Dheeraj Jandial
The spirit of democracy is not a mechanical thing to be adjusted by abolition of forms. It requires change of hearts. Democracy is something that gives the weak the same chance as strong – Mahatma Gandhi
The General Elections for Legislative Assembly, 2024 in Jammu and Kashmir are going to finally conclude on October 01 when the voters shall be casting their mandate in Udhampur, Samba and Jammu. The heartening aspect of the elections so held was the voter turn-out which reflects the buoyant faith of the people in the Democracy.
Indeed the Election Commission of India deserves all appreciation for the smooth conduct of elections, while effectively enforcing the mechanism to monitor the expenditure of candidates in order to keep the election expenditure within the statutory limit under Rule 90 of the Conduct of Election Rules, 1961. The ECI’s Expenditure Monitoring System is an important part of ensuring that elections in India are free and fair. By monitoring election expenditure, the ECI helps to prevent candidates and political parties from using their wealth to influence the outcome of elections thereby affording level playing field by intending to curb excess expenditure/unaccounted expenditure as also to check other corrupt practices including of bribery of voters.
During the conduct of elections, it is one of the major aspects to keep a record of the expenses of the candidate over the election. All the candidates have to keep a record of their expenses and once the election is over then all the candidates have to submit the expenses report to the DEO after 30 days from the date of declaration of result.
Introduced for the first time in Bihar Legislative Assembly elections held in the year 2010, the objectives of Election expenditure monitoring are to conduct free, fair, transparent and peaceful election by monitoring misuse of money and muscle power, assuring incurring of Legal expenditure within the permissible limit, besides maintaining a truthful account of all contesting candidates.
LEGAL PROVISIONS
To enforce expenditure monitoring the Poll body appoints Indian Revenue Service (IRS) officers as Expenditure Observers during elections, be it Parliamentary or assembly as its watchdog. The Constitution under Article 324 vests the Election Commission with power for Superintendence, direction and control of elections. The Superintendence and control over the conduct of election by the Election Commission include the scrutiny of all expenses incurred by a political party, a candidate or any other association or body of persons or by any individual in the course of the election. The expression “Conduct of election” is wide enough to include in its sweep, the power to issue directions – in the process of the conduct of an election – to the effect that the political parties shall submit to the Election Commission, for its scrutiny, the details of the expenditure incurred or authorized by the parties in connection with the election of their respective candidates. However, there are other enabling legal provisions too under various regulations which particularly pertain to expenditure monitoring.
(1) Representation of People Act, 1951
(2) Conduct of Election Rules, 1961
(3) BhartiyaNayayaSanhita (Indian Penal Code)
(4) Income Tax Act and Rules
(5) ECI Guidelines
So far as, Representation of the People Act, 1951 is concerned, the most important regulation governing the Expenditure Monitoring and its enforcement is Section 10A, which provides for Disqualification for failure to lodge account of election expenses and the said section reads, “If the Election Commission is satisfied that a person- (a) has failed to lodge an account of election expenses, within the time and in the manner required by or under this Act; and (b) has no good reason or justification for the failure, the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order”.
Further, illustrating the ambit of Section 10A of RPA, the Hon’ble Supreme Court in L. R. Shivaramagowde versus T.M. Chandrashekhar( AIR 1999 SC 252 ) has observed that the Election Commission of India can go into the correctness of the account of election expenses filed by the candidate; and disqualify a candidate under S10 A of RPA, 1951 in case the account is found to be incorrect or untrue.
Thereafter, the Hon’ble Supreme Court decision in Ashok ShankarraoChavan versus Dr.MadhavraoKinhalkar&Ors. (2011), MadhuKoraverusu Election Commission of India (2012 ) and UmleshYadav versus Election Commission of India &Ors. (2013) dated 5th May, 2014 had observed, “Section 10A of RPA clothes the ECI with the requisite power and authority to enquire into failure to submit the account of election expenses in the manner prescribed and as required by or under the act”. The Apex Court also upheld the Commission’s decision to disqualify UmleshYadav under Section 10A of RPA, a returned candidate from 24- Bisaulli AC, Uttar Pradesh, General Election to Uttar Pradesh Legislative Assembly, 2007.
The other pertinent provisions of the RPA are Section 77 (1), Section 78 and Section 127A.
While, Section 77 dictates upon every contesting candidate for keeping of a separate and correct account of all expenditure in connection with the election incurred or authorised 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, the Section 78 prescribe for Lodging of account with the District Election Officer and mandates that every contesting candidate at an election shall, within thirty days from the date of election of the returned candidate or, if there are more than one returned candidate at the election and the dates’ of their election are different, the later of those two dates, lodge with the District Election Officer on account of his election expenses which shall be a true copy of the account kept by him or by his election agent under section 77.
Addressing the issue of furnishing of correct account of the all expenditure in connection with election, the Supreme Court in its landmark judgment in WP (C) 24 of 1995, Common Cause versus Union of India and others(AIR 1996 SC 3081), held that the political parties were under a statutory obligation to file regular returns of income and that a failure to do so rendered them liable for penal action.
The Section 127A of RPA imposes Restrictions on the printing of pamphlets, posters, etc. The provision states, “(1) No person shall print or publish, or cause to be printed or published, any election pamphlet or poster which does not bear on its face the names and addresses of the printer and the publisher thereof. (2) No person shall print or cause to be printed any election pamphlet or poster- (a) unless a declaration as to the identity of the publisher thereof, signed by him and attested by two persons to whom he is personally known, is delivered by him to the printer in duplicate; and (b) unless, within a reasonable time after the printing of the document, one copy of the declaration is sent by the printer, together with one copy of the document”.
Emphasizing on the strict enforcement of Section 127A, the Hon’ble Supreme Court in Rahim Khan versus Khursheed Ahmed and Ors. (AIR 1975)pronounced forindicating name and address of publisher and printer in print line of any pamphlet, poster other materials and sending printed materials to appropriate authority within 3 days of printing. The Court also held that the Printer shall obtain declaration in prescribed format from publisher in Appendix A and send to the District Election Officer /Chief Electoral Officer.
Under the Conduct of Election Rules, 1961- Rule 88 recommends Inspection of Accounts and Obtaining Copies thereof and states that any person shall on payment of a fee of one rupee be entitled to inspect any such account and on payment of such fee as may be fixed by the Election Commission in this behalf be entitled to obtain attested copies of such account or of any part thereof, while Rule 89 of the Election Rules mandates on Report by the District Election Officer as to the lodging of the account of election expenses and the decision of the Election Commission thereon. It is under Rule 89 that the ECI is empowered to disqualify a contesting candidate under section 10A for a period of three years from the date of the order, and cause the order to be published in the Official Gazette, if after considering the representation submitted by the candidate and the comments made by the district election officer and after such inquiry as it thinks fit, the Election Commission is satisfied that the candidate has no good reason or justification for the failure to lodge his account as is mandated under the provisions.
The Penal provisions on expenditure monitoring and illegal transactions during elections are contained in the BhartiyaNayayaSanhita (earlier Indian Penal Code) under Sections 171B to 171-I, dealing with Bribery and its punishment (Section 171-B and 171-E), undue influence and personation at elections and punishment thereof (Section 171C, 171D and 171F). The false statement in connection with an election is penalized under Section 171G, while illegal payment in connection with an election is punishable under Section 171H. The NayayaSanhita penalizes failure to keep election accounts under Section 171-I
EEM AS ETHICAL ELECTION
MANAGEMENT
On September 25, 2018, the five Judge Constitutional Bench comprising the then Chief Justice Dipak Mishra, Justice RF Nariman, Justice A.M. Khanwikar, Justice D.Y. Chandrachud, as well as Justice InduMalhotra in landmark judgement issued the following directives to address the lack of public knowledge regarding the candidate’s criminal history, even though it acknowledged the petitioner’s point that there is an increase in the criminalization of politics and that it must be addressed within the bounds of the constitution.
Pursuant to the judgement so passed in Public Interest Foundation case, the ECI has issued the directions that Candidates with criminal antecedents has to publish the details in the prescribed format. The Political Parties who set up Candidates with criminal cases too need to publish and broadcast details in the prescribed format for reporting the same to the District Election Officer and Commission.
The Election Commission of India in its order dated: 6th March, 2020 made a provision that it shall be mandatory for political parties to upload on their website and publish in vernacular and national newspaper and social media platform of the political parties the detailed information regarding individuals with pending criminal cases who have been selected as candidates, within 48 hours of the selection of the candidate or not less than 2 weeks before the 1st date for filing of nomination, whichever is earlier.
The reforms by ECI are being widely acknowledged as same tends to strengthen the democracy. Nevertheless, the opinion of the Hon’ble Court in in the case titledYogendra Kumar Jwaisal and others versus State of Bihar and others , must always be remembered on illegality of expenditure and its allurement.
(The writer is part of EEM team in Udhampur)
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