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

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 observationNotably, 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 ObservationThe 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 CourtConduct of Elections is in the Exclusive Jurisdiction of the CommissionWhile relying on the Judgment of the Apex Court in the case of Mohinder Singh Gill v. The Chief...

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

Sparsh Upadhyay

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