Uttarakhand HC Issues Extensive Guidelines To Curb Pre-Poll Corruption To Offices Of Block Pramukhs And Zila Panchayats

The directions were passed by a division bench of Chief Justice Ramesh Ranganathan and Justice Alok Kumar Verma in two public interest litigations filed by Vipul Jain and Ashirvad Goswami.

The Petitioners alleged that electoral candidates often bribed and threatened voters, which determined the "flawed outcomes" of indirect elections to the offices of Block Pramukhs, and Chairmen of Zila Panchayats. Thus, in order to eliminate all possible sources of corruption such as sponsored foreign trips, kidnapping, sale of votes etc., the Petitioners had sought appropriate directions to the Respondent authorities to frame extensive guidelines, governing the conduct of Panchayati elections in the State of Uttarakhand. They had also sought reduction in the time-frame between different tiers of elections so that buying and selling of votes could be stopped.

At the outset of the judgment, the court expressed its skepticism as to whether it could issue directions to make laws, that too to a Constitutional body, such as the State Election Commission.

In this regard, while citing a plethora of precedents which enumerated the powers of a high court under Article 226 of the Constitution, along with settled position that no court should direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact, the bench concluded that the High Court could exercise powers under Article 226 of the Constitution in cases where the State Election Commission had failed to discharge its constitutional obligation to hold free and fair elections.

"The jurisdiction of the High Court, under Article 226 of the Constitution of India, can always be invoked for the failure of the State Election Commission to discharge its constitutional obligations of holding free and fair elections," the bench said.

Notwithstanding the guidelines and Model Code of Conduct issued by the State Election Commission from time to time, the court noted that neither the Government nor the Commission had framed policies to curb pre-poll corruption.

In this regard a reference was made to S. Subramaniam Balaji v. State of T.N., whereby considering that there was no enactment that directly governed the issue, the Supreme Court had directed the Election Commission to frame guidelines for the same.

Further relying on Union of India v. Assn. for Democratic Reforms, the bench stated that it was not possible for a Court to give any directions for amending the Act or the statutory Rules. Nonetheless, if there is no provision in the Act or the Rules, it could issue directions to the Election Commission

However, it stated that the farthest that it could go was to "request" the Legislature to consider the feasibility of making laws/Rules to provide measures to prevent occurrence of electoral malpractices, instead of waiting, till after the event, for the long drawn process of post-election correction to be undertaken.

Treating the aforementioned cases as precedents, the division bench issued the following directions:

1. Necessary guidelines should be issued and wide publicity given, regarding the names and designations of election officials to whom the general public may complain if corrupt electoral practices come to their notice.
2. The State Election Commission should consider framing guidelines regarding the nature of action the officials, to whom such complaints are addressed, should take.
3. The State Election Commission should inform in writing, the candidates contesting elections, of its power to postpone elections till it is able to ensure free and fair elections, or to countermand the elections, and to hold elections afresh, in case it is satisfied that the election process is vitiated by electoral malpractices.
4. The State Election Commission should adopt a pro-active approach in discharging its constitutional obligations of ensuring a free and fair election, and to curb corrupt electoral practices.
5. On receipt of credible information, State Election Commission should initiate inquiry against suspected candidates and if, on such inquiry, it is found that the complaints are true, forthwith action must be taken to nip the corrupt electoral practices in the bud.
6. All men and machinery involved in the election process, including the District Magistrates and the District Superintendents of Police, function under the overall control of the State Election Commission, for the discharge of their election duties, till the entire election process is completed.
7. Any complaint received by the District Magistrates and the District Superintendents of Police should not only be forwarded to the State Election Commission forthwith, but immediate action should also be taken at their end to enquire into the allegations made in the complaints.
8. If the allegations are found to have some basis, immediate action, including lodging an FIR against the accused under the IPC, should be taken, and a report should be submitted by them to the State Election Commission.
9. On receipt of such a report, the State Election Commission should consider whether the contents of the report warrant drastic action being taken to postpone the election process, or even to cancel the elections itself.
10. For such corrupt practices to be curbed, active involvement of the general public is essential. It is the responsibility of each citizen, on coming to know of such illegal acts, to bring such corrupt practices to the notice of the concerned District Magistrate, other District Electoral Officers, Police officers and the State Election Commission.
11. The State Election Commission has the power to interfere with the election process if it is found to have been manipulated including, if need be, by cancellation of the election itself.
12. If the conditions, for the conduct of free and fair elections, are not conducive because of breakdown of law and order, or such other factors, that, in the opinion of the District Magistrate and the State Election Commission, prevent the voters from choosing their candidates in a free and fair manner, the State Election Commission may postpone elections for a reasonable period.
13. If a situation arises whereby serious mal-practices have affected the purity of the electoral process, the State Election Commission has the power to cancel the election itself.
14. In case the State Election Commission fails to take action on their complaints, regarding electoral malpractices on the eve of elections, it is open to the complainant to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India.
15. The State Election Commission shall consider the suggestions regarding reduction of time gap between the declaration of results in direct elections, and the date of election to the offices of Block Pramukh and Zila Adhyaksh, to the barest minimum to rid the election process of this plague of horse-trading, and blatant use of money and muscle-power to lure/browbeat voters to submission.

The court noted that stringent action taken on part of the State Election Commission would deter the contesting candidates from indulging in corrupt practices of horse-trading, and use of money and muscle power to garner votes for election to such offices.

The court also exclaimed that instead of waiting for receipt of a written complaint for it to act, the State Election Commission should treat information, from whatever be the source (including newspaper reports), as complaints which necessitate further inquiry.

"If letters and newspapers reports can form the basis for the Superior Courts to entertain Writ Petitions, in the exercise of their Public Interest Litigation jurisdiction, there is no reason why newspaper reports should not be treated as complaints by the State Election Commission, and the allegations made therein promptly inquired into, and, if found true, for action to be taken forthwith to ensure that such corrupt practices are dealt with an iron hand, and are immediately nipped in the bud," the court said.

The bench also remarked that persons, who spent large sums of money in buying votes or in providing expensive holidays to, could hardly be expected not to resort to corrupt practices after they are elected. Thus it was essential to curb such malpractices relating to foreign jaunts or paid holidays to voters.

This could be easily done by the State Election Commission by asking the candidates to submit information regarding the source of funds for their travel to, and their stay in, such exotic locations, since travelling abroad would require an endorsement on the passport, the court said.

The court lastly remarked,

"Instead of expressing helplessness, and in waiting for complaints to be made to it, the State Election Commission should adopt a pro-active approach in discharging their constitutional obligation of holding free and fair elections, for the very creation and existence of the State Election Commission is only to ensure that the elections, to Panchayati Raj Institutions, are held in a free and fair manner, and that corrupt practices are curbed."

The Petitioners were represented by Advocate Abhijay Negi, the State of Uttarakhand by CSC Paresh Tripathi, the State Election Commission by Standing Counsel Sanjay Bhatt and the Union of India by Standing Counsel Saurav Adhikari.