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Can't Assume That EC Will Make Decisions Without Considering Prevailing Situation: Patna HC Dismisses For Postponement Of Bihar Polls[Read Order]

Sparsh Upadhyay
8 Sep 2020 9:27 AM GMT
Cant Assume That EC Will Make Decisions Without Considering Prevailing Situation: Patna HC Dismisses For  Postponement Of Bihar Polls[Read Order]
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The Patna High Court on Monday (07th September) dismissed two pleas seeking for a direction to the Election Commission for the postponement of the impending Bihar Assembly Elections 2020 and/or restrain the Election Commission from notifying date for assembly election till further order of this Court on the account of the COVID-19 pandemic.

A Division Bench of Chief Justice Sanjay Karol and Justice S. Kumar specifically observed,

"The Election Commission is the sole authority responsible for the conduct of elections, including the decision on the schedule of the election. The ultimate decision on when to hold elections lies with the Commission. It cannot be assumed that the Election Commission has taken/or would take its decision without considering the prevailing situation. The Commission cannot be directed to act in any-what-way by any authority." (emphasis supplied)

Contentions raised in the First petition (CWJC 7206/2020) and the Court's observation

Notably, the first petitioner before the court (Badri Narayan Singh) submitted his assessment that during the conduct of elections, due to campaigning, gathering etc., the cases and spread of the virus would increase and deaths due to this would increase as well and lots of lives would be in danger and that all development activities would stop with the announcement of the election.

The petitioner also claimed that the scare of the virus would frighten the voters from going into the voting booths to cast their votes. Therefore the government would be formed with less than 50% of votes, making a mockery of democracy.

The petitioner provided his calculations on the number of persons who would be able to vote with social distancing measures in place and contends that with the given number of polling booths not more than 30% of the total voters would get a chance at polling.

To this the court said,

"We find that the contentions of the petitioner are completely unsubstantiated. We see that the increase in the number of cases may be attributed to the increase in testing in the State. There is nothing to show that the Election Commission is refusing to take stock of the coronavirus situation in the State. In the counter-affidavit on behalf of the State Election Commission, they have categorically assured to the Court that the guidelines/SOPs formulated for the conduct of elections are done keeping in view the prevailing Covid-19 pandemic and that every possible decision being explored is taken into account only after analysing all factors relating to the conduct of elections." (emphasis supplied)

The court was of the view that there was nothing to show that the Election Commission was failing to take responsibility/ the possibility of spread of the disease.

The court further observed that there is nothing on record to substantiate the claim that 'less than 50%' of persons would come out for voting or that 'no more than 30%' would be allowed to vote while following social distancing guidelines.

The Bench stated,

"The assertion that elections during the prevailing disease would be a mockery of democracy is utterly and completely unsubstantiated. Also, no mala fides stand alleged."

Contentions raised in the Second petition (CWJC 7294/2020) and the Court's Observation

The Second petition, brought about by Shri Vardhan Narayan, contended that it is the fundamental right of every voter under Article 19(1)(a) to know the antecedents including criminal past of the candidate standing for the assembly election.

Further on account of Covid-19 as well as flooding in multiple parts of the State, it would not be possible to make available this information and bio-data of the candidates to the voters that campaign contains the ideas that a candidate wishes to share with the people.

The campaign agendas, talking points and policy issues of the candidates need to reach people.

However, as contended by the petitioner, since a large proportion of the population of Bihar is rural and illiterate, digital means of campaigning to disperse these messages would not work that smaller and independent candidates will neither have resources nor technology to reach out to voters through digital means.

Digital campaigning would therefore be violative of Article 14 of the Constitution, as it will affect the right and opportunity to carry out a free and fair election campaign.

The petitioner sought the Court's intervention in ascertaining that the fundamental rights of the voters are protected, in the alternate the elections to the State Assembly Elections be deferred till such time that the fundamental rights of the voters are possible to be achieved.

To this the court observed,

"There is nothing on the record to show that the Election Commission is/ would be unable to ascertain these fundamental rights to the voters."

Detailed observations of the Court

Conduct of Elections is in the Exclusive Jurisdiction of the Commission

While relying on the Judgment of the Apex Court in the case of Mohinder Singh Gill v. The Chief Election Commissioner (1978) 1 SCC 405 and Article 324 of the Constitution of India, the High Court observed that the Election Commission has exclusive authority with respect to framing laws regarding the conduct of elections and where there is no law to cope with some situation within the enacted rules, the Commission has plenary powers to exercise their discretion.

Therefore, the court concluded,

"Only the Hon'ble Election Commission and not this Court has the authority to decide upon the date and schedule for the State Assembly Elections."

Scope of Interference of High Court in Electoral Matters

While relying on Article 329 of the Constitution, the court concluded that the said Article provides a bar to the interference by Courts in electoral matters.

"It is trite law that Article 329 bars interference of Courts in 'elections' starting from the notification of elections till their conclusion," the Bench stated.

However, the court noted, the Hon'ble Apex Court has also categorically held that the High Courts in the exercise of its powers under Article 226 of the Constitution should not pass any orders which have the tendency or effect of postponing an election, even where they may not be expressly barred from doing so under Article 329 of the Constitution [Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman (1985) 4 SCC 689].

The Court was of the view that Article 329 bars interference of Courts in electoral matters. However, the Election Commission must not be allowed to act mindlessly, malafide or arbitrarily.

While relying on the Judgment of the Apex Court in the Case of Election Commission of India through Secretary v. Ashok Kumar (2000) 8 SCC 216, the High Court said "that malafides in the decision of the Commission could be a ground for judicial review; however the assertions of malafide must not be merely bald assertions without substantiation."

Lastly, the court opined,

"If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections." (emphasis supplied)

However, the Court further supplied, anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.

For the aforesaid reasons, both the writ petitions stood dismissed/disposed of.

Other pleas related to the postponement of the election

In March 2020, the Hon'ble the Apex Court in State of Andhra Pradesh v. the Andhra Pradesh State Election Commission W.P. (Civil) No. 437/2020 declined to interfere in the decision of the Election Commission in postponing the elections due to Covid-19.

Further, on 28 August 2020, a three-judge bench of Hon'ble the Apex Court in Writ Petition(s) (Civil) No. 875/2020, titled as Avinash Thakur Vs. Chief Election Commissioner & Ors. refused to grant relief on writ petition before it seeking to defer the Bihar assembly elections.

It may be noted that the Rashtravadi Janata Party has recently filed a petition before the Supreme Court seeking issuance of directions to postpone the Bihar Legislative Assembly Election, scheduled for the month of October-November.

The plea has sought postponement of the Bihar Legislative Assembly elections in light of the rising COVID cases in the country.

It has also highlighted that the State is undergoing a "flood situation" and it would be "better for the safety of the people of India to hold the said election sometime in the month of March, 2021 when the situation in the State is somewhat normalised so that the citizen can participate and cast their votes safely and without there being any threat of either of prevailing Corona Virus (Covid19) pandemic or the flood etc."

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