government Employees to be provided by the DEO. They will be of the rank of Income Tax Officer (ITO) or Group B Officers equivalent in other Central Government Services. Preference will be given to employees of Income Tax, Central Excise, Audit and Accounts Department, employees of Central Government and Central PSUs engaged in work relating to Audit and Accounts. He should preferably be a local officer, posted within the same district or nearby but whose work place and home town should not be in the same Constituency. He will be provided with a vehicle, one personal security and a local SIM card, office space in the office premises of the RO, as he will be coordinating with all the teams, nodal officers and the Expenditure Observer. He shall be provided with office stationary, required by him. If the HQ of the AEO is different from the constituency, he shall be provided with lodging and boarding in the constituency.
3.1.3. Video Surveillance Teams:
One or more Video Surveillance Teams shall be deployed for each Assembly Constituency/Segment consisting of minimum one official and one videographer. If necessary, more number of teams may be deployed on the recommendation of Expenditure Observer. Assistant Expenditure observer shall be personally supervising videography of sensitive events and big public rallies in the constituency. If more than one public rally is organized on the same day, more than one video teams will be deployed to record the procession and the rally. The video surveillance teams will be working under the supervision of the AEO.
3.1.4. Video Viewing Team:
There shall be a Video Viewing Team for each Assembly Constituency/Segment with one officer and two clerks.
3.1.5. Accounting Teams:
There shall be at least one Accounting Team for each Assembly Constituency/Segment consisting of one official and one Assistant/Clerk. The personnel of the Accounting Team should be drawn from the accounts sections of various Government departments, or Public Sector Undertakings.
3.1.8. Flying Squads:
There shall be one or more dedicated Flying Squads under each Assembly Constituency/Segment for tracking illegal cash transactions or any distribution of liquor or any other items suspected of being used or bribing the voters. The Flying Squads will consist of one Senior Executive Magistrate as the Head of the Team, one Senior Police Officer of the Police Station, one videographer and 3 to 4 armed police personnel. They are to be provided with a dedicated vehicle, mobile phone, a video camera and necessary Panchnama documents required for seizure of cash or goods.
3.1.9. Static Surveillance Team:
There shall be 1 or 2 surveillance teams under each police station with one Magistrate and 3 or 4 police personnel in each team who will be manning the check posts. This team shall put check posts and watch on large quantities of cash, illegal liquor, any suspicious item or arms being carried in their area. The entire process of checking shall be videographed.
4.6.1 Flying Squads:
This team shall start functioning from the date of announcement of election by the Election Commission till the completion of poll. In Expenditure Sensitive Constituencies, there may be more than one such team, depending on the requirement. The Flying Squads will not be given any other work during this period. The DEO and the SP of the district will ensure that the teams are constituted and trained before the notification of the election. The names and mobile numbers of the officers and the Magistrate as head of the Flying Squad are provided to the Complaint Monitoring Control Room and Call Centre, Police Observer, Assistant Expenditure Observer and Expenditure Observer. In Expenditure Sensitive Constituencies, a section of CPF or and State Armed Police may be deployed, depending on the situation and the DEO will take necessary steps in this regard. The DEO will constitute the flying squads with officers of proven integrity and ensure that they are not engaged in any function other than the job assigned to them.
4.6.2. Whenever a complaint regarding distribution of cash or liquor or any other item is received, the flying squad shall reach the spot immediately. The squad will gather necessary evidence, seize the items of bribe, and gather evidences and record statement of the witnesses and persons. The team will send Daily Activity report immediately to the R.O. with a copy to the S.P. Police Observer and the Assistant Expenditure Observer (Annexure-8). The entire proceeding shall be video recorded. The R.O. will file complaints/F.I.R. against both the persons, receiving and giving bribe. The copy of the complaint/FIR shall be sent to the Assistant Expenditure Observer who will mention it in the Shadow Observation Register.
4.6.3. Each Flying Squad will announce through a Public address system fitted into its vehicle in the area under its jurisdiction, the following in local language: “As per section 171B of Indian Penal Code, any person giving or accepting any gratification in cash or kind during election process, with a view to inducing the person to exercise his electoral right is punishable with imprisonment up to one year or with fine or with both. Flying Squads have been formed to register cases against both the giver and the taker of bribe. All the Citizens are requested to refrain from taking any bribe during elections. In case, anybody offers any bribe or is having knowledge about the bribe, then he should inform to toll free number, working 24x7 Complaint Monitoring Cell of the district set up for receiving complaint.”
4.7. Static Surveillance Team:
This team shall put check posts to keep watch on large quantities of cash, illegal liquor, any suspicious item or arms being carried in their area. For this purpose, checking and search of vehicles and persons can be carried out by the surveillance team by putting check posts on major roads or arterial roads, right form the date of issue of the announcement of election.
4.7.1 If unexplained cash, without proper documents is found in the possession of any person and is suspected to be used for bribing the voters, it shall be seized and action taken under the relevant provisions of the law. If cash found is more than Rs.
2.5 lac and no criminality is suspected, i.e., without any election campaign material and no party functionary or worker of the contesting candidates/parties are not present in the vehicle, to prove the nexus, then the Assistant Director of Income Tax in charge of the district has to be informed. The Assistant Director will depute the Inspector or himself reach the spot for taking action as per Income Tax Laws. The whole event of checking and seizure is to be videographed by a video team, which will submit the copy of the video CD to the Assistant Expenditure Observer. The placements of these check posts is to be worked out in consultation with the Assistant Expenditure Observer and there should be surprise element in their placements. The SOP in this regard, as mentioned hereafter, shall be followed. During checking, a display board mentioning, “Checking by orders of Election Commission. Thanks for Cooperation”, shall be put for the knowledge of public.
4.7.3. F.I.R must be lodged by the R.O. immediately against the persons from whom any seizure is made by the Flying Squad or Static Surveillance Team. The cash seized, if any, should be deposited in the State Treasury within 24 hours. The Nodal Officer at Police Head Quarters will follow up the cases after seizure and send report to the Commission with copy to the CEO after the election, on the status of the cases in the Court.
4.7.5 Standard Operating Procedure( SOP) for dealing with unaccounted cash, gold & other valuable assets detected by the Flying Squad/Static Team during the process of Elections -
Standard Operating procedure (SOP), for Flying squad and surveillance teams and involvement of Income-tax Department shall be followed as under:
a. Flying Squads of District authorities:
The flying squad constituted for the purpose of expenditure monitoring by the District authorities will be overseeing the entire operation by the static surveillance teams (check posts) in the sub-division. If there are one or more than one check posts in the subdivision, the flying squad will be constantly moving around to oversee the functioning of these teams. The SP and DEO will be in overall responsibility of supervising the operation of the Flying Squads and law and order issues arising out of this operation.
b. The flying squad shall also be in constant touch with the officials deputed by the Income-Tax Department, so that wherever cash, exceeding Rs. 2.5 lac is found by the static teams, the information is passed on immediately to the Income tax team, which will reach the spot within the shortest possible time. The Flying Squad/Static Team will consider the seizure of cash/other items under the provision of CrPC/IPC, wherever they suspect that the end use of the same is for criminal purpose. The Static Surveillance Team/Flying Squad shall determine the reasons of criminality:
i) If they find posters/banners/voter slips or any other campaign material along with the cash or gift items.
ii) If arms or any illicit items are found along with cash or gift items.
iii) If the cash is found in custody of any official of political party or candidates or their agents.
iv) Any other modus operandi leading to a suspected crime.
c. The flying squad shall take utmost care to ensure that all politeness, decency and courtesy are strictly observed while dealing with the public.
d. They will effect seizure in the above cases if the criminality is suspected. Wherever the flying squad/static surveillance team decides to effect seizure, it will issue proper acknowledgment as per law to the person from whose custody the cash or other items were seized and also mention therein the name of authority to which the person will approach for any relief or redressal. After seizure, they shall deposit the cash in Treasury or in such manner as directed by the Court. The flying squads will lodge FIR immediately mentioning the circumstances leading to the seizure and the copy of the FIR will be put on the Notice Board of the Returning Officer (RO) and copies forwarded to the DEO, Expenditure Observer/Assistant Expenditure Observer, and the Nodal Officer at Police Headquarters and Police Observer (if any).
e. For this purpose, the DEO shall issue necessary instructions to the treasury units to receive seized cash beyond office hours and on holidays also.
f. The entire operation by the Flying Squad and Surveillance Team will be video recorded. The Person’s voice, saying his name, address and the amount of cash carried by him should be recorded by the videographer. The copy of the video should be given to the Accounting Team along with the Video Cue Sheet for safe custody. The copy of the video of the entire operation can be obtained by any member of the public by deposit of Rs. 300.
g. (i) The entire operation of Static Surveillance teams (SST) shall be done in the presence of an Executive Magistrate and shall be video graphed. No such checking shall take place without the presence of Executive Magistrate and without video recording the entire process. The video record with identification mark of date and place shall be deposited on the next day with R.O., who shall preserve the same for verification by the Commission at later point of time.
(ii) The facts that the checking by SST is being done in presence of an Executive Magistrate till the date of election and the public can get copy of the DVD by depositing Rs.300/- shall be widely advertised by the DEO of each district. It is to be ensured that seizure of cash is done by the Flying Squad or SST and no other Check Post is put by the Police for the purpose of seizing cash. In case any authority finds any cash during their checking, the Flying Squad shall be informed immediately to take necessary action. All seizure of cash has to be done under the control of Flying Squads and the Flying Squad is the Nodal authority who shall report (both for FS and SST in Annexure 8 and 9) in Daily Activity Report, about the entire seizure taking place in their jurisdiction. It should be ensured that Multiple Cash seizure reports causes duplication of the seizure figures. The SOP should be strictly followed.
(iii) While checking, the purse held by the ladies shall not be checked. The SST shall be polite, decent and courteous, while checking the baggage.
(iv) If criminality is suspected or if any links with any candidate or political party is suspected or the cash may be used for bribing the voters, then the whole amount shall be seized by the Flying Squad or SST. If no criminality is suspected nor any links with any candidate or political party is suspected, and the cash is up to Rs. 2.5 lac, then no seizure will be effected.
(v) If the cash found is above Rs. 2.5 lac (Two lac and fifty thousand rupees) with no links to any candidate or political party and no criminality is suspected, then no seizure of such cash shall be done by FS or SST, but the Income tax authorities shall be involved in all such cases before returning such cash. The Income Tax authorities shall consider prompt action for seizure of the cash, in accordance with the Income Tax laws, if they find the amount not duly accounted for. If the seizure can not be effected and the person agrees to deposit the amount in Government account in bank, by filling up Challans for payment of his tax liability, the same may be facilitated by the Income Tax Authority. If the cash has to be returned, then a declaration in the Format (Annexure – 56) is to be obtained, before returning the cash. In case of any kind of seizure of cash, the FS or SST or Income Tax Authority shall provide Acknowledgement and name of Appellate Authority, to the person from whom the cash or valuables were seized (Annexure 57).
(vi) However, the cash will not be seized in the following case, by the Income Tax Authority after verification:
(a) If a person is carrying cash from the business place to the bank, for the purpose of depositing it in the bank, and submits the documents like PAN Card/Business Registration Certificate and bank passbook/statement and copy of the cash book to show regular cash deposits, then no seizure shall be effected, irrespective of the amount. However, a declaration in the format (Annexure-56) along with copies of the above documents shall be obtained from the person before returning the cash. The person shall submit a copy of the Bank deposit slip to the Income Tax Authority concerned, after depositing the amount in the bank.
(b) If no criminality is suspected and no link with any candidate or political party is suspected, and the cash carried along with the bank withdrawal slip/bank pass book/bank statement with the name of the bank and branch, to show that cash is withdrawn on the same day for disbursal of salary purpose, then seizure will not be effected. However, the person shall submit a declaration in the format (Annexure-56) along with copy of the bank documents and identity of the person/organization.
(c) Any cash being carried by a person for the purpose of medical treatment shall not be seized, provided he produces declaration in the format (Annexure 56) along with the proof of medical admission/medical treatment for further verification.
(d) Any cash being carried for marriage purpose shall not be seized, if person concerned produces a declaration in the format (Annexure-56) along with the documents like marriage invitation/Kalyan Mandap booking/any other document to prove the marriage celebration. No jewellery/bullion carried for marriage purpose or for personal use shall be seized and identity of the person and declaration in the format is obtained.
(e) Any cash being carried by the ATM vans of the banks for the purpose of bank transfer, if accompanied by valid documents of the bank. The person has to submit declaration in format (Annexure-56) along with supporting documents.
(f) Any cash being carried by co-operative societies with valid documents, mentioning the source and the end use. The person has to submit declaration in format (Annexure-56) along with supporting documents.
(g) In case of seizure by the SST the Appellate Authority, whom the person can appeal for redressal of grievance shall be the SDM/ADM of the district (in charge of the Expenditure Monitoring Cell) and in case of seizure by Income Tax Department, the Appellate Authority shall be the Joint Director of Income Tax (Inv) (in charge of the district) respectively. The appellate authority shall hear the case and take appropriate steps for redressal of grievance. The name and address of Appellate Authority shall be mentioned in the seizure list.
(h) Daily Activity Reports shall be forwarded by the Flying Squads and Static Surveillance Teams as per the revised format enclosed herewith (Annexure- 8 & 9), to the RO with copy to SP, DEO and the Nodal Officer at Police Headquarters. The reports will be compiled by the Nodal Officer of Police and sent to Commission daily with copy to the CEO.
(j) In case of seizure by the Flying Squad/Surveillance Team, the seized cash/materials are to be released only after obtaining order from the Court. But before the cash is released to the person, the Assistant Director of Income Tax in charge of the District is to be informed and if any action under Income Tax Laws is contemplated, then the authorities will hand over the seized cash to the Assistant Director of Income Tax Department, who may again seize the cash u/s 132A of Income Tax Act under proper Panchnama, a copy of which will be served on the person from whom the cash was seized.
Having heard the learned counsel for the respective parties and having gone through the materials on record, the important question of public interest that falls for our determination in these petitions is as to whether the Election Commission was justified in issuing instructions empowering its officers to indiscriminately intercept vehicles on the road and check the same so as to ensure that no individual or person is in possession of cash of more than Rs.2.5 lac or any other articles like gold, arms, liquor, etc. to be used for bribing the voters and to seize the same in exercise of powers under Article 324 of the Constitution of India and thereby, the right of privacy of a citizen as guaranteed under the Constitution of India under Article 21 could be said to have been infringed.
It is amply clear that the powers vested in the Election Commission under Article 324(1) of the Constitution of India are wide in nature. The exercise of powers is, however, not without a check. The power has to be exercised with legal circumspection. It is rather more to supplement to the grey areas where no law or legislation is existing and it is necessary to issue directions or pass orders to ensure free and fair poll. The power is complementary and supplemental. It cannot be exercised contrary to the provisions of law, nor should it violate the existing laws. As observed in the case of Mohinder Singh Gill (supra), the exercise of power may not be such that an authority may become imperium in imperio. We are of the opinion that in the zeal to ensure free and fair poll, a fundamental right as embodied under Article 21 of the Constitution of a common man no way concerned with any political party or election, except his right of franchise, cannot be permitted to be infringed in the manner as it is sought to be done as on today. Every citizen has a right of free movement throughout the territory of India. It is one of the fundamental rights. If that is to be curbed or restricted, it has to be in accordance with the law as existing and not otherwise even though on the instruction of the Election Commission. It is true that no right or fundamental right is absolute. Such rights can always be restricted and regulated. However, the reasonable restrictions have to be placed by making law and once such law exists, the rights cannot be restricted ignoring the law. It could not be said that there is no existing law under which the present situation could not be tackled by the State Government or the Commission. There cannot be any indiscriminate checking at any time of people travelling in their car with their families in the hope or suspecting that large amount of cash or any other valuables likely to be used in the election process may be recovered. The power which the Election Commission has bestowed upon its surveillance team is alien to our system.
We are not impressed by the submission of Mr.Kavina, the learned senior counsel appearing for the Election Commission, that the Commission has ample powers to ensure free and fair poll and in that connection, it can issue any such direction which may be necessary to achieve the purpose.
At this stage, it will be profitable for us to refer to the decision of the Supreme Court of Mohinder Singh Gill (supra). Two questions were posed by the Supreme Court for decision in Mohinder Singh Gill (supra). First, as to what in its, comprehensive connotation, thus, “conduct of election mean or for that matter the “superintendence, direction and control” of election and the other where the provision is silent about hearing before acting, is it permissible to import into Article 324(1) an obligation to act in accord with natural justice.
A reference could be made to the observations passed by the Supreme Court in the case of Mohinder Singh Gill (supra) in paragraphs 38, 39, 40 and 41 :
“38 Art. 324, which we have set out earlier, is a plenary provision vesting the whole responsibility for national and State elections and, therefore, the necessary powers to discharge that function. It is true that Art. 324 has to be read in the light of the constitutional scheme and the 1950 Act and the 1951 Act. Sri Rao is right to the extent he insist a that if competent legislation is enacted as visualised in Art. 327 the Commission cannot shake itself free from the enacted prescriptions. After all, as Mathew, J. has observed in Indira Gandhi :
In the opinion of some of the judges constituting the majority in Bharat's case Rule of Law is a basic structure of the Constitution apart from democracy. The rule of law postulates the pervasiveness of the spirit of law throughout the whole range of government in the sense of excluding arbitrary official action in any sphere.
And the supremacy of valid law over the Commission argues itself. No one is an imperium in imperio in our constitutional order. It is reasonable to hold that the Commissioner cannot defy the law armed by Art. 324. Likewise, his functions are subject to the norms of fairness and he cannot act arbitrarily. Unchecked power is alien to our system.
39 Even so, situations may arise which enacted law has not provided for. Legislators are not prophets but pragmatists. So it is that the Constitution has made comprehensive provision in Art. 324 to take care of surprise situations. That power itself has to be exercised, not mindlessly nor mala fide, not arbitrarily nor with partiality but in keeping with the guidelines of the rule of law and not stultifying the Presidential notification nor existing legislation. More is not necessary to specify; less is insufficient to leave unsaid. Art. 324, in our view, operates in areas left unoccupied by legislation and the words 'superintendence, direction and control, as well as 'conduct of all elections', are the broadest terms. Myriad maybes, too mystic to be precisely presaged, may call for prompt action to reach the goal of free and fair election. It has been argued that this will create a constitutional despot beyond the pale of accountability; a Frankenstein's monster who may manipulate the system into elected despotism instances of such phenomena are the tears of history. To that the retort may be that the judicial branch, at the appropriate stage, with the potency of its benignant power and within the leading strings of legal guidelines, can call the bluff, quash the action and bring order into the process. Whether we make a triumph or travesty of democracy depends on the man as much as on the Great National Parchment. Secondly, when a high functionary like the Commissioner is vested with wide powers the law expects him to act fairly and legally. Art. 324 is geared to the accomplishment of free and fair elections expeditiously. Moreover, as held in Virendra and Harishankar discretion vested in a high functionary may be reasonably trusted to be used properly, not perversely. If it is misused: certainly the court has power to strike down the act. This is well established and does not need further case law confirmation. Moreover, it is useful to remember the warning of Chandrachud, J.:
But the electorate lives in the hope that a sacred power will not so flagrantly be abused and the moving finger of history warns of the consequences that inevitably flow when absolute power has corrupted absolutely. The fear of perversion is no test of power.
40 The learned Additional Solicitor General brought to our notice rulings of this court and of the High courts which have held that Art. 324 was a plenary power which enabled the Commission to act even in the absence of specific legislation though not contrary to valid legislation. Ordering a re-poll for a whole constituency under compulsion of circumstances maybe directed for the conduct of elections and can be saved by Art. 324 provided it is bona fide necessary for the vindication of the free verdict of the electorate and the abandonment of the previous poll was because it failed to achieve that goal. While we repel Sri Rao's broadside attack on Art. 324 as confined to what the Act has conferred, we concede that even Art. 324 does not exalt the Commission into a law unto itself. Broad authority does not bar scrutiny into specific validity of the particular order.
41 Our conclusion on this limb of the contention is that Art. 324 is wide enough to supplement the powers under the Act, as here, but subject to the several conditions on its exercise we have set out.”
We find substance in the submission of Mr.Tanna as well as Mr.Joshi, the learned Senior Counsel appearing for the petitioners, that no one is imperium in imperio in our constitutional order. It would be unreasonable to hold that the Election Commission can exercise powers beyond the law. His functions are subject to norms of fairness. Unchecked power is alien to our system. In our opinion, any action or direction of the Election Commission has to conform to the rule of law. Howsoever wide the scope of the powers of the Election Commission may be, and howsoever the purpose may be laudable, the direction issued and action taken, should only be in conformity with the existing law and not in derogation thereof. For such drastic steps, by which rights of the citizen are affected and curtailed, amounting to infringement of right of privacy and free movement, the existing laws must be resorted to and complied with.
In our opinion, Article 324 has to be read along with Articles 327 and 328 of the Constitution, which state that the Parliament has the power to make provision with respect to elections to legislatures. Since Parliament has made the Representation of People Act, 1951, obviously, the Election Commission cannot issue any instruction in violation of the provisions of the Representation of the People Act, 1951 and the Election Commission cannot be allowed to say that it has a right to issue such instructions in view of Article 324 of the Constitution. In our opinion, the Election Commission and the election authorities are also governed by the Representation of the People Act, 1951 and they cannot act in a manner inconsistent with the said Act or existing law by pleading that they are acting under Article 324 of the Constitution.
Having gone through the instructions issued by the Election Commission, it appears to us that the object behind the same is to see that the elections are not influenced in any manner by power of money, liquor, etc. It appears to us that the aim is to see that Section 77 of the Representation of the People Act, 1951 is complied with in its letter and spirit. However, Section 77 of the Act, 1951 is applicable only to a candidate contesting at an election and for that purpose, a common man of the State, no way concerned with any political party or any candidate contesting the election, cannot be harassed or his right of privacy or free movement guaranteed by the Constitution cannot be permitted to be infringed in any manner.
We have been told that the instructions came in force from October 03, 2012 itself i.e. the date on which the election was announced. However, even as on today no notification under Section 15 of the Act of 1951 has been issued by the Election Commission. The election process could not be said to have even commenced as it could be said to have commenced only after the issuance of the notification under Section 15 of the Act of 1951 because it is only thereafter that the nominations would be filled in and the respective political parties would post their candidates.
Reference could be made to the Supreme Court decision in the case of Gajanan Krishnaji Bapat and another v. Dattaji Raghobaji Meghe and others, reported in (1995) 5 SCC 347. The said case was an appeal before the Supreme Court under Section 116(A) of the Representation of the People Act, 1951. The main case projected before the Supreme Court against the returned candidate was that the expenditure incurred or authorised by the candidate or his election agent was much more than what had been disclosed by him in the return of expenditure lodged under Section 78 of the Act and that huge expenditure incurred in connection with the election had been suppressed. The Supreme Court in paragraph 66 made the following observations. We are relying on the observations of the Supreme Court as they emanate from paragraph 66 to highlight that as to what could be an election process and when would it start and end.
“66. We are in agreement with the view of the High Court that the advertisements in question could not be said to have been issued in connection with the election, even if that expression is to be given a wide amplitude. What is it that the Legislature intended to achieve by prescribing the inner and the outer limits in Section 77 of the Act ? Obviously, it was the elimination of money influence during the elections and maintaining of purity of elections. The expenditure incurred after the declaration of the result of the election can possibly have no nexus with the purity of the electoral process. The very fact that the advertisements thanked the electorate for electing Datta Meghe would show that the same could only have been issued for publication after the declaration of Datta Meghe as the returned candidate. The expenditure incurred in that connection therefore cannot be said to be an expenditure 'authorised' or 'incurred' during the prohibited dates. Indeed, there may be cases where some expenditure can be incurred or authorised by a returned candidate in connection with his election, even after the declaration of the result, but unless that expenditure can be related to the process of election, authorised or incurred during the prohibitory limits set out in Section 77(1) of the Act, it is not required to be included in the return of expenses. The mere fact that the advertisements appeared in the newspapers on the very next day cannot lead to any presumption that the expenditure in connection therewith had been incurred or authorised by the returned candidate during the prescribed prohibitory dates in anticipation of his being declared elected. We, agree and uphold the finding of the High Court that there was no nexus between the amount spent on thanks giving advertisements with the election after the declaration of the result of election and decide issue No. 6(c) against the election petitioners.”
(emphasis supplied) It is very clear from the observations of the Supreme Court that Section 77 of the Act, 1951 prescribes the inner as well as the outer limit. The inner limit would be the date of the declaration of the notification under Section 15 of the Act of 1951 so far as the present case is concerned and the outer limit would be the date on which the result of the candidate is declared.
In Maneka Gandhi v. Union of India, reported in (1978) 1 SCC 248, a seven-Judge Bench decision, P.N. Bhagwati, J. (as His Lordship then was) held that the expression “personal liberty” in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19 (emphasis supplied). Any law interfering with personal liberty of a person must satisfy a triple test : (i) it must prescribe a procedure; (ii) the procedure must withstand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must also be liable to be tested with reference to Article 14. As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorising interference with personal liberty and right of privacy must also be right and just and fair and not arbitrary, fanciful or oppressive. If the procedure does not satisfy the requirement of Article 14 it would be no procedure at all within the meaning of Article 21.
We have to our advantage a very important decision having a direct bearing on the present case. We are referring to the decision of the Supreme Court in Ram Jethmalani and others v. Union of India and others, reported in 2011 8 SCC 1. In that case, a writ-petition was filed before the Supreme Court highlighting that various individuals, mostly citizens, have generated and secreted away large sums of moneys through their activities in India or relating to India in various foreign banks. It was the case of the petitioners that most of such moneys were unaccounted for, and in all probabilities, were generated through unlawful activities, whether in India or outside India, but relating to India. In such circumstances, it was prayed before the Supreme Court that its intervention was solicited by ordering proper investigations and continuous monitoring of the actions of the Union of India. In light of the aforesaid background of the case, the following observations fell from the Supreme Court as they appear in paragraphs 83, 84 and 88 of the report :
“83. Right to privacy is an integral part of right to life. This is a cherished constitutional value, and it is important that human beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner. We understand and appreciate the fact that the situation with respect to unaccounted monies is extremely grave. Nevertheless, as constitutional adjudicators we always have to be mindful of preserving the sanctity of constitutional values, and hasty steps that derogate from fundamental rights, whether urged by governments or private citizens, howsoever well meaning they may be, have to be necessarily very carefully scrutinised. The solution for the problem of abrogation of one zone of constitutional values cannot be the creation of another zone of abrogation of constitutional values.
84. The rights of citizens, to effectively seek the protection of fundamental rights, under Clause (1) of Article 32 have to be balanced against the rights of citizens and persons under Article 21. The latter cannot be sacrificed on the anvil of fervid desire to find instantaneous solutions to systemic problems such as unaccounted monies, for it would lead to dangerous circumstances, in which vigilante investigations, inquisitions and rabble rousing, by masses of other citizens could become the order of the day. The right of citizens to petition this Court for upholding of fundamental rights is granted in order that citizens, inter-alia, are ever vigilant about the functioning of the State in order to protect the constitutional project. That right cannot be extended to being inquisitors of fellow citizens. An inquisitorial order, where citizens' fundamental right to privacy is breached by fellow citizens is destructive of social order. The notion of fundamental rights, such as a right to privacy as part of right to life, is not merely that the State is enjoined from derogating from them. It also includes the responsibility of the State to uphold them against the actions of others in the society, even in the context of exercise of fundamental rights by those others.
xxx xxx xxx 88. The revelation of details of bank accounts of individuals, without establishment of prima facie grounds to accuse them of wrong doing, would be a violation of their rights to privacy. Details of bank accounts can be used by those who want to harass, or otherwise cause damage, to individuals. We cannot remain blind to such possibilities, and indeed experience reveals that public dissemination of banking details, or availability to unauthorized persons, has led to abuse. The mere fact that a citizen has a bank account in a bank located in a particular jurisdiction cannot be a ground for revelation of details of his or her account that the State has acquired. Innocent citizens, including those actively working towards the betterment of the society and the nation, could fall prey to the machinations of those who might wish to damage the prospects of smooth functioning of society. Whether the State itself can access details of citizens bank accounts is a separate matter. However, the State cannot compel citizens to reveal, or itself reveal details of their bank accounts to the public at large, either to receive benefits from the State or to facilitate investigations, and prosecutions of such individuals, unless the State itself has, through properly conducted investigations, within the four corners of constitutional permissibility, been able to establish prima facie grounds to accuse the individuals of wrong doing. It is only after the State has been able to arrive at a prima facie conclusion of wrong doing, based on material evidence, would the rights of others in the nation to be informed, enter the picture. In the event citizens, other persons and entities have credible information that a wrong doing could be associated with a bank account, it is needless to state that they have the right, and in fact the moral duty, to inform the State, and consequently the State would have the obligation to investigate the same, within the boundaries of constitutional permissibility. If the State fails to do so, the appropriate courts can always intervene.”
Applying the principle of law as laid down by the Supreme Court in the aforesaid case, we have no hesitation in coming to the conclusion that the action of the authorities in intercepting vehicles indiscriminately on the road at random and then carrying out the search in the hope or nurturing a doubt that the vehicle may contain a cash of more than Rs.2.5 lac or other articles, without establishment of prima facie grounds or without there being any basis or subjective satisfaction on the part of the authorities would definitely be a violation of the right to privacy of such citizens. If there is a concrete information with the authorities that a vehicle is to pass through a particular route carrying a large amount of currency or other articles like liquor, Arms, etc. likely to be used in the election process, then perhaps the authorities may be justified in intercepting the same and effecting the seizure of the same. In the present case, a very unique mode is being adopted. Even if the authorities are satisfied that the cash recovered from a particular individual is not to be used for any election purpose, but still the authorities would inform the Income Tax Officials regarding the same for taking appropriate action.
Even according to the Income Tax Act, more particularly Section 132 there is a procedure laid as to how the Income Tax Authorities can carry out the search and seizure.
Section 132(13) of the Income Tax Act itself provides that the provisions of the Code of Criminal Procedure, 1973 relating to searches and seizures shall apply, so far as may be to searches and seizures under sub-section (1) or sub-section (1A). Even if the requirements of recording the grounds of belief and the specifications, as far as possible, of the things for recovering for which the search is being ordered, are not expressly mentioned in Section 132(i), they have assumed statutory character by force of sub-section 13 of that Section.
Section 165 of the Code of Criminal Procedure does not authorize a general search on the off-chance that something might be found, in the absence of any credible or reliable information reduced into writing.
Even the NDPS Act lays down a procedure of the search and seizure and all provisions of search and seizure as provided under the Code of Criminal Procedure would also be applicable in the case of NDPS.
The Supreme Court in Directorate of Revenue and another v/s. Mohammed Nisar Holia, reported in 2008(2) SCC 370, while dealing with a question of right to privacy as guaranteed under Article 21 of the Constitution of India vis-a- vis Sections 42 and 43 of the NDPS Act, 1985, held that it was possible to contend that where a search was required to be made at a public place which was open to the general public, Section 42 would have no application but it would be another thing to contend that search was being made on prior information and there would be enough time for compliance of reducing the information to writing, informing the same to the superior officer and obtain his permission as also recording the reasons therefor coupled with the fact that the place required to be searched is not open to public although situated in a public place as, for example, room of a hotel, where a hotel is a public place, a room occupied by a guest may not be.
The Supreme Court proceeded to observe that such a guest was entitled to his right of privacy. Nobody, even the staff of the hotel, can walk into his room without his permission. Subject to the ordinary activities in regard to maintenance and/or house keeping of the room, the guest was entitled to maintain his privacy. The authority cannot be given an untrammeled power to infringe the right of privacy of any person. Even if a statute conform such power upon an authority to make search and seizure of a person at all hours and at all places, the same may be held to be ultra vires unless the restrictions imposed are reasonable one. What would be reasonable restriction would depend upon the nature of the statute and the extent of the right sought to be protected. The Supreme Court also observed that although a statutory power to make a search and seizure by itself may not offend the right of privacy, but in a given case like in the case before the Supreme Court, the least that a court can do is to see that such a right is not unnecessarily infringed. Right to privacy deals with persons and not places.
The Supreme Court also observed that a person, if he does not break a law would be entitled to enjoy his life and liberty which would include the right to not to be disturbed. A right to be let alone is recognized to be a right which would fall under Article 21 of the Constitution of India.
One question that is haunting our mind is as to what is the basis for the Election Commission to fix the limit of Rs.2.5 lac for being liable to be seized if it is found that the cash has linkage with any candidate, or a political party or its functionary, and such cash would be used for corrupt practice. We do not find any rationale behind the same and it appears to us to be absurd.
Is it the case of the Election Commission that if a person is found to be in possession of cash, say for instance, Rs.2.49 lac, i.e. Rs.1,000 short of the requisite amount, then such cash could never have any linkage with any candidate, or a political party or its functionary and such cash would never be used for corrupt practice during the election process. In a given case, even Rs.10,000=00 could have linkage with any candidate, or political party or its functionary, if the said Rs.10,000=00 would be for indulging in corrupt practice for the purpose of bribing the voters. Apart from the above, if a candidate or any political party or its functionary wants to use cash of more than Rs.2.5 lac for any illegal purpose, like the purpose of bribing the voters, and would like to travel with such cash from one place to the other, then is it not possible to travel twice with cash less than Rs.2.5 lac. Thus, we have not been able to understand the idea of the Election Commission in imposing such a restriction.
We have also noticed that if the authorities concerned, after having found the cash, are satisfied that the same does not have any linkage with any candidate, or political party or its functionary, then in such circumstances, the Income Tax authorities are summoned or are informed about the same and in terms of Clause 4.7.1 of the Instructions, the Assistant Director of Income Tax incharge of the district would be informed. The Assistant Director, in turn, according to the Instructions impugned, would depute the Inspector or himself, reach the spot for taking action in accordance with the Income Tax laws.
We are of the view that this amounts to direct intrusion on the powers of the Income Tax authorities as laid down under the Income Tax Act, 1961. We have been informed by Mr.Kavina that the procedure now adopted is that a person found to be in cash of more than Rs.2.5 lac but in no way having any linkage with any candidate, or a political party or its functionary, then such a person is asked to fill up a form, asking for the details of the cash including the PAN number, the details as regards the copy of the bank, withdrawal slip, etc.
We are of the view that even such procedure cannot be adopted and no person can be asked to fill up such a form disclosing the information. Even the Income Tax Act, 1961 does not contemplate such a procedure.
We are also of the view that if indulging in a corrupt practice as explained under Section 123 of the Act, 1951 amounts to an offence under Section 171B of the Indian Penal Code, then in such circumstances, even any other person acting on behalf of the candidate indulges in such corrupt practice, then he could be said to be an abettor having abetted the commission of the offence as explained under Section 107 of the Indian Penal Code. If it is a criminal offence, then the candidate as well as the abettor are to be dealt with under the provisions of the Code of Criminal Procedure and not on the Instructions issued by the Election Commission of India.
Therefore, by issuing such instruction which has no force of law, with the sanction of the Parliament, the Election Commission cannot supplement the Code of Criminal Procedure or the Income Tax Act, 1961 and force the citizens to undergo such supplemental provision of search and seizure.
Mr.Kavina placed heavy reliance on the recent pronouncement of the Supreme Court in the case of Rajendran Chingaravelu v. R.K.Mishra and others, (2010) 1 SCC 457 in support of his contention that the rights of the citizen will have to yield to public interest. According to Mr.Kavina, even if an ordinary citizen of this State, no way concerned or connected with any political party or a candidate, is searched by the authorities and if currency worth more than Rs.2.5 lac is seized, then the same could be said to be in public interest. According to Mr.Kavina, the instructions on the strength of which the search and seizure is carried out randomly, is to prevent circulation of black money which may be used in the election process to bribe the voters, cannot be objected as interference with the personal liberty or freedom of a citizen.
In Rajendran Chingaravelu (supra), the appellant, a computer engineer, was travelling by air from Hyderabad to Chennai carrying Rs.65 lac said to have been withdrawn officially from his bank account. At the Hyderabad Airport, he had disclosed to the security personnel who had checked his baggage that he was carrying cash of Rs.65 lac along with bank certificate certifying the source and withdrawal. The appellant was allowed to board the aircraft without any objection, but when he reached Chennai the Income Tax investigation wing detained the appellant. He was questioned for more than 15 hours about the money he was carrying. He had also explained to the Income Tax Officials the purpose of carrying such a huge amount. Having felt humiliated for no fault on his part by the Income Tax officials and for being detained for more than 15 hours at the airport, the appellant preferred SLP before the Supreme Court praying for appropriate action against the Income Tax officials and against the newspapers who had highlighted the whole incident. In that background, the Supreme Court passed the following observations :
“16. We are in agreement with the submissions of the learned Solicitor General. When the bonafides of a passenger carrying an unusually largesum, and his claims regarding the source and legitimacy, have to be verified,some delay and inconvenience is inevitable. The inspecting and investigating officers have to make sure that the money was not intended for any illegal purpose. In such a situation, the rights of the passenger will have to yield to public interest. Any bonafide measures taken in public interest, and to provide public safety or to prevent circulation of black money, cannot be objected as interference with the personal liberty or freedom of a citizen.
17. We are satisfied that the actions of the officers of the investigation wing in detaining the appellant for questioning and verification, and seizing the cash carried by him, were bonafide and in the course of discharge of their official duties and did not furnish a cause of action for claiming any compensation. The nation is facing terrorist threats. Transportation of large sums of money is associated with distribution of funds for terrorist activities, illegal pay offs etc. There is also rampant circulation of unaccounted black money destroying the economy of the country. In this background if the officers wanted to fully satisfy themselves that the funds were not intended for any illegal purposes, such action cannot be termed as highhanded or unreasonable.
xxx xxx xxx 19. The appellant is looking at the issue from the narrow angle of the right of a citizen to carry money which is duly accounted for from a disclosed source. It is no doubt true that a person has the right to carry money, whether his own or under authority of the person owning it, in the absence of any prohibition. But the purpose for which the money is carried is also important from the point of view of intelligence gatherers. Money which is drawn from a Bank and legitimately belonging to the carrier, may still be used for an illegal purpose, - say to pay for a crime or to fund an act of terrorism. It may also be used for a routine illegal function - to make part payment of sale consideration for a property in cash, so that the full price is not reflected in the sale deed, resulting in evasion of stamp duty and registration charges and evasion of payment of capital gains and creation of black money. The carrying of such a huge sum, itself gives rise to a legitimate suspicion. The intelligence officers are therefore entitled to satisfy themselves, not only that the money is from a legitimate source, but also satisfy themselves that such a large amount is being carried for a legitimate purpose. That is necessary in the interest of preventing crimes and offences. Therefore, even if the carrier is not guilty of any offence in carrying the money, the verification or seizure may be warranted to ensure that the money is not intended for commission of a crime or offence.”
In our opinion, the observations made by the Supreme Court in this case would not fortify the submission of Mr.Kavina that in the present case also the action on the part of the Election Commission could be termed to be in public interest having regard to the object of free and fair election. The facts in this case were altogether different. The appellant of this case was travelling by air from Hyderabad to Chennai and his frisking at the airport was incidental as a part of routine security measures. Having regard to the huge amount of cash, the investigation wing's action of questioning the appellant of that case and seizing the case was found to be bona fide by the Supreme Court as the same was in the course of discharge of the Income Tax Officials' duties. In the case before us, the Parliament has consciously not invested the Election Commission with such power although various other powers in minute details have been conferred by the 1951 Act and the Rules framed thereunder. Thus, in our opinion, the decision of the Supreme Court in Rajendran (supra) would not help the client of Mr.Kavina in any manner in justifying their action.
For the foregoing reasons, we hold that the instruction issued by the Election Commission insofar as it empowers its officers to randomly and indiscriminately search any vehicle on the road and seize cash of Rs.2.5 lac, if recovered from the vehicle or an individual or a person, as ultra vires being violative of Article 21 of the Constitution and also beyond the powers conferred on the Election Commission. We direct the Election Commission that the instructions as contained in Clause 4.7.1 shall not be implemented and there shall not be any indiscriminate or random search or seizure of any vehicle, unless there is any reliable or credible information with the Election Commission reduced into writing.
In view of the order passed in the main matter, the connected Civil Applications would not survive and are, accordingly, disposed of.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) Moin/Aakar After this order is passed, Mr.Kavina, the learned senior counsel appearing on behalf of the Election Commission, prays for stay of operation of our order. In view of a specific finding that the Instructions impugned in this application violate Article 21 of the Constitution of India, we refuse such prayer.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) Moin/Aakar