EC order restricting cash movement unconstitutional: Guj High Court

Last Updated: Sat, Nov 10, 2012 04:11 hrs

The Gujarat High Court on Friday termed directive of the Election Commission (EC), restricting movement of cash above a certain limit under the election code of conduct, as unconstitutional, drastic and violative of personal liberty and privacy of individuals.

A division bench of Chief Justice Bhaskar Bhattacharya and Justice J B Pardiwal, hearing a bunch of public interest litigations (PILs) opposing the directives, further directed the EC to excise its powers with caution and only after the notification for the Assembly polls is issued. The first PIL was filed by one NGO Bhagyoday Jan Parishad seeking directions for the EC on the issue. Later similar litigations against the EC directives were filed by Gujarat Chamber of Commerce and Industry (GCCI) and other industry associations.

As per the EC norms, people carrying more than Rs 2.5 lakh in cash were required to produce proof of the money’s legitimate origin and purpose of its transport. For this purpose the EC had set up special squads who had powers to randomly and indiscriminately check on any person and seize cash if found above the limit prescribed under the norms.

The direction of the High Court comes as a relief for industrial associations and traders who have been complaining that the order of the EC was causing inconvenience to them and the general public ahead of the festive season.

While quashing the EC directive, the court observed that the measures of EC was unconstitutional as they were infringing upon the personal liberty and privacy granted under the Article 21 of the Constitution of India. It further observed that such measures were drastic and alien to legal system and constitutional setup of the country.

"One question that is haunting our mind is as to what is the basis for the Election Commission to fix the limit of Rs .2.5 lac for being liable to be seized if it is found that the cash has linkage with any candidate, or a political party or its functionary, and such cash would be used for corrupt practice. We do not find any rationale behind the same and it appears to us to be absurd," Court observed.

"We hold 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 lac, 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. We direct the Election Commission that the instructions as contained in Clause 4.7.1 (of its order) 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," it added.

It further said that EC cannot invoke such provision till the elections in a state are formally notified. At present only the dates have been announced, formal notification will be done on November 17 and November 23 for first and second phase of assembly polls respectively.

Court observed that under section 77 of the People's Representation Act monitoring of expenses of candidates begins only after nomination process for the election is on, which is not the case in the state at present as there is no formal notification for the elections.

Appearing on behalf of the petitioner Bhagyoday Jan Parishad, senior counsel Bhaskar Tanna had argued that the restrictions on carrying cash was premature as names of the candidates were not announced by the political parties. Thus, the possibility of voters being bribed two months prior to the polling date seemed far-fetched, Tanna had argued.

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