Legislation UpdatesNotifications

On 15th June, 2022, Election Commission notified “Public Notice of Election to the Office of President of India. 

Background: 

As Presidential Elections are round the corner due to the expiry of term of office of President Shri Ram Nath Kovind on 24th July, 2022, process for the Presidential Elections begin soon before the expiration of the term of office as per Article 62 (1). 

Key Points of the Public Notice: 

  • Notice for nominations for the contesting participants has been circulated by the Election Commission for appointing the dates of ‘Nomination’ of the candidates as per Section 4(1) of Presidential and Vice-Presidential Elections Act, 1952. 
  • Under Chapter II of the Presidential and Vice-Presidential Elections Rules, 1974 (Rules) the Nomination Papers will be presented. By 29th June, 2022, candidates need to submit their nomination papers with the Returning Officer (RO). 
  • With the prescribed fee of Rupees Fifteen Thousand, each nomination paper will be submitted with all the relevant documents and certified copies mentioned in the electoral roll for the Parliamentary constituency. 
  • Following the provisions of Rule 5, date for the delivery of notice of withdrawal of candidates has been fixed on 2nd July, 2022. Undersigned by the authorised person the notice will be recorded the details by the RO. 

 

These Presidential Elections will be conducted at the fixed places on 18th July, 2022 in the Parliament House of Delhi. 


*Shubhi Srivastava, Editorial Assistant has reported this brief.

Case BriefsCOVID 19High Courts

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]

Case BriefsHigh Courts

Calcutta High Court: The Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J., expressed that circulars issued by the Election Commission of India show the route map and protocol for human behaviour.

Court while addressing the matter stated that it is unable to reconcile the fact that the Election Commission of India was not able to update the Court as to what action by way of enforcement of the circulars had been obtained.

Issuance of circulars and holding of meetings by themselves do not discharge the onerous responsibility of the Election Commission of India and officers under its command in due performance of not only the statutory power and authority under Representation of People Act, 1950 and the Representation of People Act, 1951 but the confidence that the Indian polity would have on it to carry forward the mechanism of upholding the democracy by use of requisite facilities even in pandemic times like heightened challenge by COVID-19 virus and its variants.

Bench remarked that it is not satisfied with the materials on record to state that the Election Commission of India and its officers on the ground in West Bengal enforced the circulars.

“We are sure that circulars are not merely advisories to be wrapped up by the political parties or those involved in the political propaganda or even the public at large.” 

Further, High Court observed that

Circulars of the Election Commission of India show the route map and the protocol for  behaviour of the political parties, their workers, the people at large and responsible management by the officers including the police and other forces under the command of the Election Commission of India.

Lastly while concluding the matter, Court directed the counsel for Election Commission to return to make submission with a very short affidavit reflecting on whatever has been stated above. [Nitish Debnath v. Election Commission of India, 2021 SCC OnLine Cal 1521, decided on 22-04-2021]


Advocates before the Court:

Mr. Srijib Chakraborty, adv. Mr. Arindam Das, adv.

Mr. Dipayan Choudhury, adv. Mr. Suvradal Choudhury, adv.

Ms. Priyanka Chowdhury, adv.

… For the Election Commission of India

Mr. Y.J. Dastoor, ld. ASG Mr. Phiroze Edulji, adv. Ms. Amrita Panday, adv. Mr. Arijit Majumdar, adv.

…For the Union of India

Mr. Kishore Dutta, A.G.

Mr. Abhrathosh Majumdar, ld. AAG Mr. Sayan Sinha, adv.

… For the State

Mr. Sonal Sinha, adv.

… for the State Election Commission

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: P.V. Asha, J., directed the Election Commission of India (ECI) to conduct elections, to which it is duty-bound, which is even admitted to. Further gave directions to hold elections to three Rajya Sabha seats from Kerala and complete the process at the earliest while taking expeditious steps without further delay to complete the election before another electorate comes into existence.

In the present matter, the Secretary and the member (almost on the identical issue) of the Legislative Assembly challenged the Election Commission’s decision to keep in abeyance elections to the Rajya Sabha till further orders. ECI had stated the following:

“The Commission vide Press Note No. ECI/PN/29/2021 DATED 17.03.2021 had announced the schedule of election for 03 seats to Council of States from Kerala as mentioned therein, with the notification scheduled to be issued on 24.03.2021. In the meanwhile, a reference has been received from the Ministry of Law & Justice. Pending examination of the reference, the Commission has decided to keep the aforementioned proposed notification and schedule in abeyance till further orders.”

Now the contentions put forth by the petitioner was:

That the Commission was bound to conduct the election before the expiration of the term of the three outgoing members of the Council of States otherwise there would be a shortage of three representatives for the State in the Council of States and it should be during the currency of the 14th legislative assembly. And further contended that it is the constitutional right of the members including him to use their franchise to elect a member of their choice to and the postponement would affect their right as the term of the present assembly would expire in May 2021 and apart from that he would also lose his statutory right to exercise his vote to a person of his choice. Further, the counsel appearing for the UOI contended that the reliefs sought by the petitioners to accelerate the process of election is not hit by the embargo in Article 329(b); the Commission is duty-bound to carry out its duties as envisaged in Article 324 of the Constitution of India and steps shall be taken for conducting the election before the expiration of the term of retiring members; right to vote is a constitutional right; there cannot be a deferment of election in the absence of justifiable reasons, etc.

The ECI while firmly contending their stand stated that the requirement of Section 12 of the Representation of Peoples Act was the notification of election before the occurrence of vacancies while the provision that the elections have to be completed before the vacancies is not mentioned.

After considering the facts and the array of cases referred to, while referring to Mohinder Singh v. Chief Election Commissioner (1978) 1 SCC 405 the Court was of the opinion that

“…The fact that it is upto the Commission to fix the schedule of election would not mean that the Commission can fix any date. As held in the judgment in Mohinder Gill’s case when a high functionary like. The Commissioner is vested with wide powers it is incumbent on the Commissioner to act fairly and legally as Article 324 is geared to the accomplishment of free and fair elections expeditiously. The Commission, which is fully aware of its duty conferred under Article 324 of the Constitution of India in its true spirit, has therefore to expedite the proceedings so as to see that the representation in the upper House from the State of Kerala is always in full swing and to avoid situations as pointed out by the learned Senior Counsel for the petitioners, where the nomination is made by the existing assembly and voting by another assembly. It is seen that at least after it arrived at the decision that it is its duty to see that the vacancies are filled up at the earliest, the Commission is yet to take any steps for the same…” And further that “…every Indian has a right to elect and be elected and it is a constitutional as distinguished from a common law right and is entitled to cognizance by courts, subject to statutory regulation…”.

Therefore, the Court in the matter of two writ petitions with identical issues gave directions to hold elections to three Rajya Sabha seats from Kerala and complete the process at the earliest while taking expeditious steps without further delay to complete the election before another electorate comes into existence.[Secy. v. Election Commission of India, WP(C) No.8089 and 8092 of 2021, decided on 13-04-2021]


Advocates for the Petitioner

V.Manu, Senior Government Pleader

N.N.Sugunapalan (Sr.)

P.K.Babu

S.Sujin

Advocates for the Respondent

Deepu Lal Mohan, SC, Election Commission of India

P Vijayakumar, ASG

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V, Ramasubramanian, JJ has refused to interfere with the scheme of sale of electoral bonds by the Political Parties challenged on the ground that it allows the donors of political parties to maintain anonymity which is not healthy for a democracy. The Court said that even though the Scheme provides anonymity, it is intended to ensure that everything happens only through banking channels and that,

“All that is required is a little more effort to cull out such information from both sides (purchaser of bond and political party) and do some “match the following”. Therefore, it is not as though the operations under the Scheme are behind iron curtains incapable of being pierced.”

The following prayers were made before the Court:

(i)  A declaration that all national and regional political parties are public authorities under the Right to Information Act, 2005;

(ii) A direction to the Election Commission of India to collect all information concerning the finances of political parties;

(iii) A direction to all national and regional political parties to mandatorily disclose complete details about their income, expenditure, donations and funding as well as full details of the donors.

Analysis

Explaining the Scheme, the Court said that while the identity of the purchaser of the bond is withheld, it is ensured that unidentified/ unidentifiable persons cannot purchase the bonds and give it to the political parties.

Under clause 7 of the Electoral Bonds Scheme, 2018, buyers have to apply in the prescribed form, either physically or online disclosing the particulars specified therein. Though the information furnished by the buyer shall be treated confidential by the authorised bank and shall not be disclosed to any authority for any purposes, it is subject to one exception namely when demanded by a competent court or upon registration of criminal case by any law enforcement agency. A non-KYC compliant application or an application not meeting the requirements of the scheme shall be rejected.

“If the purchase of the bonds as well as their encashment could happen only through banking channels and if purchase of bonds are allowed only to customers who fulfill KYC norms, the information about the purchaser will certainly be available with the SBI which alone is authorised to issue and encash the bonds as per the Scheme.”

Moreover, any expenditure incurred by anyone in purchasing the bonds through banking channels, will have to be accounted as an expenditure in his books of accounts. The trial balance, cash flow statement, profit and loss account and balance sheet of companies which purchase Electoral Bonds will have to necessarily reflect the amount spent by way of expenditure in the purchase of Electoral Bonds.

Further, the financial statements of companies registered under the Companies Act, 2013 which are filed with the Registrar of Companies, are accessible online on the website of the Ministry of Corporate Affairs for anyone. They can also be obtained in physical form from the Registrar of Companies upon payment of prescribed fee. Since the Scheme mandates political parties to file audited statement of accounts and also since the Companies Act requires financial statements of registered companies to be filed with the Registrar of Companies, the purchase as well as encashment of the bonds, happening only through banking channels, is always reflected in documents that eventually come to the public domain.

The apprehension that foreign corporate houses may buy the bonds and attempt to influence the electoral process in the country was also found to be “misconceived”. Under Clause 3 of the Scheme, the Bonds may be purchased only by a person, who is a citizen of India or incorporated or established in India.

The Court, hence, found no reason to interfere with the Scheme.

[Association for Democratic Reforms v. Union of India, 2021 SCC OnLine SC 266, decided on 26.03.2021]


Appearances before the Court by:

For appellant: Advocate Prashant Bhushan,

For Union of India: Attorney General KK Venugopal

For ECI: Senior Advocate Rakesh Dwivedi

COVID 19Hot Off The PressNews

On 25.02.2020, Election Commission of India announced elections to the Council of States to fill 55 seats of Members from 17 States, retiring in the month of April,2020, which were notified vide Notification No. 318/CS-Multi/2020(1) dated 06.03.2020. After the last date of withdrawal on 18.03.2020, respective Returning Officers declared 37 seats from 10 States filled in uncontested. Now, as per the reports received from the concerned Returning Officers, the biennial elections for 18 seats from the States of Andhra Pradesh, Gujarat, Jharkhand, Madhya Pradesh, Manipur, Meghalaya and Rajasthan are to be conducted  on 26.03.2020 (Thursday) and the date before which election was to be completed as earlier announced by the Commission was 30.03.2020 (Monday).

            On 11.03.2020, World Health Organization has declared Novel Coronavirus COVID-19 a global pandemic. Ministry of Health & Family Affairs and Department of Personnel & Training, Government of India have issued various guidelines and instructions to monitor and contain the transmission of COVID-19. Government of India, vide its press note dated 22.03.2020, has asked all the State Governments to take all measures to break the chain of transmission of COVID-19. This includes suspension of all train services till 31.03.2020 including sub urban rail services; closure of all activities except essential services such as hospitals, telecom, medicine shops, provision stores etc. Subsequently, on 23.03.2020 it has also been informed that the operations of domestic schedule commercial airlines shall cease operations with effective from the mid night 23.59 IST hours on 24.03.2020. State Governments have issued various orders including curb on local transportation accordingly for management and containment of COVID-19. The States of Andhra Pradesh, Gujarat, Jharkhand, Madhya Pradesh, Manipur, Meghalaya and Rajasthan have issued orders of lock down to contain the transmission of COVID-19.

            Commission has reviewed in detail the matter. The prevailing unforeseen situation of public health emergency indicates the need for avoidance of possibilities of gatherings of any nature, which expose all concerned to possible health hazard. The poll process in the above said elections would necessarily include the gathering of polling officials, agents of political parties, support officials and members of respective Legislative Assemblies on the poll day, which may not be suitable in view of the prevailing unforeseen situation and related advisories in the country.

            Section 153 of the Representation of the People Act, 1951 specifies that the Election Commission for reasons which it considers sufficient, may extend the time for the completion of any election by making necessary amendments in the notification issued by it under section 30 or sub-section (1) of section 39; and accordingly, the Election Commission has deferred the poll and extended the period of said election under the provisions of section 153 of the said Act. The list of contesting candidates, already published for the said elections by the respective Returning Officers shall remain valid for the purposes of remaining activities, as prescribed under the said notification. Fresh date of poll and counting for the said biennial elections shall be announced in due course after reviewing the prevailing situation.


Election Commission of India

[Press Release dt. 24-03-2020]

[Source: PIB]

NewsTreaties/Conventions/International Agreements

The Union Cabinet approved the proposal of the Election Commission to enter into the Memorandum of Understanding (MoU) with the Election Commission of Maldives on cooperation in the field of electoral management and administration.  This includes the exchange of knowledge and experience in the field of organizational and technical development of electoral process; support in exchanging information, institutional strengthening and capacity building, training of personnel, holding regular consultations; etc.

The proposed MoU would promote bilateral cooperation, aimed at building technical assistance/capacity support for the Election Commission of Maldives, envisaging cooperation in the field of electoral management and administration.


Cabinet

[Press Release dt. 04-12-2019]

[Source: PIB]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Ananda Sen, J. allowed the writ petition of the petitioner and quashed his transfer order.

The petitioner was working on the post of District Supply Officer, Ranchi in the year 2016. He was transferred to the post of Secretary, Regional Transport Authority, Ranchi on 20-08-2016. He joined on the said post on 24-08-2016. Within six months of his joining, he was again transferred to Pakur. On 31-01-2019, he was transferred from Pakur to Ranchi. He joined on the said post on 05-02-2019. Again on 18-02-2019, the petitioner was transferred from Ranchi to Simdega as Director, Accounts Administration & Self Employment, District Rural Development Authority, Simdega.

Learned counsel for the petitioner, P.A.S. Pati, submitted that the transfer of the petitioner in such a short span was not in consonance with the transfer policy. Atanu Banerjee, the learned counsel for the respondent, submitted that the transfer was in exigency of services and maintained that the transfer was not intended with any malice but was only done because there was a shortage of competent officers at Simdega.

The Court relying on the counter affidavit of the respondents observed that the main reason for transferring the petitioner was the direction of the Election Commission of India because of the ensuing Lok Sabha election. The Court went through the direction in question and found that it was not applicable to the concerned petitioner.

Further, the Court relied on Uttam Kujur v. State of Jharkhand, 2008 (2) JCR 306 (Jhr), which held that that where the State has laid down a transfer policy and prescribed procedure, unexplained deviation from it will render the transfer invalid and arbitrary.

In view of the above, the Court allowed the writ petition and quashed the transfer order, as contained in Memo No. 1540 dated 18-02-2019.[Manoj Kumar v. State of Jharkhand, 2019 SCC OnLine Jhar 515, decided on 16-05-2019]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: Ananda Sen, J. upheld an order passed by the Election Commission of India, dated 1-4-2019, whereby the petitioner — Additional Director General of police, Jharkhand — was forthwith divested from his present assignment and was directed to report to the Resident Commissioner, Jharkhand Bhawan, New Delhi.

A complaint was made against the petitioner that he indulged in electoral malpractices like influencing voters in the Rajya Sabha Elections of 2016. On receipt of the complaint, departmental proceedings were initiated against him and an FIR was registered for committing election offence, on the directions of the Election Commission of India. Meanwhile, elections to the 17th Lok Sabha were announced. A letter was received by the Election Commission with the information of pending inquiry against petitioner. On receiving the letter, the Commission issued an order divesting him of the present assignment and directing him to report to the Resident Commissioner. It was also directed that he shall not be allowed any leave/duty to visit the State of Jharkhand till completion of the electoral process. Aggrieved, the petitioner challenged the aforesaid order.

The High Court noted that Article 324 of the Constitution provides for the establishment of Election Commission of India and vests in it the power of superintendence, direction and control of elections. In Court’s opinion, Article 324 empowers the Commission to issue any notification, circular or direction to conduct free, fair, smooth and uninfluential elections, where there is no special law, either found by the Parliament or by State Legislature to deal with the situation. The Court perused Section 28-A of the Representation of the People Act, 1951 which provides that all the officers which have been ‘designated’ under Part 4 of the Act, shall be deemed to be on deputation of the Election Commission and they will be under control, superintendence and discipline of the Commission.

Notably, the State of Jharkhand has issued a notification designating Additional Director Generals of Police as ‘designated officers’. Therefore, the present petitioner was also a designated officer for the purpose of Section 28-A. Thus, the Election Commission had got full control over the petitioner, a ‘designated officer’, and could give him directions and could also restrict and regulate him. It could decide the nature of the job to be performed by the petitioner and the manner of its performance. The Commission could also restrict or forbid him from performing any work, to achieve the ultimate goal of conducting free and fair elections.

The Court held that the order directing the petitioner to report to the Resident Commissioner in New Delhi was for all-purpose an order of ‘transfer’, which is an incident of service. It was noted that the Election Commission had framed a Model Code of Conduct which, among all other things, formulated the policy of transfer/posting of Government officials during the elections. However, observed the Court, that the MCC is a general provision which cannot be universally applied. It is not a closed document.

Orders of transferring the officers in unforeseen circumstances, will be exceptions to the MCC, and these will be orders passed in the exercise of plenary powers under Article 324 read with Section 28-A.

On the facts of the case, it was found that there was sufficient material before the Election Commission to pass the impugned order. The orders could have been passed by the Commission not only under the MCC but also under Article 324 read with Section 28-A. Thus, there was no illegality in the impugned order. As such, the petitioners challenge to the order divesting him of his duty and directing him to report to the Resident Commissioner was dismissed.

However, regarding the direction that the petitioner shall not be allowed any leave/duty to visit the State of Jharkhand till completion of the election process, the court held that such a blanket order was unreasonable and could not be sustained in the eye of the law. It was directed that if the petitioner applies for grant of leave, the Election Commission should consider the same on its own merit. [Anurag Gupta v. Election Commission of India, 2019 SCC OnLine Jhar 474, dated 03-05-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): The Bench of Sudhir Bhargava, CIC, while dealing with an issue in respect of Electronic Voting Machine stated that EVM (Electronic Voting Machine) is information under RTI Act.

In the present case, the appellant had filed the application under Right To Information Act, 2005 before the Central Public Information Officer (CPIO), Election Commission of India seeking an Electronic Voting Machine. Appellant filed the second appeal on the grounds that the respondent wrongly denied the information.

Contentions placed by the appellant:

Appellant stated that as per Section 2(f) and 2(i) of the RTI Act, the definition of ‘information’ and ‘record’ includes model or any sample which ultimately qualifies EVM as “information” and should be provided to him under Section 6(1) of the RTI Act. Appellant further requested the commission to direct CPIO, ECI to provide the desired information to him free of cost and impose a penalty against CPIO under Section 20 of RTI Act.

Conclusion [Decision taken by CIC]

CIC Bench concluded its order by stating the definition of information under Section 2(f) of RTI Act, i.e.

Section 2(f) – “Information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, order, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”

Therefore, noting the above, the Commission stated that EVM is available in a material form and also as samples, as admitted by the respondent during the hearing, is information under the RTI Act. The contention that the software installed in the EVM is an intellectual property of a third party, disclosure of which would harm the competitive position of the third party concerned, commission directed the CPIO, ECI to provide an appropriate reply, as per the provisions of the RTI Act, since it could not have been denied under Section 6(1) of the Act.

With the above position of facts and circumstances along with the conclusion pronounced, the appeal was disposed of. [Razak K. Haidar v. CPIO, Election Commission of India, Order dated 11-02-2019]

Case BriefsHigh Courts

Delhi High Court: A few days back on 16th February, the Additional Sessions Judge had granted parole to applicant Mukhtar Ansari who is a sitting MLA from Mau Constituency and has been so for last 4 terms. Aggrieved by the order, the Election Commission approached the High Court contending that it is bestowed with extensive powers under Article 324 of the Constitution and where an order of the Court would adversely affect and obstruct the Election Commission in conducting free and fair elections, the Election Commission would be within its jurisdiction to challenge the same placing reliance on  Mohinder Singh Gill v. Chief Election Commissioner, New Delhi, 1978 (1) SCC 405Election Commission of India v. State of Haryana1984 Suppl SCC 104;  A.C. Jose v. Sivan Pillai, 1984 (2) SCC 656 and Union of India v. Association for Democratic Reforms, 2002 (5) SCC 294.

The Commission even submitted before the Court that Question No. 49 of Frequently Asked Questions to Model Code of Conduct for Guidance of Political Parties and Candidates, stateS that before grant of custody parole, the Election Commission ought to have been consulted. However, the same was not done in the case of respondent. Counsel for the petitioner further submitted if the criminal antecedents of the respondent are taken into account, it is apparent that it would affect the free and fair process of election stating that not only the impugned order has been passed without issuing notice to the Election Commission, it also violates the directions issued by the Election Commission during the elections, namely, Instruction No. 13 in this regard.

The petitioner further contended that democracy is the basic feature of the Constitution of India which rests on a system of free and fair elections and no candidate has a fundamental right to be elected or to campaign as per his choice relying on  Indira Nehru Gandhi v. Raj Narain1975 Supp SCC 1;  Jyoti Basu v. Debi Ghosal, 1982 (1) SCC 691 and  Kuldip Nayar v. Union of India, 2006 (7) SCC 1.

Election Commission informed the Bench of the incidents to show that while canvassing, law and order problems were created and various FIRs were registered in 2012 while he was released and in January, 2017 as well, FIR had been registered wherein supporters of respondent were found creating law and order situation. On this, the Court observed that the legal right of a candidate to contest an election does not translate into a legal right to canvass for his candidature and held that even if the trial court was not appraised with the relevant rules placed by ECI, the High Court had power under Section 482 CrPC to stop the abuse of process. Accordingly, disposing off the petition, the Court set aside the impugned order. [Election Commission of India v. Mukhtar Ansari, 2017 SCC OnLine Del 7199, dated 27.02.2017]

 

Case BriefsHigh Courts

High Court of Bombay at Goa: The Election Commission had issued certain guidelines for conducting exit polls on 4th February, 2017, that was the day of polling in Goa. The petitioners, a local media news channel had filed a writ petition challenging the guidelines of Election Commission.

The counsel on behalf of the ECI put forth before the Court that no exit polls would be conducted on the day of polling in the States mentioned in the ECI notification dated 31.01.2017. To this, the counsel for the petitioner contended that such a stand was contrary to Section 126-A of the Representation of Peoples Act as well as of what could be understood by the plain reading of the notification itself while pointing out the fact that such exit polls have been conducted previously as well in Goa. It was brought to the light of the Court that S. 126-A as well as the notification bar the dissemination and publication of the results of the exit polls, but do not put any bar on conducting them.

The Court observed that the arguments of the petitioners were worth considering after the reply of Election Commission was filed. However, the Bench refused to interfere and to grant ad interim protection to petitioners and directed the ECI to issue a clarification on the notification by evening. [SOCIEDADE DE FOMENTO INDUSTRIAL PVT. LTD. V. UNION OF INDIA, WP No. 143 of 2017 decided on 3.02.2017]