Updated: May 25, 2021 8:35:18 pm
Written by Tarun Agarwal and Tanishk Goyal
On May 11, 2021, the Allahabad High Court expressed its strong displeasure at the State Election Commission for having failed in its duty to foresee the disastrous consequences of holding panchayat elections amidst the recent surge of the Covid-19 pandemic. This criticism drawn by the Election Commission is however, not unprecedented. Earlier, the Madras High Court had also attributed the spread of the second wave of Covid-19 to the Election Commission.
In its Special Leave Petition before the Supreme Court and its submissions before the Allahabad HC, the Election Commission of India (ECI) and the State Election Commission (SEC) respectively argued that being independent institutions, they do not have any administrative machinery for themselves that could be asked to perform election duties. While taking this position may have arguably fulfilled the Election Commission’s constitutional mandate under Article 324 of the Constitution to conduct free and fair elections at the earliest, the question of attribution of responsibility and liability for the loss of hundreds of precious lives still remains unanswered.
In other words, the question that arises at this juncture and begs to be answered is that, if the Constitution expects and empowers the Election Commission to conduct elections in the middle of a disaster in order to ensure the continuity of an electoral democracy, who does this Constitution hold responsible for the consequences thereof?
This question was emphatically answered by the Supreme Court in Special Reference No. 1 of 2002. In the above case, the Supreme Court acknowledged two aspects of the role of the Election Commission in an electoral democracy like ours. First, it acknowledged and reiterated the paramount importance of holding timely elections even in the case of natural calamities. Second, and relatedly, the Court also acknowledged that the Election Commission does not have any independent administrative machinery that could be asked to perform election duties or be entrusted with disaster management operations. Having said so, the Court resorted to the Constitution in order to bridge the gap between the duties of the Election Commission and its enforcement mechanism (or the lack thereof).
As such, the Court held that Article 324 of the Constitution (and 243K) gives plenary powers to the Election Commission to issue directions to the State administration for any assistance that it may require to ensure free and fair elections. The degree of responsibility bestowed upon the State by the Constitution was manifest, inasmuch as, the Court expected the Election Commission to even brave a natural calamity with the assistance and active cooperation of the State. In essence, the Court reiterated that the constitutional scheme does not envision that the general administration and governance be also taken over by the Election Commission other than those that have a direct bearing on the conduct of free and fair elections.
Given its constitutional status as an election body to conduct free and fair elections, it is neither possible nor permissible for the Election Commission to engage itself in disaster management. This is even more so in light of the fact that the Constitution does not allow the role of the executive to be entirely supplanted by the SEC/ECI at the time of elections. The governance of the State that is not linked to the free and fair conduct of elections, such as the responsibility to enforce Covid-19 protocols, check for Covid-19 inappropriate behaviour, and to enforce masking, social distancing and laws of general application in the interest of the health and safety of the citizenry remains the responsibility of the State Government for which the disaster plans under the Disaster Management Act, 2005 (DMA) have already been made. This sentiment is also echoed in the guidelines and instructions which have been issued by the Election Commission, which essentially reiterate the orders passed by statutory authorities under the DMA, and make them applicable to election conditions like public rallies, polling, counting etc., thus supplementing the role of the State and not supplanting it.
This position was further strengthened by the Calcutta High Court as recently as April 23, 2021 in Nitish Debnath vs Election Commission of India, where speaking through an interlocutory order, the Court said that the State is under a mandatory obligation to comply with and obey the directions and commands given by the Election Commission of India under Article 324 of the Constitution.
Coming back to the question of the attribution of responsibility, it becomes clear that the Election Commission is constitutionally empowered to use any and all means necessary for the conduct of free and fair elections. Ensuring maximum voter participation and providing transparency in the counting process lie at the heart of a free and fair election process. In order to facilitate this, the Election Commission issued directions and guidelines to the State and proceeded to conduct elections on the strict understanding that its directions would be carried out without derogating from the spirit of Article 324 (and 243K) of the Constitution and that the authorities constituted under the DMA would continue to remain responsible for enforcement of these guidelines.
So, must the State be held responsible for failing to implement the guidelines of the Election Commission in regulating COVID-19 appropriate behaviour? It is true that the Constitution does not expect the State’s policies and mechanisms to be a panacea for all disastrous consequences of the pandemic. The State executive, after all, is not a prophet. However, the Constitution does at the very least expect the State to be pragmatic in its handling of the disaster and to the extent the State abdicated its responsibility to ensure a pragmatic and reasonable implementation of the directions of the Election Commission, it must be held liable.
However, we would be remiss here not to point out that the pandemic has only further exposed the ageless tendency of the citizenry to resist rules and regulations. This tendency has augmented the consequences of an already mismanaged election process. Sure, the administration is trained to rein in the public, but even the strongest of dams collapse in the face of a deluge. Thus, while the State ought to be held responsible for its inaction, the buck does not just stop there. In the face of a growing crisis, the elections of 2021 have not only struck at the chinks in the armour of the State, they have also highlighted the need for the ultimate sovereign, i.e the people of India, to step up and perform the duties owed by them to this Constitution, with the State’s assistance or even without it.
Agarwal is an advocate practising at the High Court of Judicature at Allahabad; Goyal is a third-year undergraduate at The West Bengal National University of Juridical Sciences, Kolkata
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