On 26.04.2021 the Hon’ble Chief Justice of the Madras High Court (“MHC”) made extremely disconcerting remarks against the Election Commission of India (“ECI”), attributing the diabolical spread of Covid-19 (2nd wave) to ECI’s alleged mismanagement and inaction in conduct of elections. According to the Hon’ble Judge, ECI is “singularly responsible for the 2nd 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 while making such oral observations. This aspect assumes importance because the spread of Covid-19 in the State of 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 extra territorial jurisdiction. Thus, any observations not relatable to events unfolding in the State of Tamil Nadu would be in violation of well settled principles of judicial propriety and over reach. In the SLP filed by ECI1 assailing the “closure” of its Miscellaneous Applications, which were filed challenging the aforesaid oral remarks as also the rights of media to report courtroom exchanges which do not form a part of the order, the Hon’ble Supreme Court sharply criticized the MHC for its conduct and observed the such oral remarks are unbecoming of a constitutional court.
Section II of this Article deals with the constitution of ECI and its powers; Section III deals Disaster Management protocols issued by the GOI, in consultation with the Home Ministry and ECI; Section IV deals with the Writ Petition in which the aforementioned oral remarks were made; Section V deals with the actions taken by the ECI to ensure elections are conducted safely, with optimal protection; Section VI throws light on principles of judicial restraint; and Section VII concludes this article.
It is important to delineate the powers of ECI at the forefront as this article proposes to critically examine the remarks made by the MHC, which essential revolve around the decision-making power of the ECI and the execution of its orders and guidelines issued to mitigate the spread of covid-19 in poll-going States and UTs.
Part XV of the Constitution deals with Elections. Article 324 provides for the constitution of Election Commission for the superintendence, direction, conduct and control of all elections to the Parliament and Legislature of every State and of elections to the offices of President and Vice-President of India. The word “election” used in Article 324 is extremely wide in its ambit and includes the entire process of election which consists of several stages. Similarly, the words “superintendence, direction, control and conduct of all elections” is also of wide amplitude and includes all powers that are necessary for the smooth conduct of elections, as also the power to make necessary provisions therefor. These powers are subject only to law made either under Article 327 or under Article 328, and operate in areas left unoccupied by legislation. Further, these powers are plenary in nature and cannot be taken away as that would amount to an infraction of the basic structure doctrine.2 Article 327 gives Parliament the power to make provisions with respect to election to Legislatures. It is under this Article that Parliament has enacted the Representation of Peoples Act, 1950 and 1951 for the conduct of free and fair elections.3 Article 328 gives ancillary powers to the State Legislature to make laws in areas unoccupied by parliamentary law.
ECI does not possess untrammelled powers under the Constitution of India for conducting elections. The powers of the State qua governance and administration do not get supplanted in view of impending elections. The Hon’ble Supreme Court has held that the powers of ECI under Article 324 are meant to supplement rather than supplant the law in matters of superintendence, direction, conduct and control of all elections.4 It is a situation where although the ECI issues directions and guidelines, the ultimate responsibility of on-ground implementation falls on the Central Government or respective State Governments and their ministries. Thus, ECI cannot be held accountable for abdication of responsibility by the State and Central authorities.
A look into the history of ECI vis-à-vis conduct of elections would not be amiss. ECI is an institution of great repute and has flawlessly conducted 15 Presidential Elections since 1952, 15 Vice-Presidential elections since 1952, 17 Parliamentary elections, 384 elections to legislative assemblies, innumerable bye elections and elections to upper house, thus ensuring smooth transition of political power and upholding the supreme will of the people expressed by way of elections. ECI is faced with an extremely onerous task of conducting elections while the pandemic rages on, and it has successfully conducted elections in Bihar, Jharkhand during this period.
DMA, 2005 is a complete code wherein different functions and responsibilities of different authorities to be performed at different levels are provided. Section 35 and 36 of the DMA mandates the Central Government, in coordination with its Ministries, to take necessary measures for prevention/mitigation of disasters. Section 37 and 38 are mirror provisions, giving the same authority to State Governments and their Ministries. Ministries under the Central government must take various relief measures within their respective spheres for remedying the effects of any disaster. As per the plan formulated by the NDMA (National Disaster Management Authority), Covid-related disasters would fall under “biological emergencies” for which the nodal ministries are Ministry of Home Affairs and Ministry of Health and Family Welfare (MOHFW), GOI. In Small Scale Industries Manufacturers Association v. UOI, 2021 SCC Online 246, the Hon’ble Supreme Court was pleased to hold that although the national plan related to Covid is formulated by the NDMA, but its implementation cannot be confined to one nodal ministry. It must be a concerted effort of all authorities to ensure that whatever measures/actions are required to be taken, are executed on a daily basis.
Ministry of Home Affairs, MOHFW, GOI in consultation with the ECI had, as far back as August, 2020, issued Broad Guidelines for Conduct of General Elections or Bye-election.5 It is incumbent on the NDMA/SDMA along with their relevant ministries to implement these and any other guidelines issued by the ECI in the State/UT where elections are to be held.
The impugned oral observations of the Hon’ble High Court were passed in W.P. No. 10441/2021 wherein the issue under adjudication was with respect to counting of votes in the recently concluded State Legislative Assembly in TN. The Petitioner was aggrieved by supposed inaction of the SEC with respect to proper arrangement and adequate safety provisioning for counting of votes in Karur constituency of T.N. A bare perusal of the Writ Petition and prayers sought therein would show that there was no pleading regarding role of ECI in spread of covid or as regards on-dground mismanagement and violation of Covid protocols issued by GOI/State Govt./ECI. Following prayers were sought in the W.P.: -
“to direct an order, direction or writ in the nature of mandamus directing Respondents to ensure fair counting of votes which is scheduled to be held on 02.05.2021 at the 135 Karur Legislative Assembly constituency by taking effective steps and proper arrangements with Covid-19 protocol by considering my representation dated 16.04.2021…”
Contrary to the subject matter under review, the High Court, in its interim order dated 26.04.2021, made the following observations: -
“ECI could not ensure that Political parties adhered to Covid Protocols at the time of election campaign and rallies…. Significance of adhering to such protocols may have been lost on the ECI as distancing norms were not maintained, and in fact, wantonly disregarded” [Pr. 4]
As has been iterated in Section I, it is not the responsibility of ECI alone to ensure implementation of its guidelines and protocols. It is for the State Government and its Ministries to ensure that the guidelines are implemented and adhered to on the ground. Thus, the aforesaid observations were completely misconceived. [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].
Strangely, in Pr. 5 of the said order, MHC itself observes that the State of TN is not as badly affected by Covid as other Sates in the country. The ECI was constantly monitoring the situation with respect to the escalation of covid infections, and accordingly issuing timely directions to prevent the spread of covid. One such example is SOP dated 24.04.2020. In fact, in Pr. 7 of the said Order, the MHC has recorded its satisfaction with respect to the guidelines issued by ECI and observed that adequate arrangements have been made by the ECI for safely conducting counting of votes in Karur.
At this juncture it is pertinent to note that election in the State of TN were announced on 26.02.2021, campaigning period was over on 04.04.2021, and polling procedure had concluded in the State on 06.04.2021. Therefore, there was no occasion to castigate the ECI or to make derogatory remarks with respect to non-adherence of covid-protocols in campaigns and rallies of political parties. At the sake of repetition, this was not even the subject matter of WP being adjudicated by the bench of Hon’ble Chief Justice of MHC.
Here it is relevant to consider how elections are being planned in a State during this pandemic. Prior to announcing election schedule, the CEC along with various senior officials visit the poll-going State and hold wide ranging consultations with the State Government and its officials in relation to all matters related to conduct of elections including provisions for optimal security and safety of polity, precautions to be undertaken to mitigate the spread of corona virus. It is upon these consultations that election schedules are finalized and subsequently notified.
In Special Reference No. 1 of 2002, In re (Gujrat Assembly Election Matter), (2002) 8 SCC 237, the Hon’ble Supreme Court has held that fixing schedule for elections either in the House of People of in the Legislative Assembly is in the exclusive domain of the ECI. Section 15 of the R.P. Act, 1951 gives power to the ECI to notify general elections to State Legislative Assembly. The exercise of this power is the sole discretion of ECI and is not subject to judicial review.
In the month of February 2021, Covid cases across India had plateaued and the situation was seemingly under control. Elections to various States [Kerala, Assam, WB, TN] and the UT of Puducherry were announced by the ECI on 26.02.2021. For the present purposes I will confine the discussion to various directions issued by ECI for the conduct of State Legislative Assembly election in Tamil Nadu, where for it is relevant to note that the 7-day average for covid cases in the last week of February,2021 was 456 and new cases were 481.7 Thus, it cannot be said that decision to conduct elections was unreasonable.
In Tamil Nadu, post completion of polling, it was observed that cases are mounting in W.B., and taking note of the deteriorating circumstances ECI in consultation with the relevant State Authorities issued directions on 16.04.2021 banning any campaign between 10am and 7pm, increasing silence period before elections and issued further guidelines with respect to covid protocols.8 [Note that by order dated 22.04.2021, in light of various violations of protocols observed in the State of WB, ECI prohibited all road shows vehicle rallies and public meetings of more than 500 persons]9. Vide SOP dated 24.04.2021 ECI formulated fresh protocols for the State of Madras. The following guidelines were issued: -
SOP further mandated that all necessary sanitization items will be made available at all entry and exit points of every counting site. At the sake of repetition, it must be pointed out that the Madras High Court had, in its order dated 26.04.2021, recorded its satisfaction with the arrangements made by the ECI for counting of votes.
Further, on 27.04.2021 ECI had issued orders prohibiting victory processions, and not more than 2 persons were allowed to accompany the winning candidate to receive certificate of election from concerned Returning Officer.10 ECI issued further guidelines on 28.04.2021 after another round of consultation with all states. PPE kits were also provided at all counting centres.
The purpose of reproducing these guidelines is to show that the ECI was constantly monitoring the covid situation at ground level, tweaking the guidelines as required, making them more stringent, and putting its best foot forward to ensure the election process is not hampered and constitutional responsibility of ECI to conduct elections is carried out to ensure democratic values of our polity are not hamstrung. ECI officers themselves were not spared from the wrath of Covid-19. Many of its officer 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.
The principle of judicial restraint is not a new concept in Indian jurisprudence. Innumerable judgements of our Courts have expounded on this Montesque-ian principle and it continues to hold strength in our Courts. It would be opportune to reproduce the succinct and oft-quoted observations of 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)], which have been relied upon by the Hon’ble Supreme Court in State of U.P. v. Anil Kumar Sharma, (2015) 6 SCC 716, and in S.C. Chandra v. State of Jharkhand [(2007) 8 SCC 279] et al. Frankfurter, J. observed as under: (L Ed p. 653 : US pp. 119-20)
“… All power is, in Madison's phrase, ‘of an encroaching nature’. … Judicial power is not immune against 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. …
Rigorous observance of the difference between limits of power and wise exercise of power—between questions of authority and questions of prudence—requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail, to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorised the Judges to sit in judgment on the wisdom of what Congress and the Executive Branch do.”
The aforestated principle is usually relied upon to check encroachment upon powers of the Legislature or the executive by the Judiciary. Here, I propose to rely upon this venerated principle for advancing the argument that disparaging and off the cuff remarks ought not to be made by the Courts against Constitutional bodies. The Hon’ble Supreme Court in AbaniKanta Ray v. State of Orissa Observed 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 absolutely necessary for decision of the case. Judges must act with sobriety, moderation and restraint.
AbaniKanta Ray v. State of Orissa, 1995 Supp (4) SCC 169 at page 176
“14. Before parting with this case, we consider it necessary to refer to the observations in some earlier decisions of this Court in similar context indicating the need for sobriety and restraint in making adverse and critical comments. In Niranjan Patnaik v. Sashibhusan Kar [(1986) 2 SCC 569 : 1986 SCC (Cri) 196 : (1986) 2 SCR 470] , in a similar context, after referring to earlier authorities, it was stated as under: (SCC p. 576, para 24 : SCR p. 483)
“It is, therefore, settled law that harsh or disparaging remarks are not to be made against persons and authorities whose conduct comes into consideration before courts of law unless it is really necessary for the decision of the case, as an integral part thereof to animadvert on that conduct. We hold that the adverse remarks made against the appellant were neither justified nor called for.
15. What we have said above is nothing new and is only a reiteration of the established norms of judicial propriety and restraint expected from everyone discharging judicial functions. Use of intemperate language or making disparaging remarks against anyone unless that be the requirement for deciding the case, is inconsistent with judicial behaviour. Written words in judicial orders form permanent record which make it even more necessary to practise self-restraint in exercise of judicial power while making written orders. It is helpful to recall this facet to remind ourselves and avoid pitfalls arising even from provocation at times.”
Again, in State of U.P. v. Anil Kumar Sharma, (2015) 6 SCC 716, this Court held as under: -
“22. In A.M. Mathur v. Pramod Kumar Gupta [(1990) 2 SCC 533] this Court observed that judicial restraint and discipline are necessary to the orderly administration of justice. 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. Para 13 of A.M. Mathur v. Pramod Kumar Gupta [(1990) 2 SCC 533] reads as under: (SCC pp. 538-39)
13. “Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be constant theme of our Judges. This quality in decision-making is as much necessary for Judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect, that is, respect by the judiciary. Respect to those who come before the court as well to other coordinate branches of the State, the executive and the legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the Judge has failed in these qualities, it will be neither good for the Judge nor for the judicial process.”
It is submitted that there is no data available or indeed placed before the Madras High Court which might show that poll-going states and non-poll going states are differently affected by covid, and campaigning has been a significant factor in escalation of covid spread. In fact, the worst affected States, i.e., Delhi, Maharashtra, Karnataka, U.P. 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 2nd wave of Covid-19.
The Hon’ble Supreme Court, while taking suo motu cognizance of covid related contingencies, on 30.04.2021 remarked that High Courts should not make off the cuff remarks and should exercise restraint during hearings as the same may be damaging to persons/institutions.
At this juncture it is pertinent to reproduce the observations recorded by Hon’ble Justice D.Y. Chandrachud in the order of the Hon’ble Supreme Court dated 06.05.2021 passed in SLP No. 6731/2021, which was filed by ECI challenging the closure of its Miscellaneous Applications filed in WP 10441/2021 by the Madras High Court in its Order dated 30.04.2021: -
“Today, the Court has not been called upon to determine the constitutionality or legality of the actions of the EC in its conduct of the Assembly elections in the five states. In restricting ourselves to the specific grievances that have been urged by the EC, regarding the remarks made by the judges of the Madras High Court, we find that the High Court was faced with a situation of rising cases of COVID-19 and, as a constitutional Court, was entrusted with protecting the life and liberty of citizens. The remarks of the High Court were harsh. The metaphor inappropriate….
Having said that, we must emphasize the need for judges to exercise caution in off-the-cuff remarks in open court, which may be susceptible to misinterpretation. Language, both on the Bench and in judgments, must comport with judicial propriety. Language is an important instrument of a judicial process which is sensitive to constitutional values. Judicial language is a window to a conscience sensitive to constitutional ethos. Bereft of its understated balance, language risks losing its symbolism as a protector of human dignity. The power of judicial review is entrusted to the High Courts under the Constitution. So high is its pedestal that it constitutes a part of the basic features of the Constitution. Yet responsibility bears a direct co-relationship with the nature and dimensions of the entrustment of power. A degree of caution and circumspection by the High Court would have allayed a grievance of the nature that has been urged in the present case…..The EC has a track record of being an independent constitutional body which shoulders a significant burden in ensuring the sanctity of electoral democracy.”11
The source of ECI’s power stems from the Constitution of India r/w the Representation of Peoples Act and various Rules formulated thereunder. Whereas, for mitigating the spread of Covid-19, appropriate guidelines are issued under the DM Act. Under the DMA, adherence to Covid related protocols and various guidelines issued by the GOI/State Governments, at ground level, is the responsibility of the NDMA/SDMA and their ministries. The ECI is empowered to issue directions to the State Government and its ministries, but the general governance and administration of the state continues to rest with the State Government. It is true that the conduct of elections is the sole prerogative of ECI, but this doesn’t absolve the State Government of its responsibility to ensure general governance and adherence to safety protocols as the Constitution of India does not envisage that governance and administration of a poll-going State be taken over by the ECI during elections.
Former CJI, Lt. Shri S.H. Kapadia in Centre for PIL v. UOI, (2011) 4 SCC 1, noted that institutional integrity and 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. The independence and impartiality of the ECI and its officers, and their competency to execute the mandate given to ECI under the Constitution cannot be impugned in this manner. ECI is a constitutional body which has flawlessly conducted elections from the very inception of this democracy. It’s 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 marginalizations. 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.
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. It has the potential to tarnish and undermine the image of the persons/authorities/institutions which are before the Courts, ECI in this instance. The Judiciary ought to bear in mind that only those observations may form part of the dialogue between the Bench and the bar which are relatable to the issue under consideration and which the Judges are confident of recording in their orders.