Y. SRINIVASA RAO,
M.A (English Lit.,)., B.Ed., LL.M., (Ph.D) Research Scholar in Torts. Principal Senior Civil Judge cum Assistant Sessions Judge, Tirupati.
“The tyranny of a Prince in an oligarchy is not so dangerous to the public welfare as the apathy of a citizen in a democracy” – Montesquieu
The right to vote is a statutory right and the election law nor any Notification of the Election Commission makes it compulsory for any one to vote at the election. But the fact remains that elections have to be held in a free and fair manner so that every one may exercise his right to vote without any compulsion or duress. (See. The Chief Election Commissioner, Election Commission of India Vs. Dr. Alladi P. Raj Kumar, Rajya Sabha Member and Ors 1994 (3) ALT 653). It is a job of the Election Commission, which has been given sufficient liberty under the Act as also various provisions of the Constitution to make arrangements for a free poll and if there is any apprehended violence, to adjourn the poll and take other remedial steps. There is, therefore, no infringement of Article 21 involved in the present election process by taking a decision. Article 324 of the Constitution provides for superintendence, direct control on elections and to conduct the elections in free and fair manner, keeping in view the sanctity of elections. In a democracy the basic guarantee required for efficiency of democratic process to dwell is to give the people freedom to participate in the criticism of the State institutions, communication relation to political and electoral process, guarantee of freedom of inter-course of the Constitution, freedom of communication, free comment of Indian people, prohibitions and implied prohibitions by interference with the capacity of the said opinion in the Legislative and Executive in the judicial capacities. Freedom of communication is the least in relation to all public affairs and political decision is indispensable to the efficacy of the system of representative Government for which the Constitution of India stands and provides for and it necessarily provides right to vote and elect its representative and sustain the democracy which can be termed as basic to the Constitution of India. (See. Gemini Television Limited and Telugu Desam Party’s case (infra)).
Jurisdiction of the Election Commission:-
Jurisdiction of the Election Commission of India in exercise of powers under Article 324 to issue instructions where statute is silent. There is no dispute with the proposition of law. However, the statute is not silent either on expenditure or on electronic media or issuance of publication, etc. Reference may be made to Section 126 of the Representation of Peoples Act, 1951 as amended in 3996 and Section 77 of the Representation of Peoples Act read with Conduct of Election Rules, 1961 which have already taken care of the expenditure as well as the campaigning on the electronic media relating to election matters. See. Kanhiyalal Vs. R.,Trivedi, P. Natta Thampy v. Union of India, and Election Commission of India v. Shivaji.
Role of Election Commission:-
The Election Commission is entitled to issue such directions as it may consider in its discretion which it may bonafidely consider necessary for the conduct of elections. It is entitled to issue necessary instructions from time to time and guidelines. However, the power conferred upon the Election Commission which is plenary in character and its exercise thereof has atleast two limitations. The Commission would have to act in conformity with and not in violation of any valid law relating to or in connection with the election. Secondly, it shall be responsible to the Rule of Law.(Para 21)There cannot be any doubt that all the instructions issued by the Election Commission from time to time and the Model Code of Conduct are required to be complied with by the political parties including the party in power, candidates and the staff on election duty. See. Bharatiya Janatha Yuva Morcha’s case (infra).
Even the Election Commission does not prohibit the developmental activities in the Country immediately after the announcement of the election. Developmental activities in the Country do not come to a grinding halt, what is sought to be achieved by the Election Commission is that no party in power running the Government should be allowed to run any distinct advantage after announcement of the elections in the matter of campaign and appeal to the voters. Election Commission directs and precludes the Government and the party in power from making any fresh promises and announcements only with a view to influence the voters. See. Bharatiya Janatha Yuva Morcha’s case.
In the case of the Chief Election Commissioner, Election Commission of India Vs. Dr. Alladi P. Raj Kumar, Rajya Sabha Member and Ors. – 1994 (3) ALT 653 ( D.B. ), it was observed that Having referred to some of the laudable steps taken by the Chief Election Commissioner to ensure free and fair election, the learned Judge observed as follows:
“…….But, such steps for free, fair and smooth elections are not complete and the same will be effective only when the voter is permitted to exercise his franchise freely without any fetters or threats and as the same concerns the democratic process and the fundamental right under Article 21 of the Constitution, there is no constitutional restrained on this Court to direct the Election Commission to take steps to avoid any action which will have the adverse effects on the right to vote by the electorate. The Chief Election Commissioner shall further review the situation at frequent intervals from today till the elections are over and take appropriate decision and before the conduct of elections on 5th December, 1994, he shall finally review the situation and record a finding by the time I re-assemble on 4th December, 1994, as to whether the circumstances are conducive to conduct the election or not……….”
In Inderjit Barua and Ors. v. Election Commission of India, the High Court had issued a direction that unless the revision of electoral rolls was complete, election should not be held. In that case, it was contended that the electoral rolls of 1979 were void and the elections ought not to be conducted on the basis of such invalid electoral rolls. The Supreme Court rejected the contention holding as follows:
“…………In the first place, Article 329 (b) of the Constitution bars any challenge to the impugned elections by a writ petition under Article 226 as also on the ground that the electoral rolls on the basis of which the impugned elections were held were invalid. The petitioners sought to escape from the ban of Article 329 (b) by contending that they are challenging the impugned elections as a whole and not any individual election and that the ban of Article 329 (b) therefore does not stand in the way of the writ petitions filed by them challenging the impugned elections. But, we do not think this escape route is open to the petitioners……..”
Again, at paragraph 4 it was observed:
“…….we may reiterate once again that even if the electoral rolls of 1979 were invalid, that would not affect the validity of the impugned elections nor would a writ petition under Article 226 of the Constitution be maintainable, for challenging the impugned actions……..”
Adverting to the contention that the Election Commission should be directed to suo motu carry out an inquiry for the purpose of determining whether any of the persons whose names were included in the electoral rolls of 1979 or earlier electoral rolls were citizens or not, and to delete their names if they were not found to be citizens, the Supreme Court made the following pertinent observations:
“……It is entirely for the Election Commission to decide in the exercise of its discretion whether it should carry out any such revision suo motu under Rule 25 of the Electoral Registration Rules, 1960. We cannot direct the Election Commission to carry out such revision which under the law it may do on its own. The only direction which we own give to the Election Commission is to carry out revision of the electoral rolls in the Representation of the People Act, 1950 and the Electoral Registration Rules, 1960. But since the Election Commission has stated before us that it will carry out revision of the electoral rolls and that such revision shall, as far as practicable, be intensive revision and where it is not so practicable, it will be summary or special, we do not think it necessary to give any further directions to the Election Commission”.
Free and fair elections is a basic requirement for the survival of democracy:- In Bharatiya Janatha Yuva Morcha State General Secretary, N.V.S.S. Prabhakar, Hyderabad Vs. Chief Secretary, A.P. State Government, Hyderabad and others – 1998 (1) ALT 390 , the petitioner prays for issuance of an appropriate writ particularly one in the nature of Mandamus declaring all the policy decisions including “Janma Bhoomi” programme and other schemes taken by the A.P. State Government after proclamation of Lok Sabha elections as illegal, arbitrary and against the natural justice apart from being violative of Model Code of Conduct issued by the Election Commission from time to time. The Hon’ble High Court held that free and fair elections is a basic requirement for the survival of democracy and the institutions under the Constitution. It is not only the responsibility of the Election Commission of India but also of all the Governments including the Central Government. The Officers manning various departments under the control of the State Government are also required to discharge their duties and constitutional obligations in such a manner facilitating free and fair elections. Political parties do have their own role to play. But ultimately, it is for the people to decide in what manner they should exercise their discretion. The wisdom lies with them as they are the ultimate sovereign in the democracy. Further held that ”Eternal vigilance is the price of democracy. There is no substitute for the constant vigil by the people. Even a writ of this Court cannot be a substitute for the eternal vigilance.” ”The great French thinker, Montesquieu, said “The tyranny of a Prince in an oligarchy is not so dangerous to the public welfare as the apathy of a citizen in a democracy”. ”It is over to the people.”
In Gemini Television Limited and Telugu Desam Party, rep. by Prof. C. Laxmanna, Member of Central Election Monitoring Committee, Hyderabad vs. Election Commission of India and others – 1999 (5) ALT 171 ( D.B. ), the Hon’ble Division bench observed that if the campaign or advertisement or apprising the voter of the pit falls of the political parties or the achievements made by them or necessary information about the candidate to be elected shall not be termed as election matter, we are at a loss to understand as to what else could be the election matter. The Hon’ble Bench held as follows: ”We are of the further considered view that the restriction imposed on the electronic media solely on the ground that it involves higher expenditure and would unbalance the fair and free election appears to have been taken on extraneous consideration specially when no such restriction has been put on the other media like press, booklets, pamphlets, holding of procession, propagating through loud speakers, holding public meetings, etc. Restriction has no reasonable nexus with the object especially when there is no prohibition in any other media. No statistics appears to have been collected before coming to such a conclusion though an attempt has been made by both the parties wherein the Counsel for the petitioner stated that one page advertisement in a national newspaper costs more than Rs.5,00,000/-per day while the Counsel for the Election Commission pointed out that 10 seconds in electronic media costs Rs.8,000/- totally ignorant and oblivious of the number of people accessible through electronic media and the press. Again the question of expenditure to be incurred in the hustings has been taken care of by the Legislature. The field is not open for the Election Commission to provide something contrary to or in addition to the provisions made by the Legislature by putting a limit on the expenditure under Section 77 of the Representation of Peoples Act, 1951. The Legislature in its wisdom has till date, inspite of being repeatedly pointed out by the Apex Court, not provided any limit on the expenditure to be incurred other than by the candidate in the hustings. Thus in our considered view the Legislation having taken care of expenditure, the Election Commission in exercise of its power of superintendence cannot impose further restrictions in the garb of providing in the code of conduct for the expenditure to be incurred by the persons. As observed earlier, except what has been specifically prohibited in law, it is well recognised that all other modes are permitted. There being no prohibition on the expenditure by an organisation/party it would be reasonable for us to assume that persons other than the persons prohibited for incurring the expenditure are at liberty to incur expenditure for propagating for or against a person. It is not unknown rather judicial notice of the fact can be taken that innumerable societies have come up in the country which are undertaking the social work of educating the people, contesting the elections as well as pointing out innumerable pit falls relating to various candidates in the elections.
It was further held that ”Thus, in our considered view the restrictions imposed suffer from the vice of not only unreasonable restriction and discrimination but are also violative of the fundamental right of the people to do business i.e., Article 19(1)(g) of the Constitution.” Providing prohibition for some advertisements in electronic media which has become a part of life reaching out to every nook and corner of the country, accessible to uneducated population, thus denying them what is being allowed to educated person by allowing same acts being done by printed media is an arbitrary discrimination without there being any reasonable classification or reasonable nexus with the object assumed to be attained. (See. Para 21).
The prohibition violates Article 19(1)(a) of the Constitution, being unreasonable restriction on the freedom of speech, apart from being arbitrary and discriminatory. The Election Commission has prescribed time to the recognised parties to broadcast and telecast on National television and radio, while declining the same privilege or right for the private electronic media. Prohibition on the private electronic media for publicising, campaigning or carrying out the propaganda or advertising while permitting it in case of press and other media amounts to invidious discrimination. See. Gemini Television Limited and Telugu Desam Party’s case.
As was held in Gemini Television Limited and Telugu Desam Party’s case, in public affairs and in electoral process, political discussions relating to all matters of public affairs and matters in connection with the State affairs are part of right of information of what the political parties promise to give to its electorate and any restriction put not to reach the persons who are required to disseminate and exercise their right would be unreasonable, arbitrary and capricious. Judicial \’Courts are required to scrutinise such restrictions with scrupulous care with respect to reasonableness, discriminatory nature and an attempt to trench upon the freedom of any nature which is the quint-essential of a human right. As was held in Bharatiya Janatha Yuva Morcha’s case (supra), it is for the Election Commission to monitor and supervise the implementation of Model Code of Conduct and the instructions issued from time to time to the political parties, candidates and the Officials of the Government. This Court in exercise of its jurisdiction cannot dwell deep into the complaints of breach of Model Code of Conduct and instructions and decide for itself as to whether the Government or ruling party in a given case have acted contrary to the Code of Conduct and the instructions issued by the Election Commission. It is well-settled that every citizen enlisted as a voter is entitled to cast his vote according to his choice. No fetters can be placed on the said right. If he is restrained from exercising his franchise either physically or by oppressive methods, the same will be a flagrant violation of the fundamental right enshrined under Article 21 of the Indian Constitution. It is the duty of the Election Commission to see that the said right of the electorate is not fettered, scuttled or frustrated in any manner.