# ASHOK SHANKARRAO CHAVAN v. DR. MADHAVRAO KINHALKAR & ORS

- **Citation:** [2014] 14 S.C.R. 1227
- **Court:** Supreme Court of India
- **Decided:** 2014
- **Case number:** Civil Appeal No. 5044 of 2014
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ashok-shankarrao-chavan-v-dr-madhavrao-kinhalkar-ors-29677
- **Pages:** 127

## Headnote

[2014] 14 S.C.R. 1227
ASHOK SHANKARRAO CHAVAN
v.
DR. MADHAVRAO KINHALKAR & ORS.
(Civil Appeal No. 5044 of 2014)
MAY05, 2014
' ' . [SURINDER SINGH NIJJAR AND
FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.]
Representation of the People Act, 1951:
•
s. 1 OA -
Election expenses - Power of Election
Commission to hold an enquiry to ascertain the correctness
A
B
c
or otherwise of the election expenses incurred by a returned
candidate for the purpose of passing the order of
disqualification - Held: Election Commission has got every 0
jurisdiction to enquire into the complaint made before it as
regards the incorrect and untrue statement of accounts of
election expenses lodged by the candidate - After such
enquiry, as he thinks fit, on being satisfied that no justification
was shown for the failure to lodge the account, can pass an E
order of disqualification as provided u/s.1 OA for a period of
three years from the date of the order and publish such order
in the official gazette - While discharging such onerous
responsibility, every care should be taken by Election
Commission to ensure that no prejudice is caused to the
F
contesting candidate - Conduct of Election Rules, 1961.
s. 1 OA - Enquiry by Election Commission - Relevance
of - Held: Requirement of an enquiry to be made by the
Election Commission at the instance of the President of the
country under Article 103 in the case of Members of G
Parliament and under Article 192 by the Governor of the State
in the case of Member of Legislative Assembly of the State,
fortifies conclusion that even the President of the country and
the Governor of a State can rely upon the report of the Election
1227
H
.
1228
SUPREME COURT REPORTS
[2014] 14 S.C.R.
A Commission based on an enquiry before taking a decision
under Article 103(2) and under Article 192(2) of the
Constitution - Therefore, to call the Election Commission's
responsibility before passing an order uls.10A only to see
the form and not substance as canvassed by the appellant'
B is a proposition too difficult to accept.
s.10A - Power invested.with Election;Commission -
.-
,-.,'\,.u,·•1
•.. .-~.,.,.,...,,· .. ~·,..._.;
.
Scope of - Held: Power invested with the constitutional
authority such as Election Commission should not be a mere
empty formality but an effective and stable one, in whom the
C citizens of this country can repose faith and look upon to
ensure that such unscrupulous efements and their attempts
to enter into political administration of this vast country are
scuttled.
D
s.10A - Right to inspect accounts lodged by the
candidates - Held: Reading s.10A along with Rules 87 to
90, in particular, the right conferred on any person to seek for
inspection of the accounts submitted, is not merely to look
into the details of the account- If based on the inspection,
E made by a person under Rule 88 and the attested copies of
such accounts disclose that the candidate concerned
committed a very seriousillegality in the matter of submission
of account of election expenses,' it must be stated that such
a person will have every right to bring it to the notice of the
F Election Commission for taking appropriate legal recourse
available to that person under'the Act - Once any such
·misfeasance in the submission of account of election
expe17ses is brought to the notice of Election Commission,
thereafter it would be for the Election Commission to set the
G process in motion for deciding the issue as contemplated in
s._10A of the Act- Conduct of Election Rules, 1961-rr.87 to
90.
H
s. 1 OA - Purpose of enquiry- Held: The enquiry to be
held u/s.10A is not to examine any allegation of corrupt
ASHOK SHANKARRAO CHAVAN v. DR. MADHAVRAO
1229
KINHALKAR
practice falling uls. 123 of the Act -
The only area of A
examination to be made in an enquiry u/s. 1 OA is with regard
to the lodging of the account of election expenses and
whether such lodgment was done in the manner and as
required by or under the Act - In the second place, when
~uch an enquiry is held, the sc

## Text

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[2014] 14 S.C.R. 1227
ASHOK SHANKARRAO CHAVAN
v.
DR. MADHAVRAO KINHALKAR & ORS.
(Civil Appeal No. 5044 of 2014)
MAY05, 2014
' ' . [SURINDER SINGH NIJJAR AND
FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.]
Representation of the People Act, 1951:
•
s. 1 OA -
Election expenses - Power of Election
Commission to hold an enquiry to ascertain the correctness
A
B
c
or otherwise of the election expenses incurred by a returned
candidate for the purpose of passing the order of
disqualification - Held: Election Commission has got every 0
jurisdiction to enquire into the complaint made before it as
regards the incorrect and untrue statement of accounts of
election expenses lodged by the candidate - After such
enquiry, as he thinks fit, on being satisfied that no justification
was shown for the failure to lodge the account, can pass an E
order of disqualification as provided u/s.1 OA for a period of
three years from the date of the order and publish such order
in the official gazette - While discharging such onerous
responsibility, every care should be taken by Election
Commission to ensure that no prejudice is caused to the
F
contesting candidate - Conduct of Election Rules, 1961.
s. 1 OA - Enquiry by Election Commission - Relevance
of - Held: Requirement of an enquiry to be made by the
Election Commission at the instance of the President of the
country under Article 103 in the case of Members of G
Parliament and under Article 192 by the Governor of the State
in the case of Member of Legislative Assembly of the State,
fortifies conclusion that even the President of the country and
the Governor of a State can rely upon the report of the Election
1227
H
.
1228
SUPREME COURT REPORTS
[2014] 14 S.C.R.
A Commission based on an enquiry before taking a decision
under Article 103(2) and under Article 192(2) of the
Constitution - Therefore, to call the Election Commission's
responsibility before passing an order uls.10A only to see
the form and not substance as canvassed by the appellant'
B is a proposition too difficult to accept.
s.10A - Power invested.with Election;Commission -
.-
,-.,'\,.u,·•1
•.. .-~.,.,.,...,,· .. ~·,..._.;
.
Scope of - Held: Power invested with the constitutional
authority such as Election Commission should not be a mere
empty formality but an effective and stable one, in whom the
C citizens of this country can repose faith and look upon to
ensure that such unscrupulous efements and their attempts
to enter into political administration of this vast country are
scuttled.
D
s.10A - Right to inspect accounts lodged by the
candidates - Held: Reading s.10A along with Rules 87 to
90, in particular, the right conferred on any person to seek for
inspection of the accounts submitted, is not merely to look
into the details of the account- If based on the inspection,
E made by a person under Rule 88 and the attested copies of
such accounts disclose that the candidate concerned
committed a very seriousillegality in the matter of submission
of account of election expenses,' it must be stated that such
a person will have every right to bring it to the notice of the
F Election Commission for taking appropriate legal recourse
available to that person under'the Act - Once any such
·misfeasance in the submission of account of election
expe17ses is brought to the notice of Election Commission,
thereafter it would be for the Election Commission to set the
G process in motion for deciding the issue as contemplated in
s._10A of the Act- Conduct of Election Rules, 1961-rr.87 to
90.
H
s. 1 OA - Purpose of enquiry- Held: The enquiry to be
held u/s.10A is not to examine any allegation of corrupt
ASHOK SHANKARRAO CHAVAN v. DR. MADHAVRAO
1229
KINHALKAR
practice falling uls. 123 of the Act -
The only area of A
examination to be made in an enquiry u/s. 1 OA is with regard
to the lodging of the account of election expenses and
whether such lodgment was done in the manner and as
required by or under the Act - In the second place, when
~uch an enquiry is held, the scope would be as contained in B
s. 77(1) and (3) as well ass. 78- The enquiry u/s.10A would
be more or less of a civil nature and therefore, the principles
of preponderance of probabilities alone would apply and even
after the order of disqualification, if any, is passed u/s. 1 OA,
after following the requirement of issuance of show cause c
notice, receipt of reply, etc., there is a further remedy
available to the contesting candidate u/s.11 by which the
aggrieved candidate can demonstrate before the Election
Commission as to how the order of disqualification cannot
stand.
D
ss. 77 and 78 - Election expenses - Maintenance of
accounts - Held: s. 77 mandates as to how the account of
election expenses are to be maintained and the maximum
limit that can be expended as prescribed - s. 78 mandates
that every contesting candidate. in an election should within
E
30 days from the date of election of the returned candidate,
lodge with the DEO an account of his election expenses,
which should be a true copy of the account kept by him or by
his election agent as required u/s. 77 - Reading s. 78 and
Rules 87 and 88, the intention of the legislature is explicitly F
clear that the maintenance of the correct account of the
election expenses within the time limit prescribed is not for
the satisfaction of the Election Commission alone - The
purport of the said exercise is to ensure that none of the
candidates can take it as a formality and file some return G
without disclosing their correct particulars, inasmuch as once
the true copy of the account maintained is lodged with the
DEO it is not only for the candidates who contested in the
election but 'any person' meaning thereby, any citizen of this
H
1230
SUPRsMECOURTREPORTS
[2014] 14 S.C.R.
A country can have access to verify the account lodged with
the DEO and also get a authenticated copy of such a
statement-:- In fact, such an exercise is to maintain purity in
election.
ss.80 to 116 - Status of validly elected ci/h'didate -
B Challenge - Held: The status of a validly elected'can'CiiCiate
in an election can be called in question only befor</the
Election Tribunal (High Court) by way of an Election Petition
- The power and jurisdiction u/s. 1 OA does not clothe the
Election Commission to deal with the successful election of
C the candidate concerned- In other words, exercising power
uls.10A, the Election Commission cannot set aside the
election of a successful candidate - s. 1 OA talks of only an
order of disqualification that can be passed by an Election
Commission.
D
Constitution of India: Article 324(1) - Power and duties
of Election Commission - Held: Under Article 324(1), the
nature of functions, powers such as superintendence,
issuance of directions, control of the preparation of the
E electoral rolls, the conduct of all elections to Parliament and
to the legislature of every St.ate, as well as the elections to
the offices of the President and Vice-President, as per the
Constitution, is invested with the Election Commission.
· Judicial Notice : Elections -
Manipulations and
F malpractices adopted and applied in election - It is common
knowledge as is widely published in the Press and Media
that nowadays in elections, payment of cash to the electorate
is rampant and the Election Commission finds it extremely
difficult to control such a menace - There are attempts made
G to violate the restrictions imposed in the matter of incurring
election expenses with a view to woo the electorate concerned
·and thereby, gaining their votes in their favour by corrupt
"means viz by purchasing the votes.
H
ASHOK SHANKARRAO CHAVAN v. DR. MADHAVRAO
1231
KINHALKAR
In appeal @SLP(C) no.29882 of 2011, the appellant A
was declared elected in the Assembly elections and
respondent was an unsuccessful candidate. As per the
provisions of the Representation of People Act, 1951 and
Conduct of Election Rules, 1961 within one month from
the date of publication of the results, a statement of B
election expenses was required to be filed by the
candidate with the District Election Officer (DEO). The
appellant filed his statement. The DEO forwarded his
report to the Election Commission. Respondent no.1
filed a complaint with the Election Commission alleging c
violation of the Election Code based on newspaper
reports. Besides the complaint, respondent no.1 also
filed an election petition before the Election Tribunal
(High Court). The High Court dismissed the election
petition. The appeal was also dismissed by the Supreme o
Court.
In appeal (@ SLP(C) No.14209 of 2012), the
appellant submitted his accounts of election expenses
along with the register and vouchers to the tune of
Rs.18,92,353/- as per the requirements of Section 78 of E
the said Act, to the DEO who in turn submitted this report
to the Election Commission, as per the requirements of
Rule 89. of the Rules. It was alleged that the Election
Commission after receiving the report failed to act as per
the requirements of Rule 89(4), which envisaged the F
Commission to decide the issue as soon as possible after
the submission of the report by the DEO. After about 15
months from-the submission of the report by the DEO,
the Election Commission issued a show cause notice
under Rule 89(5) of the Rules to the appellant, for the G
reason being that he failed to lodge his election
expenses in the manner required by law and demanded·
as to why he should not be disqualified under Section
1 OA of the said act. The Election Commission held th~t it
'
H
1232
SUPREME COURT REPORTS
[2014] 14 S.C.R.
A has undoubted jurisdiction under Section 1 OA to go into
the question of the alleged incorrectness or falsity of the
return by the candidate under Sections 77(1) and 77(2),
lodged under Section 78." Aggrieved by this order, the
appellant filed a writ petition before the High Court,
B which was dismissed.
In appeal (@ SLP(C) No.21958 of 2013), the
appellant was a candidate in the General Assembly
Election of 2007. The 2"" Respondent, was also a
contesting candidate from the 'said constituency. A day
C before the date of polling, a publication was made in a
newspaper mentioning that there is a wave in favour of
the appellant in the election and the voters have made
up their mind to support the appellant. The polling took
place and the appellant was elected. A complaint was
D submitted by Respondent No.2 to the Press Council of
India that the newspapers were in violation of journalistic
conduct and have published one sided news item in the
form of advertisement in favour of the appellant by taking
huge sums of money after the close of the campaigning
E and the day before the poll. The appellant submitted the
accounts of his election expenses before DEO as
required by Section 77 and 78 of the Act.
The Press
Council held that the publication though camouflaged
as news items, in reality it was only an advertisement
F and held that the newspapers were guilty of ethical
violation. Subsequently, after receiving the order from
the Press Council of India, the Commission called for a
report from the Chief Electoral Office..- regarding
expenditure on the advertisement to which the Chief
G Electoral Officer forwarded the report of the DEO. The
DEO in his report had stated that the expenditure was
not clear from the r.eturns submitted by the appellant.
The Election Commission. thereby issued a notice to the
appellant stating that in the account of the election
H
ASHOK SHANKARRAO CHAVAN v. DR. MADHAVRAO
1233
KINHALKAR
expenses, the expenditure incurred for the two A
advertisements were not reflected and thereby, attracted
disqualification under Section 1 OA for a period of three
years. The Election Commission after hearing the
appellant and respondent No.2 held the appellant to be
guilty of breach of the provisions 78 and 1 OA of the Act B
and accordingly disqualified her for a period of three
years. A writ petition was filed by her challenging the
order of the Election Commission before the High Court
which was dismissed.
The main question which has arisen for C
consideration in these appeals is whether under Section
1 OA of the Representation of People Act, 1951, the
Election Commission has power to hold an enquiry to
ascertain the correctness or otherwise of the election
expenses incurred by a returned candidate for the D
purpose of passing the order of disqualification, either
at the instance of the candidate who also contested in
the· said election or by any other person or based on
any other information received by the Election
Commission through some reliable sources.
E
Dismissing the appeals, the Court
HELD: 1. Section 1 OA of the Representation of
People Act, 1951 prescribes the disqualification to be
imposed for failure to lodge account of election F
expenses in the manner and as required by the Act.
Chapter VIII under the head 'Election Expenses'
consists of Section 77(1) and (3), which specifies as to
I" ,,
how a separate and correct account is to be maintained
' I.
and the total of the expenditure should not exceed the G
prescribed limit. Section 78 spe.cifies the requirement of
lodging of account with the DEO as required under
Section 77 within a stipulated time limit. Part VIII under
Chapter IV prescribes the power of the Election
H
1234
SUPREME COURT REPORTS
[2014] 14 S.C.R.
A Commission under Section 146 and the procedure for
holding an enquiry as required under Articles 103 and
192 of the Constitution is set out. Sections 146A to 146C
prescribes the procedure to be followed by the Election
Commission while holding the enquiry under Section
B 146. [Paras 25, 26][1281-F~H; 1282-A-B, D-E]
2. Article 101(3)(al will have to be read along with
Article 102(1)(e). Article 101(3)(a) merely states aboutthe
consequences that would follow if a Member of either
House of Parliament suff~rs disqualification as provided .
C under Article 102(1 )(e), namely, that the seat would
thereupon become vacant in the Parliament. The purport
of Article 102(1)(e) is to ensure that any disqualification
of a Member of Parliament can be declared only by or
under any law made by the Parliament. That apart under
D Article 103. of the Constitution, whenever a question
arises as to whether a Member of Parliament has been
disqualified as provided under Article 102(1 ), the.decision
as to such a disqualification can be reached only by the
President of India, which would become absolute and
E conclusive. However, under Article 103(2) it is provided
that before arriving at such a decision, the President
.should obtain the opinion of the Election Commission
and act based upon such opinion of the Election
Commission. Articles 190(3)(8), 191(1)(e) and 192(1)&(2)
F are the identical provisions, which would be applicable
to a Member of a Legislature of the State. The only
difference is under Article 192, it is the Governor who
can take the decision and such a decision should be
again based on the opinion rendered by the Election
G Commission. Therefore, Articles 101, 102, 103, 190, 191
and 192 prescribe and mention as to how a
disqualification of a Member of a Parliament or a Member·
of a State Legislature can be given effect to either by the
President of India or by the Governor of the respective
H
ASH OK SHANKARRAO CHAVAN v. DR. MADf:IAVRAO
1235
KINHALKAR
States by declaring the consequent vacancy created A
either in the Parliament or the State Legislature. Article
102(1)(e) and 191(1)(e) stipulate that such a
disqualification shall have to be initially arrived at by
applying the provisions of law made by the Parliament.
Therefore, the common thread in these Constitutional B
provisions relatable to a Member of a Parliament or a
Member of a State Legislature is that apart from other
disqualifications mentioned in Articles 102(1)(a) to (d)
and 191(1)(a) to (d), a disqualification arrived at as
provided under a law made by the Parliament would form C
the basis for either the President of India or for the
Governor of the respective States to ultimately take a
decision as regards such disqualification declared under
a valid law made by the Parliament. Apart from these
provisions, under Article 329(b), it is specified that an o .
Election to either House of Parliament or either House
of the Legislature of a State, cannot be called in question
except by an Election Petition presented to such
authority in such manner as may be provided for by or
under any law made by the appropriate legislature. While E
Articles 101 to 103 and 191 to 192 deal with the
disqualification of an elected member either to the
Parliament or to the State Legislature, Article 329(b)
relates to the validity of a member elected to any
constituency in an election held in accordance with law F
and such validity can be examined only by a prescribed
authority under the law made by the appropriate
legislature. Reading Article 329(b) and Se<;tions 80to116
of the Act together, the position emerges that the status
of a validly elected candidate in an election can be called G
in question only before the Election Tribunal (High Court)
by way of an Election Petition and such Election Petition
to be decided by the Election Tribunal (High Court). The
validity of an election to either of the House of Parliament
or the State Legislature cannot be called in question in H
1236
SUPREME COURT REPORTS
[2014)14 S.C.R.
A any other manner other than what has been prescribed
under the provisions of the 1Act, as has been set out in
Sections 80 to 116 of the Act. Apart from this
Constitutional mandates, relating to disqualification and
validity of an election to be challenged, Articles 327 and
B 328 of the Constitution, provide the power to Parliament
to make provisions by law to deal with the elections to
Parliament and State Legislature and also by the State if
such law does not contain any provision to deal with an ·
election to the said offices. Apparently, in the purported
c exercise of the above Article 327 of the Constitution, the
Representation of the People Act in the year 1950 and
subsequently in the year 1951, came to be passed in the
Parliament and thereafter, the relevant rules, namely, the
Conduct of Election Rules, 1961 were also promulgated.
D [Paras 28 to 30][1291-G-H; 1292,A-H; 1293-A]
3. Under Article .324(1) of the Constitution in Part
XV, the nature of functions, powers such as
superintendence,. issuance'of directions, control of the
preparation of the electoral rolls, the conduct of all
E elections to Parliament and to the legislature of every
State, as well as the elections to the offices of the
President and Vice-President, as per the Constitution,
is invested with the Election Commission. Prior.to the ·
introduction of Section.1 OA, Section 7(c) prescribed as
F to how a person should be disqualified for being chosen
a.s and for being a Member of either House of. the
Parliament or of a Legislative Assembly or Legislative
Council of a State. It was stipulated that if a person
having been nominated as a candidate for Parliament or
G the Legislature of a State fails to lodge a return of election
expenses within time and in the manner required by ~r
under the Act, would suffer such disqualification unless
five years have elapsed from the date by which the return
ought to have been lodged or the Election Commission
H
ASHOK SHANKARRAO CHAVAN v. DR. MADHAVRAO
1237
KINHALKAR
removed such disqualification. Section 8(c), which was A
a non-obstante clause, specified that a disqualification
suffered under Clause (c) of Section 7, cannot take effect
unless the expiration of two months from the date by
which return of the election expenses ought to have
been lodged or such longer period as the Election B
Commission may in any particular case allow. A reading
of Sections 7(c) and 8(b) as it existed then, vested n_o
specific authority with the Election Commission or for
that matter with any other authority as to how a
disqualification can be declared for the failure to lodge a c
return of the election expenses within the time and in
the manner required by or under the Act. In fact, the
subsequent amendment to Section 7(c) only related to
the expiration of a period of five years having been
altered as three years and in Section 8(c) it is stated that o
the expiration of two months period would start from the
date on which the Election Commission decided that the ·
account of election expenses has not been lodged within
the time and in the manner required by or under this Act.
Therefore, a conspicuous reading of Sections 7(c) and E
8(b), as it originally existed, and after its amendment
under Act 27 of 1956, remained the same and the only
improvement made was that the decision as regards the·
failure to lodge the account within the stipulated time
limit is to be declared by the Election Commission for . F
Section 7(c) to operate. [Paras 31, 33 and 34][1294-B-C;
E-H; 1295-A-E]
4. Section 77 which is under Chapter VIII mandates
as to how the account of election expenses are to be
maintained and the maximum limit that can be expended G
as prescribed. Section 77(1) specifies that every
candidate should keep a separate and correct account ·
of all the expenditure in connection with the election that
was incurred as between the date on which his
nomination was made and the date of declaration of the H
1238
SUPREME COURT REPORTS
[2014] 14 S.C.R.
A result thereof i.e. inclusive of both the dates. A careful
reading of Section 77(1) makes it significantly clear that
a candidate contesting in an election, should maintain a
separate and correct account of all expenditure incurred.
by him in connection with the election. Section 73(3)
B makes it mandatory ttiat the total of. the expenditure in
connection with an election should not exceed such
amount as may be prescribed. Under Rule 90 of the
Rules, the total of the expenditure that can be expended
for which account is to be maintained under Section 77
C has been prescribed in a separate table applicable to
different States, in respect· of their Parliamentary
Constituency and Assembly Constituency. Reading
Section 77(3) along with Rule 90 and Section 77(1) shows
that every candidate contesting in an election should
o maintain a separate account relating to the election, that
such account should contain all the expenditures
incurred by him in connection with.the election and most
importantly such details of the account and the
expenses incurred must reflect the correct particulars
E apart from ensuring that such expenditure does not
exceed the maximum limit prescribed under Rule 90 as
stipulated under Section 77(3). [Paras 36 and 37]
[1295-G·H; 1296-A-F]
5. Section 78 of the Act mandates. that every
F contesting candidate in an election should within 30
days from the date of election of the returned candidate,
lodge with the DEQ an account of his election expenses,
which should be a true copy of the account kept by him
or by his election agent as required under Section 77.
G The corresponding rules are Rules 87, 88 and 89 of the
Rules. Under Rule 87, within two days from the date· on
which the account of election expenses is lodged by
candidate, as stipulated under Section 78, the DEO
should cause a notice to be affixed in the notice board,
H specifying the date on which the account was lodged,
ASH OK SHANKARRAO CHAVAN v. DR. MADHAVRAO
1239
KINHALKAR
the name of the candidate and the time and place at which A
such account could be inspected. Under Rule 88 any
person would be entitled on payment of a fee of Rs.1 to
· inspect any such account and on payment of such fee
that may be fixed by the Election Commission, obtain
attested copies of such account or any part thereof. B
Reading Section 78 and Rules 87 and 88, the intention
of the legislature has been explicitly made clear that the
maintenance of the correct account of the election
expenses within the time limit prescribed in making such
expenses is not for the satisfaction of the Election C
Commission alone. The purport and intent of the said
exercise is to ensure that none of the candidates can
take it as a formality and file some return without
disclosing their correct particulars, inasmuch as once
the true copy of the account maintained is lodged with D
the DEO it is not only for the candidates who contested
in the election but 'any person' meaning thereby, any
citizen of this country can have access to verify the
account lodged with the DEO and also get a
authenticated copy of such a statement. In fact, such a E
stipulation contained in Sections 77(1) and (3), 78, Rule
90, as well as Rules· 87 and 88 were brought into the
statute book in order to ensure that the purity in the
election is maintained at any cost and nobody is ;illowed_
to take the voting public of this country for a ride. · F
[Para 38][1296-F-H; 1297-A-F]
.
6. Judicial notice is also taken of the fact about-.
every kind of manipulations and malpractices that are
being adopted and applied in elections in the recent past
as is reported widely in the Press and Media. Unlike the , G
yesteryears, i.e. immediately after independence and the
role of Election Commission while holding the public
elections has become so vital, a greater and .wider
responsibility is imposed on the Election Commission ,
H
1240
SUPREME COURT REPORTS
[2014) 14 S.C.R.
A to ensure that those who contest the elections maintain
high amount of integrity and honesty and that the voting
public are not duped by their.evil designs. Sub-rules (1)
to (8) of Rule 89 specify the extent to which the
verification of the correctness and genuineness of the
B accounts lodged can be enquired. Under sub-rule (1) of
Rule 89, after lodging of the true copy of the account as
specified under Section 78 of the Act, the DEO should
report to the Election Commis~ion as to the name of each
contesting candidate and state whether such candidate
C . lodged his account of election expenses and if so the
date on which such account was lodged and whether
the account was lodged within the required time and in
the manner required by the Act and the Rules. The
manner required under the Act would certainly include
o the true and correct accounts to be maintained, a copy
of which alone can be stated to mean having been lodged
in the mann~r required. In fact, under sub-rule (2) of Rule
89, the DEO if on verification found that the lodging of
the account was not in the manner required, should send
E a report to that effect to the Election Commission along
with the accounts lodged by the candidate concerned.
Tlie DEO should also publish a copy of his report in the
notice board. Under sub-rule (4) of Rule 89, after the
receipt of the report referred to in sub-rule (1 ), the Election
F · ·Commission has to again consider the same and decide
whether any contesting candidate failed to lodge the .
account of election expenses within the time and in the
manner required by or under the Act and the Rules .
. Under sub-rule (5) of Rule 89. when the Election
G Commission decides that a'contesting candidate failed
to lodge his account of election expenses within time
. and in the manner required by the Act as well as the
Rules, it should by notice in writing call upon the
candidate to show ~ause why he should not be
H disqualified under Section 10A for such default. Under
ASHOKSHANKARRAO CHAVAN v. DR. MADHAVRAO
1241
·
KINHALKAR
sub-rule (6) of Rule 89, once the notice to show cause is A
issued as per sub-rule (5), within 20 days of receipt of
such notice, the candidate concerned should submit a
representation in writing to the Election Commission and
simultaneously forward a copy to the DEO together with
the complete account of his election expenses, if he had B
not already furnished such an account. Under sub-rule
(7) of Rule 89, the DEO should forward his report on the
representation so submitted by the candidate, if any, with
such comments which he wishes to make on the said
representation. Under sub-rule (8) of Rule 89, the C
Election Commission after such enquiry, as he thinks
fit, on being satisfied that no good reason or justification
was shown for the failure to lodge the account, can pass
an order of disqualification as provided under Section
1 OA for a period of three years from the date of the order D
and publish such order in the official gazette. In sub-rules
(1) to (5) refers to specific reference to the manner
required by the Act as regards the account to be
maintained, a true copy of which is to be lodged with the
DEO which is to be ultimately forwarded to the Election E
Commission. [Paras 39 to 42][1297-F-H; 1298-A-H;
1299-A-E]
7. If such onerous responsibility has been imposed
on the Election Commission while scrutinizing the
details of the accounts of the election expenses F
submitted by a contesting candidate, it will have to be ·
stated that while discharging the said responsibility,
every care should be taken to ensure that no prejudice
is caused to the contesting candidate. If such a
meticulous exercise has to be made as required under G
the law, it will have to be held that the onerous
•
responsibility imposed on the Election Commission
should necessarily contain every power and authority
in him to hold an appropriate enquiry. Only such an
exercise would ensure that in ultimately arriving at the . H
1242
SUPREME COURT REPORTS
[2014] 14.S.C.R.
A satisfaction for the purpose of examining w.hether an
order of disqualification sh'ould be passed or not as
stipulated under Section 1 OA, the high expectation of the
electorate, that is the citizens of the country reposed in
'the Election Commission is fully ensured and also no
B prejudice is caused to the contesting candidate by
casually passing any order pf disqualification without
makin~ proper ascertainment of the details of the
accounts, the correctness of the accounts and the time
within which such account was lodged by the candidate
C
~oncerned. The specific expression 'by or under' used
iil Section 10A(a) emphasizes that wherever the Act
stipulates as regards the maintenance and the lodgment
of the account, such stipulations in its substance would
be the requirement for the verification to be made while
D holding an enquiry under Section 10A. Section 10A has
been comprehensively enacted replacing earlier'
Sections 7(c) and 8(b) ofthe Act in order to ensure that
the contesting candidate in an election cannot deal with
the expenses in regard_to th~ election in ariy manner he
E likes but such expenses can be incurred only in the
manner required under the ·law. Also, while in.curring
such expenditures, a true and correct account should
also be maintained and such expenditure should not
exceed the prescribed limit as is contemplated under
F Section 77(1) and (3) read with Rule 90. If such a stringent
provision for incurring election expenses has been
brought into the statute book and if the real intent and
purpose of such provisions are not understood and
allowed to be implemented in its true spirit, it would
G provide scope for any contesting candidate to violate
· s_uch a statutory requirement flagrantly and thereby,
make. the provision a dead letter. [Paras 44, 45)
{1.300-C-H; 1301-A-E]
··
8. Under Section· 10A, when the Election
H Commission, on being satisfied that a person failed to
.
'
ASHOK SHANKARRAO CHAVAN v. DR. MADHAVRAO
1243
KINHALKAR
lodge an account of election expenses within the time A
specified and in the manner required by or under this
Act, can pass an order of disqualification of such person
for a period of three years from the date of its order, such
an exercise should be carried out by the Election
Commission with utmost care and caution and not by B
merely finding that there is a statement of account
claimed to be a true copy of the election expenses
maintained by the candidate and that it was lodged with
the DEO in the appropriate format. In such an event, the
concerned candidate can go scot-free even in a case c .
where it can be brought to the notice of Election
Commission that apart from the expenses disclosed in
the statement of expenses lodged with. the Electio_n.
Commission, the candidate concerned had incurred
various other expenses in a clandestine manner by
'adopting various manipulations and thereby, violating D
the requirement of law in particular Section 77(1) and (3) ·
of .the Act and thereby in effect not only cheat the
electorate concerned, but even a constitutional authority
in whom a very heavy responsibility has been invested
under Article 324(1) of the Constitution. In fact, the E
requirement of an enquiry to be made by the Election
Commission at the instance of the President of the
country under Article 103 and in the case of Members of
Parliament under Article 192 by the Gov~rnor of the State
in the case of Member of Legislative Assembly of the F
. State, fortifies conclusion that even the President of the
· country and the Governor of a State· can rely upon the
report of the Election Commission based on an enquiry
before taking a decision under Article 103(2) and under
Article 192(2) of the Constitution. Therefore, to call the G
Election Commission's responsibility before passing an
order under Section 10A oriiy to see the form and not
substance as canvassed by the appellant is a
proposition too difficult to accept. [Para 461[1301-F-H;
1302-A-F]
H
1244
SUPREME COURT REPORTS
(2014] 14 S.C.R.
A
· 9. Section 143 falling under Chapter I of Part VII
needs to be examined alongside the explanation to subsection (1) and (6) of Section 123. When reading the
explanation to sub-section (1 ), 'bribery' is stipulated as
one forni of corrupt practices and yet proceeds to state
B thatthe act of bribery cannot be attributed to the payment
of any expenses bona fide incu'rred for the purpose of
any election and duly entered into the account of election
expenses ·referred to in Section 78, i.e. the provision
under which a contesting candidate is mandated to
c lodge, a true copy of the election expenses maintained
by him, within 30 days from the date of the election of
the returned candidate. The said explanation further
reinforces the fact that maintenance of expenses, as
mandated under Section 77(1), should not only be
D correct, but also be bona fide expenses. Therefore, even
the explanation to sub-section (1) to Section 123 makes
it clear that incurring of election expenses and the
maintenance of account of those expenses are not an
empty formality but the very purpose of stipulating such
E
re~trictions and directions under Section 77(1) and (3)
read along with Section 78 explain!? the mandate to
maintain absolute purity in elections by the contes.ting
candidates. This is required in order to ens!Jre that the
process of the election is not sullied by resorting to
F u.nethical means while incurring election expenses.
[Para 47][1302-F-H; 1303-A-C].
10. It is common knowledge as is widely published
in the Press and Media that nowadays in elections
payment of cash to the electorate is rampant and the
G Election Commission finds it extremely difficult to control
such a menace. There is no truthfulness in the attitude
and actions of the contesting candidates in sticking to
the requirement of law, in particular to Section 77 and
there is every. attempt being made to violate the
.H
•
ASH OK SHANKARRAO CHAVAN v. DR. MADHAVRAO
1245
KIN HAL KAR
restrictions imposed in the matter of incurring election A
expenses with a view to woo the electorate concerned
and thereby, gaining their votes in their favour by corrupt
means viz by purchasing the votes. Therefore, this Court
cannot turn a Nelson's eye and state that Section 77(1)
and (3), as well as 78 would be relevant only for the B
purpose of ascertaining the corrupt practices under
Section 123(6) of the Act and that such requirement of
incurring bona fide and correct expenditure need not be
a requirement for ascertainment for the Election
Commission while exercising its powers under Section C
10Aof the Act. In fact, ascertainment of the requirement
under Section 77(3) viz. the expenses incurred, do not
exceed the limit prescribed and can be made both for
the purpose of an enquiry under Section 10A, as well as
in the event of a candidate exceeding the limit as a o
corrupt practice for the purpose of invalidating the
election. Therefore, the requirement under Section 77(3)
has got twin objectives to be fulfilled. [Para 48)
[1303-D-H; 1304-A]
11. One other relevant provision under the Act is E
Section 146 falling under Chapter IV of Part VIII. Section
146 is relatable to Articles 103 and 192 of the Constitution.
Under Articles 103 and 192 of the Constitution in the case
of a Member of Parliament or a Member of State
Legislature for the purpose of ascertaining the fact about F
a member vacating his seat as a member, one of the
requirements would be that such a member is
disqualified by or under any law made by the Parliament.
The act of disqualification referred to in Articles 102 or
190 of the Constitution, can be mainly referable to the G
law made by the Parliament viz the Representation of
the People Act. The decision of the President of India
and the Governor of a State depends upon the opinion
of the Election Commission. Section 146 of the Act
prescribes the procedure to be followed before H
1246
SUPREME COURT REPORTS
[2014) 14 S.C.R.
A rendering the opinion to the President of India or the
Governor of a State. [Para 49][1304-B-E]
12. When it is stipulated under Articles 102(1)(e) and
191 (1 )(e) to the effect that the ascertainment of vacation
of a seat of a Member of Parliament or a Member of a
B State Legislature would depend upon a disqualification
suffered by or under the provisions of the Act, it will have
to be held that the procedure to be followed for passing
such an order of disqualification should be befitting the
requirement of Section 1 OA or otherwise when an
C opinion is sought for from' the Election Commission
under Article 103(2) or 192(2), it would be rather
impossible for the Election Commission to sustain any
such order of disqualification. The Act in that respect
cannot be held to have imposed in the Election
D Commission a responsibility which will not synchronise
with the original order of disqualification to be made
under Section 1 OA of the said Act and for the ultimate
opinion to be rendered after such disqualification order
is passed for the purpose of enabling the President of
E India and the Governor of a State to take appropriate
decision for ascertaining the status of a member to
vaca,te his seat as a Member of Parliament or State
Legislature. It would be incongruous to visualise such a
situation while reading Articles 101 to 103 and 190 to 192
F of the Constitution, read along with Sections 146 and
1 OA of the Act. An order to be passed under Section 1 OA
·of the said Act, could be no less importantthan an opinion
to be rendered by the Election Commission under
Section 146 when sought for by the President of India
G or the Governor of the concerned States. Therefore, the
exercise to be made under Section 10A of the said Act
would certainly include the requirement of not a farce of
ah enquiry but a true and complete one to determine
whether the return of election expenses by an elected
H
ASH OK SHANKARRAO CHAVAN v. DR. MADHAVRAO
124 7
KINHALKAR
candidate is a true/correct or false/bogus return and that A
would not depend upon the decision of the Election
Tribunal (High Court), which is provided under the Act
for validating the election of a returned candidate on very
many grounds set out in Section 123 of the Act, including
the one under Section 123(6) which contemplates the B
compliance of the requirement under Sections 77 and
78 of the Act. However, it will have to be stated that if the
said issue was squarely dealt with by the Election
Tribunal (High Court) based on the entire materials that
were also placed before the Election Commission and c
the Election Tribunal (High Court) had dealt with the ..