Madras HC | Survival and Protection: Only when citizen survives that he enjoys other rights that this democratic republic guarantees unto him || HC on COVID-19, Election Commission, Vote Counting

Madras High Court: The Division Bench of Sanjib Banerjee, CJ and Senthilkumar Ramamoorthy, J., while noting the upsurge of COVID-19, stated that

Public health is of paramount importance and it is distressing that Constitutional authorities have to be reminded in such regard. It is only when the citizen survives that he enjoys the other rights that this democratic republic guarantees unto him. The situation is now one of survival and protection and, everything else comes thereafter.

Instant petition pertained to the counting of votes at a solitary assembly constituency, but the larger picture cannot be missed.

Petitioner apprehended that at assembly constituency, special measures have to be taken at the time of counting to maintain COVID protocol since 77 candidates are in the fray and even though an additional hall has been arranged by the Election Commission for the purpose of counting, that may not suffice to accommodate the counting personnel and the agents of 7 candidates.

COVID Protocol not adhered

It was noted that even though the polling was by and large peaceful in this State on 6-04-2021, the Election Commission could not ensure that political parties adhered to the Covid protocol at the time of election campaigns and rallies.

Election Commission and COVID Protocol

Despite repeated orders of this Court, going on like a broken record at the foot of almost every order on an election petition, that Covid protocol ought to be maintained during the campaign time, the significance of adhering to such protocol may have been lost on the Election Commission, going by the silence on the part of the Election Commission as campaigning and rallies were conducted without distancing norms being maintained and in wanton disregard of the other requirements of the protocol.

Court expressed that due to rapid surge in the number of cases on a daily basis, albeit this State not yet being as badly affected as some other States, the measures to be adopted at the time of the counting of votes on May 2, 2021, should already have been planned in the light of the grim situation now prevailing.

Bench remarked:

At no cost should the counting result in being a catalyst for a further surge, politics or no politics, and whether the counting takes place in a staggered manner or is deferred.

 Further, as far as the Karur constituency was concerned Election Commission submitted that two halls were arranged and on Court’s query whether such spaces would be adequate if the 77 candidates were to engage agents at the time of counting, Election Commission claimed that all but two of the independent candidates indicated that they would not engage any agents while counting and only 7 out of 9 major political parties were confirmed in writing that they would be appointing agents.

In view of the prevailing situation, Election Commission did not expect that COVID protocol and appropriate measures could not be taken if counting was conducted at two designated halls.

Adding to the above, the Commission stated that 6 additional counting tables were also organized so that the distancing norms could be maintained.

Bench stated that similar appropriate measures be adopted at other counting centres and only upon maintaining regular sanitization, proper hygienic conditions, mandatory wearing of mask and adherence to distance norms, should any counting begin or be continued.

Lastly, the Court directed that State Health Secretary and Director of Public Health should be consulted by Election Commission and the Chief Electoral Officer responsible in the State, to put appropriate measures in place immediately.

Petitioner said that since Karur is a sensitive constituency, additional security measures should be put in place. The Returning Officer, in consultation with the Chief Electoral Officer in the State, will ensure that appropriate security measures are put in place and, if there is any apprehension of trouble or mischief, the State may be approached in this regard.

Matter to appear on 30-04-2021 to review the situation when a complete picture as to adequate steps having been taken at all counting centres should be indicated by the Election Commission. [M.R. Vijayabhaskar v. Chief Election Commissioner of India,  2021 SCC OnLine Mad 1750, decided on 26-04-2021]

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