Delivering the verdict in the Delhi excise case, Special CBI Judge Jitendra Singh ruled that the “exclusive prerogative” to examine such allegations at the threshold rests with the Election Commission of India, and that an election petition under the Representation of the People Act, 1951 remains the primary judicial remedy.
The judgment adds “criminal law, and particularly the extraordinary and coercive regimes of the Prevention of Corruption Act and PMLA cannot be employed as a substitute for election-law remedies, nor as a device to convert political accusations into prosecutable offences, unless a clear, independent, and cognisable criminal offence, wholly distinct from election-law violations, is prima facie disclosed in accordance with law. Any attempt to do otherwise would strike at the very core of constitutional democracy, erode the rule of law, and imperil the neutrality and fairness of the electoral process itself.”
Elaborating, the Court ruled that if probe agencies like CBI and ED “were permitted to enter the electoral arena merely on allegations of “cash spending”, “illegal funding”, or “unaccounted expenditure”, the inevitable consequence would be the criminalisation of electoral competition”.
It adds “such an approach would arm the executive with coercive instruments capable of influencing political outcomes, thereby eroding the level playing field that lies at the heart of free and fair elections. When such allegations are sought to be re-characterised or “dressed up” as CBI cases or PMLA proceedings, an additional and more serious constitutional concern arises”.
Underlining the concern, the special CBI Judge held “to permit the CBI to independently assume jurisdiction over election-expenditure allegations would amount to the executive arrogating to itself a supervisory role over elections, a role which the Constitution has consciously and expressly denied to it. The position is no different, and indeed more restrictive, under the PMLA. The statute cannot be set in motion in a vacuum”.
The judgment adds “it is predicated on the prior existence of a scheduled offence and the generation of “proceeds of crime” therefrom. Allegations of excess election expenditure, cash usage, or undeclared campaign spending do not, by themselves, constitute scheduled offences under the PMLA”.
