IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 W.P.(C).No.8178 of 2011(S) --------------------------------------------- PETITIONER:- -------------------- RAJAJI MATHEW THOMAS, S/O.P.K.THOMAS, AGED 54 YEARS, THENGUVILAYIL HOUSE KANNARA P.O., THRISSUR DISTRICT BY ADV. SRI.P.DEEPAK. RESPONDENTS:- ------------------------- 1. THE ELECTION COMMISSION OF INDIA, NEW DELHI-110001 2. THE CHIEF ELECTORAL OFFICER, KERALA, THIRUVANANTHAPURAM,PIN-695001 3. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. 4. PRINCIPAL SECRETARY, DEPARTMENT OF FOOD AND CIVIL SUPPLIES, SECRETARIAT,THIRUVANANTHAPURAM, PIN-695001 R1 & R2 BY STANDING COUNSEL SRI.MURALI PURUSHOTHAMAN R3 & R4 BY ADDITIONAL ADVOCATE GENERAL SRI.RANJITH THAMPAN I/B. GOVERNMENT PLEADER SRI.HANIL KUMAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/03/2011, THE COURT ON 21/03/2011 DELIVERED THE FOLLOWING:- W.P.(c).No.8178 OF 2011-S APPENDIX PETITIONER'S EXHIBITS:- ------------------------------------- EXT.P1 - TRUE COPY OF THE GOVERNMENT ORDER NO.11/2010/F.P.D. DATED 25.05.2010. EXT.P1(a) - TRUE TRANSLATION OF EXT.P1. EXT.P2 - TRUE COPY OF G.O.(MS).NO.36/2010/ DATED 29.10.2010. EXT.P2(a) - TRUE TRANSLATION OF EXT.P2. EXT.P3 - TRYE COPY OF THE G.O.(MS).NO.02/11 DATED 5.1.2011. EXT.P3(a) - TRUE TRANSLATION OF EXT.P3. EXT.P4 - THE RELEVANT EXTRACT OF THE BUDGET SPEECH OF THE HON'BLE FINANCE MINISTER. EXT.P4(a) - TRUE TRANSLATION OF EXT.P4. EXT.P5 - TRUE COPY OF THE GOVERNMENT ORDER G.O.(MS).NO.11/2011 DATED 25.2.2011. EXT.P5(a) - TRUE TRANSLATION OF EXT.P5. EXT.P6 - TRUE COPY OF THE FORM FOR SELF DECLARATION OF THE ELIGIBILITY TO GET THE BENEFIT OF THE SUBSIDIZED RICE SCHEME. EXT.P6(a) - TRUE TRANSLATION OF THE EXT.P6. EXT.P7 - TRUE COPY OF RELEVANT PAGES OF THE MODEL CODE OF CONDUCT FOR GUIDANCE OF POLITICAL PARTIES AND CANDIDATES. EXT.P8 - TRUE COPY OF THE DECISION REPORTED IN 2006 (2) KLT 137. EXT.P9 - TRUE COPY OF THE DECISION REPORTED IN 2006(2) KLT 454. EXT.P10 - TRUE COPY OF THE LETTER DATED 10.03.2011 ISSUED BY THE HON'BLE MINISTER FOR FOOD AND CIVIL SUPPLIES. - 2 - RESPONDENT'S ANNEXURES:- -------------------------------------------- ANNEXURE-A - THE PHOTO COPY OF THE LETTER NO.EL/-14726/2011 DATED 4.3.2011 OF THE DISTRICT COLLECTOR, KOLLAM TO THE 2ND RESPONDENT. ANNEXURE-B - PHOTO COPY OF THE LETTER NO.P1/12128/11 DATED 7.3.2011 OF THE DISTRICT COLLECTOR, KANNUR. ANNEXURE-C - PHOTO COPY OF THE LETTER DATED 7.3.2011 OF SHRI.K.SUDHAKARAN, MEMBER OF PARLIAMENT (LOK SABHA) ADDRESSED TO THE 2ND RESPONDENT. ANNEXURE-D - PHOTO COPY OF THE LETTER DATED 7.3.2011 OF SHRI.A.P.ABDULLAKUTTY ADDRESSED TO THE 2ND RESPONDENT. ANNEXURE-E - ENGLISH TRANSLATION OF ANNEXURE-D. ANNEXURE-F - PHOTO COPY OF THE COMPLAINT DATED 3.3.2011 SUBMITTED BY SHRI.PN.VIDHYASAGAR BEFORE THE 2ND RESPONDENT. ANNEXURE-G - ENGLISH TRANSLATION OF ANNEXURE-F. ANNEXURE-H - PHOTO COPY OF THE RELEVANT PORTION OF THE NOTE FILE 3393/D2/11/F.C.S.D. WITH THE NOTES OF THE SECRETARY, FOOD AND CIVIL SUPPLIES WITH THE DIRECTION/ENDORSEMENT OF THE 2ND RESPONDENT DATED 7.3.2011. ANNEXURE-I - ENGLISH TRANSLATION OF ANNEXURE-H. ANNEXURE- J - PHOTO COPY OF THE LETTER NO.3/GE-KERALA/2011 DATED 7.3.2011 OF THE 2ND RESPONDENT TO THE 1ST RESPONDENT. ANNEXURE-K - PHOTO COPY OF THE COMMUNICATION NO.437/KL-LA/2011 DATED 11.3.2011 ISSUED BY THE ELECTION COMMISSION OF INDIA TO THE CHIEF ELECTORAL OFFICER. ANNEXURE-L - PHOTO COPY OF THE LETTER NO.141/2011/LO DATED 8.3.2011 RECEIVED BY THE 1ST RESPONDENT FROM SHRI OOMMEN CHANDY, LEADER OF OPPOSITION, KERALA LEGISLATIVE ASSEMBLY. ANNXURE-M - PHOTO COPY OF THE LETTER DATED 11.3.2011 RECEIVED FROM SHRI.D.ARAVINDAKSHAN, GENERAL SECRETARY, KERALA STATE SERVICE PENSIONERS ASSOCIATION BY THE 1ST RESPONDENT. - 3 - ANNEXURE-N - PHOTO COPY OF THE LETTER DATED 14.3.2011 RECEIVED FROM SHRI.D.ARAVINDAKSHAN, GENERAL SECRETARY, KERALA STATE SERVICE PENSIONERS ASSOCIATION BY THE 2ND RESPONDENT. ANNEXURE-O - PHOTO COPY OF INSTRUCTIONS NO.437/6/1/2011-CC&BE ISSUED BY THE ELECTION COMMISSION OF INDIA SUPPLEMENTING THE MODEL CODE OF CONDUCT ON 1.3.2011. ANNEXURE-P - PHOTO COPY OF THE LETTER NO.2815/D2/09/F&CD DATED 13.3.2009 OF THE 4TH RESPONDENT TO THE 2ND RESPONDENT. ANNEXURE-Q - PHOTO COPY OF THE LETTER OF THE 1ST RESPONDENT NO.437/KL-HP/2009/5961 DATED 3.4.2009 TO HON'BLE CHIEF MINISTER OF KERALA. ANNEXURE-R - PHOTO COPY OF THE LETTER NO.437/KL/2011 DATED 17.3.2011 OF THE 1ST RESPONDENT ADDRESSED TO THE HON'BLE CHIEF MINISTER, KERALA. - TRUE COPY - J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. --------------------------------------- W.P.(C) No.8178 of 2011 --------------------------------------- Dated this the 21st day of March, 2011 JUDGMENT J.Chelameswar, C.J. The writ petition is filed with the prayers as follows: “i) Issue a writ in the nature of mandamus commanding the respondents 1 and 2 not to interfere with the implementation of the subsidized rice distribution scheme as per Ext.P4 and P5. ii) Declare that action of the 2nd respondent in interdicting the implementation of the subsidized rice distribution scheme formulated as per Ext.P4 and P5 is without authority and non est. Iii) Issue such other orders, writs or directions as are deemed fit by this Hon'ble Court. iv) award cost of this proceedings to the petitioners”. 2. The petitioner is a member of the Legislative Assembly of the State of Kerala. 3. Elections to the Legislative Assembly of the State of Kerala are due. The Election Commission of India (1st respondent) announced the election schedule on 1st March, 2011. By a communication dated 1st March, 2011 from the Election Commission of India, the Chief Secretary and the Chief Electoral W.P.(C).No.8178 of 2011 - 2 - Officers of the State of Kerala were informed as follows: “I am directed to state that the Commission has announced the schedule for holding General Elections to the Legislative Assemblies of the States of Assam, Kerala, Tamil Nadu, West Bengal and Union Territory of Puducherry. 2. With this announcement, the provisions of the Model Code of Conduct for the guidance of Political Parties and Candidates have come into force with immediate effect. This may be brought to the notice of the Government, all Ministries/Departments and all other offices of the Union Government and the State Governments of Assam, Kerala, Tamil Nadu, West Bengal and Union Territory of Puducherry.” 4. The Model Code of Conduct referred to above is filed as Ext.P7 to the writ petition. What is relevant in the context of the present controversy is clause VII which reads as follows: “The Party in power whether at the Centre or in the State or States concerned, shall ensure that no cause is given for any complaint that it has used its official position for the purposes of its election campaign and in particular- 1. a. The Ministers shall not combine their official visit with electioneering work and shall not also make use of official machinery or personnel during the electioneering work; W.P.(C).No.8178 of 2011 - 3 - b. Government transport including official air-crafts, vehicles, machinery and personnel shall not be used for furtherance of the interest of the party in power; 2. Public places such as maidans etc., for holding election meetings, and use of helipads for air-flights 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; 3. 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 candidates 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; 4. 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 candidates 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; 5. Ministers and other authorities shall not sanction grants/payments out of discretionary funds from the time elections are announced by the Commission; and W.P.(C).No.8178 of 2011 - 4 - 6. From the time 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. (except civil servants) 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. Note: The Commission shall announce the date of any election which shall be a date ordinarily not more than three weeks prior to the date on which the notification is likely to be issued in respect of such elections. 7. Ministers of Central or State Government shall not enter any polling station or place of counting except in their capacity as a candidate or voter or authorised agent.” 5. The Government of Kerala issued an order in G.O. (MS).No.11/2001 dated 25.2.2011, a translated copy of the same is filed as Ext.P5(a) to the writ petition, the relevant portion of which reads as follows: “As per the above mentioned government orders the Kerala Government approved the scheme for providing rice at the rate of W.P.(C).No.8178 of 2011 - 5 - Rs.2 per kilogram is extended to all the ration card holders including the persons categorized as BPL and APL, fishermen, scheduled cast, scheduled tribe persons and families of Asraya Scheme, workers of traditional industries including 40 lakh families, working under the national employment guarantee scheme. Major part of Public depends for food grains the Civil Supplies Corporation considering rise in the price of food grains necessitated the introduction of subsidized rice distribution scheme by the government. In these circumstances the government approved the scheme for providing rice at the rate of Rs.2 per kilogram to all the ration card holders subject to some conditions and issued orders. The following ration card holders are not entitled to the benefit of the scheme. 1. Those families having more than 2.5 acres landed property. 2. Those having more than Rs.25,000/- monthly income. 3. Those having house of more than 2500 square feet. Those who are entitled the benefit of this scheme shall produce self attested affidavit with photo. Not to produce any special certificate regarding this. For that purpose the application form should be distributed by the Director of Civil Supplies and to ensure that the benefit of the scheme is obtained by all the beneficiaries of the scheme.” 6. Pursuant to the issuance of the said order, it appears that some complaints were received by respondents 1 and 2 from various quarters including a sitting Member of W.P.(C).No.8178 of 2011 - 6 - Parliament, two members of the Legislative Assembly of whom one is the former Chief Minister of Kerala and others. The District Collectors of Kollam and Kannur also sought certain clarifications from respondents 1 and 2. The relevant portion of the letter from the Collector of Kollam addressed to the second respondent indicates the nature of the clarification sought which reads as follows: “As per the Govt. order read as ref.1st above, the Civil Supplies Department issued administrative sanction to extend the benefit of allowing ration supply @ of Rs.2/- to the APL mass belongs to the following categories also. 1. Fishermen belongs to APL Families 2. Families belongs to SC/ST of Ashraya Projects 3. Labourers worked at least 50 days in NREGP (National Rural Employment Guaranteed Programme) 4. Peoples belongs to inorganized and traditional sectors. Government seems that the above ration scheme will benefit to 40 Lakhs families of the entire state. Subsequent to the above Govt. Order, the Director of Civil Supplies instructed vide letter read as paper 2nd above that to prepare the list of beneficiaries comes under the scheme and to furnish the progress report on the same to the Director of Civil Supplies in every week. W.P.(C).No.8178 of 2011 - 7 - In the Context of prevailing Model Code of Conduct in connection with the 2011 General Election to Kerala Legislative Assembly, it is requested to give an urgent clarification on the matter regarding whether to proceed with the Govt. order and the direction issued by the Director of Civil Supplies for implementing the ration scheme. Copies of Govt. Order and letter of Director of Civil Supplies are also submitted herewith.” 7. On the other hand, the complaint referred to above is to the effect that the decision of the State of Kerala evidenced by the above mentioned G.O.(MS)No.11/2011 dated 25.2.2011 and the implementation of the same after the coming into force of the Model Code of Conduct is in contravention of the norms contained in the Model Code of Conduct. The Leader of the Opposition who incidentally also happened to be a former Chief Minister of Kerala addressed a letter to the second respondent on 8th March, 2011 complaining against the scheme, relevant portion of which reads as follows: “Now, the State Government is making all out efforts to extend the Rs.2 per kg rice scheme to virtually all the families for which a self attested undertaking alone is insisted regarding W.P.(C).No.8178 of 2011 - 8 - monthly income (which should not exceed Rs.25,000/- pm), the area of the residential building (which should not exceed 2500 sq.feet) and land holding (which should not exceed 2.5 acres). Clearly, the intention is to woo the voters by dispensing with the BPL/APL classification. Forms of undertaking have been prescribed and government machinery is being misused to distribute these forms throughout the State. I would specifically like to underscore the fact that there is no mechanism put in place to verify the veracity of the undertaking as certificates from Revenue/LSGI's are not insisted. xxxxxx xxxxxx We would seek your kind intervention to stoutly restrain the State Government from implementing new schemes/extending existing schemes violating the Model Code. Directions may kindly be issued to ensure strict compliance with the Model Code by the State Government.” 8. On the other hand the Secretary to Government, Food and Civil Supplies Department by communication dated 5.3.2011 sought the approval of the second respondent for the implementation of the Government Order in issue. The second respondent on 7.3.2011 directed that the implementation of the Government Order in issue be deferred till the election process is W.P.(C).No.8178 of 2011 - 9 - over. In this regard it is stated at paragraph 6 of the statement filed on behalf of respondents 1 and 2 as follows: “As submitted, the Secretary to Government, Food and Civil Supplies, Kerala on 05.03.2011 sought the approval of the Chief Electoral Officer, Kerala for the implementation of Ext.P5 Government Order. In the file submitted before the Chief Electoral Officer, the Chief Electoral Officer on 07.03.2011 endorsed as follows: “Extension of the scheme to new beneficiaries as per G.O.No.11/2001/F&CS dated 25.02.2011 may be deferred till the election process is over.” The photocopy of the relevant portion of the Note-File 3393/D2/11/F.C.S.D. with the notes of the Secretary, Food and Civil Supplies with the direction/endorsement of the 2nd Respondent dated 07.03.2011 is produced herewith and marked as Annexure-H. The English translation of Annexure-H is produced herewith and marked as Annexure -I.” 9. Subsequently the second respondent addressed a communication dated 7.3.2011 to the first respondent seeking ratification of the action of the second respondent. The first respondent by its letter dated 11.3.2011 approved the action taken by the second respondent. Hence the writ petition. W.P.(C).No.8178 of 2011 - 10 - 10. The case of the petitioner is that the decision of the State Government contained in the Government order does not lay down any new policy, but it only extends an existing policy to larger number of new beneficiaries. The petitioner at paragraphs 8, 9 and 10 of the writ petition explained the evolution of the scheme. It appears from the pleading that the third respondent initially propounded a scheme that 25 kilograms of rice will be distributed at a price of Rs.2 per kilogram every month for all the ration card holders who are classified as persons below poverty line other than those who are already receiving the benefit of a centrally sponsored scheme called 'Andhyodaya Annayojana Scheme'. According to the petitioner, 15 lakhs families were benefited under the said scheme as originally propounded. Subsequently, the third respondent decided to extend the benefit of the scheme even to those who are covered by the above mentioned centrally sponsored scheme and also decided to extend the ration to 35 kilograms per month per card thereby extending the benefit to 20 lakhs card holders (families). In the next phase, the third respondent decided to extend the benefit of the above mentioned scheme to more number of people. Such a policy W.P.(C).No.8178 of 2011 - 11 - decision found an expression in the budget speech of the year 2010-11 made by the Finance Minister of Kerala. The policy was translated into action by an order of the Government in G.O.No.11/2010/FCSD dated 25.5.2010. 11. Finally, the third respondent took a policy decision to extend the benefit of the subsidized ration scheme to various other segments of the society. Such a policy decision is evidenced once again by the budget speech made by the Finance Minister in the Legislative Assembly on 10.2.2011 a copy of which is filed as Ext.P4 along with the writ petition. Pursuant to the said policy, G.O(MS).No.11/2011 dated 25.2.2011 is issued the content of which is already extracted in the earlier paragraph of the judgment. 12. The learned counsel for the petitioner therefore argued that the complaints received by respondents 1 and 2 that the implementation of the decision contained in the Government Order in issue is hit by the Model Code of Conduct is without any basis in law and not supported either by the language or the scheme of the Model Code of Conduct. It is further argued that the impugned decision is not only unauthorized by law but also W.P.(C).No.8178 of 2011 - 12 - subverts the constitutional scheme of the governance by the Government duly elected. 13. On the other hand, Sri.Murali Purushothaman, learned counsel appearing for respondents 1 and 2 argued that that the decision of the third respondent has the effect of disturbing 'the level playing field amongst the political parties who are contesting the election as it influences the voters and gives the ruling party special political benefit'. Further it is argued that such a decision is taken to ensure the purity of the election process. The said respondents are of the opinion that (as can be seen from the relevant portions of paragraphs 9 and 10 of the statement filed on their behalf) they have the power under Article 324 of the Constitution of India to interdict the decision in question of the third respondent. “The direction to defer the extension of the scheme to new beneficiaries till the election process is over has been issued to ensure a fair election and to provide a level playing ground for all political parties contesting the election. It is submitted that the Election Commission, in order to ensure purity in election has to exercise powers under Article 324 of the Constitution of India and has interdicted the extension of the scheme to new beneficiaries till the W.P.(C).No.8178 of 2011 - 13 - election process is over. Otherwise the same would offend the Model Code of Conduct and in particular Clause VII (vi)(a) thereof. The direction to defer the extension of the scheme to new beneficiaries till the election process is over has been issued with a laudable object, to ensure free and fair election. The Election Commission is the authority to enforce and ensure observance of Model Code. The Commission issues orders under Article 324 of the Constitution of India for the said purpose.” The said respondents also believe: “The energy to do public good should be used not on the eve of the election but much earlier. On the eve of the elections, political parties or candidates may come forward with tempting offers to the electorate to win their favour. There can be allegations that the party in power may misuse the Governmental machinery and its power for its partisan ends. It is now well recognized that it is for the Election Commission to provide a level playing field for all parties and to ensure that no political party gets an unfair advantage by virtue of its being in power at the time of election. The object underlying the Model Code of Conduct is that unfair advantage should not be taken by the ruling party because of its being in power to tilt the views of the electorate on the eve of the election. 14. The authority of respondents 1 and 2 to conduct elections to the Parliament and the Legislature of the State emanates from the Constitution. On more than one occasion both W.P.(C).No.8178 of 2011 - 14 - the Supreme Court and the High Courts of this country had to consider the nature and scope of such power. In Mohinder Singh Gill and another v. the Chief Election Commissioner, New Delhi and others (AIR 1978 SC 851) the Supreme Court held that Article 324 is a 'reservoir of power for the Commission to act for the avowed purpose of pushing forward, but not divorced from a free and fair election'. The question once again fell for consideration of the Supreme Court in two cases in Election Commission of India v. State Bank of India (AIR 1995 SC 1078) and Election Commission of India v. St.Mary's School & Ors. [(2008) 2 SCC 390]. In both the above mentioned decisions the Supreme Court held that though the power of the Election Commission under Article 324 is very wide it does not have untrammelled powers. In 1995 SC 1078 (at paragraph 21) the court held that the Election Commission must trace its powers either to the Constitution or the law made under Article 327 or 328. In (2008) 2 SCC 390 the Supreme Court held that the power of the Election Commission cannot be exercised in such a manner so as to defeat another constitutional obligation or in derogation of the other constitutional imperatives. This Court earlier had an W.P.(C).No.8178 of 2011 - 15 - occasion to consider the various principles laid down in the above mentioned judgments in the case of Flex Printing Owners Association of Kerala v. State Election Commission (2010 (4) KLT 662). 15. In all the above mentioned decisions it was emphatically asserted the authority of the constitutional courts under Articles 226 and 32 of the Constitution to examine the action of the Election Commission though it was cautioned that the scope of enquiry is limited. It was consistently held that the scrutiny by the Court is limited to the questions of lack of jurisdiction, arbitrariness and mala fides. 16. The learned counsel for the petitioner also relied upon two judgments of this Court reported in Babu v. Election Commission of India [2006 (2) KLT 137] and I.D.S. (India) P.Ltd. v. Chief Election Commissioner [2006 (2) KLT 454]. In the first of the above mentioned two judgments the question was whether the action of the Election Commission directing the State Government to put on hold the decision to implement the recommendations of the Pay Commission was legal. A Division Bench of this Court held as follows at paragraph 2 of the W.P.(C).No.8178 of 2011 - 16 - judgment: “In view of the budget speech and announcement of the Government that recommendations of the Pay Commission will be implemented on 10.2.2006, it cannot be stated that the decision to implement the recommendations of the Pay Commission was made after the Model Code of Conduct came into force. Even the formal decision of the cabinet was also taken on 1.3.2006, before the commencement of the election schedule. Only modalities were chalked out by the special cabinet meeting after the pronouncement of the election. Therefore, even if Model Code of Conduct came into force and implementation