The Supreme Court stay on Election Commission’s decision to disqualify Narottam Mishra for grave electoral offences has once again underlined the deficiency of our legal system. The Apex Court directed Delhi High Court to dispose of Mishra’s petition preferably within two weeks. Without waiting for the outcome of his petition, Mishra resumed his work as Madhya Pradesh Minister of Public Relations, Legislative Affairs and Water Resources.

The Election Commission (EC) held Mishra guilty of an offence under Section 171H of the Indian Penal Code, 1860 for issuing ‘direct appeals’ which appeared in his name, containing his photograph, and were published on the day of the poll, November 27, 2008. In his account of election expenses, Mishra had left the column on ‘campaign through electronic/print media’ blank and accordingly, the EC held, he had knowledge of and impliedly authorised publication of the ‘impugned advertisements’ within the meaning of section 77 of the Representation of People Act, 1951.

Mishra was also found by the EC to not have disclosed all his expenditures properly. It says, ‘the guidelines for maintenance of day to day accounts of election expenditure clearly stipulate that goods or services received in kind like vehicles, posters, pamphlets, media advertisement, helicopters, aircrafts etc from party or any person/body/association’ must be detailed in Part A of the accounts. Therefore the Commission said even if it were to accept Mishra’s argument that he did not pay for the alleged advertisements that supported his candidature, ‘he clearly derived benefit from the same and was thus obliged to have included a notional estimate of such expenditure in his day to day accounts register, but has failed to do so.’

In its 69-page decision of June 23, EC report includes a list of the stories that appeared in these papers – with headlines that sound unlike any news report. Here’s a sample: ‘Kshetra ke vikas ke liye Narottam Mishra ki jeet zaroori (Narottam Mishra’s victory is necessary for the development of the region)’, ‘Datia ka vikas Narottam ke haath (The progress of Datia is in Narottam’s hands)’; ‘Rozgar ka sapna pura karenge Narottam (Narottam will fulfil our livelihood dreams)’; ‘Sabke dil par chaa gaye Narottam (Narottam has won everyone’s hearts)’; the list goes on and on. The EC report goes on to document how identical reports with the identical headlines were published in multiple editions of big newspapers. The decision was taken unanimously by EC comprising (then) Chief Election Commissioner Nasim Zaidi and Election Commissioners A K Joti and O P Rawat.

Mishra moved a petition in the Gwalior bench of Madhya Pradesh High Court to obtain a stay order against his disqualification. He was refused though the High Court agreed to hear his petition. A petition on an issue related to Mishra’s disqualification was moved by a mysterious person in the principal bench of High Court at Jabalpur and Chief Justice Hemant Gupta hastily transferred Mishra’s petition from Gwalior bench to Jabalpur bench. Rajendra Bharti, who had lost to Mishra in the 2008 Assembly elections (from Datia constituency) and was the complainant to the Election Commission about Mishra’s ‘paid news’ activities, smelt a rat and moved the Supreme Court and got Mishra’s petition  transferred from Madhya Pradesh High Court to Delhi High Court where a single bench refused to grant stay to Mishra. He made an appeal before a division bench of Delhi High Court but again was denied a stay though the division bench agreed to hear his petition in August. Desperate to get a stay, Mishra then moved Supreme Court.

The Supreme Court on July 28 kept in abeyance the June 23 the order of the Election Commission. The apex court said, “We are of the opinion that the matter involves substantial questions of law regarding the interpretation of various provisions of the Representation of People Act (Sections 10A, 77, 78, 123 etc).”In the circumstances, we are of the opinion that the ends of justice would be met in the instant case by requesting the High Court of Delhi to hear the above-mentioned LPA expeditiously preferably within a period of two weeks from today.” The bench said, “We also deem it appropriate, in the circumstances, to keep the operation of the order of the Election Commission dated June 23, 2017, referred to supra, in abeyance”. The apex court, however, made it clear that it had not expressed any opinion regarding any question or any matter on merits.

What was lacking in the Apex Court’s order was whether Mishra could function as full-fledged Cabinet Minister of Public Relations, Legislative Affairs and Water Resources and take decision till his petition is finally disposed of by the Delhi High Court. Such vague stay orders are liable to be misused for taking decisions not in the interest of the country or the people. Prime Minister Indira Gandhi was elected to Lok Sabha from Rae Bareli constituency. She was disqualified by Allahabad High Court on the ground of electoral malpractices in June 1975. She was given a stay by the Supreme Court. Thereafter, how she imposed Emergency and played havoc with various limbs of democracy like the Judiciary, the Legislature and the Press is part of the not-too-distant history.