On Haldi, cricket kit & disqualification

By Prabhakar Timble
24 January 2012 07:52 IST

Under no statute of the country, the Election Commission of India has the power to disqualify a person contesting elections or a person chosen or to be chosen as a Member of Parliament or a State legislature.

Qualifications and disqualifications for members of Parliament are stated under Article 84 and 102 of the Constitution of India. Similar provisions are inserted under Article 73 and 191 for members chosen or to be chosen for the State legislatures. Corrupt practices which may involve disqualification, if convicted by competent courts are enlisted under Section 8, 9A, 10-A and 11A of the Representation of People Act, 1951. There are also offences documented under the Indian Penal Code inviting disqualification to contest or to be a member of the legislature. In all these matters, conviction by the Court is the important ingredient and no order of disqualification could be issued by the ECI.

The ECI has advisory jurisdiction in matters of post-election disqualification of sitting members of Parliament and State Legislatures. This involves advice tendered to the President or Governor of a State by the ECI on an instruction from these authorities. Advice may be also sought by the High Courts and Supreme Court from the ECI in matters filed before the Courts involving corrupt practice. The power to disqualify rests with the President or Governor or the relevant courts and not the ECI.

ECI has only the power to disqualify a candidate who has failed to lodge an account of his election expenses within the time and in the manner as prescribed by law. This can be invoked only after the election process is completed and the time for filing of returns of election expenses has expired.  A list of persons so disqualified is already posted on the web site of the ECI. There can be no disqualification during the process and conduct of elections.

Distribution of cash, liquor or any other item for gratification of the voters amounts to bribery. It is punishable under the provisions of the Indian Penal Code and also amounts to a corrupt practice under the Representation of People Act, 1951. The punishment for bribery involves fine and imprisonment under the law and would invite disqualification under electoral laws. The disqualification sets in motion only after conviction by the Court.

The Joint Chief Electoral Officer (Goa) appears to be in undue hurry informing the media that Mr Dayanand Narvenkar will face rough weather in the distribution of kits to the cricket clubs. First of all, the distribution was done by the Goa Cricket Association of which Mr Narvenkar is the President. The distribution is to the member clubs of the association spread throughout Goa and not to voters of a particular constituency. It would be wrong in theory and in practice to hold that the issue is of gratification of voters and further to account it as bribery on the part of the individual.

A decision on matter like disqualification is not an administrative function. It is a quasi-judicial duty and hence has to be performed with detachment and highest judicial standards. So, if the ECI or the officer appointed by the Chief Electoral Officer has done the investigation and submitted the report, then the same authority   i.e. the authority which has investigated cannot be the authority to decide on disqualification. The office of the CEO should totally refrain from offering comments which amount to pre-judgements on the issue and such comments by a constitutional and respectable authority may swing and influence the voters. The umpire should only order and instruct the players. The official referee cannot talk to the press gallery and packed audience in the stadium on fouls by players during the conduct of the game.

This does not mean that the model code of conduct is of no consequence. It is a code enunciated by the ECI with due concurrence of the political parties. The code sets the rules of the game so that the poll is free and fair and a level field is provided to all candidates and political parties. There are many other measures which the ECI can take to enforce the code of conduct. Such measures could be warnings, confiscation of goods and cash, reporting matters of violation before notified authorities under appropriate laws, reprimand candidates and or political parties etc. . However, it needs to be underlined that the ECI has no power to disqualify any contesting candidate.

The decision of the CEO or ECI in a “haldi kunkun” matter is amusing. Reports say that the ECI has granted approval for the community festival at different locations in Valpoi and Poriem. The permission was supposedly sought from ECI since the applicant’s son, a minister in the Goa cabinet and husband, the Speaker of the Goa Assembly would be seeking re-election from the constituencies in which the festival is planned.  It is totally wrong on the part of the ECI to entertain such requests and grant such approvals to individuals. The screening and approvals to the government officials and the departments is a different matter. Actually, the ECI does not come in the picture at all and an approval of the ECI does not mean that the act is in order or that it does not violate the model code of conduct or some provisions of laws relating to elections. By granting approval, the ECI is inviting additional responsibility on itself and creating new avenues of work during elections. The ECI steps in only on receipt of a complaint of violation or for redress of any grievances. An approval is totally uncalled for because it attempts to foreclose complaints of violation or any grievances which may genuinely arise. An approval by ECI to ‘haldi kunkun’ would not mean that the right of any aggrieved person to complain on ground of gratification of voters stands extinguished. Anyway, hats off to the law abiding mother and the family of Sattari! Such men and women of integrity and respect to ECI are rare to find.

Elections are providing more fun, excitement, suspense and kick than one day India v/s Pak cricket encounter. And full non-stop for sixty days………………………………..

Disclaimer: Views expressed above are the author's own.

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Prabhakar Timble

Mr Prabhakar Timble is an educationist and a legal expert. He has served several educational institutions, especially as the Principal of Government College at Quepem, Kare College of Law in Madgao as well as couple of Management Institutes. He was also the State Election Commissioner of Goa.

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