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P.S. Misra, C.J.—A letter by Dr. Y. Sivaji, a former Member of Parliament and Chairman, Action Committee of Cotton Growers, Guntur District of the State, is treated as a petition under Art. 226 of the Constitution of India, for, as noted by us in our order, dated 17-4-1996, it has brought to the notice of the Court an incident that no constitutional authority will ever think of happening as a consequence of its orders or directions. The allegation that Dr. Y. Sivaji has made against the Election Commission and the Union of India in short is that three cotton growers - Mr. Madisetty Kondanda-ramaiah in Guntur District, Mr. Naraeappa in Karimnagar District and Mr. Gali Komaraiah in Nalgonda District of the State have committed suicide and it is apprehended that if the Court does not intervene immediately, large scale suicides amongst the cotton growers in the State may take place as it happened during the years 1986 and 1988 in the District of Guntur and Prakasam. It is stated while international prices of cotton are firming up, the domestic prices are falling down since the beginning of 1996. Out of past fifteen years, in twelve years the domestic prices of kappas are at least 20% lower than international prices. As a result the cotton grower has turned to be a captive producer and almost used to subsidies the domestic textile industry. Dr. Y. Sivaji has also alleged nowhere else no industry is so over protected as Indian textile industry is protected at the cost of cotton growers. Various Government agencies like C.A.B. Textile Commissioner, Ministries of Textile as well as Agriculture are coming out with contradictory figures of production and consumption of cotton playing to the tunes of textile lobby. The domestic cotton prices are lower by at least 40% when compared to last year since import of cotton is under O.G.L. (Open General Licence) and the export is not under O.G.L. The Union of India allowed export of cotton in previous years during June and July which ensured that the total produce reached the mills and traders and who benefited at the cost of the producer of cotton, for the domestic prices of cotton go down and the prices of finished products go up. A specific allegation in this behalf runs as follows :
''''It is stated that the Election Commissioner rejected a proposal to export two lac bales of cotton. This arbitrary ''decision of the Election Commission only helps to enhance the hardship of cotton growers and benefits the middlemen since growers are lacking holding capacity and by the time, the election process is completed, the total produce finds its way to the textile mills and traders. The cotton growers are now concerned and fighting for their mere survival with their back to the wall. Export of cotton is an economic issue and not a political issue."
Since the matter required immediate attention, we gave notices to the respondents through their standing counsel. Learned Advocate General appeared on behalf of the third respondent before us. The Union of India appeared through its Standing Counsel and the Chief Election Commissioner responded through Mr. C. P. Sarathy, learned Senior Advocate. Since Election Commission sought time, we made an interim order and postponed the final hearing and disposal of the matter to enable the Election Commission and other respondents to show cause, if any, in these words :
"As nothing has been shown to us on behalf of the Election Commission as well as the Union of India, we propose to order on our prima facie satisfaction, that Election Commission has exceeded its jurisdiction and the Union Government has apparently abdicated its authority of decision making to the whim of the Election Commission. While we are inclined to accommodate the Election Commission and accordingly postpone making final disposal of the writ petition, we are sufficiently persuaded in public interest to issue direction to the Union of India to immediately attend to the cause of the cotton growers and take necessary decision and to restrain the Election Commission from interfering in such decision making by the Union of India."
The Union of India had made a positive response by implementing the above direction. The State Government has come forward with a return that such information as it has received from its sources and agencies with respect to the conditions of the cotton growers in the State and the Election Commission has responded by justifying its stand that any decision during the course of elections for the Lok Sabha and some of the State Assemblies to export cotton will be violative of the Model Code of Conduct of the political party in power as well as the candidates who are seeking election to the-Lok Sabha or to the State Assemblies.
Constitution of India has envisaged the President to have the executive power of the Union and to exercise such power, either directly or through officers subordinate to him, in accordance with the Constitution. This executive power of the President under Art. 53 of the Constitution is co-extension with the legislative power of the Union i.e. the Parliament (Lok Sabha and Rajya Sabha) and as pointed out by the Supreme Court of India in H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and Others Vs. Union of India and Another, is the residue of the functions of the Government which are not legislative or judicial. Article 74 of the Constitution of India, however, a peremptory provision is to the effect that there shall be a Council of Minister with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice. In Samsher Singh Vs. State of Punjab and Another, the Supreme Court has pointed out that the President is bound in every case to act on the advice of the Council of Ministers except insofar as he is free to act under such Constitutional conventions and in such times when it is not possible to act in public interest with the aid advise of the Council of Ministers. Corresponding provisions in the Constitution in respect of the executive power of the State are found in Art. 154 which states the executive power of the State shall be vested in the Governor and shall be exercised by hint, either directly or through officers subordinate to him, in accordance with the Constitution and Article 162 which states, "subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws" and Art. 163 which States, "there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his function except insofar as he is by or under this Constitution required to exercise his functions or any of them in his discretion." What is the difference in the extent of the power of the President of India and the Governor in a State, and what are the limits of the functions of the Governor insofar as he is by or under the Constitution required to exercise his functions or any of them in his discretion, however, should not detain us in the instant case for both the State Government and the Union of India have general concern to the plight of the cotton growers and their anxiety to have the cotton producers from the prospects of ruin which, according to the petitioner, is imminent and almost taking its toll. Records produced on behalf of the Election Commission revealed the said anxiety of the State Government in its communications to the Government of India as well as of other State Governments and the anxiety of the Union of India is available in its communication to the Election Commission on the subject to which we shall advert later.
The Election Commission is created by the Constitution and vested with the superintendence direction and control of the preparation of the of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the office of President and Vice President held under the Constitution which elections to the Parliament and to the Legislature of every State are envisaged under Art. 326 thereof on the basis of adult suffrage that is to say every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under the Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsound ness of mind, crime or corrupt or illegal practice. A law contemporaneous to the Constitution which has been amended from time to time is available as the Representation of the People Act, 1951 and some additional legislations including Orders issued by the Election Commission in exercise of its power of control, power to provide for the preparation of the electoral roll, determination of electoral colleges and the constituencies including delimitations, as and when necessary and the conduct of elections by and under a notification issued by the Election Commission and such, directions for conducting the elec- tions by the Election Commission. Election Commission has accordingly been publishing Model Code of Conduct for the guidance of � political parties and candidates and the handbook for the Returning Officers. On such instruction to which our attention has-been drawn is available in the hand-book for Returning Officers published under the authority of the Election Commission (which is Annexure XXI to the hand-book) for the guidance of political parties and candidates and reads as follows :
"Party in Power:
The party in power whether at the Center or in the State or States concerned shall ensure that no cause is given for any complaint that h has used its official position for the purpose of its election campaign and in particular-
(i) (a) the Ministers shall not combine their official visit with electioneering, work and shall not also make use of official machinery or personnel during electioneering work;
(b) Govt. transport including official air-crafts, vehicles, machinery and personnel, shall not be used for furtherance of the interest of the part in power;
(ii) public places such as maidens etc., for holding election meetings and use of helipads for airlights in connection with elections, shall not be monopolised by itself. Other parties and candidates shall be allowed the use of such places and facilities on the same terms and conditions on which they are used by the party in power;
(iii) rest houses, dak bungalows or other Government accommodation shall not be monopolised by the party in power or its candidates and such accommodation shall be allowed to be used by other parties and candidates in a fair manner but no party or candidate shall use or be allowed to use such accommodation (including premises appertaining thereto) as a campaign office or for holding any public meeting for the purposes of election propaganda;
(iv) issue of advertisement at the cost of public exchequer in the newspapers and other media and the misuse of official mass media. during the election period for partisan coverage of political news and publicity regarding achievements with a view to furthering the prospects of the Party and Power shall be scrupulously avoided.
(v) ministers and other authorities shall not sanction grants/payments out of discretionary funds from the time elections are announced by the Commission; and
(vi) from the time the elections are announced by the Commission, Ministers and other authorities shall not-
(a) announce any financial grants in any form or promises thereof; or
(b) lay foundation stones etc., of projects or schemes of any kind; or
(c) make any promise of construction of roads, provision of drinking water facilities etc., or
(d) make any ad hoc appointments in Government, public undertakings etc., which may have the effect of influencing the voters in favour of the party in power.
(vii) ministers of Central or State Govt. shall not enter any polling station or place of counting except in their capacity as a candidate or voter or authorised agent."
In another set of intrusions by way of clarifications regarding the conduct of candidates and political parties during general elections to the Legislative Assemblies, 1994 it is stated, "What is prohibited under the Model Code is the announcement of new project or programmes or concessions or financial grants in any form or promises thereof or laying of foundation stones, etc. which have the effect of influencing the voters in favour of the party in power."
The counter affidavit by Mr. S.K. Mendiratta, Principal Secretary, Election Commission of India, however, is devoted mainly to absence of specific informations in the latter by the petitioner which has been treated as a petition under Art. 226 of the Constitution of India and in finding fault with the Union and State Governments if they were really interested in providing the relief to the cotton growers, they could have taken decision in this regard prior to the publication of the poll announcement and, then stated, "the decision taken for export of cotton, after the publication of the poll announcement will give room for assuming that it was done with a view to influencing the cotton growers in favour of the ruling parties during elections." The main defence, however, of the Commission in this behlaf is as follows:
"The Election Commission has framed the model code of conduct for the guidance of the political parties1 and conditions of which enunciate electoral rectitude for the ruling political parties. There is a list of the guidelines in regard to the party in power, mentioned in order No. 437/6/ES005/94/MCS dated 1st Sept. 1994. In view of the said order it is made clear that the said list is only illustrative and restricted by the limits of political ingenuity existing at the time of formulation of the Model Code several years ago. The decision of the Union and State Governments in regard to the demands of the Colton growers, after having kept quiet for years, before elections will affect the fair and free poll by way of a section of voters tilting in favour of ruling parties who arrived at the decision. The present decision in this regard does not fall under the category of any relief to be granted at the time of natural calamities for which there is provision in the Order No.437/6/ES023/94/MCS/8169 dated 4-10-1994.
This respondent received the letter dated .2-4-1996 from the Secretary Ministry of Textiles along with the note of the Minister of Labour and Textire. In the Minister''s note it is mentioned that the last day for shipment should be Oct. 1996 and that the purchases should be made in the Current season in order to give adequate time for various parties to complete necessary formalities and for making necessary arrangements. This Respondent also received letter dated 8-4-1996 from the Chief Minister of Gujarat State in which it is mentioned that export quota were given up to 31st August, 1996 for shipment. Taking into consideration the said materials this Respondent decided that avoiding loss to the farmers is not through immediate export, but make sure that the cotton stocks are procured through the agencies at the fixed support price. It was suggested by this Respondent that the Cotton Corporation of the India and the State Cooperative/Marketing Federation should be advised to procure the cotton stock so that the farmers are not put to any difficulty for non-procurement and that the export of the procured stock can be taken after the completion of the Election process. The Union Govt. was fully aware that the decision to export cotton during the Model Code of conduct and that is the reason the letters were written to this Respondent. In the article written under the caption, "The clout of Kasu family still formidable in the Hindu dated 18-4-1996 its mentioned that the issue of cotton export is made political, although in the letters the writ petitions stated that it is economic and not political issue. This issue is dominating the scene of the Lok Sabha Constituency. Thus, there was no urgency for issuing Interim Orders by this Hon''ble Court. The interest of the farmers has been taken care of by this Respondent, as is evident from the order of this Respondent."
It is per tinent to notice that the Representation of the People Act, 1951 has envisaged challenge to an election by a petition and amongst the grounds on which any election can be declared void in Section 100 thereof, included any corrupt practice committed in the interests of the return candidate. Section 123 has defined corrupt practice as under:
"123 (1) ''Bribery'', that is to say,
(A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsover, with the object, directly or indirectly of inducing-
(a) a person to stand or not to stand as or to withdraw or not to withdraw from being a candidate at an election, or
(b) an elector to vote or refrain from voting at an election, or as a reward to-
(i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature; or
(ii) an elector for having voted or refrained from voting;
(B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward-
(a) by a person for standing or not standing as, or for withdrawing or not withdrawing from being a candidate; or
(b) by any person whomsoever for himelf or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature.
Explanation :-- For the purposes of his clause the term ''gratification'' not restricted to pecuniary gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in Section 78.
(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, on or any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:
Provided that-
(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who-
(i) threatens any candidate or any elector, or any person in whom a candidate or any elector is interested, with injury of any kind including social ostracism and ex-communication of explusion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of the clause;
(b) a declaration of public policy, or promise of public action, or the mere exercise of a legal right without intend to interfere with an electoral right shall not be deemed to be interference within the meaning of this clause.
(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to, national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:
Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purpose of this clause.
(3A) The promotion of, or attempt to promote, feeling of enmity or hatred between different classes of the citizens of India on ground of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
(3-B) The propagation of the practice or the commission of sati or its glorification by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
Explanation :-- For the purposes of this clause, ''sati'' and ''glorification'' in relation to sati shall have the meanings respectively assigned to them in the Commission of Sati (Prevention) Act, 1987,
(4) The publication by a candidate or his agent or by any other person, with the consent of a candidate or his election agent, or any statement of fact which is false, and which fie either believes to be false or does not believe to be true, in relation to the persons, character or conduct of any candidate, or in relation to the candidates or withdrawal, or any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate''s election.
(5) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by candidate or his agent or by any other person with the consent of a candidate or his election agent, or the use of such vehicle or vessel for the free conveyance of any elector other than the candidate himself, the members of his family or his agent to or from any polling station provided u/s 25 or a place fixed under sub-section (1) of Section 29 for the poll :
Provided that the hiring of a vehicle or vessel by an elector or any several electors at their joint costs for the purpose of conveying him to them to and from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power:
Provided further that the use of any public transport vehicles or vessel or any tramcar or railway carriage by any elector at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause.
Explanation :-- In this clause, the expression ''vehicle'' means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise.
(6) The incurring or authorising of ex- penditure in contravention of Section 77.
(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance other than the giving of vote for the furtherance of the prospects of that candidate''s election, from any person in the service of the government and belonging to any of the following classes, namely :--
(a) gazetted officers;
(b) stipendiary judges and magistrates;
(c) members of the armed forces of the Union;
(d) members of the police forces;
(e) Excise officers;
(f) revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmukh or by any. other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and
(g) such other class of persons in the service of the Government as may be prescribed:
Provided that where any person, in the service of the Government and belonging to any of he classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangement or provides any facilities or does any other act or thing, for, to or in relation to, any candidate or his agent or any other person acting with the consent of the candidate or his election agent, whether by reason of the office held by the candidate or for any other reason, such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate''s election.
(8) Booth capturing by a candidate or his agent or other person.
Explanation :-- (1) In this section the expression ''agent'' includes an election agent, the polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.
(2) For the purposes of clause (7) a person shal be deemed to assist in furtherance of the prospects of a candidate''s election if he acts as an elction agent of that candidate.
(3) For the purposes of Clause (7) notwithstanding anything contained in any other law, the publicatiton in the official gazette of the appointment, resignation, termination of service, dismissal or removal from service of a person in the service of the Central Government including a person serving in connection with the administraion of a Union Territory or of a State Government shall be conclusive proof-
(i) of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, and
(ii) where the date of taking effect of such appointment, resignation, termination of service, dismissal or, removal from service, as the case may be, state in such publication, also of the fact that such person was appointed with the effect from the said date, or in the case of resignation, termination of srevice, dismissal or removal from service, such person ceased to be in such service with effect from the said date.
(4) For the purposes of clause (8), "booth capturing" shall have the same meaning as in Section 135-A."
In one of the earlier cases in which election of a returned candidate was challenged and reached the Supreme Court in S. Khader Sheriff Vs. Munnuswami Gounder and Others, , one of the allegations was that the appellant had applied to the Tamil Nadu Congress Committee for permission to contest the election as a candidate and paid Rs. 500/- out of which Rs. 100/- was subscription for membership and Rs. 400/- deposit and had made another payment of Rs. 500/- to the North Arcot District Congress Committee and had not disclosed these expenses in the return of election expenses filed by him. The Supreme Court as on the above observed as follows:
"The question when a person becomes a candidate must be decided on the language of Section 79(b). Under that section, the candidature commencs when the person begins to hold himself out as a prospective candidate. The determining factor, therefore, is the decision of the candidate himself, not the act of other persons or bodies adopting him as their candidate.
In --The Litchfield Case''50''M & H 1( A) at p. 36, Pollock B. observed :
"I think the proper mode of judging a question of this kind is to take it from the point of view of the candidate himself. Every man must judge when he will throw himself into the arena... But it is his own choice when he throws down the glove and commences his candidature."
When, therefore, a question arises u/s 79(b) whether a person had become a candidate at a given point of time, what has to be seen is whether at that time he had clearly and unambiguously declared his intention to stand as a candidate, so that it could be said of him that he held himself out as a prospective candidate. That he has merely formed an intention to stand for election is not sufficient to make him a prospective candidate, because it is of the essence of the matter that he should hold himself out a prospective candidate. That can only be if he communicates that intention to the outside world by declaration or conduct from which it could be inferred that he intends to stand as a candidate.
Has that been established in this case? When the appellant made the payment of Rs.500/- to the Tamil Nadu Congress Committee, did he merely evince an intention to stand as a candidate, or did he hold himself out as a prospective candidate? The application contains a clear declaration of his intention to contest the election, and that declaration is backed by the solemn act of payment of Rs. 500/-. The appellant had thus clearly and unambiguously conveyed to the Committee his intention to stand as a candidate, and he thereby became a prospective candidate within the meaning, of Section 79(b).
The possibility that the Congress might not adopt him as its candidate does not, as already mentioned, affect the position, as the section has regard only to the volition and conduct of the candidate. It is true that if the Congress did not adopt him, the appellant might not be able to stand for election. But, such a result is implicit in the very notion of a prospective candidate, and does not militate against his becoming one from the date of his application.
(6) It was also urged for the appellant that the declaration was made not to the constituency in the North Arcot District, but to the Central Committee at Madras, and that unless there was proof of holding out to the electorate, the requirements of S. 79(b) were not satisfied. It may be that the holding out which is contemplated by that section is to the Contituency; but if it is the Central Committee that has to decide who shall be adopted for election from the concerned constituency, any declaration made to the Committee is, in effect, addressed to the constituency through its accredited representatives.
The Question when a candidature commences is, as has been held over and over again, one of fact, and a decision of the Tribunal on that question is not liable to be reviewed by this Court in special appeal. In the present case, the Tribunal has, in a well considered judgment, formulated the correct principles to be applied in determining when a candidature commences, examined the evidence in the light of those principles, and recorded a finding that the appellant was a prospective candidate when he made the payment of Rs.500/-on 12-9-1951, and we do not find any ground for differring from it.
(7) Then, there is the payment of Rs. 500/-made to the North Arcot District Congress Committee on 23-9-1951. The contention of Mr. Chatterjee with reference to this payment is that unlike the payment dated 12-9-1951, this was not spent for purposes of election but was donation made to the Committee out of philanthropic motives. It has been frequently pointed out that while it is meritorious to make a donation for charitable purposes, if, that is made at the time or on the event of an election, it is open to the charge that its real object was to induce the electors to vote in favour of the particular candidate, and that it should, therefore, be treated as election expenses. In--The Wigancase'' (1881) 40''& H 1 Bowen J. observed :
"..... I wish to answer the suggestion that this was merely charity. Charity at election times ought to be kept by politicians in the background. In truth, I think, it will generally be found that the feeling which distributes relief to the poor at election time, though those who are the distributors may not be aware of it, is really not charity, but partly feeling following in the steps of charity, wearing the dress of charity, and mimicking her gait." In-- The Kingston Case''6 O''M H 374 Rickley,J., said:
''Now assume for the moment that a man forms a design, which it at the, time is in prospect, for that is the point, yet if circumstances alter, and an election becomes imminent, he will go on with that design at his risk."
It would again be a question of fact whether the payment of Rs. 500 / - by the appellant on 23-9-1951 was a pure act of charity or was an expense incurred for election purposes. It was admitted by the Secretary of the Noth Arcot District Congress Committee that it was usual for the Tamil Nadu Congress Committee to consult the local Committee in the matter of adoption of candidates, and that at the time the payment was made, it was known that the appellant had applied to be adopted by the Congress.
Exhibit A.7 which is a statement of receipts and payments of the North Arcot District Congress Committee for the period 24-9-1951 to 24-5-1952 shows that the Committee started with an opening balance of Rs. 7-12-2, and that various amounts were collected including the sum of Rs.500/- paid by the appellant and utilised for election expenses.
The Tribunal held on a consideration of these facts that the payment in question could not be regarded as innoncent and "not motivated by the desire to obtain the recommendations of the North Arcot District Congress Comittee for candidature of the first respondent." No ground has been shown for differing from this conclusion."
The observations in the Wigan Case, "Charity at election times ought to be kept by politicians in the background ..... In truth, I think, it will genially be found that the feeling which distributes relief to the poor at the election time, though those who are the distributors may not be aware of it is really not charity, but partly feeling following in the steps of charity, wearing the dress of charity, and mimicking her gait.", has received further acceptance in Ghasi Ram Vs. Dal Singh and Others, in which the Supreme Court considered directly whether distribution of money by way of discretionary grants to Gram Panchayats and for community development made by returned candidate who was Minister till date of his election would constitute a corrupt practice. The Supreme Court''s verdict reads as follows: (at pp. 1195-96 of AIR)
"Mr. Naunit Lal argued vehemently that any gift which has the effect of changing the minds of the voters is a corrupt practice. He read out to us the judgment of Ridley and Bucknill, J J. from the Borough of Kingst on-upon-Hull case (1911) 6 OM 372. In that case the charge against Sir Henry Seymour King was that he had distributed coals and gave boxes of sweets to the children of schools at the time or just .before his election, The motive of Sir Henry Seymour King was never in doubt. The gifts were made to celebrate the twentyfifth anniversary of his membership of the Central Division of Hull. After examining the cases on the subject of gifts such as the Windsor case (1874) 2 OM 38 the Salisbury case (1883) 4 OM 21,the Wigen case (1881) 4O Mad 1 the learned Judges avoided the election. In that case the presents were gratuitous and not in furtherance of any duty which Sir Henry Seymour King owed in any other capacity. In our Courts this question has come up in different forms before and a word may be said about the cases. In S. Mehar Singh Vs. Umrao Singh and Another, the Punjab High Court held that a candidate making a promise to get the grievances of certain refugees as a body remedied and even getting the Revenue Minister to reinforce his promise was not corrupt practice, it was pointed out that the promise was not made to any particular voter or voters but to the general body of residents without distinguishing between those who were favourably inclined and those not. The gist of the corrupt practice, therefore, lay in attempting to do something for those opposed to the candidate with a view to changing their votes, and as a bargain for votes. A case in point is Maganlal Radhakishan Bagdi Vs. Hari Vishnu Kamath, in which the candidate offered to construct a well in a village if the voters voted for him and not for the rival candidate. Money was actually deposited for this purpose and was to await the result of the election. Here there was a clear bargain for votes. As observed by this Court in S. Khader Sheriff Vs. Munnuswami Gounder and Others, it may be meritorious to make a donation for a charitable purpose but on the eve of an election, such a gift may be open to construction that it was made with the intention of buying votes. As held in the Wigan case, "charity at the election time ought to be kept by the politicians in the background." But when a question does arise, corrupt practice which'' is a charge quasi-criminal in nature must be proved like any other fact. The gift must be proved to have a direct or indirect connection with votes. The gift must admit of no other reasonable excuse. In S. Khader Sheriff Vs. Munnuswami Gounder and Others, the payment of Rs. 500/ - to the District Congress Committee was not held to be a charitable donation but expenditure incurred for furthering the prospects of the candidate. Omission to show it as expenses was regarded as corrupt practice. In Radha Krishna Shukla v. Tara Chand Maheshwar (1956) ELR (SC) 378 (Ele. Tribunal Lucknow) general promises by Ministers to redress certain public grievances or to erect certain public amenities like hospitals, if elected were held not to amount to corrupt practice. They were treated as promises of general public action. In Gangadhar Maithani v. Narendra Singh, (1959) ELR All 124 promises of public action were held excluded from corrupt practice. Therefore, a promise by a candidate that if he was elected he would see that expenditure on development plans was incurred in his constituency was held permissible. In Balwant Raj Tayal v. Bishan Saroop (1950) ELR P&H 101 a promise to the Harijans of a locality by a candidate when he was canvassing for votes, that he would do his best to help them in the matter or retaining an old mosque as a temple and for getting land for building houses was not held to amount to corrupt practice.
These cases, which were cited before us are slightly different. But they point in the same direction. In Amirchand v. Surendra Lal Jha (1954) ELR Nag 57 (ele. Tribunbal - Nag.) it was laid down that if a Minister redresses the grievances of a class of the public or people of a locality or renders them any help, on the eve of an election, it is not corrupt practice unless he obtains promises from the voters in return, as a condition for their help. In Anjaneya Reddy v. Gangi Reddy (1960) ELR Mys 247 it was held that the proof required to establish a corrupt practice must be almost of the character required to establish a criminal charge.
In our opinion the law requires that a corrupt practice involving bribery must be fully established. The evidence must show clearly that the promise or gift directly or indirectly was made to an elector to vote or refrain from voting at an election. The position of a Minister is difficult. It is obvious that he cannot cease to function when his election is due. He must of necessity attend to the grievances, otherwise he must fail. He must improve the image of his administration before the public. If everyone of his official acts done bona fide is to be construed against him and an ulterior motive is spelled out of them, the administration must necessarily come to a standstill. The State of Haryana came into existence on November I, 1966. With an election in the near future, the political party had to do acts of a public nature. The grant of discretionary grants were part of the general scheme to better com- munity development projects and to remove the immediate grievances of the public. The money was required to be spent in about 3 months time. The action of the Minister had often the concurrent and recommendation of his subordinate staff. It as for this reason that the orders about the improvement of the supply of water were not pressed. They were incapable of being construed against the first respondent. Therefor, emphasis was placed upon the distribution of money. The money was not distributed among the voters directly but was given to Parichayats and the public at large. It was to be used for the good of those for and those against the candidate. No doubt they had the effect of pushing forward his claims but that was inevitable even if no money was spent, but good administration changed the people''s condition. We cannot,-therefore, hold that there was any corrupt practice. If there was good evidence that the Minister bargained directly or indirectly for votes, the result might have been different but there was no such evidence."
After making the above observations, however, the Supreme Court in Ghasi Ram Vs. Dal Singh and Others, has observed (at p. 1196 of AIR 1991).
"Although we have held in this case that the action of the first respondent cannot be characterised as not innocent, we are constrained to say that the attitude of Government is far from laudable. Election is something which must be conducted fairly. To arrange to spend money on the eve of election in different constituencies, although for general public good, is when all is said and done an evil practice, even if it may not be corrupt practice. The dividing line between an evil practice and a corrupt practice is a very thin one. It should be understood that energy to do public good should be used not on the eve of elections but much earlier and that slight evidence might change this evil practice into corrupt practice. Payments from discretionary grants'' on the eve of elections should be avoided."
The observation in the above passage, "the dividing line between an evil practice and a corrupt practice is a very thin one", and the observation in S. Khader Sheriff Vs. Munnuswami Gounder and Others, , "it has been frequently pointed out that while it is meritorious to make a donation for charitable purpose, if that is made at the time or on the eve of any election, it is open to the charge that Us real object was to induce the electors to vote in favour of the particular candidate", are not only quoted in the counter affidavit which is filed before us on behalf of the Election Commission, but are heavily relied upon by the learned counsel for the Election Commission to canvass before us that the Commission was well within its bounds when it recorded its disapproval to the proposal of the Union of India to allow export of cotton at the eve of the elections. The above is contended for the Secretary, Ministry of Textiles, addressed a letter to the Chief Election Commissioner on the subject of release of cotton for export on 2-4-1996 stating as follows :
"The Ministry of Textiles regulates .the export of cotton from India. The Cotton Advisory Board constituted under the aegies of this Ministry makes assessment of the demand and supply position with regard to cotton for each cotton year (October-September). Based on these as well as the ruling prices in the various production centers, quantities are released for export from time to time, depending on a variety of factors. The considerations that are taken into account include availability of adequate return to farmers, availability of cotton to spinners at reasonable prices so that yarn could be made available to handloom, power-loom and mills in the weaving sector, maintaining the price line of the fabric etc. Considering all these factors, the release orders for export of cotton are issued from time to time.
During the current year, cotton prices have been very subdued in the Indian market. Compared to 1994-95 prices, the 1995-96 cotton year prices have been generally 20 to 25 per cent lower. Yarn prices have also correspondingly lower. Whereas in the last three or four years in general cotton exports have been allowed only on a very restrictive basis to preserve cotton for domestic use, during the cotton year 1995-96, already 9.15 lakh bales have been released for exports. These releases (our of a total estimated production of 138 lakh bales) have been done at different times in the current cotton year, between December 1995 and February 1996. Out of these certain quantities and certain varieties have been allowed for export through open bidding system by traders, certain quantities have been allowed to "most modern ginneries" on open bidding system basis and certain other varieties have been released to the Cotton Corporation of India, a Government of India agency as well as State Co-op. Marketing Federation (e.g. MARKFED in Punjab, Gujarat Co-operative Marketing Federation and Maharashtra Co-operative Cotton Growers'' Marketing Federation etc.).
It is now proposed to release 2 lakh bales of cotton for export in the current year. It is proposed to get this done immediately, since the cotton season will end by end April-mid-May. The above cotton export releases if not done now, will benefit only the traders and not the farmers.
The reasons for permitting exports are mentioned in the copy of the Minister''s order dated 2-4-96, which is self explanatory. In the normal course, this being a routine management matter of the Ministry, the release orders of -the Minister would have been implemented. However as a measure of abundant caution, we are consulting the Commission for their concurrence, prior to-issue of the release order.
It is requested that the Commissioner''s views may be communicated to us most urgently to take further action."
Consideration bestowed by the Commission to the above is recorded by the Chief Election Commissioner in these words : "we may reject this. They can wait till after end of elections."; one member has recorded : "I agree" and the other put his signature.
Papers produced on behalf .of the Commission disclose -- (f) A delegation led by Dr. (Mrs.) Urmilaben Chimanbhai Patel, Minister of State (Power) in Gujarat had informed the Government that the arrival of cotton was continuing at a faster pace in Gujarat; (2) The Chief Minister of Andhra Pradesh had been repeatedly telephoning the Union Textile Minister and writing to him regarding low prices of cotton in Andhra Pradesh despite earlier intervention by the Cotton Corporation of India and that there was only one month left for the current cotton reason to end and unless some steps were taken, there would be large scale distress for farmers and would reflect in their turning away from cotton from next season.
Besides the above letter from the Ministry of Textiles, it appears the Chief Minister of Gujarat State has directly addressed a letter to the Election Commission on the subject and stated, "it is understood that taking into consideration the grave situation, the Ministry of Textiles has already sent a proposal to the Election Commission for getting their prior concurrence before a decision to allow the release of additional quota is taken by the Government of India. It is pertinent to note that release of additional quota will be in the larger interests of thousands of cotton farmers spread all over the cotton growing areas in the country without any political advantage to any particular party in power or outside. It is to protect the larger interests of the farmers and to mitigate their genuine hardship that such a decision is required to be taken immediately. Such a decision would not violate any provision of the Model Code of Conduct prescribed by the Election Commission. It is, therefore, fervently requested that the Election Commission may kindly consider the matter sympathetically and a favourable decision taken at the earliest on the proposal pending before the Commission and communicated to the Ministry of Textiles for release of additional quota of cotton for export."
Parliament- is envisaged of two Houses to be known respectively as the ''Council of States'' and the ''House of the People''. It is the elections for the ''House of the People'', it is not in dispute, which is notified. Article 83 of the Constitution of India states the House of the People, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the House. Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate. The corresponding provision fixing the period for which a State Assembly can live is available in Article 172 of the Constitution. It is indeed imperative thus that elections have to be held at the expiry of the five years of any existing House of the People for a new House to assemble for the next five years and from amongst its members to elect a leader who shall be the Prime Minister and who along with his Ministers shall provide necessary aid and advise to the President of India. The same mutat is mutandis shall apply to the State Assemblies, to the election of the Chief Minister of any State and the Council of Ministers to aid and advise the Governor. Executive functions, we have already noticed, are co-extensive with the legislative functions of the Union or the State, as the case may be, and are also residuary to such legislative functions. They do not extend, however, to superintendence, direction and control of the preparation of the electoral rolls for and the conduct of all elections to Parliament and to the Legislature of every State. Matters pertaining to preparation of the electoral rolls and the conduct of elections are vested in the Election Commission, which presently consists of the Chief Election Commissioner and two Election Commissioners, thus a Committee of three Commissioners. The Election Commission''s power, however, is subject to the provisions of the Constitution and law made by the Parliament from time to time with respect to all matters relating to or in connection with elections including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of a House or Houses.
In Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, , the Supreme Court has considered the amplitude of powers and width of functions to be exercised by Election Commission under Art. 324- of the Constitution. The Supreme Court has taken a conspectus of the provisions bearing on the subject of elections and has also delivered the message to all concerned in its own words :
"The message, as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless words :
"At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper -- no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point".
If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men ''dressed in little, brief authority''. For ''be you ever so high, the law is above you''.
The moral may be stated with telling terseness in the words of William Pitt : ''Where laws end, tyranny begins''. Embracing both these mandates and emphasizing their combined effect is the elemental law and political power best expressed by Benjamin Disraeli :
"I repeat..... that all power is a trust --that we are accountable for its exercise --that, from the people and for the people, all springs, and all must txist."
A side from these is yet another, bearing on the play of natural justice, its nuances, non-. applications, contours, colour and content. Natural justice is no mystic testament of judge-made juristic but the pragmatic, yet principled, requirement of airplay in action as the norm of a civilized justice-system and minimum of good government - crystallized clearly in our jurisprudence by a catena of cases here and elsewhere."
Coming to the powers of the Election Commission, the Supreme Court in this judgment has said Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others,
"The conspectus of provisions bearing on the subject of elections clearly expresses the rule that there is a remedy for every wrong done during the election in progress although it is postponed to the post election stage and procedure as predicated in Art. 329(b) and the 1951 Act. The Election Tribunal has, under the various provisions of the Act, large enough powers to give relief to an injured candidate if he makes out a case and such processual amplitude of power extends to directions to the Election Commission or other appropriate agency to hold a poll, to bring up the ballots or do other things necessary for fulfilment of the jurisdiction to undo illegality and injustice and do complete �justice within the parameters set by the existing law.
In sum, a pragmatic modus vivendi between the Commission''s paramount constitutional responsibility vis-a-vis elections and the rule of law vibrant with fair acting by every authority and remedy for every right breached is reached."
For the above and in reading that within the powers of the Election Commission and Election Tribunals, the Supreme Court has taken notice of the facts of the case : The poll proceeded peacefully; the counting was almost complete; the ballot of most of the stations were available and postal votes plus votes of one or two polling stations were missing. The Election Commission had reports that one of the respondents in the appeal before the Supreme Court had mobilised a mob., and disturbed the counting and destroyed the postal ballot papers. Ballot papers from some segments were also done away with en route. The Returning Officer was terrified into postponing the declaration of the result. On account of an earlier complaint that the Returning Officer was a relation of the appellant and disturbed by the disruption of the declaratory part of the election, the Election Commission issued an order of cancellation of the whole poll. The Supreme Court has, while making the above order, read in the ''superintendence, control and direction'' the rule, "law transcends legalism when life is baffled by surprise situations. In this larger view and in accordance with the well established doctrine of implied powers we think the Court can - and if justified, shall -- do, by its command, at that is necessary to repair the injury and make the remedy realisable."
When Election Commission is an authority vested with the superintendence and control of the elections, it is not difficult to visualise that its power will be as expensive as elections may demand and it will always be within its powers if it will issue directions to protect elections from undue influence or corrupt practice. There can also be no difficulty in acknowledging that a party in power may forget its constitutional obligations and be found tempted to use its authority to advance its poll prospects. For effectively controlling the situation from any attempt to induce the voters, the Commission may justifiably issue orders asking the Ministers, including the Prime Minister, to desist from doing anything that will influence the voters and the elections. While doing such a thing, however, the Commission shall not assume the rule of a bull in a China shop. It shall just not do anything and everything as, when it shall be entering into the arena of a functioning Government, whether at the center or in the State, it shall to an extent be interfering with the governmental activities.
In A.C. Jose Vs. Sivan Pillai and Others, , the Supreme Court has quoted from the earlier judgment in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, and emphasised that no one is an imperium in imperio in our constitutional order. The Commission cannot defy the law armed by Art. 324. Likewise, its functions are subject to the norms of fairness. It cannot act arbitrarily, as unchecked power is alien to our system. Article 324, it is well settled, operates in areas left unoccupied by legislation and the words -- ''superintendence'' direction and control'' as well as conduct of all elections are the broadest terms but must receive two limitations at least -- (1) When Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission shall act in conformity with, not in violation of such provisions but where such law is silent. Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from pushing forward a free and fair election with expedition; and (2) The Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice insofar as conformance to such canons can reasonably and realistically be required of it as fair play-in-action in a most important area of the constitutional order i.e., elections. A.C. Jose Vs. Sivan Pillai and Others, has also pronounced that the Corn-mission does not have an absolute and un-canalised power and for this stated as follows (at pp. 926 and 927 of AIR) :
"Further, such an absolute and uncanalised power given to the Commission j without providing any guidelines would itself destroy the basic structure of the Rule of Law. It is manifest that such a disastrous consequence could never have been contemplated by the Constitution makers, for such an interpretation, as suggested by the counsel for the respondent, would be far from attaining the goal of purity and sanctity of the electoral process. Hence, we must construe Arts. 324 to 329 as an integral part of the same scheme collaborating rather than colliding with one another. Moreover, a perusal of Arts. 324 to 329 would reveal that the legislative powers in respect of matters relating to Parliament or the State Legislatures vests in Parliament and in no other body. The Commission would come into the picture only if no provision has been made by Parliament in regard to the elections to the Parliament or State Legislatures. Furthermore, the power under Article 324 relating to superintendence, direction and control was actually vesting of merely all the executive- powers and not the legislative powers. In other words, the legislative power of Parliament or of the legislature of a State being made subject to Art. 324 only means that no law made by Parliament under Article 327 or by a State Legislature under Article 328 can take away or deprive the Commission of the executive power in regard to matters entrusted to it, viz., superintendence, direction and control of elections. The right to file an election petition directly flows from Art. 329 and cannot be affected in any manner by the exercise of executive power by the Commission under Art. 324."
In Kanhiya Lal Omar Vs. R.K. Trivedi and Others, , dealing with a case under the Election Symbols (Reservation and Allo''tment) Order, 1968, the Supreme Court has stated as follows (paras 9 and 10) :
"The constitutional scheme with regard to the holding of the elections to Parliament and the State Legislatures is quite clear. First, the Constitution has provided for the establish'' ment of a high power body to be in charge of the elections to Parliament and the State Legislatures and of elections to the offices of President and Vice-President. That body is the Commission. Article 324 of the Constitution detailed provisions regarding the Constitution of the Commission and its general powers. The Commission consists of the Chief Election Commissioner who is appoint-ed by the President and it may also consist such number of other Election Commissioners, if any, as the President may from time to time fix, who are also to be appointed by the President. When Election Commissioners are appointed, the Chief Election Commissioner becomes the Chairman of the Commission. There is provision for the appointment of Regional Commissioners to assist the Commission. In order to ensure the independence and impartiality of the Commission, it is provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court of India and that the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment. An Election Commissioner or a Regional Commissioner cannot be removed from office except on the recommendation of the Chief Election Commissioner. The superintendence, direction and control of the conduct of elections referred to in Art. 324(1) of the Constitution are entrusted to the Commission. The words ''superintendence'', ''direction'', and ''control'' are wide enough to include all powers necessary for the smooth conduct of elections. It is, however, seen that Parliament has been vested with the power to make law under Art. 327 of the Constitution read with Entry 72 of List I of the Seventh Schedule to the Constitution with respect to all matters relating to the elections to either House of Parliament or to the House or either House of the Legislature of a State subject to the provisions of the Constitution: Subject to the provisions of the Constitution and any law made in that behalf any Parliament the Legislature of a State may under Art. 328 read with Entry 37 of List II of the Seventh Schedule to the Constitution make law relating to the elections to the House or Houses of Legislature of that State. The general powers of superintendence, direction and control of the elections vested in the Commission under Art. 324(1) naturally are subject to any law made either under Art. 327 or under Art. 328 of the Constitution. The word ''election'' in Art. 324 is used in a wide sense so as to include the entire process of election which consists of several stages and it embraces many steps some of which may have an important bearing on the result of the process. India is a country which consists of millions of voters. Although they are quite conscious of their duties, politically unfortunately, a large percentage of them are still illiterate.'' Hence there is need for using symbols to denote the candidates who contest elections so that the illiterate voter may cast his vote in secrecy in favour of the candidate of his choice by identifying him with the help of the symbol printed on the ballot paper against his name.
It is true that till recently the Constitution did not expressly refer to the existence of political parties. But their existence is implicit in the nature of democractic form of Government which our country has adopted. The use of a symbol, be it a donkey or an elephant, does give rise to an unifying effect amongst the people with a common political and economic programme and ultimately helps in the establishment of a Westminster type of democracy which we have adopted with a cabinet responsible to the elected representatives of the people who constitute the Lower House. The political parties have to be there if the present system of Government should succeed and the chasm dividing .the political parties should be so profound that a change of administration would in fact be a revolution disguised under a constitutional procedure. It is no doubt a paradox that while the country as a whole yields to no other in its corporate sense of unity and continuity, the working parts of its political system are so organised on party basis - in other words, "on systematized differences and unresolved conflicts." That is the essence of our system and it facilitates the setting up of a government by the majority. Although till recently the constitution had not expressly referred to the existence of political parties, by the amendments made to it by the Constitution (Fifty second Amendment) Act, 1985 there is now a clear recognition of the political parties by the Constitution. The Tenth Schedule to the Constitution which is added by the above Amending Act acknowledges the existence of political parties and sets out the circumstances when a member of Parliament or of the State Legislature would be deemed to have defected from his political party and would thereby be disqualified for being a member of the House concerned. Hence it is difficult to say that the reference to recognition, registration etc. of political parties by the Symbols Order is unauthorised and against the political system adopted by our country."
In Kanhiya Lal Omar Vs. R.K. Trivedi and Others, the Supreme Court has also stated as follows (paras 17 and 18) :
"While construing the expression ''superintendence, direction and control'' in Article 324(1), one has to remember that evey norm which lays down a rule of conduct cannot possibly be elevated to the position of legislation or delegated legislation. There are some authorities or persons in certain grey areas who may be sources of rules of conduct and who at the same time cannot be equated to authorities or persons who can make law, in the strict sense in which it is understood in jurisprudence. A direction may mean an order issued to a particular individual or a precept which many may have to follow. It may be a specific or a general order. One has also to remember that the source of power in this case is the Constitution, the highest law of the land, which is the repository and source of all legal powers and any power granted by the. Constitution for a specific purpose should be construed liberally so that the object for which the power is granted is effectively achieved. Viewed from this angle it cannot be said that any of the provisions of the Symbols Order suffers from want of authority on the part of the Commission, which has issued it.
We are not satisfied with the submission that the several evils, malpractices etc. which are alleged to be existing amongst the political parties today are due to the Symbols Order which recognises political parties and provides for their registration etc. The reasons for the existence of such evils, malpractices, etc., are to be found elsewhere. The surer remedy for getting rid of those evils, malpractices, etc., is to appeal to the conscience of the nation. We cannot, however, set aside the Symbols Order on the grounds alleged in the petition."
While lust of power, as- we have noticed earlier, can be found as a cause present in every political party during the elections to lead the political party in power to abuses of its authority, it will be too much to think that any and every action that a Government shall take during the elections will be afflicted by the lust and shall in no way be an independent exercise of the constitutional or legal authority in the public interest. Each decision of the Government of the time cannot be taken as one for advancing its poll prospects.
Learned counsel for the Commission has not disputed the proposition that there may be situations when a Government may require to rush with the relief to the people in a particular area, the Government may be required to take some immediate decisions to save people from starvation and from other calamities. Elections or no elections, when something is required to be done in the interest of the people no one in authority will come forward to stop it. As the Constitution has given to no one such absolute power, it cannot give to the Commission absolute power to forbid the Government from taking a policy decision.
We have good reasons to think that there is least possibility of any particular party being benefited by the export of cotton. The Government in the Centre is that of Congress Party, the Government in the State of Andhra Pradesh is that of the Telugu Desam Party, Gujarat Government is that of the Bharaliya Janata Party. They are opposed to each other and they are not in coalition with each other in any State. Though it is a thin line as the Supreme Court has pointed out, but one can see clearly when a political party-in-power in any State or the Centre can benefit itself by some governmental act which is done in the name of the people and in the interest of the people and when, by such an act, it cannot benefit itself. This Court has the occasion to deal with a case in which the sitting Members of Parliament are allotted rupees one crore for being spent in ''local area development scheme'' and noted that such expenditure by Members of Parliament belonging to any particular party or even independent Members of Parliament be one affecting the fairness of the elections. One can see that a Member of Parliament reaching the people to help them with such schemes can canvass and say it was he or his party which alone could do such favour to them. The instant case, in our opinion, is the opposite. More than one State Government and the Union Government have felt the necessity of an immediate export policy decision for protecting the cotton growers. Election Commission has almost decreed against the views of the State Government and the Union Government without assigning any reason. Imminency of the danger and promptness in taking a decision to avoid the danger were obviously ignored by the Election Commission. Nothing has been shown to us on behalf of the Election Commission why it thought that a policy decision to export cotton during the period of elections shall advance the prospects of any political party.
It is difficult to concede such power to the Election Commission that as and when it shall like, it shall interfere with any Government decision. In the instant case, however, the Union of India has to take substantial blame for inviting a decision by the Election Commission before it decided on its own the policy whether to export. It went to the Commission for some sort of clearance for which we have not found any provision anywhere. Somewhere someone thought to be extra cautious and decided that before a policy decision was taken, Commission''s clearance should be taken. Commission readily assumed jurisdiction, We have good reason to hold that reference of the matter to the Commission by the Union of India was wholly uncalled for. We have equally good reasons to hold that Commission''s assuming jurisdiction was uncalled for. Proceeding on the assumption that the Commission shall have such jurisdiction and that there is some justification for the Union Government to approach the Commission for its clearance, we have good reasons to hold that Commission has acted against the norms of fair-play and the principles of natural justice. In Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, it has been pointed out when a power is to be exercised of necessity and is exercised as ancillary or residuary to the power of control, it should be exercised in accordance with the rules of fair-play and principles of natural justice. Election Commission had before it the representations of more than one Governments of the States and that of the Union of India and they had stated reasons why they wanted an immediate decision. Commission was also informed that the decision to export cotton was not likely to benefit any political party. Why then Commission thought otherwise?, is not stated anywhere. Along with two well known principles of natural justice i.e., Audi Alteram Partem and Nemo Debet Esse Judex in Propria Causa, the third rule or principle which is necessarily present in any decision making, whether of a quasi judicial authority or an administrative authority, is the rule of assigning the reasons why a particular decision is taken by it. In a case in which representations clearly stated why a prompt decision was required, the least that Election Commission was expected to do was to see whether it had any information to think otherwise and if it had any information to think otherwise, it was required to inform the Government that the informations it had were not in favour of a prompt decision by the Union of India on the question whether there should be export of cotton during the period of election or not.
There is another disturbing statement that Commission appears to have made in a communication by it to the Government of India. The communication reads as follows :
"The Commission has full consideration and wants to avert any loss to the farmers which could be created by the absence of offtake of the stocks and consequent serious fall in the prices. The Commission, however, feels that the remedy to prevent this, is not through immediate export but to make sure that the cotton stocks are procured through the agencies at the fixed support price.
The agencies, namely, Cotton Corporation of India and the State Corporative/Marketing Federation should be advised to procure the cotton stocks so that the farmers are not put to any difficulty for non-procurement. The export of the procured stocks can be taken up after the completion of the election process."
One can understand that Commission had some reasons not to allow the Government of India to take any decision as to export of cotton. How, however, Commission got the authority to ask the Government of India to make sure that the cotton slocks were procured through the agencies at the fixed support price. One gets the feeling that Commission has almost substituted itself for the Government of India and decided what it never wanted Government of India to decide. Learned counsel for the petitioner and learned Advocate General have contended that the Commission''s advice besides being uncalled for is against the interests of the farmers. When Commission has made such an observation, it has ignored altogether the information it had from the Minister of Textiles. Government of India, that the Chief Minister of Andhra Pradesh had been repeatedly telephoning him and writing to him regarding low prices of cotton in Andhra Pradesh, "despite earlier intervention by the Cotton Corporation of India" and, "Even the 20,000 bales allotted to the A.P, Co-Op. Federation and Girijan Co-op, of A.P. have not been acted on, due to various problems and management difficulties in these agencies".
Having considered the matter in all the aspects and in the light of the stand of the Election Commission before us, we are satisfied that it is a fit case for a direction to the Government of India to decide on export of cotton forthwith and to restrain the Election Commission from interfering with the decision in respect of the export of cotton. Any direction to the contrary by the Election Commission is declared invalid and inoperative.
With the directions as above, the writ petition is disposed of.
Order accordingly.