"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Thursday, March 21, 2013

Spend as much as you can, account as you like: A comment on the disqualification of elected member under Section 10A of RP Act 1951

Accounting election expenditure would never be easier if the stand taken by the central government in Ashok Chavan (Paid News) case is accepted. Section 10A of the Representation of the People Act, 1951 gives power to Election Commission to disqualify a returned candidate for non-lodge of election accounts as prescribed. 

Section 10A- Disqualification for failure to lodge account of election expenses.—If the Election Commission is satisfied that a person

(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act; and
(b) has no good reason or justification for the failure,

the Election Commission shall, by order published in the Official Gazette, declare him to be disqualified and any such person shall be disqualified for a period of three years from the date of the order.

The Central Government's stand is the literal interpretation of Section 10A, that EC has power to disqualify only on failure to lodge account of election expenses not on its incorrectness.  This gives a very convenient way out for many representatives. Candidates have to file an account thats all but integrity of it is not a matter of concern. The entire Act otherwise does not provide any process to disqualify a candidate who has filed incorrect expenses. This will result in a situation where the law prescribes for filing of accounts, else attract disqualification but is unconcerned about the correctness of the same. Anyone can get away with timely filing of any returns.

It could be argued that the statute does not hand down power to EC than what is expressly given. The question is why is this power given, especially this being an amendment in the backdrop of discussions about cleansing the Aegean Stable of corrupt politics, especially electoral politics. A purposive and dynamic reading of section sure can find a solution in the line what society needs.

Still this will not solve the problem. The disqualification in section 10A is a default action on non submission of expenditure statement and not having a  justifiable reason. Incorrect statement but would need inquiry, marshaling of evidence and finding of incorrectness before disqualification. The section but is silent on this. Naturally the section as it stands is defective and courts, however dynamic in construction, cannot go around correcting the defect in law, here the lacking of process. Now that the situation has arisen and seen the defect in law, it is the Parliament to correct the anomaly. But then who will bell the cat.

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