1 May 2021 6:47 AM GMT
After a special sitting held on Saturday, the Supreme Court refused to defer the counting of the Uttar Pradesh Panchayat elections, scheduled to take place tomorrow, amid concerns about spread of COVID infection.A division bench comprising Justices AM Khanwilkar and Hrishikesh Roy allowed the counting to take place tomorrow based on the "solemn assurances" given by the Uttar Pradesh...
After a special sitting held on Saturday, the Supreme Court refused to defer the counting of the Uttar Pradesh Panchayat elections, scheduled to take place tomorrow, amid concerns about spread of COVID infection.
A division bench comprising Justices AM Khanwilkar and Hrishikesh Roy allowed the counting to take place tomorrow based on the "solemn assurances" given by the Uttar Pradesh State Election Commission that sufficient safeguards have been taken to ensure that COVID protocol is followed at counting centres.
"We reject the request for deferring the counting by recording the submissions of the SEC that all protocols will be observed in letter and spirit", the bench said in the order.
Senior Advocate Aishwarya Bhati, appearing for the State Election Commission, told the bench that a Class 1 Officer of the state government will be assigned to monitor each of the 800 counting centres and will be held accountable for the counting centres. Also, senior IAS officers of the rank of Principal Secretary will be assigned to each district to oversee the adherence of COVID protocol.
Bhati also told the bench that CCTV centres are installed in all counting centres, and that the footages will be preserved.
The bench was also told that strict curfew will be imposed in areas that will be identified by the concerned authorities in and around counting centres to ensure that only authorised representatives will be able to visit counting centres.
The SEC also told the bench that victory rallies by political parties will not be permitted throughout the state of UP. Candidates or their agents can enter the counting centres only if they have an RT-PCR negative result or certificate of having taken two doses of COVID vaccination.
The bench recorded the assurances given by the State Election Commission.
The bench was hearing a special leave petition challenging an order of the Allahabad High Court, passed on April 7, refusing to defer the local body elections and also a writ petition seeking to defer the counting tomorrow.
Advocate Shoeb Alam, appearing for the petitioners, submitted that the counting-centres can turn out to be "beds of infections". The bench was also told that several teachers, who have been assigned counting duty, have expressed apprehensions about performing the duty amid the COVID surge. Alam also told the bench that many teachers who attended the election duty have later succumbed to COVID, and the Allahabad High Court has taken cognizance of the same.
The bench said that it was not inclined to interfere with the counting process in the light of the assurances given by the State Election Commission that necessary measures will be taken to apply COVID guidelines.
During the hearing, the Bench asked State Election Commission as to the steps that have been taken by them in this regard.
ASG Bhati appearing for SEC and the State of UP submitted that the they have circulated a compendium of orders that have been passed by the SEC. The elections are completely over, with the last phase on 29th April.
Bench inquired if stock of the day to day situation is being taken and assessment of the current situation being done considering It's an evolving, dynamic situation
ASG explained the Court about the tiers of the Panchayat Elections, and took Court through the data for polling and counting for the elections, including the total number of seats, places with nomination has been filed, and uncontested seats. Counting is required only for some 2 lakh seats.
ASG further said that two orders have been passed on 29th April, completely in sync and in line with the guidelines of the EC for Assembly Elections which are slated to start on 2nd May. She also reiterates the guidelines such as wearing of masks and social distancing.
In response to the Court's query as to temperature is being checked at entry points and and the instructions regarding sanitisation, ASG Bhati informed that not only temperature, the SPO2 is also being checked with an oximeter check.
She further added that its already mandated under the Disaster Management Act that crowds should not gather. The area will be sanitised, tables will be kept at distances, and whoever has symptoms will not be allowed. Steps have also been taken to ensure that maximum gap will be there.
In response to Court's observation regarding the need to o stagger the seats., ASG said thag they will stagger the timing as to which Gram Panchayat will be counted.
The Bench asked ASG if the counting was necessary or if it could be deferred.
"Where is that guideline ? This is the first step to be taken. You have to first assess the position. You have to take the decision at the macro level as to whether you have to take it right now or you can defer. Is it necessary to do the counting or you can defer ?" Bench asked
ASG submitted that the State has taken the decision to go ahead with the counting. It's a tightrope walk between the devil and the deep sea, and State has decided these decisions are best taken at the grassroots level. There is a Constitutional mandate to conduct the elections according the timeline.
Further she added that Senior-level officers have been placed at these 829 centres to guide, supervise all the functions.
" How you ensure to do that, you will have to tell us that. There has to be uniform application. " Bench said.
Bench asked ASG to respond to three aspects, as to whether the decision to go ahead has been taken, the staggering counting, and if mind has been applied so that after two weeks situation is under control, with healthcare facilities.
"The situation is grave everywhere. UP is no exception. Have you taken the decision to go ahead despite all ? " Bench asked
"A considered, well applied decision has been taken." ASG responded.
She stated that an affidavit will have to be placed to show all the measures taken.
"I am asking this question to myself whether we should proceed with the counting today. Whether the administrative, medical healthcare facilities will be burdened." Bench observed
This decision has been taken after speaking to medical professionals and all.
Bench expressed its apprehension that a situation will come up where the State will tell them that at that moment, things were not under control, as what happens at the counting centres is that tensions build up.
ASG informed the Court that Counting is on Sunday because there is curfew in UP, and the State is confident that they we will be able to control. She clarified that counting will not take place in one day.
In response to ASG's submission that an affidavit will be placed by them, the Court asked what the point of meeting on Monday is if the counting will start on Sunday.
"To satisfy your Lordships that counting is taking place properly." ASG responded.
Bench noting that the curfew is only for tomorrow, asked how the situation will be managed on Monday and Tuesday when there is no curfew. On being informed that there is curfew till Tuesday 7AM, the Court suggested that it be extended.
"We are taking day to day decisions. It's not a bureaucratic setup with sluggish decisions.We are ready to take in all feedback. We are not taking this petition as an adversarial stand." ASG said.
Advocate Alam submitted that the entire process should be deferred before the entire situation is over, as has been done in Maharashtra, where they have deferred the entire process.
"Maharashtra situation is different. There are Councils and Corporations. Seats are vacated because of Court's order." Bench said.
Alam responded to the Court's observation and stated that Maharashtra recognised the situation and deferred it. The panchayat elections are different from Assembly, as 60 crore ballot papers are there along with 13 lakh candidates. For every person voting, there are four ballot papers handed over to every voter, making total ballot paper count reach 60 crores.
Alam stated that in the previous circumstances where panchayat elections had taken place, its been seen that it's not possible to reduce the number of days. He apprised the Court that there a report on the hundreds of teachers who have died in the process.
In response to Court's query regarding number of teachers who will be present, Alam stated that per candidate, there are two agents who are permitted to be resent, but teachers are not the only ones, and there is also revenue staff, making total tally reach to lakhs.
Alam further said that, Allahabad High Court had taken cognisance of that, a protocol was given and nothing was followed.
Alam stated that everyone is facing the present calamity and these election centres beinb a bed of infection, nobody should be sent there. These elections can be deferred by 2-3 months, as today is not the time.
"We have to consider today's position, you keep telling us about the past. Situation is different today. Don't go to the past. We are not interested. We want to understand that there should be clarity on the fact that all these things have been considered by the authority." Bench said.
"You are in the position to solve it, to minimise the loss of life. Property and funds are not important. It is life which is the most important. If there is anything to be supplemented, then we will put it to the State. What has happened in the past, we can't do anything. We can only prevent this from happening in the future. " the Bench further observed.
Bench then asked Bhati how the staff will be accommodated at the counting centres, ASG submitted that the counting will happen in shift of 8 hours each and new officers will come in. After every shift, sanitisation will take place. If it's more than 75, then it will not happen.
ASG also informed the Court that there will not be more than 75 government officials preset, excluding the security official.
"You have to reduce the number.You should have given one hypothetical situation. 75, you say, every centre will have 75 people handling the papers. How can candidates and representatives enter then." Bench asked
ASG responded saying that the number exceeds 75, a broadcast system will be put in place. There are 25000 security officials who have been put at the perimeter to monitor the situation.
Bench asked Bhati how will the situation of the teachers will be handled, considering there a representation from the teachers' association, and 700 teachers have died.
ASG stated she is unable respond to that because there are inquiries in place. However there are of other States where no election activities are happening, but numbers are surging, like Delhi
ASG added that the teachers are on the jobs where they have been assigned. The entire process is in place. The counting procedure, we haven't faced any lacunae.
Alam then pointed out a representation has been made by an association of teachers, addressing it to the CM, saying that these are all the teachers who died dispensing their duty during the State panchayat elections.
ASG informed the Court that the High Court had taken cognisance of passed an order on 27th April, and an enquiry as directed is still going on.
"If an inquiry is being conducted, it will take time. In the midst of this, you are congregating teachers from all parts of the State. The number of people they met in between will travelling." Adv Alam submitted.
Alam further added that these are rural areas where spread is humongous. There is saliva which is used in the ballot numbers. To stall the process for a few weeks only, it can be deferred for a short while. The SEC should on its own come forward and take this decision, even if just one life is saved.
Alam the pointed out two aspects in relation to ASG Bhati's submissions regarding precautions that'd be taken:
Adv. Nikhil Majithia for an Applicant submitted that the ground realities are very different from what has been stated.
Bench observed that is aware that the number will not be 75, will be a lot more and it does not even include staff.
Advocate Majithia appearing for UP State Employees Joint Council submitted that they had requested that only the counting be deferred, pointing out there is incredible loss of life and spread of infection. Also, they had said that we will not be participating, taking this in mind.
He added that the State is duty bound to consider their representations as roughly two lakh State employees are participating.
"They will be working in shifts, they will not congregate in one place at one time." Bench said.
Adv. Ram Kishor Singh Yadav submitted that Panchayat elections were scheduled in the month of December 2020, and the government has delayed for five months in the name of reservation. Next 10-15 days will not make a huge difference, till the situation improves.
Yadav submits that antigen tests are not available and RTPCR reports take days to come. While Curfew has been going on for the last 2-3 weeks, this is only for market purposes and it doesn't say that there will be no transportation.
Advocate Alam submitted that there have to be some officials who have to take liability and responsibility in case things are not followed.
ASG submitted that rapid antigen counters will be available at the centres, and there will not be more than 150 officials and not more than 15-20 candidates at every counting table.
"We are aware of the responsibility and not shirking from it. We are ensuring gloves and all equipment is available." ASG said.
She added that while now they have made rapid antigen counters available and with these counters, it will be possible for every person to get tested before entering.
ASG further said that in the present situation, the choice is between the devil and deep sea. The experts are saying that the surge is ahead of us with all 21,000 frontline workers who have been employed. This is something the Court may consider and allow counting process to continue.
Bench asked ASG to get instructions regarding supervision of the 800 centres, you are saying, from an officer who should be of level of Joint Secretary.
ASG submitted that she had been informed that Senior officials have been deputed in each district. They will oversee the adherence of COVID protocol. And these will be IAS officers of Principal Secretary level.
"Not just observer, they must be accountable in case anything goes wrong. You will have to notify immediately on your website." Bench said.
ASG submitted that there is a Class 1 gazetted officer, and they can pass an order saying that they will be fully responsible for COVID guidelines and CCTV cameras are also present.
Edited by Srishti Ojha