J.B. PARDIWALA

As common questions of fact and law are involved in the above captioned writ-applications, those were taken-up for hearing together and are being disposed of by this common judgment and order.

The Writ Petition (PIL) No.231 of 2012 in the nature of a Public Interest Litigation is at the instance of a registered N.G.O. and the Writ Petition (PIL) No.235 of 2012 is at the instance of the Gujarat Chamber of Commerce substantially challenging the provisions of Chapters 4 and 5 of the Instructions on Election Expenditure Monitoring (2012) issued by the Election Commission of India under the purported exercise of power under Article 324 of the Constitution of India.

The case made out in the two writ-applications may be summarised as under :

1. On 3rd October 2012, the Election Commission of India announced the State Assembly Elections of Gujarat, to be held in December 2012. According to the said programme, the official notification under the provisions of Section 15 of the Representation of the People Act, 1951 shall be issued on 17th November 2012. The Election Commission of India has issued Instructions on Election Expenditure Monitoring for the forthcoming Legislative Assembly Elections.

According to the Instructions, various teams, such as, flying squad, static surveillance team, expenditure monitoring cell, etc. have been constituted. The teams which have been constituted have been empowered to intercept and search indiscriminately any vehicle or any person/individual at any time. On search, if any cash of more than Rs.2.5 lac or any other articles, such as, gold, diamonds, etc. are found from the possession of such a person, then the members of the said team have been empowered to interrogate the particular person, and if unexplained cash, without proper documents is found in the possession of any person and is suspected to be used for bribing the voters, it would be seized and action would be taken under the provisions of the law. The Instructions further provide that if cash found is more than Rs.2.5 lac and no criminality is suspected, i.e., without any election campaign material and no party functionary or worker of the contesting candidates/parties are present in the vehicle, to prove the nexus, then the members of the team would intimate about the recovery of such cash to the Assistant Director of Income Tax in charge of the district. The Assistant Director would depute the Inspector or himself and would reach at the spot for taking appropriate action according to the provisions of the Income Tax Laws.

2. The Instructions also provides that the entire exercise of checking and seizure shall be videographed by a video team, and such a video team will have to submit a copy of the video C.D. to the Assistant Expenditure Observer.

3. It is the case of the petitioners that since 3rd October 2012, i.e., the date on which the Model Code of Conduct was made applicable to the State of Gujarat, the authorities, on the strength of such Instructions issued by the Election Commission of India, have created a havoc and people at large are being put to immense difficulties, harassment and embarrassment.

4. It is also the case of the petitioners that small businessmen, farmers, etc. who have to carry cash for their day-to-day business transactions are being harassed and humiliated by such surveillance team constituted by the Election Commission of India.

5. It is also the case of the petitioners that the overall population of the State of Gujarat consists of large number of farmers and agriculturists and ancillary activities provide for the major part of the GDP of the State. The farmers of the State, on a regular basis, carry their agricultural produce to the marketing yards situated in the vicinity of their particular rural areas. These agricultural produce are sold on a regular basis as against the cash consideration. As far as cash-crops are concerned, even if a small quantity is sold by the farmers, it would fetch cas