Stumped by early faces in the fray, Election Commission stares at gaps in poll spend rules

The declaration of early candidates has exposed gaps in the EC’s poll expenditure monitoring rules that stipulate accounting of candidates’ spending from the date of their nomination and not even announcement of the polls, which is expected in these states in October.

When asked why the BJP candidates in MP were announced early, state BJP secretary Rajneesh Aggarwal had told The Indian Express that the decision was taken to stem infighting in the party unit as there were many ticket hopefuls.

During its current visit to Bhopal, the three-member Election Commission of India was on Monday urged by the Congress to include the expenditure incurred by the 39 BJP candidates before the official start of the election period in their account.

The Congress also alleged that Madhya Pradesh Chief Minister Shivraj Singh Chouhan was campaigning in support of these candidates on government expenses and misusing the state machinery, which is not allowed when the Model Code of Conduct (MCC) is in force with the announcement of the election schedule.

On August 21, the ruling BRS in Telangana also announced candidates for 115 of the state’s total 119 Assembly constituencies. Retaining all his ministers and senior MLAs as candidates, Chief Minister and BRS supremo K Chadrashekar Rao or KCR declared he will contest from two seats.

According to Section 77 (1) of the Representation of the People Act, 1951, candidates are expected to keep an account of expenditure incurred on the elections from the “date on which he has been nominated” till the “date of declaration of the result”.

The EC’s former legal advisor S K Mendiratta said Section 77 (1) of the RP Act was amended in 1974 to provide that expenditure of a candidate is accounted from the date of filing nomination with the Returning Office. This, he said, was done in the context of the election petition against Indira Gandhi that was then pending before the Allahabad High Court.

“Prior to that, the expenditure was counted from the date the candidate declared himself as a candidate, but that was a vague provision as no definite date was prescribed in law,” Mendiratta said.

When asked about the Madhya Pradesh Congress’s complaint to the EC, former Chief Election Commissioner (CEC) O P Rawat said the early naming of candidates raised a challenge to the poll body.

“Rules are clear that expenditure shall be accounted for from the date a candidate files his or her nomination after notification. The Model Code of Conduct would come into force from the date the poll schedule is announced. The BJP has innovated this time by announcing 39 candidates before these dates, disturbing the level-playing field and posing a challenge to EC. If these 39 candidates eventually file their nominations from the declared seat they get the advantage of campaign days as well as money spent,” said Rawat.

This issue had been deliberated upon by the Law Commission, which in its 2015 report on electoral reforms recommended an amendment to Section 77. Listing the loopholes in the sections pertaining to election expenditure, the law panel’s report stated: “The scope of Section 77(1) is very narrow and applies only from the date of nomination to the date of declaration and thus any expenditure incurred in the remaining period is exempt from any limit or regulation.”

The Law Commission recommended that “Section 77(1) of the RPA should be amended to extend the starting time period of the regulation of the election expenditure from the current date of nomination to the date of notification of elections, extending to the date of declaration of results,”

Asked whether an amendment was required to Section 77, Mendiratta said he agreed with the Law Commission’s recommendation.