The commission, which has won acclaim for conducting elections with fairness and integrity, is now in danger of seeing a huge gutting of its powers to do so

The Union Government has told the Supreme Court that, in its view, the Election Commission of India has no power to disqualify a candidate on grounds of “correctness or otherwise” of his/her election accounts. A counter-affidavit filed by the Union Law Ministry on behalf of the Government in the Ashok Chavan case asserts that “the power of the Election Commission to disqualify a person arises only in the event of failure to lodge an account of expenses and not for any other reason, including the correctness or otherwise of such accounts.” A copy of the affidavit dated March 13 is with The Hindu. However, the Court is yet to give any ruling on the matter.

The immediate and foremost beneficiary of this position of the UPA government is the disgraced former Congress chief Minister of Maharashtra, Ashok Chavan. Mr. Chavan not only lost his post in the fallout of the Adarsh scam, but also earned notoriety in the ‘Paid News scandal,’ a story broken by The Hindu. (See The Hindu: Is the ‘Era of Ashok’ a new era for ‘news.’ >https://www.thehindu.com/news/national/article56964.ece Nov. 30, 2009). It is the correctness of Mr. Chavan’s accounts that is under challenge, not the issue whether he lodged them or not.

“The government’s position implies,” an outraged Election Commission source told The Hindu, “that a candidate can fill in zeros in every column and submit his accounts without fear. As long as he lodges them and does so on time.” The source pointed out that that the ECI, which has won acclaim for conducting elections with fairness and integrity, is now in danger of seeing a huge gutting of its powers to do so. That is — if this position of the government is accepted by the Supreme Court. The Court, so far, has not made any ruling on the matter in this particular case. The question involved, says the government affidavit, is “whether the ECI, under Section 10A of the Representation of the People Act 1951, has jurisdiction and power to conduct an enquiry and to look into the correctness or falsity of the return of election expenses maintained and filed by a candidate in an election.”

It then argues that “a plain reading” of Section 10 A of the Act “indicates that power of the Election Commission to disqualify a person arises only in the event of failure to lodge an account of expenses and not for any other reasons, including the correctness or otherwise of such accounts.” (Emphasis added).

Should the government’s argument be accepted, it would mean an overturning of the Supreme Court judgement in the R. Shivarama Gowde vs. P.M. Chandrashekar case (AIR 1999 SC. 252). There, a full Bench ruled that “The commission can go into the correctness of election expenses filed by the candidate and disqualify a candidate under section 10A of Representation of the People Act 1951.” The court had further held that even if the candidate had not exceeded the election expenditure limit, the ECI could still disqualify him if he had not lodged those accounts in a true and correct manner.

It was on the basis of the Gowde vs. Chandrashekar case that the Election Commission had issued notices to Mr. Chavan, the former Jharkhand Chief Minister, Madhu Koda, and Uttar Pradesh MLA Umlesh Yadav. It had also issued notice this year to BJP Minister in Madhya Pradesh Narottam Mishra (The Hindu, Jan. 29 2013). And of these, Ms. Yadav was actually disqualified for a period of three years. The other cases are pending. In its 23-page order ( >http://eci.nic.in/eci_main/recent/Disqualification_case_Umkesh_Yadav.pdf ), the ECI observed that “by suppressing expenditure on ‘paid news’ and filing an incorrect or false account, the candidate involved is guilty of not merely circumventing the law relating to election expenses but also of resorting to false propaganda by projecting a wrong picture and defrauding the electorate.” ( The Hindu, Oct. 22, 2011). If the government’s position triumphs in court, it would have major implications for all these and other paid news cases.

The government’s affidavit is also astonishing, says the ECI source, “because only yesterday, the Union law Minister was praising the ECI on the floor of the Rajya Sabha for this very fight against corrupt practices and paid news.” Law Minister Ashwani Kumar, replying to a starred question (No. 283 by Anil Desai of the Shiv Sena) on ‘black money’ in elections, told the Rajya Sabha that “the ECI has done an outstanding job in ensuring that there is real time and effective monitoring of election expenses.”

In the past three years, the ECI has set up robust measures to capture malpractice and fight paid news and other corrupt expenditures. It even launched a whole new Expenditure Monitoring Division headed by a top income tax official to crack down on these. Mr. Kumar’s praise for the ECI notwithstanding, if his Ministry’s affidavit is accepted as correct by the apex court, that very capability of the Commission to control expenditure would stand gutted. “What is the use” asks the ECI source, “of monitoring and capturing the expenditures if we are unable to act on it?” On paid news, the Minister said in his reply that the Press Council of India had given recommendations for reforms to curb the menace and that a Group of Ministers was going into these.

The Ashok Chavan case involves some of the top newspaper groups in the country who have vigorously denied charges of wrongdoing. The issue broke into print when three major newspapers carried exactly the same hagiographical story on Mr. Chavan — under different bylines. It also involved scores of full pages of “news” appearing in these and other publications singing Mr. Chavan’s praises while completely blacking out any mention of his rival in the Bhokar constituency of Nanded, Dr. Madhav Kinhalkar. The publications defended these full pages as “news.”

Mr. Chavan’s poll expenditure account also stated that he had spent less than Rs. 7 lakh on his entire campaign and a mere Rs. 5,379 on newspaper advertisements. Well below the expenditure limit. If his accounts are valid, then he managed to hold two rallies involving Bollywood superstar Salman Khan — and drawing tens of thousands of people — at a cost of less than Rs. 4,500 each. ( The Hindu: >The low cost of high celebrity, Nov. 10, 2010).

The exposure of these accounts incidents launched the ‘paid news’ controversy onto centre stage in the country’s electoral politics.