The Supreme Court has reiterated that an elected representative cannot be unseated on mere charges that he won the election through electoral malpractice and corruption unless the charges are proved “beyond reasonable doubt like a criminal charge”.
A bench of Justice D.K. Jain and Justice P. Sathasivam emphasised this legal principle while dismissing a lawsuit challenging the election of former Bharatiya Janata Party (BJP) MP Manikrao Sivaji Kokate, who won the 2004 Lok Sabha election from the Sinnar constituency in Maharashtra.
“A charge of corrupt practice is equated with a criminal charge and therefore the standard of proof for it would not be preponderance of probabilities as required in adjudication of a civil suit but a proof beyond reasonable doubt as needed in a criminal trial,” said the bench while dismissing the lawsuit filed by runner-up United Progressive Alliance (UPA) candidate Tukaram Dighole.
“If a stringent test of proof is not applied, a serious prejudice is likely to be caused to the successful candidate whose election would not only be set aside, he may also incur disqualification to contest an election for a certain period, adversely affecting his political career,” the bench observed in the verdict released last week.
“Thus, a heavy onus lies on the election petitioner to prove the charge of corrupt practice in the same way as a criminal charge is proved,” the bench held.
Dighole, who had lost the October 2004 byelection to the Lok Sabha by around 20,000 votes, had challenged Kokate’s election. He charged that during Kokate’s campaign, the eventual winner had told Maratha voters they should vote for him because he belonged to the same community.
In support of his allegations, Dighole had submitted to the court audio cassettes of Kokate’s speeches that he claimed he had procured from the Election Commission of India (ECI), which had recorded them while monitoring the election process.
Dighole, however, had submitted no additional evidence to substantiate the contents of the cassettes or to prove that it was Kokate’s voice. Nor had he submitted to the court a receipt showing that he had procured the cassettes from the ECI, contending that it was a public document, procured from a public authority.
Rejecting Dighole’s total reliance upon the cassettes to make his charge, the apex court reiterated that courts must be cautious in relying upon the electronic evidence like audio or video tapes.
“There is no doubt that the new techniques and devices are the order of the day. Audio and video tape technology has emerged as a powerful medium through which a first hand information about an event can be gathered and in a given situation may prove to be a crucial piece of evidence,” said the court.
“At the same time, with fast development in the electronic techniques, the tapes/cassettes are more susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and, therefore, such evidence has to be received with caution.”
The bench said: “Though it would neither be feasible nor advisable to lay down any exhaustive set of rules by which the admissibility of such evidence may be judged but it needs to be emphasised that to rule out the possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence.”
Winning election through malpractice is a difficult one to prove as it is very clear that many will be involved in this con. Examining them through the usual legal process, will certainly have witnesses turning hostile, pleas being changed, making the whole process a not-so-easily-synthesized exercise.
However most corrupt practices will leave an effect and is very easily established by searching for the cause. A simple reversal of cause and effect to effect and therefore the cause. This is easier in the case of a bureaucrat or a judge as they have certain jobs to perform (if so and so job isn’t performed/performed well) the ulterior motive is established. All the circumstances now point towards this and therein lies the proof.
In the case of an MP/MLA, there is no specific job for him to do or time frame, except debate in Parliament, be heckled or have slippers thrown at by fellow MP’s (telecast for all to see), hold a portfolio with nary an idea about it, hold regal lunches and dinners, fly around the country and abroad as per whim at the cost of the exchequer and in the name of the Aam Aadmi (Mango Man) who he represents. All this money/clout at his disposal and the work free time available make for the Devil’s Workshop and provides him the means to cook up one corrupt deal after another. When all the bad apples are put together (congregate for the Parliament sessions) irrespective of party differences they interact to make these deals fruitful.
The only way this can change and the Aam Aadmi (Mango Man) win, is to localize all decision making, be it judicial, bureaucratic or ministerial. Absa-bloomin-lutely no need for the Aam Aadmi to take the Garib Rath to Delhi to find justice, get a job done, or for that matter, get to legislate/constitute/enact a statuette. Gandhiji’s Panchayathi Raj. But for heaven’s sake do not allow idiots in the fray even at this level.