May 9, 2021 10:52:42 pm
Written By Eklavya Dwivedi
On April 26, the Chief Justice of the Madras High Court (MHC) made extremely disconcerting remarks against the Election Commission of India (ECI), attributing the ongoing spread of Covid-19 to the ECI’s alleged mismanagement and inaction in the conduct of elections. The MHC orally remarked that the ECI is “singularly responsible for the second wave of Covid-19” and it “should be put up for murder charges”. What is more disconcerting is that these disparaging remarks were not recorded in the order, so it is unclear exactly which state the Bench was referring to. This aspect assumes importance because the spread of Covid-19 in Tamil Nadu was under control when the elections were announced. It also assumes importance in light of the legal position that high courts do not have extraterritorial jurisdiction. Thus, any observations not relatable to events unfolding in Tamil Nadu would violate well-settled principles of judicial propriety and overreach.
The source of the ECI’s power stems from the Constitution of India and the Representation of Peoples Act and various Rules formulated thereunder. The ECI is empowered to issue directions to the state government and its ministries, but the general governance and administration of a state continue to rest with the state government as the Consitution does not envisage that governance and administration of a poll-going state be taken over by the ECI during elections. The Supreme Court has held that the powers of the ECI under Article 324 are meant to supplement rather than supplant the law in matters of superintendence, direction, conduct and control of all elections. In fact, the power of the ECI to conduct elections during this pandemic must be seen through the prism of the Disaster Management Act, 2005, under which appropriate guidelines are issued by the GOI/state governments for mitigating the spread of Covid-19, and it is the responsibility of the NDMA/SDMA and related ministries to implement these norms at the ground level. Pertinently, the Ministry of Home Affairs, Ministry of Health and Family Welfare, and GOI in consultation with the ECI had as far back as August 2020 issued Broad Guidelines for Conduct of General Elections or Bye-election.
Now coming to the interim order dated April 26, wherein the impugned oral remarks were made by MHC. The issues agitated in the writ petition were with respect to the counting of votes in the Assembly elections in TN. The Petitioner was aggrieved by the supposed inaction of the SEC with respect to proper arrangement and adequate safety provisioning for counting of votes in Karur constituency and had sought a mandamus directing the EC to ensure Covid protocols are followed while counting of votes. There was no pleading regarding the role of ECI in the spread of Covid or as regards on ground mismanagement and violation of Covid protocols. Contrary to the subject matter under review, the high court concluded that the ECI was unable to ensure political parties adhered to Covid protocols during campaigning and their actions were equivalent to murder. Such caustic remarks were completely uncalled for as the ECI had formulated adequate guidelines for campaigning during the pandemic and had restricted the scope of electioneering.
In February 2021, Covid cases across India had plateaued and the situation was seemingly under control. Elections to various states (Kerala, Assam, WB, TN) and Puducherry were announced by the ECI on February 26. In Tamil Nadu, the seven-day average for Covid cases in the last week of February was 456 and new cases were 481. Thus, it cannot be said that decision to conduct elections was unreasonable.
On April 16, in view of mounting Covid cases, the ECI in consultation with the relevant state authorities issued directions banning any campaign between 10 am and 7 pm, increasing the silence period before elections and issued further guidelines with respect to Covid protocols. Vide SOP dated 24.04.2021, the ECI formulated fresh protocols mandating Covid appropriate behaviour. Provisions were made for thermal scanning, to provide sanitisation at all entry and exit points. PPE kits were also provided at all counting centres. Further, on 27.04.2021 ECI issued orders prohibiting victory processions, and not more than two persons were allowed to accompany the winning candidate to receive a certificate of election from the concerned Returning Officer.
The purpose of reproducing these guidelines is to show that the ECI was constantly monitoring the Covid situation at ground level, and putting its best foot forward to ensure the election process is not hamstrung. ECI officers themselves were not spared from the wrath of Covid-19. Many of its officers contracted this deadly virus and had to be replaced. Despite this, the ECI continued to discharge the onerous task of conducting elections in various states. Juxtapose this with the fact the mega rallies, where Covid-19 safety protocols were violated, were taken out by either the ruling party at the Centre or the incumbent state government. Thus, the authorities responsible for ensuring adherence to safety norms were the ones flouting the guidelines.
The principle of judicial restraint is not a new concept in Indian jurisprudence. Innumerable judgments of our courts have expounded on this Montesque-ian principle. Frankfurter, J. of the US Supreme Court dissenting in the controversial expatriation case of Trop v. Dulles [2 L Ed 2d 630: 356 US 86 (1958)], observed that “Judicial power is not immune to this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint.” The aforestated principle is usually relied upon to check judicial encroachment upon powers of the legislature or executive.
The Supreme Court has held that harsh and disparaging remarks ought not to be made by the courts against persons and authorities whose conduct comes into consideration before the courts unless necessary for the decision of the case. Judges must act with sobriety, moderation and restraint.
Underscore the above thought with the fact that there is no data available or indeed placed before the MHC which shows that poll-going states and non-poll going states are differently affected by Covid, and campaigning has been a significant factor in the escalation of Covid spread. In fact, the worst affected states — Delhi, Maharashtra, Karnataka, UP — have not had any campaigning or rallies taken out. Therefore, without any data or empirical evidence, it was inappropriate for Madras High Court to castigate the ECI, holding it to be “singularly” responsible for the second wave of Covid-19.
The institutional integrity of ECI and the personal integrity of the officers working for the institution are not mutually exclusive. Inappropriate and arbitrary remarks against a high authority like the ECI has the effect of denigrating and tarnishing the image of its officers as well, and such indulgences are not in good taste. Its officers, at the risk of their own lives, have played a huge role in ensuring that the democratic values envisaged under the Constitution are kept alive despite Covid related marginalisations.
In today’s times, with all-pervasive access given to media and ubiquitous nature of information being relayed across print, electronic and social media, the judges of our Courts, perhaps, ought to be extra careful in making off the cuff remarks unrelated to the issue under review. ECI’s status as a high constitutional authority must be maintained and protected from arbitrary remarks which have the potential to denigrate its status and effective functioning. The duty of restraint and the humility of function has to be the constant theme for a Judge, for the said quality in decision-making is as much necessary for the Judges to command respect as to protect the independence of the judiciary.
The writer is an advocate working in the Supreme Court, high courts and tribunals in India
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