EC Has No Power To Recover Costs For Conducting Elections From Candidates Responsible For Cancellation Of Elections: Madras HC [Read Order]

May be the Election Commission with its wide powers to ensure free and fair elections might make a recommendation for suitable enactment and/or amendment of law, the bench said.

The Madras High Court recently observed that Election Commission has no power to recover costs of preparations for conducting elections from contesting candidates responsible for the cancellation of elections.

A division bench of Chief Justice Indira Banerjee and Justice M Sundar dismissed public interest litigations that sought an appointment of a statutory auditor to calculate the expenses caused to the exchequer by reason of announcement of elections to Aravakurichi and Thanjavur Assembly Constituencies, observing that this would amount to imposition of penalty with retrospective effect without authority of law.

In both these constituencies, the Election Commission had to cancel the elections by reason of corrupt practices on the part of the contesting candidates fielded by the two major political parties. The appointment of a statutory auditor was sought to calculate the expenses caused to the exchequer by reason of announcement of elections, postponement of dates and ultimate cancellation thereof and recover the same from the errant contesting candidates.

Referring to various provisions of Election Laws and the Constitution, the bench said: “Neither the Constitution nor the statutory enactments enable the Election Commission to recover costs of preparations for conducting elections from contesting candidates responsible for the cancellation of election.”

The bench observed that though it is true that unscrupulous candidates contesting elections should not be allowed to go scot-free when they disrupt elections and thereby cause huge wasteful expenditure to the state exchequer, the public interest litigation cannot be stretched to take over all acts of governance.

“In a country governed by a Constitution, of which separation of powers between the Legislature, the Executive and the Judiciary is a basic feature, this Court cannot take over legislative or executive functions. It is for the legislature to enact a law to provide for recovery of waste of public money caused by wrongful acts of contesting candidates. May be the Election Commission with its wide powers to ensure free and fair elections might make a recommendation for suitable enactment and/or amendment of law,” the bench added.

PIL not a measure for the Courts to take over governance

The bench also added that public interest litigation is not a measure for the courts to take over governance. “Nor is it a process for supervising or monitoring every step, direction or measure involved in governance. Where fundamental or other rights are infringed or the State is demonstrated to be in abuse of power or acting mala fide, the Courts may consider the necessity of continuous supervision towards eliminating mal-governance. Such continuous supervision might be limited strictly to ensure that the State and the agencies of the State act in accordance with law and not in usurpation of the law,” the court added.