A Writ Petition (PIL) was filed at the instance of a registered N.G.O. substantially challenging the provisions of Chapters 4 and 5 of the Instructions on Election Expenditure Monitoring (2012) issued by the Election Commission of India under the purported exercise of power under Article 324 of the Constitution of India. According to the Instructions, various teams, such as, flying squad, static surveillance team, expenditure monitoring cell, etc. have been constituted. The teams which have been constituted have been empowered to intercept and search indiscriminately any vehicle or any person/individual at any time. On search, if any cash of more than Rs.2.5 lakh or any other articles, such as, gold, diamonds, etc. are found from the possession of such a person, then the members of the said team have been empowered to interrogate the particular person, and if unexplained cash, without proper documents is found in the possession of any person and is suspected to be used for bribing the voters, it would be seized and action would be taken under the provisions of the law. The Instructions further provide that if cash found is more than Rs.2.5 lakh and no criminality is suspected, i.e., without any election campaign material and no party functionary or worker of the contesting candidates/parties are present in the vehicle, to prove the nexus, then the members of the team would intimate about the recovery of such cash to the Assistant Director of Income Tax in charge of the district. The Assistant Director would depute the Inspector or he himself would reach at the spot for taking appropriate action according to the provisions of the Income Tax Laws.
The Honourable Court observed that powers vested in the Election Commission under Art. 324 (1) of the Constitution of India are wide in nature. The exercise of powers is, however, not without a check. The power has to be exercised with legal circumspection. It is rather more to supplement to the grey areas where no law or legislation is existing and it is necessary to issue directions or pass orders to ensure free and fair poll. The power is complementary and supplemental. It cannot be exercised contrary to the provisions of law, nor should it violate the existing laws.
Action of the authorities in intercepting vehicles indiscriminately on the road at random and then carrying out the search in the hope or nurturing a doubt that the vehicle may contain a cash of more than Rs.2.5 lakh or other articles, without establishment of prima facie grounds or without there being any basis or subjective satisfaction on the part of the authorities would definitely be a violation of the right to privacy of such citizens. If there is a concrete information with the authorities that a vehicle is to pass through a particular route carrying a large amount of currency or other articles like liquor, arms, etc. likely to be used in the election process, then perhaps the authorities may be justified in intercepting the same and effecting the seizure of the same. In the present case, a very unique mode is being adopted. Even if the authorities are satisfied that the cash recovered from a particular individual is not to be used for any election purpose, but still the authorities would inform the Income-tax officials regarding the same for taking appropriate action. This amounts to direct intrusion on the powers of the Income-tax authorities as laid down under Income-tax Act, 1961.
The Honourable Court held that the instruction issued by the Election Commission insofar as it empowers its officers to randomly and indiscriminately search any vehicle on the road and seize cash of Rs.2.5 lakh, if recovered from the vehicle or an individual or a person, as ultra vires being violative of Article 21 of the Constitution and also beyond the powers conferred on the Election Commission. The Court directed the Election Commission that the instructions shall not be implemented and there shall not be any indiscriminate or random search or seizure of any vehicle, unless there is any reliable or credible information with the Election Commission reduced into writing.
Bhagyoday Janparishad (Reg. NGO) through President vs. State of Gujarat thro. CS & Ors. AIR 2013 Gujarat 14
