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Madras HC censure on Covid polls: Dissenting EC was keen to put views in affidavit, denied

The EC issued a statement that the "Commission always has appropriate deliberations before any decisions are taken.”

CEC Sushil Chandra (left) and EC Rajiv Kumar. (Express Photo)

So sharp was the difference in opinion between the two Election Commissioners over the response to the censure by the Madras High Court that the dissenting EC wanted to put his views on record in a separate affidavit, The Indian Express has learned.

However, the Election Commission rejected his suggestion and didn’t file his affidavit with the Madras High Court. The dissenting EC’s subsequent request to attach his separate affidavit to the Special Leave Petition (SLP) filed in the Supreme Court against the Madras High Court’s “murder-charges” remark was also ignored.

The Indian Express had first reported Wednesday that the poll panel’s plea in the Madras High Court to gag the media from reporting oral observations of judges and its SLP in the top court were not unanimously approved by the Commission.

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One of the commissioners, it is learned, did not entirely agree with the affidavit’s contents in Madras HC and the SLP in the SC.

Reacting to the report on Wednesday, the EC issued a statement that the “Commission always has appropriate deliberations before any decisions are taken.”

After Sunil Arora’s retirement as Chief Election Commissioner (CEC) on April 12, the three-member Commission has Sushil Chandra as CEC and Rajiv Kumar as Election Commissioner. The position of the third commissioner is vacant.

According to Section 10 of The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991, all business of the EC “shall, as far as possible, be transacted unanimously”.

This provision states that in case the “Chief Election Commissioner and other Election Commissioners differ in opinion on any matter, such matter shall be decided according to the opinion of the majority”.

However, the law is ambiguous on who will prevail in case of difference of opinion when there are only two commissioners in the EC as is the case now. Hence, it’s not clear if the affidavit and SLP approved by only one of the two ECs can be taken to represent the view of the commission or not.

The disagreement within the commission stems from the Madras High Court’s strong observations on April 26 against the EC for “not stopping political parties” from violating Covid protocols during their campaign rallies last month. In its oral observations, the HC lamented that perhaps murder charges should be imposed on the panel for being “the only institution responsible for the situation that we are in today”.

The EC went back to the Madras High Court with a plea seeking directions to be issued to the media to confine their reports to observations recorded in orders or judgments and refrain from reporting oral statements made during court proceedings since the remarks had caused grave prejudice. The HC didn’t entertain the plea.

The poll watchdog eventually went to the apex court last week against the Madras HC’s remarks. In its SLP, the EC said that the oral comments made by judges during a hearing were reported as the “views of the Court”, which amounts to “undermining the Constitutional authority of the Hon’ble Court” as some see the court as “exceeding the boundaries of judicial propriety.”

Hearing the matter Monday, the apex court said that the observations made by judges while hearing cases are in the “larger public interest” and the media cannot be stopped from reporting them.

Justice M R Shah remarked that “sometimes when something is observed, it is for the larger public interest. They (judges) are also human beings. Sometimes they are frustrated, angered.” Asking the Commission to take it in the “right spirit”, he added that “your subsequent decisions after the remarks, matter”. The SC’s order in this matter is expected Thursday.

On Wednesday, the EC said it is “sincerely committed to its faith in free media.” “The Commission as a whole and each one of its members recognise the positive role played by media in the conduct of all elections in the past and present and in strengthening electoral democracy in the country. The Election Commission was unanimous that before Hon’ble Supreme Court there should not be any prayer for restriction on media reporting,” the poll panel said.

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