@JUDGMENTTAG-ORDER
M.Y. Eqbal, C.J.
W.P. No. 6936/2011
1. In this writ petition, styled as a public interest litigation, the Petitioner has prayed for the issue of Writ of Mandamus forbearing the Respondents
2 to 59 from in any manner preventing or obstructing free movement or causing inconvenience to the travelling public in Light Motor Vehicles and
in transport Corporation buses, and to the persons operating public carrier goods vehicles for carrying essential and basic articles, through various
important Highways roads situated in the State of Tamil Nadu and by adopting illegal and arbitrary methods of search and seizure of their
properties like cash, agricultural products, textiles, and other basic public utility items etc.
W.P. No. 8034 of 2011
2. It is interesting to note that on the other hand, the aforesaid public interest litigation has been filed for the issue of Writ of Mandamus directing
the Respondents to put adequate number of check posts on major roads or arterial roads in Tamil Nadu for the purpose of checking and search of
vehicles and persons by the Static Surveillance Team and the Flying Squads of Respondents 1 and 2 in compliance with the Instructions on
Expenditure Monitoring in Elections, more specifically paragraphs 4.6.1, 4.6.2, and 4.7.1 thereof issued by Respondent No. 1, and act strictly
according to those instructions with a view to ensuring free and fair general election to the Legislative Assembly of Tamil Nadu, 2011.
3. In W.P. No. 6936 of 2011, the first Respondent is the Chief Executive Officer, Election Commission of India, Chennai. The second
Respondent is the Secretary, Home Department, Government of Tamil Nadu, Chennai. The third Respondent is the Director General of Police,
Police Headquarters, Chennai. Respondents 4 to 31 are the District Election Officers of various Districts in the State of Tamil Nadu. Respondents
32 to 59 are the Nodal Cell Officers, Flying Squad Team posted in various Districts in the State of Tamil Nadu.
4. The Petitioner''s case is that the Election Commission of India, New Delhi has issued instructions dated 7.2.2011 bearing No.
76/Instructions/2011/EEm to the first Respondent with reference to Election Expenditure Monitoring in Annexure Part I and Part II. Clause 3
speaks about Election Expenditure Monitoring Mechanism. The above clause also refers to appointment of Expenditure Observers, Assistant
Expenditure Observers, Video Surveillance Team, etc., to monitor the Election Expenditure incurred by the candidate during the course of
election. Clause 3.1.8 indicates of deploying flying squad for tracking illegal cash transaction or distribution of liquor or bribing the voters. Clause
3.1.19 indicates that there will be one or two surveillance team with three or four police personnel and one Magistrate in each team for manning the
check post. According to the Petitioner, the above clauses indicate that every endeavor should be made for tracking the complaints mentioned in
the clauses.
5. The Petitioner''s further case is that based on the instructions issued by the Election Commission of India, Respondents 4 to 31 have appointed
Respondents 32 to 59 as Nodal Officers of Flying Squad and Static Surveillance Teams in all the Districts in Tamil Nadu. But, significantly, neither
the Instruction No. 76, nor the orders of the District Collector appointing the Nodal Officers for the Flying Squad authorize them to detain the
travelling public carrying cash for their personal/business purpose in Light Motor Vehicles or in any transport methods. According to the Petitioner,
they have also not been given any authority to intercept and harass the travelling public using the highways under the pretext of acting as per the
instruction of the first Respondent to seize the cash components from the travelling public. It is alleged that the Respondents have thoroughly
misconstrued the instruction of the Election Commission of India and are acting in an arbitrary manner by seizing the cash from the travelling public.
It is common knowledge that the businessman travelling in cars and other vehicles used to carry cash from one place to another across Tamil
Nadu. Some times it is also meant for the patients who undergo surgery in Super Specialty Hospitals. As long as the travelling public carries legal
valid currency, the Respondents cannot arbitrarily seize the same. The newspaper reports and clippings shown in various Television Channels
reveal that the Respondents have been treating all the amounts carried on by the travelling public as if the same is meant for the Election
Expenditure, and the adamant attitude of the Respondents in not accepting the oral explanation of the travelling public. It is further alleged that the
pubic at large who wanted to go for purchase clothes from leading textile shown situated in near by towns and also jewels to perform marriages
are now put to severe hardship by the action of the Respondents 4 to 59. Moreover, Respondents 32 to 59 are filing cases for the sake of
publicity in the media against the travelling public as if huge amounts, which are meant for election, have been seized. According to the Petitioner,
Respondents 4 to 59 can act only in terms of the letter No. 76 and there is nothing to indicate that power has conferred on them to conduct
searches and seizure in the highways in the State of Tamil Nadu. Since right of movement is a fundamental right of the citizen, and equally when
those citizens carry money depending upon their requirement, the Respondents 4 to 59 have no right to interdict or prevent free movement of the
public.
6. The Petitioner therefore contended that the attitude of the Respondents 2 to 59 in harassing and causing inconvenience to the general public
needs to be condemned. The instruction issued is meant to monitor the expenses and other illegal acts perpetrated by the candidates contesting the
election. The Respondents contrary to the well settled principles of Criminal Jurisprudence wan toned the innocent travelling public and other
public carrying essential materials to prove otherwise. Even in the instructions given in Letter No. 76, Election Commission has asked the Income
Tax Department to take necessary action with regard to large scale cash movement, cash-gift distribution and influencing the voters by any political
parties/entities/individual. When the Income Tax Department has been assigned the task, it is highly deplorable on the part of the Respondents to
cause inconvenience to the travelling public and other essential goods public carriers. Because of the act of the Respondents, the public carriers
and the public apprehend to carry goods or cash to purchase items from the nearby towns. The Petitioner has, therefore, stated that the action of
the Respondents (Flying Squad) in preventing the travelling public is an unreasonable restriction imposed on the public and the public at large is put
to great inconvenience and hardship due to the arbitrary action of the search and seizure made under the guise of Election Commission of India
instructions.
7. In W.P. No. 8034 of 2011, the Petitioner, who is a practicing advocate, has stated inter alia that notification regarding the General Elections
was issued by the Election Commission of India on 19.03.2011. The Static Surveillance Team should keep a watch on large quantities of cash,
illegal liquor, any suspicious item or arms being carried in the area. For this purpose, checking and search of vehicles and persons can be carried
out by a team by putting check posts on major roads or arterial roads right from the date of notification. But, according to the Petitioner, the
Respondents 1 and 2 have not so far put adequate number of check posts on major roads or arterial roads in the State of Tamil Nadu. The
instructions issued are clear that if unexplained cash without proper documents are found in the possession of any person and is suspected to be
used for bribing the voters, the same shall be seized and action be taken under the relevant provisions of the law.
8. According to the Petitioner, the Flying Squad, as stated in paragraph 4.6.1 and 4.6.2 of the instructions will start functioning from the date of
notification of election till the completion of poll. The District Educational Officer and the Superintendent of Police of the District will ensure that the
teams are constituted and trained before the notification of the election. The Petitioner reliably learnt that there are no adequate number of Flying
Squads in Tamil Nadu with a view to keep watch on all the constituencies including the sensitive constituencies. Whenever a complaint is received,
the Flying Squad are required to reach the spot immediately and are required to gather necessary evidence and seize the items of bribe, gather
evidence and record statement of witnesses and persons and to send a report immediately to the Returning Officer with a copy to the
Superintendent of Police and the Assistant Expenditure Observer. Unfortunately, according to the Petitioner, even after the issuance of the
notification regarding the general election, Respondents 1and 2 have not taken adequate measures to comply with the instructions in letter and
spirit.
9. The Petitioner, therefore, contended that even assuming there is inconvenience by Flying Squad such inconvenience can never be characterized
to be interference with the personal liberty or freedom of a citizen. It is the contention of the Petitioner that when searches promote public interest,
inconvenience or discomfort to the persons, who are searched cannot be allowed to prevail over public interest in a democracy. According to the
Petitioner, such inconvenience should be tolerated by the responsible citizen in a democracy, as it is only a temporary phenomenon. The Petitioner
contends that Respondents 1 and 2 should bear in mind the observations of the Supreme Court in Rajendran Chingaravelu''s case (2010) 1 SCC
457 to act in accordance with the instructions contained in paragraphs 4.6.1, 4.6.2 and 4.7.2, failure of which would amount to failure of their
constitutional duty under Article 324 of the Constitution of India.
W.P. No. 7736 of 2011
10. This writ petition, styled as public interest litigation, has been filed directing the Respondents to forbear from conducting search or seizure in the
dwelling house, office or other premises used by the Petitioner and other candidates for election purpose without the authority of law in derogation
of Articles 14, 19 & 21 of the Constitution.
11. The Petitioner''s case is that he has been nominated as a candidate by one of the political party for contesting the Legislative Assembly Election
to be held on 13th April, 2011. He has been forced to file this Public Interest Litigation to restrain the Respondents from taking indiscriminate and
arbitrary action invading and infringing the fundamental rights guaranteed under the Constitution of India. The Respondents on 22.03.2011 without
prior intimation barged into my house and started searching the house on the information that free dhotis and saris meant for distribution are lying in
the Petitioner''s house. The search went for over an hour and finally the Respondents informed that nothing as alleged was found in the house.
During the search, videographers were also present. The incident was reported in the newspaper and was also telecasted in Jaya T.V. According
to the Petitioner, the Respondents in order to harm his reputation not only in the society, but also amongst the voters, had carried such search.
12. It is the case of the Petitioner that the video taken during the search somehow found its way to Jaya T.V. channel and it is not known how the
channel came in possession of the same, which the Election Commission is duty bound to explain. The Petitioner''s case that he being a sitting
MLA and Minister for Fisheries is aware of the constitutional duty cast upon him and the necessity to have free and fair election. The Respondents,
without application of mind, have conducted search in his residence, which is a clear violation of Right of Privacy and right to live with dignity.
13. The Petitioner states that his father is running a Welfare Society, which is situate opposite to his residence and the name board of the Society
contains paintings of the Chief Minister of Tamil Nadu and the Deputy Chief Minister. The officials of the Flying Squad, who raided the house
namely, Meshwaran and Ramamurthy, directed the Petitioner to cover the name board, which is totally uncalled for and offends Article 19(1)(a) of
the Constitution of India. Hence, the action of the Election Commission in conducting indiscriminate search and seizure without verifying the
authenticity of the complaint amounts to arbitrary and capricious power of offending Article 14 of the Constitution of India. The videograph taken
during the course of search, in the absence of any media, found its way to Jaya T.V channel which telecasted the same for which the Election
Commission is liable to pay damages. The Petitioner therefore seeks interim direction to the Respondents to pay a sum of Rs. 5 crores by way of
damages for the loss of reputation suffered by him in view of the unfounded and unauthorized search in the dwelling house of the Petitioner on
22.03.2011 by the Flying Squad Officials of the first Respondent.
W.P. No. 8103 of 2011
14. In this writ petition, the Petitioner has sought for issue of mandamus directing the Respondents to forbear from conducting search or seizure in
the office or any other premises of the Petitioner without the authority of law or in derogation of Articles 14, 19 & 21 of the Constitution of India.
15. The Petitioner''s case is that he is the proprietor of Eswari Transports Pvt. Ltd. and is operating lorry service in Thiruvarur District, and he is
affiliated to a leading political party. According to the Petitioner, on 24.03.2011 at around 2.30 p.m. the 6th and 7th Respondent barged into my
office along with police officers and informed me that they received information from Collector Office, Tiruvarur stating illegal money transaction is
being carried out in his office. The search went for two and half hours after which the Respondents informed that no cash as alleged was found in
his office premises. According to the Petitioner, because of the search, the reputation which he had built for more than four decades has been
shattered and this has been done by the Respondents in order to harm his reputation. The search was completely video graphed and widely
reported in local newspapers. According to the Petitioner, the action of the Respondents is arbitrary, totally motivated besides being whimsical.
The first Respondent is taking action beyond the scope of the powers vested in the Election Commission of India. Due to indiscriminate search and
seizure by the Election Commission without verifying the authenticity of the complaint amounts to arbitrary and capricious powers of offending
Article 14 of the Constitution of India. According to the Petitioner, the Election Commission has not followed this criteria and has spoilt his name
and reputation and business activities, and hence he seeks an interim direction directing the Respondents to pay compensation of Rs. 5 crores by
way of damages for the loss suffered by the Petitioner in view of the unfounded and unauthorized search.
16. The Election Commission of India has filed common counter affidavit contending inter alia that Article 324(1) of the Constitution provides for
the superintendence, direction and control of the preparation of the electoral rolls, and the conduct of all elections to the Parliament and to the
legislature of every State and of elections to the offices of President and Vice President held under the Constitution shall be vested in the
Commission known as the Election Commission. The use of the words ""superintendence"", ""direction"" and ""control"" would establish that the powers
of the Commission with respect to the matters relating to elections are wide and absolute. Further the word ""Election"" as referred to in the said
Article covers all the steps for the conduct of elections.
17. It is stated by the Respondents that the Constitution makers designedly made the Election Commission of India, an independent commission
insulated from the legislature and executive. Therefore, in view of the scheme of the Constitution itself, the powers of the Commission cannot be
exercised subservient to the Union Government or the State Government, and are comprehensive enough to take independent decisions without
reference to the Union or State Government. The said powers include the power to fix the schedule of elections. In this connection, the
Respondent quoted para.91 in the case of Special Reference No. 1 of 2002 reported in Ref. by President, .
18. It is stated by the Respondent that to ensure complete control over the staff involved in election work, the Parliament enacted Section 13CC of
the Representation of People Act, 1950 and Section 28-A of the Representation of People Act, 1951. Section 13CC of the Representation of
People Act, 1950 provides that officers and staff employed in connection with the preparation, revision and correction of the electoral rolls and for
the conduct of the elections and such officers and staff shall be during that period be subject to the control, superintendence and discipline of the
Election Commission. Section 28-A of the Representation of People Act, 1951 provides that the Returning Officer, Assistant Returning Officer,
Presiding Officer, Polling Officer and any other officer appointed under that part, and any police officer designated for the time being by the State
Government, for the conduct of any election shall be deemed to be on deputation to the Election Commission for the period commencing on and
from the date of the notification for such election and ending with the date of declaration of the results of such election.
19. It is submitted by the Respondent that the State Government had issued G.O. Ms. No. 174 dated 07.03.2011 published on 19.03.2011
designating the entire police force, from Director General of Police to Constables for the conduct of the elections. Therefore, according to the
Respondent, it is within the Election Commission''s discretion to use a particular officer and not to use a particular officer for the purpose of
election and the same cannot be questioned by any authority.
20. As regards Section 77(1) of the Representation of People Act, 1951, it is submitted by the Respondent that it is mandatory for every
candidate to maintain account of expenditure incurred during elections. Further, the same should be below the ceiling limit prescribed under Rule
86 of the Conduct of Election Rules, 1961. The Election Commission has prescribed a detailed guideline named ""Instructions on Expenditure
Monitoring in Elections"" to achieve the objectives. The Commission has also issued standard operating procedure for dealing with unaccounted
cash and other valuables through instructions dated 17.03.2011. Under these instructions, the teams which find unaccounted cash and other items
have to first determine the criminality of the event. It is mentioned therein, that in case such a criminal linkage is found and the cash exceeds Rs.
1,00,000/- the flying squads "" static team shall effect seizure and deposit the cash in the treasury. It is also mentioned that if cash is being carried
with proper documents or if it is for any emergency purpose, then no seizure shall take place and the same shall be returned to the owner. It is also
instructed that the whole operation should be video graphed and the flying squad shall ensure all politeness, decency and courtesy. It is also
mentioned that if no criminality is suspected in case of huge movement of cash, then Income Tax Department shall be informed for examining the
case under Income Tax law.
21. It is submitted by the Respondent that it is the duty of the Election Commission of India to prevent distribution of money to the public and the
Commission should take all steps to prevent distribution of money. The power to issue guidelines named ""Instructions on Expenditure Monitoring in
Elections"" is directly traceable to Article 324 of the Constitution of India. The Respondent submitted that the Supreme Court in the case reported
in 2010 (1) SCC 457 has upheld search, though it may cause inconvenience. The elections being a very important event for the State, it is the duty
of the Election Commission to see that proper law and order is maintained to ensure free and fair elections and also to see that money power does
not affect the operation of democracy.
22. Countering the contentions made in W.P. No. 6936 of 2011, it is submitted by the Respondent that the said writ petition is not bona fide and
the Petitioner has no locus stand to question the action of the Election Commission. It is not the case of the Petitioner in the above petition that he
has been subjected to unnecessary harassment, and according to the Respondent, such wild allegations are not to be entertained.
23. Controverting the submission made in W.P. No. 7736 of 2011, the Respondent-Election Commission of India stated inter alia that the writ
petition cannot be taken as a public interest litigation, since the Petitioner is questioning the alleged search made in his house. According to the
Respondent, since the Returning Officer of the constituency received information that dhotis and saris are being distributed outside the house of the
Petitioner the Flying Squad attached to the constituency went to the spot and found lot of crowd outside the house of the Petitioner. The squad
was informed by the crowd that they are waiting to see the Minister. At that point of time, they were invited into the house, and they entered the
first room where people were there, and the Petitioner informed that he is not distributing anything and the Flying Squad did not go beyond the first
room. The video footage also confirms the same. The Flying Squad head has also informed that he has not given any video recording to any
political party or newspaper or T.V. channel.
24. According to the Respondent, the footage of the said private channel is entirely different and not the same as the video taken by the election
officials. As a matter of fact, under the revised guidelines dated 17.03.2011, any person can get the copies of the video by paying Rs. 300/- to the
Returning Officer. However, in the present case, the CD has not been obtained by any one. It is submitted by the Respondent that it is the duty of
the Respondent to inspect or search any premises, if they have information, and the same cannot be questioned.
25. The Respondent-State through its Chief Secretary, has filed a separate counter affidavit stating inter alia that the Government of Tamil Nadu
would continue to provide necessary administrative support to the Election Commission for the conduct of free and fair election to the State
Assembly. As per the various mandates contained in the Constitution of India and Representation of People Act, the State Government has made
available its entire official machinery at the disposal and use of the Election Commission.
26. The submission of the Respondent State is that though the Election Commission undoubtedly has powers over all the officials placed at its
disposal, any order which is being passed unilaterally and without putting the officer on prior notice, should not be construed as attributing bias on
such officer nor should such a transfer order be a reflection on the integrity or efficiency of such officer. According to the Respondent, in the instant
case transfers have been effected starting with the Director General of Police (Law & Order), who has been selected following the Hon''ble
Supreme Court directives and her appointment has also been recorded by the Division Bench of this Court as being done in complete compliance
of the directive of the Supreme Court. The incumbent officer with a view to avoiding any friction between the Government and the Election
Commission offered to go on leave. According to the Respondent, this had considerable impact on the morale of the police force and such orders
of the Election Commission could have been passed after a consultative process. The Respondent submits that this unilateral order of the Election
Commission based on their ""perception"" about the individual officers should never form part of the service record of the officer nor should it be, in
any manner, a disqualification from future service of such officers in the conduct of elections. According to the Respondent, the advantage in the
consultative process is that the Election Commission would have the benefit of the Government''s views regarding the officers to be replaced or
who will be the replacement. It is further stated by the Respondent State that as regards search and seizure effected on the vehicles and the
persons, it is the stand of the Government that such search and seizure should not be done in a manner which might affect the common man. The
guidelines framed by the Commission is put into force, then the bonafide travelers carrying cash or valuables for their personal use are not
subjected to any harassment.
27. In W.P. No. 6936/2011, one impleading petition (M.P. No. 1 of 2011) has beenfiled for impleading the Petitioners as party Respondent Nos.
60 to 62, which was allowed in terms of order dated 28th March, 2011, since no objection was raised by any of the parties. The said impleading
petition has been filed by the members of the Forum for Electoral Integrity espousing the cause of free and fair election in Tamil Nadu. The other
members of the forum, as stated are Mr. L.M. Memnezes, I.A.S.(Retd.), former Secretary to Government of India, Mr. N. Gopalaswami, I.A.S.
(Retd.), former Election Commissioner of India, Mr. Naresh Gupta, I.A.S. (Retd.), former Chief Election Officer, Tamil Nadu, Mr. G.
Narayanasamy, Chartered Accountant, Mr. C.V. Narasimhan, I.P.S. (Retd.), former Director-CBI, Mr. T.S. Kannan, IA & AS (Retd.), former
Auditor General, Mr. N.S. Venkataraman, Senior Engineer, Dr. V. Suresh and Mr. N.L. Rajah, Advocates.
28. It is the case of the Petitioner-Respondent that based on various reports received about large scale electoral malpractices, bribing, threats and
inducements witnessed and widely reported in the media during the earlier bye-election in Thirumangalam, Pennagaram, etc., the Election
Commission have taken several measures like frisking, mobile squads, Toll free call centres, Expenditure Monitoring Committees, Shadow
Registers, Check posts to monitor carrying large amount of unaccounted cash, liquor and freebies at Highways, entrance points to constituencies,
Railway Stations, Airports, etc. The present situation in TamilNadu, which is reported in the media, shows large scale violation of the model code
of conduct. There are reports of allegations of distribution of money and freebies, threatening of the Flying Squads by certain political parties,
hiding the dhotis and saris in the farmhouses for distribution and distribution of bribe money under the garb of MGNREGS in certain constituencies,
etc.
29. It is the further case of the Petitioner that the Chief Election Officer has reported that almost 40,000 cases have been so far filed in Tamil
Nadu, which show the enormity of the situation, wherein extraordinary measures needs to be taken. Therefore, the Election Commission, taking
note of the serious situation, for the purpose of ensuring free and fair elections has decided to implement the rules virogously, which effort by the
Election Commission must be strengthened by implementation of the rules by all the law enforcing agencies.
30. It is further stated that for curbing the large scale crimes, extraordinary security measures are required to be put in place like that of frisking the
passengers at the Airports for checking. It is not possible for the security personnel to be selective to arrive at a subjective satisfaction for
conducting any search nor would it be reasonable to expect them to record reasons for arriving at such subjective satisfaction. Such control
measures are within the ambit of law and cannot be termed excessive in the general sense. If there are particular instances of use of excessive
power, it is always open to a citizen to challenge the same in a manner known to law. Generalized observations and unidentified sense of
inconvenience cannot be the cause for imposing a total ban over the superintendence, monitoring and control of the election process by the
Election Commission.
31. It is further stated that the Petitioner denies the averments shown in the writ petition that it is quite common for public using the Highways to
carry large sums of money on them. It is submitted by the Petitioner that with the advent of credit cards and ATM''s, the necessity of the public
carrying large amounts of money practically ceased to exist. Further, Reserve Bank of India also frowns at such attitude and practice on the part of
the public. It would be evident from the newspaper reports that it is only those persons, who carry large amount of money on them in cash have
been subjected to action by the Respondents. Lastly it is contended that this Court has on 23rd March, 2011, passed order directing the Election
Commission not to conduct any search and seizure without the authority arriving at subjective satisfaction. In case of reliable information, the
authority shall arrive at a subjective satisfaction as shown in its order and effect search and seizure only after recording reasons. It is submitted that
such directions will only make it extremely difficult for the Respondent authorities to check electoral malpractices in a manner known to law. Unless
the Election Commission is able to exercise its powers in a manner known to law, free and fair elections would become impossibility. If the order
passed by the High Court restraining the Election Commission from search and seizure, it would seriously deter the Election Commission of India
and its officers from discharging their constitutionally ordained duties.
32. We have heard Mr. R. Viduthalai, Mr. R. Thiagarajan, learned senior counsel and Mr. M. Radhakrishnan, learned Counsel appearing for the
respective Petitioners, Mr. G. Rajagopalan, learned senior counsel appearing for the Election Commission and Mr. Sriram Panchu, learned senior
counsel appearing for the respective Respondents. We have also heard Mr. P.S. Raman, learned Advocate General appearing for the State. All
the learned Counsel reiterated the facts and law so incorporated in their affidavits.
33. The Petitioner of W.P. No. 6936/2011 claims to be a teacher, who, although noting affected person, but has taken the cause of the general
public. However, it is a matter of great surprise that nothing has been said in the writ petition, which has been styled as public interest litigation that
how the general public have been put to inconvenience and hardship due to the raid and seizure conducted by the officers of the Election
Commission. The uncontroverted facts are that the officers of the Commission have seized huge amounts of cash and other articles carried by
different persons in their vehicles. Curiously enough, not a single affected person, from whose possession cash or other articles have been seized
while carrying the same in the vehicles or other mode of transportation, have come forward to challenge the action of the Election Commission.
34. There is no dispute that the Representation of People Act, 1951 (in short ""Act,1951"") cast a mandate on every candidate to maintain the
account of expenditure incurred during the election. The Election Commission has prescribed a detailed guideline called ""Instructions on
Expenditure Monitoring in Elections"". By instruction dated 17th March, 2011, issued by the Election Commission, standard operating procedure
for dealing with unaccounted and other valuables have been prescribed. According to the instructions, if cash is being carried with proper
documents or if it is for any other purpose and the person carrying those valuables satisfy the officers conducting the search and seizure, then those
valuables shall be returned to the owner forthwith. It is well settled law that the duty of the Election Commission, inter alia, is to prevent distribution
of money to the public and Commission should take all steps to curb those activities. The election being a very important event for the State, the
Election Commission has to maintain law and order to ensure free and fair election and also curb the malpractices.
35. The Supreme Court in number of decisions held that the powers of the Election Commission under Article 324 includes all other incidental
powers, which are not specifically provided in additional to superintendence, direction and control in conducting the elections. If before the search
and seizure, the authorities of the Election Commission is directed to arrive at a subjective satisfaction and record reasons, then the very purpose of
search and seizure will be frustrated and it will amount to curbing the powers of the Election Commission conferred by the Constitution and the
Representation of People Act.
36. After giving our anxious consideration in the matter, we, therefore, dispose of these writ petitions with the following directions and
observations:
(1) To ensure free and fair elections to the Legislative Assembly in the State of Tamil Nadu to be held in April, 2011, the authorities of the Election
Commission shall follow the instructions contained in ""Expenditure Monitoring in Elections"", and other guidelines issued time to time.
(2) The standard procedure for dealing in unaccounted cash and other valuables shall be followed, and in case some criminal linkage is found, the
seizure shall be effected. However, it is made clear that if cash or other valuables is being carried with proper documents, then no seizure shall take
place and the same shall be retuned to the person concerned.
(3) The whole operation should be video graphed and the flying squad shall ensure all politeness, decency and courtesy.
(4) But, in no case the distribution of money or other valuables to the public shall be permitted till the election is over.
(5) The Commission is also directed that for curbing large scale crimes, extra ordinary security measures should be taken till the election results are
announced, and the safety and security of the Flying Squads shall be taken care.
37. Before parting with the matter, we make it clear that after the election was notified, any unilateral order of the Election Commission based on
their perception about the individual officer/s shall never form part of the service record of the officer/s nor shall be it, in any manner, a
disqualification for future service of such officer/s in the conduct of elections and also in the matter of his/their future promotion. No costs.
Consequently, connected miscellaneous petitions are closed.
