Madras High Court Refuses To Defer Urban Local Body Polls Amid Covid Third Wave

The Madras High Court has refused to postpone the urban local body polls likely to be notified by the State Election Commission before January 27, even though the petitioners vehemently opposed conducting elections in light of the third wave of the pandemic. The order was passed after hearing all the counsels appearing for the petitioners in a course of three days.The first bench of Acting Chief Justice Munishwar Nath Bhandari and Justice PD Audikesavalu noted that it cannot go against the direction given to the Tamil Nadu State Election Commission (TNSEC) by the apex court to abide by the constitutional mandate to conduct elections every five years. On 27th September 2021, Supreme Court had directed the TN SEC to notify the polls within four months based on the undertaking given by the Commission.The court accepted the petitioners' contention that the High Court has vast powers under Article 226 of the Constitution. However, the court further observed as follows:"...The question however would be, in the exercise of said jurisdiction, can we go against direction of the apex court? This is not a case here we have refused to exercise jurisdiction under Article 226 in reference to the bar under any statute, but to maintain judicial discipline and not to pass an order contrary to an apex court order", the court noted at the outset.The court also refused to accept the argument of one of the petitioners, doctor M. Nakeeran, that he couldn't approach the Supreme Court instead of High Court since he was not a party to the original litigation at the apex court involving State Election Commission. The court observed that State Election Commission, in its wisdom, did not file an application seeking further postponement of elections in light of surge in the number of covid infected citizens. The court remarked that this must have been because of its confidence in the directions detailing the Covid Protocol to be adhered to, dated 10th December, 2021. The court also noted that no one prevented the petitioner from approaching the Supreme Court with the said grievance based on the grounds pleaded before the High Court. ..."In light of aforesaid, present matter can be examined further in reference to constitutional mandate under Article 243 for holding elections. The aforesaid has been noted by the apex court while passing the order in September. The constitutional mandate cannot be ignored altogether only for the reason that elections were not held in the past five years, which was otherwise scheduled in 2016. The failure does not mean to be replicated or extended further, rather a serious view must be taken to abide by the mandate. Constitutional mandate cannot be ignored by constitutional bodies like State Election Commission since they have a higher responsibility to comply with the mandate as a constitutional authority."The court noted that paragraph 9 of the order issued by SEC on 10th December puts in place a comprehensive protocol to be maintained during elections. Referring to the saem, the court further observed as below:"It shows that all precautions have been given for elections to be notified for the local body polls. Direction given in para 9 takes care of the present scenario of Covid 19 and does not permit election campaigns in large groups. It also mandates that house to house campaigning would not be permitted if there are more than 3 supporters at a time. Directions have also been given to maintain social distancing therein. The directions have been given to all the political parties and candidates alike to exercise a degree of responsibility in campaigns and party meetings..While State Election Commission has issued appropriate instructions in paragraph quoted above with a further direction on action for non compliance of instructions, we don't find any justification to issue the directions sought by the petitioners."The court also observed that it does not find that the State has violated the provisions of the Disaster Management Act, 2005 via any of the directions given by it in its orders. The State Government has not failed to discharge the duties entrusted to it under Section 38, 39 and 40 of Disaster Management Act, 2005, contrary to the submisisons made by the petitioners, the court added.The petitioners also made a reference to Article 47 of Constitution. It is no doubt that the government has the duty to take all precautionary measures for securing public health. It is not the case of petitioner that the state has failed to take precaudtions as envisaged under article 47. In absence of it, we don't find reference to article 47 of any consequence. It cannot be invoked in reference to the action of State Election Commission also. We have already refered to order passed SEC on 10.11.2021 directing how election process will be undertaken subject to their order dated 10.12.2021. The learned counsel for the petitioner submitted that the SEC order was passed when third wave of...

Madras High Court Refuses To Defer Urban Local Body Polls Amid Covid Third Wave

Sebin James

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