CHENNAI: Era Sezhiyan, former Member of Parliament, on Tuesday said the Election Commission could only make a preliminary enquiry against a government official for violation of the model code of conduct.

In a statement here, he said only the Government, Central or State, had the jurisdiction to take disciplinary action against any official. "While Article 324(1) gives enormous powers to the Election Commission in the conduct of elections, there is a limit to the discretion of the Commission. In the Jose vs. Sivan Pillai case, the Supreme Court summarised the legal and constitutional position that where the Act or Rules are silent, the Commission had plenary powers under Article 324 to give any direction in respect of the conduct of elections."

However, it added: "Where a particular direction by the Commission is submitted to the Government for approval, as required by the Rules, it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the Government is not given." The model code, Mr. Sezhiyan said, had no statutory backing and most of its provisions were not legally enforceable.

Section 28A of the Representation of the People Act provided that the returning officer, the polling officer and any other officer appointed to the Commission during the election period were subject to its control, superintendence and discipline. Using this provision, the Commission in 1993 took disciplinary action against some observers and returning officers and censured them for dereliction in the performance of electoral duties. However, the Government of India took the view that the Commission had no power to take disciplinary action against the erring officers deployed on election duty, that the findings of the Commission could be regarded only as a preliminary enquiry and that the Department of Personnel was the authority to take disciplinary action.

Similarly, in respect of State Government officers, the authority was the State Government, Mr. Sezhiyan said.

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