Madras High Court
K.K.Ramesh vs The Chief Election Commissioner on 15 April, 2019
Equivalent citations: AIR 2019 (NOC) 761 (MAD.)
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.04.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
W.P.(MD) No.8742 of 2019
K.K.Ramesh .. Petitioner
Vs.
1. The Chief Election Commissioner,
Election Commission of India,
Nirvachan Sadan,
Ashoka Road,
New Delhi - 110 001.
2. The Chief Election Officer (CEO),
Tamil Nadu,
Fort St. George, Secretariat,
Chennai - 600 009.
3. The Returning Officer,
32 Madurai Parliamentary Constituency,
and District Collector,
Madurai. .. Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India,
issuance of a Writ of Mandamus, directing respondents 2 and 3 to cancel or
postpone the 32 Madurai Parliamentary Constituency Election to be held on
18.04.2019 due to heavy supplying of cash for vote and crores and crores of
money spend by AIADMK and DMK by preparing false account statement
produced before the Election Commission.
For Petitioner : Mr.N.Purushothaman
For Respondents : Mr.Niranjan Rajagopalan
http://www.judis.nic.in Standing Counsel for ECI
2
ORDER
(Order of this Court was made by S.MANIKUMAR, J.) Mr.K.K.Ramesh, an independent candidate for 32 Madurai Parliamentary Constituency, Madurai, has filed the instant writ petition for a writ of mandamus, directing the Chief Election Officer (CEO), Tamil Nadu, Chennai and the Returning Officer, 32 Madurai Parliamentary Constituency and District Collector, Madurai, respondents 2 and 3 respectively, to cancel or postpone the 32 Madurai Parliamentary Constituency Election to be held on 18.04.2019 due to heavy supplying of cash for vote and crores and crores of money spend by AIADMK and DMK, by preparing false account statements produced before the Election Commission.
2. Reasons cited in the supporting affidavit at paragraph Nos.14 to 16 are as hereunder "14. I further submit that an unregister Letter Pad Party namely "SOURASHTRA MUNNETTRA KZHAGAM" and AIADMK party has jointly conducted a political meeting on 31.03.2019 at 4.00 pm, at Tamilnadu, Madurai, Teppakulam, Sourashtra club people are brought up to the venue by transportation like share auto, mini bus, Government bus, goods vehicle. I came to know about this and visited there. I have seen people receiving Rs.500/-, food token, sweets, snacks and coffee to participating in the dais. I gave complaint to the Election Commission Rom in Madurai collector Office. After that I heard some people are waiting with token for bus, share Auto and goods vehicle arranged by political party at Ramanathapuram Road, http://www.judis.nic.in Narasimma Puram Street. So, I gave complaint through mobile to 3 election commission flying squad. Flying squad rushed and captures the incidents with video camera.
15. I further submit that 4000 people were gathered at Sourashtra club by Government bus, mini bus, share auto and goods vehicle by giving bribe of Rs.500/- to people for showing the mighty and strength which is completely violation of rules of Election Commission of India. The election commission strictly mentioned that only Rs.10,000/- is allowed to be use by cash more than that amount should be transfer only by Bank transaction AIADMK use cash more than Rs.10 Lakhs for the yesterday (31.03.2019) dais at Sourashtra club. Election commission and flying squad did not take any action against them which let the whole election commission system failure.
16. I further submit that on 07.04.2019 AIADMK conducted a political meeting near Pandi Kovil, Madurai Ring Road. Many people brought up to that venue by goods vehicle and each people collection token to get cash for vote of Rs.500/- to Rs.2000/- ADMK party using money as cash more than 12 lakhs. Which is violation of Election Commission Rules. Election Commission permit a political party and political candidate use Rs.10,000/- by cash more than that should be transferred only by Bank.
3. Reliance has also been made to a decision of the Delhi High Court in ITA No.145 of 2001 dated 23.03.2016 between Commissioner of Income Tax Delhi-XI and Indian National Congress (I)/All India Congress Committee and the relevant portion of the judgment is reproduced.
1.1 More than four decades ago, while noting the distortion that large contributions of money made to political parties and candidates could bring about to the electoral process, the Supreme Court observed in Kanwar Lal Gupta v. Amar Nath Chawla, (1975) 3 SCC 646 (at p. 654) http://www.judis.nic.in 4 as under:
"The availability of disproportionately larger resources is also likely to lend itself to misuse or abuse for securing to the political party or individual possessed of such resources, undue advantage over other political parties or individuals. Douglas points out in his book called Ethics in Government at p. 72, "If one party ever attains overwhelming superiority in money, newspaper support, and (Government) patronage, it will be almost impossible, barring an economic collapse, for it ever to be defeated". This produces antidemocratic effects in that a political party or individual backed by the affluent and wealthy would be able to secure a greater representation than a political party or individual who is without any links with affluence or wealth. This would result in serious discrimination between one political party or individual and another on the basis of money power and that in its turn would mean that "some voters are denied an 'equal' voice and some candidates are denied an 'equal chance' ".
1.2 The Supreme Court also noted that: "The small man's chance is the essence of Indian democracy and that would be stultified if large contributions from rich and affluent individuals or groups are not divorced from the electoral process."
1.3 Till the Supreme Court began actively examining the issue in a public interest litigation (PIL) instituted in 1995 by 'Common Cause', most of the registered political parties in this country, both at the national and state levels, did not file income tax returns, despite it being made mandatory under Section 139(4B) of the Income Tax Act, 1961 ('Act'), introduced with effect from 1st April 1979. They also failed to maintain proper accounts of their income and expenditure although this was too mandatory for them to claim exemption from payment of income tax under Section 13A of the Act.
1.4 The problem persisted despite the judgment of the Supreme http://www.judis.nic.in Court in the PIL by Common Cause. The Election Commission of India 5 noted in its 'Guidelines on Transparency and Accountability in Party Funds and Election Expenditure' issued on 29th August 2014 that "concerns have been expressed in various quarters that money power is disturbing the level playing field and vitiating the purity of elections."
1.5 This was echoed by the Law Commission of India ('LCI') in its 255th Report on 'Electoral Reforms' when it said:
"Money, often from illegitimate sources, results in "undisguised bullying" when it is used (both authorised and unauthorised) to buy muscle power, weapons, or to unduly influence voters through liquor, cash, gifts. Currency notes come first in containers, then in truckloads, moving to wholesale/small retail forms, and finally to suitcases and in people's pockets."
1.6 Referring to a study conducted by Association for Democratic Reforms ('ADR'), the LCI noted that: "more than 75% of parties' sources are unknown, while donations over Rs. 20,000 comprise only 9% of parties' funding." Further ADR's analysis of the funding of political parties for financial years 2004-05 to 2011-12 revealed that the total income of political parties from unknown sources was Rs. 3,674.50 crores which constituted 75.05% of the total income of the parties.
134. This case demonstrates the need for a slew of legislative measures that need to be put in place for an effective check on the influence of money on the electoral process. Recently in Ashok Shankarrao Chavan v. Madhavrao Kinhalkar MANU/SC/0466/2014 :
(2014)7 SCC 99 the Supreme Court observed:
"48. It is common knowledge as is widely published in the Press and Media that nowadays in public elections payment of cash to the electorate is rampant and the Election Commission finds it extremely difficult to control such a menace. There is no truthfulness in the attitude and actions of the contesting candidates in sticking to the requirement of law, in particular to Section 77 and there is every http://www.judis.nic.in attempt being made to violate the restrictions imposed in the matter 6 of incurring election expenses with a view to woo the electorate concerned and thereby, gaining their votes in their favour by corrupt means viz by purchasing the votes..."
4. On the above averments, Mr.Purushothaman, learned counsel for the petitioner made submissions.
5. Referring to Article 329 (b) of the Constitution of India, read with Section 80 of the Representation of Peoples Act, 1950 Mr.Niranjan Rajagopalan, learned counsel for the Election Commission of India, made preliminary objections as to maintainability of the writ petition.
6. Learned counsel for the Election Commission of India, further submitted that in a couple of days, election scheduled on 18.04.2019 has to be conducted and that the prayer sought for i.e. to issue a mandamus to cancel or postpone the 32 Madurai Parliamentary Constituency Election to be held on 18.04.2019, is not maintainable. He further submitted that flying squad or Static Surveillance Team, as the case may be, would visit places, where there is a likelihood of corruption or corrupt practices and also visit places where a specific complaint is made regarding distribution of cash or any other consideration.
http://www.judis.nic.in
7. As regards the averments in paragraph No.16 that on 07.04.2019 7 AIADMK conducted a political meeting near Pandi Kovil, Madurai Ring Road, and voters were given cash for vote of Rs.500/- to Rs.2000/- Mr.Niranjan Rajagopalan, learned counsel for the Election Commission of India submitted that no sooner the Electoral Officer received information, flying squad visited the said place, but none was there to substantiate the said allegation. That apart, learned counsel for the Election Commission of India would submit that CCTV's have been installed, in many places, flying squads / Static Surveillance Teams, also made surprise inspections, at the premises and offices of the candidates or those who are closely associated with them and also intercepted vehicles to prevent corruption or corrupt practices.
8. On the facts and circumstances of this case, Mr.Niranjan Rajagopalan, learned counsel for the Election Commission of India, submitted that on the allegation of distribution of cash, on a complaint of Mr.Kathirvel, Tahsildar and member of Flying Squad Team A1, 192 South Constitution Assembly, Madurai, a case in Cr. No.216 has been registered on 02.04.2019 on the file of Theppakulam Police Station, Madurai City under Section 171 E, IPC against one Gurumurthi, S/o.Kuppusamy, 16, Annamalai Paper Godown Lane, Narshimmapuram, Balarengapuram, Madurai.
9. Complaint of Mr.Kathirvel, Thasildar and member of Flying Squad Team A1, and FIR in Cr.No.216 dated 02.04.2019 on the file of Theppakulam http://www.judis.nic.in 8 Police Station, Madurai City, are extracted hereunder.
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http://www.judis.nic.in
9
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10. From the above, it could be seen that insofar as the allegation in paragraph No.14, of the supporting affidavit, action has been taken.
Allegations made in paragraph Nos. 15 and 16 have not been substantiated.
Complaint made by Mr.Kathirvelu, Tahsildar and member of Flying Squad Team http://www.judis.nic.in A1, has been acted upon and police has registered a case.
1011. Earlier in W.P.(MD) No.6062 of 2019, the petitioner has made the very same allegation that crores and crores of money, have been spent by AIADMK and DMK parties by distributing cash for votes and false account statements were furnished to the Election Commission of India. Considering the steps taken by the Election Commission of India, and similar averments, on 26.03.2019, we dismissed W.P.(MD) No.6062 of 2019.
12. For the reasons stated supra, mandamus, to cancel or postpone 32 Madurai Parliamentary Constituency Election, scheduled to be held on 18.04.2019, cannot be granted. Writ petition is dismissed. No Costs.
(S.M.K., J.) (S.P., J.) 15.04.2019 Index: Yes.
Internet: Yes ars http://www.judis.nic.in 11 To
1. The Chief Election Commissioner, Election Commission of India, Nirvachan Sadan, Ashoka Road, New Delhi - 110 001.
2. The Chief Election Officer (CEO), Tamil Nadu, Fort St. George, Secretariat, Chennai - 600 009.
3. The Returning Officer, 32 Madurai Parliamentary Constituency, and District Collector, Madurai.
http://www.judis.nic.in 12 S.MANIKUMAR, J.
AND SUBRAMONIUM PRASAD, J.
ars W.P.(MD) No.8742 of 2019 15.04.2019 http://www.judis.nic.in