Patty B. Jeganathan, Advocate, Chennai v/s The Chief Election Commissioner, New Delhi & Others

w w w . L a w y e r S e r v i c e s . i n

Patty B. Jeganathan, Advocate, Chennai v/s The Chief Election Commissioner, New Delhi & Others

    W.P.Nos.8289 & 8290 of 2011 & M.P.Nos.1+1, 2+2 & 3+3 of 2011

    Decided On, 09 April 2011

    At, High Court of Judicature at Madras

    By, THE HONOURABLE CHIEF JUSTICE MR. M.Y. EQBAL & THE HONOURABLE MR. JUSTICE T.S. SIVAGNANAM

    For the Petitioner: N. Jothi, Advocate. For the Respondents: R1 & R2 – G. Rajagopal, S.C For M/s.G.R. Associates, Advocate, R3 – J. Rajakalifulla, G.P. Assisted by Ms.M.Sneha, G.A.

Judgment Text

(PRAYER:- W.P.No.8289 of 2011: Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Declaration declaring the instructions dated 07.02.2011 issued by the 1st respondent in his Letter No.76/Instructions/2011 as ultra virus to the Constitution of India.)

(Prayer: W.P.No.8290 of 2011: Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Mandamus forbearing the respondents 1 to 3 from implementing Instruction Nos.4.6.1 to 4.7.5 issued by the 1st respondent dated 07.02.2011 in his Letter No.76/Instructions/2011.)

COMMON ORDER

The Hon?ble The Chief Justice

1. Since, in these two writ petitions common question of law and facts have been raised, they had been heard and disposed of by this common order.

2. In W.P.No.8289 of 2011 the petitioner has prayed for the issuance of a Writ of Declaration declaring the instructions dated 07.02.2011 issued by the 1st respondent in his Letter No.76/instructions/2011 as ultra virus to the Constitution of India.

3. In W.P.No.8290 of 2011 the petitioner has prayed for the issuance of a Writ of Mandamus forbearing the respondents 1 to 3 from implementing Instruction Nos.4.6.1 to 4.7.5 issued by the 1st respondent dated 07.02.2011 in his Letter No.76/Instructions/2011.

4. Before discussing the petitioner?s case in both the writ petitions, we would like to quote the relevant instructions issued by the Election Commission of India on Expenditure Monitoring in Elections vide its Letter No.76/Instructions/2011/WEM dated 07.02.2011, which are under challenge.

?4.6.1. Flying Squads:

This team will start functioning from the date of notification of election till the completion of poll. In Expenditure Sensitive constituencies there may be more than one such teams, depending on the requirement. They 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 team are provided to the Complaint Centre, Assistant Expenditure Observer and Expenditure Observer and also published in local Media. In Expenditure Sensitive constituencies, a section of CPF and one Central Government or Central PSU employee of the district 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 squads shall reach the spot immediately. The squad will gather necessary evidence, seize the items of bribe, gather evidences and record statement of the witnesses and persons. The team will send a report immediately to the R.O. with a copy to the S.P. and the Assistant Expenditure Observer (Annexure-8). The entire proceeding shall be video recorded.

4.7.1. Static Surveillance Team:

This team will keep a 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 from the date of the notification. If unexplained cash without proper documents is found in the possession of any persona and is suspected to be used for bribing the voters, it shall be seized and action taken under the relevant provisions of the law. 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 Assistant Expenditure Observer.

4.7.2. If the Expenditure Observer feels the necessity of more such teams, then the DEO will provide the man power for all such teams with logistics. One week before the day of poll, the surveillance activity shall be strengthened effectively and more number of teams shall be formed, depending on the requirements. The daily activity report is to be submitted. (Annexure – 9).

4.7.3. F.I.R. must be lodged immediately against the persons from whom any seizure is made. 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.

4.7.4. The DEOs will publish an appeal to the public and political parties in Media immediately after the announcement of election, requesting them not to carry huge amount of cash during elections. If anybody has to carry huge cash during election in any constituency for any emergency purpose, he must carry proper documents to explain the source and end use of such cash. A sample appeal letter is enclosed at Annexure 10.

4.7.5. Nodal Officer at Police Headquarters:

One officer of the level of Inspector General at the Police Head Quarters of the State will be notified as the Nodal Officer for co-ordination with all law enforcement agencies and with the Commission. His office telephone number and mobile number will be intimated to the Expenditure Observer, Investigation Directorate, Excise Department and other law enforcement agencies during election. The seizure reports by the flying squads of the district will be complied by the SP and faxed to the Nodal Officer at Police Head Quarter within 24 hours. The Nodal Officer will compile the information for the State and send Daily Report to the Commission with copy to the CEO.?

5. Mr.N.Jothi, learned counsel appearing for the petitioner in both the writ petitions made elaborate submissions and we gave patient hearing to him. Learned counsel submitted that under the guise of implementing electoral restrictions, the trading activities of tradesmen and the normal pursuit of life by the citizens of Tamil Nadu are brought under the control of the Election Commission of India, as if emergency has been proclaimed in the State of Tamil Nadu. It is contended that by the implementation of the impugned instructions the fundamental rights as contained in Articles 19(1)(d) and 19(1)(g) have been taken away. According to the learned counsel the instructions 4.6.1. to 4.7.5 are in the nature of curtailment of business and trading activities within the territory of Tamil Nadu and the same are contrary to the established law made by the Parliament or the State Legislature. It is contended that without any rhyme or reason the flying squads of respondents 1 and 2 with the assistance of the 3rd respondent are intercepting vehicles on public roads, entering into houses even after sun set and at odd hours and seizing money, materials, goods, trading goods, etc. without following or observing the established procedures. Learned counsel submitted that search and seizure can be conducted only in the manner as contained in Sections 99 to 105 of the Code of Criminal Procedure. Learned counsel submitted that the people of Tamil Nadu are entitled to lead their normal life with respect to their day to day activity of procurement of material, indulge in manufacturing process, transport of finished and unfinished goods, movement of goods, purchase of articles, sale of articles, transaction of money for their commercial activity, etc. Learned counsel submitted that the impugned instructions have been blindly issued by the respondents without any guidelines nor there is any practical approach in these instructions. Learned counsel further referred to Instruction No.4.7.3. and submitted that as per this instruction F.I.R. must be lodged immediately against the persons from whom any seizure is made. Learned counsel submitted that F.I.R. can be lodged only when a commission of a cognizable offence is made out. According to the learned counsel mere possession of money or goods in trade FIR cannot be lodged and carrying goods of merchandise is not a cognizable offence. Hence, the said instruction is only illegal and unconstitutional. Learned counsel further submitted that the dictating terms of instructions is nothing but a mockery of exercise of power by the Election Commission of India. Lastly, the learned counsel submitted that there is no acceptable manner of procedure contemplated to ascertain the purpose of the seizure or for its return. The instructions contained in the letter dated 07.02.11, is therefore, particularly Instruction Nos.4.6.1 to 4.7.5, are ultra vires to constitution and the respondents must be restrained from implementing these instructions.

6. Mr.G.Rajagopal, learned Senior Counsel appearing for the respondents 1 and 2 referring to the common counter affidavit filed submitted that the petitioner?s contention that the freedom of trade and movement of citizens are affected in the State of Tamil Nadu on account of measures taken by the Election Commission of India is not correct. The learned Senior Counsel further submitted that no citizen can claim any right to carry unaccounted cash or other movables without supporting documents. Learned Senior Counsel submitted that the Election Commission of India is fully justified in issuing the impugned instructions dated 07.02.2011 as it is the constitutional duty of the Election Commission to conduct free and fair elections by preventing illegal distribution of cash and other articles to the voters, and to prevent the use of unaccounted money in the elections. Learned Senior Counsel submitted that the writ petitions cannot be entertained on general allegations, and if any individual citizen is aggrieved by the action of the Election Commission, he can agitate the same by specifically pointing out the violation. He further submitted that the search and seizures are carried out pursuant to the Election Commission?s power under Article 324 of the Constitution of India. He submitted that the writ petitions are filed on certain assumption without furnishing any material particulars. Lastly, he submitted that the entire issue has been covered by the judgment of this Court dated 01.04.2011 passed in W.P.Nos.6936 of 2011 and 7736 of 2011, and therefore, no relief can be given in the present writ petitions.

7. Before discussing the instructions under challenge, we must keep in mind the settled proposition of law that the general power of superintendence, direction, control and conduct of election is vested in the Election Commission under Article 324 of the Constitution of India. However, it is subject to any law either made by Parliament or State Legislature, as the case may be, provided it does not encroach upon the plenary power of the Commission under Article 324 in the area left unoccupied by the legislation. The words ?superintendence, control, direction as well conduct of all elections? are broadest terms. Article 324(1) of the Constitution confers residual power to the Commission relating to the electoral process and it empowers the commission to issue all directions necessary for the purpose of conducting smooth, free and fair elections and for this purpose Article 324(1) is to be construed liberally. Apart from the powers conferred by the Representation of Peoples Act and the Rules made thereunder, the Election Commission has ample power under Article 324(1) itself to make appropriate orders as to the conduct of election. Hence, the Election Commission has powers to issue directions in the process of conduct of elections to the effect that the political parties shall submit to the Commission for its scrutiny the details of the expenditure incurred or authorized by the political parties in connection with election of their representative candidates.

8. In the light of the aforesaid settled proposition of law, we shall now examine the instructions issued by the Election Commission, which is the subject matter of challenge in these writ petitions.

9. Instruction 4.6.1 speaks about the function and duties of the flying squad. According to this instruction, the flying squad will start functioning from the date of notification of election till the completion of poll. In sensitive constituencies, more than one flying squad team may be deployed and they shall not be given any other work during the election period. The flying squad shall be fully trained before the notification of the election. This instruction further provides that in expenditure sensitive constituencies, a section of CPF and one Central Government or Central PSU employee of the district may be deputed.

10. Instruction 4.6.2 speaks about the complaint regarding distribution of cash, liquor or any other item and the role of flying squad team. According to this instruction, if any information is received the team shall go to the spot immediately, and gather necessary evidence, seize the items and record the statements of the witnesses and persons. The team will send a report to the Returning Officer with a copy to the Superintendent of Police and the Assistant Expenditure Observer. The entire proceeding shall be video recorded.

11. Instruction 4.7.1 speaks about the Static Surveillance Team. According to this instruction, the team will keep a watch on large quantities of cash, illegal liquor, any suspicious item or arms being carried in their area and also carry out check in major or arterial roads right from the date of notification. If any person is found in possession of cash or other items without proper documents, the team can seize the same and take action under the relevant provisions of law. The entire event must be videographed.

12. Instruction 4.7.2 states that if the Expenditure Observer feels the necessity of more teams, then the DEO shall provide the manpower and one week before the poll, the surveillance activity shall be strengthened effectively with adding of more number of teams, depending upon the requirements.

13. Instruction 4.7.3. speaks about the lodging of the FIR as soon as the seizure is made and the deposit of cash, if any, seized within 24 hours to the State Treasury. The Nodal Officer will follow up the cases after seizure and send the report to the Commission with copy to CEO after the election on the status of the cases in Court.

14. Instruction 4.7.4 states that DEOs shall publish appeal in media to the public and political parties not to carry huge amount of cash during elections. If anybody intends to carry, they can do so by carrying proper documents to explain the source and use of such cash.

15. Instruction 4.7.5 speaks about the Nodal Officer at Police Headquarters. According to this instruction, one officer at the level of Inspector General at the Police Headquarters of the State will be notified as Nodal Officer for co-ordination with enforcement agencies and with the Commission. His contact numbers shall be sent to the Expenditure Observer, Investigation Directorate, Excise Department and other law enforcement agencies during election. The seizure reports by the flying squad of each district will be complied by the respective Superintendents and will be faxed to the Nodal Officer within 24 hours, who in turn will compile the information for the State and send daily report to the Commission with a copy to the CEO.

16. From a bare perusal of the instructions, it does not appear that the power conferred to the Election Commission and its officers are arbitrary or against the constitutional guarantees provided to the citizens. The seizure of unaccounted cash or other movables or seizure of huge quantity of gold, silver and unlicensed arms by the Election Commission does not violate any of the fundamental rights, much less the rights guaranteed under Articles 19(1)(d) and 19(1)(g) or Article 21 of the Constitution of India.

17. A similar question was raised in a batch of writ petitions viz., W.P.No.8103 of 2011 and other cases. This Court by its order dated 01.04.2011 disposed of the writ petitions and held as under:-

?34. There is no dispute that the Representation of People Act, 1951 (in short ?Act, 1951?) cast a mandate on every candidate to maintain the account of expenditure incurred during the election. The Election Commission has prescribed a detailed guideline called ?Instructions on Expenditure Monitoring in Elections?. By instruction dated 17th March, 2011, issued by the Election Commission, standard operating procedure for dealing with unaccounted and other valuables have been prescribed. According to the instructions, if cash is being carried with proper documents or if it is for any other purpose and the person carrying those valuables satisfy the officers conducting the search and seizure, then those valuables shall be returned to the owner forthwith. It is well settled law that the duty of the Election Commission, inter alia, is to prevent distribution of money to the public and Commission should take all steps to curb those activities. The election being a very important event for the State, the Election Commission has to maintain law and order to ensure free and fair election and also curb the malpractices.

35. ???..

36. After giving our anxious consideration in the matter, we, therefore, dispose of these writ petitions with the following directions and observations:-

(1) To ensure free and fair elections to the Legislative Assembly in the State of Tamil Nadu to be held in April, 2011, the authorities of the Election Commission shall follow the instructions contained in ?Expenditure Monitoring in Elections?, and other guidelines issued time to time.

(2) The standard procedure for dealing in unaccounted cash and other valuables shall be followed, and in case some criminal linkage is found, the seizure shall be effected. However, it is made clear that if cash or other valuables is being carried with proper documents, then no seizure shall take place and the same shall be returned to the person concerned.

(3) The whole operation should be videographed and the flying squad shall ensure all politeness, decency and courtesy.

(4) But, in no case the distribution of money or other valuables to the public shall be permitted till the election is over.

(5) The Commission is also directed that for curbing large scale crimes, extra ordinary security measures should be taken till the election results are announced, and the safety and security of the Flying Squads shall be taken care.?

18. The activities of the Election Commission in making search and seizure in the name of implementing the Model Code of Conduct came up for consideration recently before a single Bench of this Court in W.P.No.7011 of 2011. In that case the petitioner challenged the seizure made by the respondents which amount was stated to have been carried for the purpose of making payment to the workers. The learned Judge disposed of the writ petition with certain directions. The relevant portion of the order is quoted hereinbelow:-

?4.3. According to him, the effect of the rules is being published in all newspapers, both Tamil and English, and also shown in various television channels, so as to enable the people to understand the implication and follow the same in such event of seizure. He would also submit that since the respondents were not satisfied about the reason assigned for carrying huge quantity of amount the same was recovered by them and thereafter, the Deputy Director of Income Tax(Inv), Unit-IV(2), Chennai – 600 034, by executing the warrant of authorization under Section 132A of the Income Tax Act, 1961 has taken over the amount from the second respondent. Therefore, according to him, if only the petitioner justifies the purpose for which the amount was carried, the Deputy Director of Income Tax(Inv), Unit-IV(2), Chennai – 600 034 would release the same.

5. Considering the above sa

id facts and circumstances of the case, I am of the considered view that while it is the duty on the part of the respondents to see that the Election Code of Conduct is scrupulously followed, it must be ensured that under the guise of following the rules strictly, the innocent people should not be targeted and therefore, it is desirable that the Election Commission makes publication in the language known to the people of this State about the above said provisions. Moreover, as and when seizure is effected, it should be stated as to whom the citizen has to approach and what are all particulars have to be furnished. It is also expected that when a seizure order is made like the impugned notice, it is the duty on the part of the Election Officer to indicate in the said order as to the next course of action, viz., as to which authority he has to approach and so on, and these particulars are necessary not only to see that the Election Code of Conduct is properly implemented, but also to make sure that it will not have adverse effect on the innocent and genuine persons. 6. On the facts of the present case, since it is stated that the amount has been taken over by the Deputy Director of Income Tax(Inv), Unit-IV(2), Chennai – 600 034 with all necessary records and the Deputy Director of Income Tax(Inv), Unit – IV(2), Chennai – 600 034, on being satisfied about the records produced by the petitioner, shall pass appropriate orders within one week from the date when the petitioner approaches him with a copy of this order. No costs. Consequently, M.P.No.1 of 2011 is closed.? 19. So far the instant case is concerned, after holding that the instructions contained in the ?Expenditure Monitoring in Elections? does not amount to exercising excessive power by the Election Commission or encroaching upon the other area occupied by the Central or State Legislations, we dispose of these writ petitions reiterating the observations and directions given in the earlier writ petitions as quoted hereinbefore. In our opinion, no further directions need to be issued to the Election Commission except that they shall discharge their duties in accordance with the procedures established by law. No costs. Consequently, connected miscellaneous petitions are closed.

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