Case BriefsSupreme Court

“This Court stands as a staunch proponent of the freedom of the media to report court proceedings. This we believe is integral to the freedom of speech and expression of those who speak, of those who wish to hear and to be heard and above all, in holding the judiciary accountable to the values which justify its existence as a constitutional institution.”

Supreme Court: In the case where the Election Commission of India (EC) had sought a direction restraining the media from reporting on court proceedings after Madras High Court made certain oral remarks attributing responsibility to the EC for the present surge in the number of cases of COVID-19, due to their failure to implement appropriate COVID-19 safety measures and protocol during the elections, the bench of Dr. DY Chandrachud* and MR Shah, JJ has refused to restrain the media from reporting on Court proceedings.

“It is trite to say that a formal opinion of a judicial institution is reflected through its judgments and orders, and not its oral observations during the hearing. Hence, in view of the above discussion, we find no substance in the prayer of the EC for restraining the media from reporting on court proceedings.”

During the course of the hearing, the Madras High Court had allegedly orally observed that the EC is “the institution that is singularly responsible for the second wave of COVID-19” and that the EC “should be put up for murder charges”. These remarks, though not part of the order of the High Court, were reported in the print, electronic and tele media.

EC had alleged that these remarks are baseless, and have tarnished image of the EC, which is an independent constitutional authority.

Noticing that these oral remarks are not a part of the official judicial record, and therefore, the question of expunging them did not arise, the Supreme Court said that,

“… the High Court was faced with a situation of rising cases of COVID-19 and, as a constitutional Court, was entrusted with protecting the life and liberty of citizens. The remarks of the High Court were harsh. The metaphor inappropriate. The High Court – if indeed it did make the oral observations which have been alluded to – did not seek to attribute culpability for the COVID-19 pandemic in the country to the EC. What instead it would have intended to do was to urge the EC to ensure stricter compliance of COVID-19 related protocols during elections.”

Tasked with balancing the rights of two independent constitutional authorities, the Court observed that the High Courts are often the first point of contact for citizens whose fundamental rights have been violated. High Courts are constantly in touch with ground realities in their jurisdictions.

“During the COVID-19 pandemic, the High Courts across the country have shown commendable foresight in managing the public health crisis which threatens to submerge humanity. Their anguish when they come face to face with reality must be understood in that sense.”

On the other hand, the EC has facilitated the operation of our constitutional democracy by conducting free and fair elections and regulating conduct around them for over seven decades.

“Its independence and integrity are essential for democracy to thrive. This responsibility covers powers, duties and myriad functions which are essential for conducting the periodic exercise of breathing life into our democratic political spaces.”

While the Court held that the High Court was faced with a situation of rising cases of COVID-19 and, as a constitutional Court, was entrusted with protecting the life and liberty of citizens and hence, only intended to urge the EC to ensure stricter compliance of COVID-19 related protocols during elections, it emphasised on the need for judges to exercise caution in off-the-cuff remarks in open court, which may be susceptible to misinterpretation.

“Language, both on the Bench and in judgments, must comport with judicial propriety. Language is an important instrument of a judicial process which is sensitive to constitutional values. Judicial language is a window to a conscience sensitive to constitutional ethos. Bereft of its understated balance, language risks losing its symbolism as a protector of human dignity. The power of judicial review is entrusted to the High Courts under the Constitution. So high is its pedestal that it constitutes a part of the basic features of the Constitution. Yet responsibility bears a direct co-relationship with the nature and dimensions of the entrustment of power. A degree of caution and circumspection by the High Court would have allayed a grievance of the nature that has been urged in the present case.”

The Court concluded by saying that the oral observations during the course of the hearing have passed with the moment and do not constitute a part of the record.

[Chief Election Commissioner of India v. M.R Vijayabhaskar, 2021 SCC OnLine SC 364, decided on 06.05.2021]


*Judgment by: Justice Dr. DY Chandrachud

Appearances before the Court:

For EC: Senior Advocate Rakesh Dwivedi and Advocate Amit Sharma

Case BriefsHigh Courts

Kerala High Court: The Division Bench comprising of S.Manikumar, CJ., and Shaji P. Chaly, J., heard the instant PIL whereby, MLA Ramesh Chennithal had approached the Court for seeking issuance of directions to the Election Commission of India (ECI) to ensure that fake/multiple entry voters in the electoral roll for the election to the Kerala Legislative Assembly were not permitted to vote. The Bench directed,

“Election Commission should also ensure that sufficient State/Central force is posted at all voting places, to ensure fair and democratic election.”

 The petitioner contended that there were multiple entries of the voters in various places, which according to the petitioner was about 3,24,441 double votes and 1,09,601 bogus votes in the final electoral roll published on 20-01-2021, spreading over 131 Assembly Constituencies, and in total 4,34,042 double/fake votes in the final electoral rolls. The petitioner further submitted that though complaints were made to the Election Commission to correct the electoral roll, no steps had been taken and the voting is scheduled on 06-04-2021.

Assessing the seriousness of the matter, the petitioner had sought for a mandamus, directing the respondents to take immediate actions, and rectify the electoral roll by deleting or freezing fake/multiple votes and also to ensure that those fake/multiple entry voters were not permitted to vote in the election in any polling booths.

To substantiate his allegations, the petitioner submitted a computerized printout of the voters of 134 Thiruvananthapuram Central Constituency and CDs. On perusal of the same, the Bench observed that while the photographs of the voters being the same, names, booth numbers and serial numbers were different.

The Bench asked the Election Commission of India, whether it had any mechanism to find out the chances of multiple entry, in case of absence/shifting or for any other reason. The Bench stated,

“We are of the prima facie view that there are discrepancies in the final voters list published by the Election Commission.”

 Agreeing with the argument of the petitioner that the presence of multiple entries in the voters list would facilitate a voter to cast twice, which is not permissible in law, the Bench directed the ECI to ensure that there was no double voting by any voter. ECI was further directed to ensure that sufficient State/Central force is posted at all voting places, to ensure fair and democratic election. Lastly, the Bench stated,

To implement the above, steps should be taken on war footing basis. Orders of this Court should be implemented in letter and spirit, without any room for compliant.”

[Ramesh Chennithala v. Election Commission of India, 2021 SCC OnLine Ker 1613, decided on 29-03-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court:

For the Petitioner: Adv. T. Asaf Ali,

For the Respondents: Adv. Deepu Lal Mohan

Case BriefsHigh Courts

Madras High Court: The Division Bench of Sanjib Banerjee, CJ and Senthilkumar Ramamoorthy, J., while addressing a riveting issue wherein a political party challenged Section 60 (c) of the Representation of the People Act, 1951 and the corresponding rules to facilitate postal ballots for absentee voters including senior citizens of above 80 years, persons with disabilities, COVID-19 affected/ suspected and persons employed in essential services, held that:

“…clause (c) is eminently compatible with the company that it keeps in Section 60 of the Act of 1951 without betraying any sign of incongruity.”

Amendment effected in 2003 to Representation of the People Act, 1951 || In Question

Propriety of an amendment effected in 2003 to the Representation of the People Act, 1951 had been called into question by one of the leading political parties in the State along with myriad other grievances in respect of guidelines issued by the Election Commission of India and classification of persons who may exercise their franchise otherwise than by presenting themselves at a polling booth in the forthcoming assembly elections.

Stance of Political Party

The introduction of 60 (c) of the Act, 1951 amounts to the excessive delegation as it is perceived to confer virtual legislative authority to the Election Commission.

Election Commission has the primacy in conducting assembly elections, Petitioner while agreeing the said suggested that matters as such as the classes of persons who may vote otherwise than by attending the election booth must be completely indicated in any rules that may be framed by the Central Government and Election Commission must not be left with any authority to pick and choose from such classes of persons.

The said provision does not permit Election Commission to indicate any classes of persons to permit them to vote otherwise than by attending the election booth.

Hence, in view of the above stated, the 2019 and 2020 amendments to Conduct of Election Rules, 1961 have been challenged along with the guidelines issued by the Election Commission on 17th September, 2020; 2nd February, 2021 and 27th February 2021.

Rules have been challenged and questioned on the ground of — Excessive Delegation.

Petitioner submitted that

  • Sanctity of the right to vote, which is the most fundamental right enjoyed by a citizen in a democracy, is desecrated by the mode and manner of voting as stipulated for a class of persons by the Election Commission.
  • Secrecy in casting a vote, which is the fulfilment of the right to choose by an ordinary citizen, is seriously compromised in the voting process designed by the Election Commission for absentee voters.
  • Election Commission has virtually cut off the role of political parties in the process.

Analysis, Law and Decision 

Bench in view of the facts and circumstances of the present case stated that the petitioning party must be seen to be aware of the voter, difficulties that the Election Commission may face in implementing the manner of voting through postal ballot, the endeavour of the party has to be respected as an attempt to ensure a free and fair election.

Court further expressed that the nature of the petitioner’s attack on the validity of Section 60(c) of the Act of 1951 falls way short of the exalted tests that a person questioning the propriety of a statutory provision must meet.

The discussion with respect to excessive delegation in the present matter pertains to high constitutional authority as the Election Commission and the venerable position conferred to such Commission by constitutional provisions in Part XV of the suprema lex.

There is no doubt that the Election Commission has to abide by the laws made by the Parliament, but the laws made by the Parliament can only be such as may facilitate the conduct of the elections by the Election Commission in the milieu of the expansive domain carved out for the Commission in the wide words of Article 324 of the Constitution.

 Further with regard to the choice of senior citizens aged 80 years, Petitioner contended that when the lower age limit of a senior citizen has been reduced from the erstwhile 80 years to 65 years by the Central Government amending the 1961 Rules, the Election Commission has no business to go by the class of senior citizens in the pre-amended provision and extend only to them the choice of voting by postal ballot.

Fallacy in the above argument

Section 60(c) of the Act of 1951 permits any person to be chosen by the Election Commission from a class of persons indicated in the Rules to be conferred the privilege of voting by postal ballot as long as the choice is preceded by a consultation with the Central Government and followed by a notification in such regard being published.

If the statute confers the right to indicate classes of persons to the executive and the executive allows the Election Commission to choose sub-classes in consultation with the executive, no case of excessive delegation is made out.

Further, the High court noted that the only matters of substance that the petitioner has been able to urge pertain to the word “notified” used in Section 60(c) of the Act of 1951 and the perceived failure of the Election Commission in such regard together with the use of the word “postal” implying that the postal ballots would necessarily have to be sent by post and received back by post and in no other manner.

Adding to the above, Bench expressed that,

Four classes of persons included as absentee voters and entitled to choose to exercise their franchise by postal ballot – senior citizens above 80 years, persons with disabilities, Covid-affected persons and personnel engaged in specific essential services – have been duly notified upon the notifications being completed by corresponding publications being made in the Official Gazette of the State.

With respect to choosing the smaller classes over larger in some cases was upon consultation with the Central Government.

Noting and observing the above discussion, Court further proceeded to state that:

“…all that the Election Commission has done here is to be inclusive and allow certain classes of persons who would have been excluded from exercising their franchise the right to use the postal ballot and participate in the celebration of the festival of democracy.”

Elaborating more on the said subject of excessive delegation, Court held that in the backdrop of the rule-making provision in Section 169 of the Act of 1951 mandating consultation with the Election Commission, the Rules of 1961, particularly the amendments brought about in 2019 and 2020, do not amount to the excessive delegation.

Right to participate in the democratic process

Court also found no arbitrariness in the classification of the persons permitted by the Rules of 1961 to cast their vote by postal ballot, which is based on who may not be able to physically attend the polling booth.

Supreme Court decision in A.C. Jose, recognised the authority of the Election Commission to pass any orders in respect of the conduct of elections when there is no parliamentary legislation or rule made under the said legislation.

Lastly, while concluding, High Court held that it did not find any merit in the challenge –whether to the validity of Section 60(c) of the Act of 1951 or to the impugned guidelines issued by the Election Commission or, generally, to how the Commission has gone about in its endeavour to conduct the ensuing assembly elections in this State.[Dravida Munnetara Kazhagam v. Union of India, 2021 SCC OnLine Mad 1100 , decided on 17-03-2021]


Advocates before the Court:

For the Petitioner: Mr P.Wilson, Senior Counsel for M/s. P. Wilson Associates

For the Respondents: Mr R.Sankaranarayanan Additional Solicitor-General assisted by Mr K.Srinivasamurthy Senior Panel Counsel for Central Government for 1st respondent

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman*, BR Gavai and Hrishikesh Roy, JJ reiterated the law relating to the bar to interference by courts in electoral matters relating to delimitation of constituencies and allotment of seats to such constituencies, specifically in the context of municipal elections.

“So far as delimitation and allocation of seats is concerned, the bar contained in Article 243ZG(a) operates together with the non-obstante clause contained therein to bar all courts from interfering with State statutes dealing with delimitation and allocation of seats, just as is the bar contained in Article 329(a) of the Constitution.”

The Court explained that the entire supervision and conduct of elections to municipalities is vested in a constitutional authority that is the SEC which is to supervise and conduct elections by giving orders and directions to the State Government as well as authorities that are set up under State statutes for the purpose of supervision and conduct of elections.

“The power thus conferred by the Constitution is a power given to the SEC not only to carry out the constitutional mandate but also to fill in gaps where there is no law or rule governing a particular situation during the conduct of an election.”

The SEC, being an independent constitutional functionary, is not only to be obeyed by the State Government and the other authorities under local State statutes, but can also approach the writ court under Articles 226 and 227 of the Constitution of India to either enforce directions or orders issued by it or to ask for appropriate orders from High Courts in that behalf.

Referring to a number of judgments, the Court summarised the following points:

I. Under Article 243 ZG(b), no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the Legislature of a State. This would mean that from the date of notification of the election till the date of the declaration of result a judicial hands-off is mandated by the non-obstante clause contained in Article 243ZG debarring the writ court under Articles 226 and 227 from interfering once the election process has begun until it is over. The constitutional bar operates only during this period. It is therefore a matter of discretion exercisable by a writ court as to whether an interference is called for when the electoral process is “imminent” i.e, the notification for elections is yet to be announced.

II. If, however, the assistance of a writ court is required in subserving the progress of the election and facilitating its completion, the writ court may issue orders provided that the election process, once begun, cannot be postponed or protracted in any manner.

III. The non-obstante clause contained in Article 243ZG does not operate as a bar after the election tribunal decides an election dispute before it. Thus, the jurisdiction of the High Courts under Articles 226 and 227 and that of the Supreme Court under Article 136 of the Constitution of India is not affected as the non-obstante clause in Article 243ZG operates only during the process of election.

IV. Under Article 243ZA(1), the SEC is in overall charge of the superintendence, direction and control of the preparation of electoral rolls, and the conduct of all municipal elections. If there is a constitutional or statutory infraction by any authority including the State Government either before or during the election process, the SEC by virtue of its power under Article 243ZA(1) can set right such infraction. For this purpose, it can

    • direct the State Government or other authority to follow the Constitution or legislative enactment or direct such authority to correct an order which infracts the constitutional or statutory mandate.
    • approach a writ court to issue necessary directions in this behalf.

It is entirely upto the SEC to set the election process in motion or, in cases where a constitutional or statutory provision is not followed or infracted, to postpone the election process until such illegal action is remedied. This the SEC will do taking into account the constitutional mandate of holding elections before the term of a municipality or municipal council is over. In extraordinary cases, the SEC may conduct elections after such term is over, only for good reason.

V.Judicial review of a State Election Commission’s order is available on grounds of review of administrative orders. Here again, the writ court must adopt a hands-off policy while the election process is on and interfere either before the process commences or after such process is completed unless interfering with such order subserves and facilitates the progress of the election.

VI. Article 243ZA(2) makes it clear that the law made by the legislature of a State, making provision with respect to matters relating to or in connection with elections to municipalities, is subject to the provisions of the Constitution, and in particular Article 243T, which deals with reservation of seats.

VII. The bar contained in Article 243ZG(a) mandates that there be a judicial hands-off of the writ court or any court in questioning the validity of any law relating to delimitation of constituency or allotment of seats to such constituency made or purporting to be made under Article 243ZA. This is by virtue of the non-obstante clause contained in Article 243ZG. The statutory provisions dealing with delimitation and allotment of seats cannot therefore be questioned in any court. However, orders made under such statutory provisions can be questioned in courts provided the concerned statute does not give such orders the status of a statutory provision.

VIII. Any challenge to orders relating to delimitation or allotment of seats including preparation of electoral rolls, not being part of the election process as delineated above, can also be challenged in the manner provided by the statutory provisions dealing with 87 delimitation of constituencies and allotment of seats to such constituencies.

IX. The constitutional bar of Article 243ZG(a) applies only to courts and not the State Election Commission, which is to supervise, direct and control preparation of electoral rolls and conduct elections to municipalities.

X. The result of this position is that it is the duty of the SEC to countermand illegal orders made by any authority including the State Government which delimit constituencies or allot seats to such constituencies, as is provided in proposition (IV) above. This may be done by the SEC either before or during the electoral process, bearing in mind its constitutional duty as delineated in the said proposition.

[State of Goa v. Fauzia Imtiaz Shaikh, 2021 SCC OnLine SC 211  , decided on 12.03.2021]


*Judgment by: Justice RF Nariman

For State: Additional Solicitor General Tuhsar Mehta

For appellants: Senior Advocates Mukul Rohatgi, Vinay Navare

For first respondent: Senior Advocates Atmaram Nadkarni, Vivek Tankha

For intervenor: Councel Ninad Laud

ALSO READ

Appointment of Government official as Election Commissioner “a mockery of the constitutional mandate”; ECs must be independent: Supreme Court

Case BriefsSupreme Court

Supreme Court: Calling the appointment of the Law Secretary of the Government of Goa, a member of the IAS, as State Election Commissioner ‘disturbing’, the 3-judge bench of RF Nariman*, BR Gavai and Hrishikesh Roy, JJ has held that such appointment of a Government Officer directly under the control of the State Government is a subversion of the constitutional mandate contained in Article 243K of the Constitution of India

“Giving an additional charge of such an important and independent constitutional office to an officer who is directly under the control of the State Government is, in our view, a mockery of the constitutional mandate.”

The Court said that the State Election Commissioner has to be a person who is independent of the State Government as he is an important constitutional functionary who is to oversee the entire election process in the state qua panchayats and municipalities. The importance given to the independence of a State Election Commissioner is explicit from the provision for removal from his office made in the proviso to clause (2) of Article 243K. Insofar as the manner and the ground for his removal from the office is concerned, he has been equated with a Judge of a High Court.

The Court, hence, declared that the additional charge given to a Law Secretary to the government of the state flouts the constitutional mandate of Article 243K.

“The State Government is directed to remedy this position by appointing an independent person to be the State Election Commissioner at the earliest. Such person cannot be a person who holds any office or post in the Central or any State Government.”

In order to ensure that the constitutional mandate of an independent State Election Commission which is to conduct elections under Part IX and IXA of the Constitution be strictly followed in the future, the Court also made clear that henceforth, all State Election Commissioners appointed under Article 243K in the length and breadth of India have to be independent persons who cannot be persons who are occupying a post or office under the Central or any State Government.

“If there are any such persons holding the post of State Election Commissioner in any other state, such persons must be asked forthwith to step down from such office and the State Government concerned be bound to fulfil the constitutional mandate of Article 243K by appointing only independent persons to this high constitutional office.”

[State of Goa v. Fauzia Imtiaz Shaikh,  2021 SCC OnLine SC 211, decided on 12.03.2021]


*Judgment by: Justice RF Nariman

Know Thy Judge| Justice Rohinton F. Nariman

For State: Additional Solicitor General Tuhsar Mehta

For appellants: Senior Advocates Mukul Rohatgi, Vinay Navare

For first respondent: Senior Advocates Atmaram Nadkarni, Vivek Tankha

For intervenor: Councel Ninad Laud

Hot Off The PressNews

Many instances have come to the notice of the Election Commission of India wherein Chief Electoral Officers and some other officials working directly in the office of Chief Electoral Officers, e.g., Additional Chief Electoral Officers and Joint Chief Electoral Officers, etc. have been victimised after the elections are over. Ironically, in most such instances the concerned officers had discharged their duties in an impartial manner in order to ensure free, fair, robust and ethical elections. After a comprehensive review of this issue and keeping in view such specific instances, Commission has addressed a communication to all concerned vide its letter No. 154/2020, dated 15-01-2021 inter alia stating: –

(i) The state/UT governments shall invariably obtain prior approval of the Commission, if any disciplinary action is initiated against the Chief Electoral Officers and other officers up to Joint Chief Electoral Officer during their tenure and also up to one year from the expiry of last election conducted by them.

(ii) Commission has also directed that the State/UT government shall not reduce facilities such as vehicle, security and other facilities/amenities provided to the office of the Chief Electoral Officer for proper discharge of his/her duties.

            Commission is sanguine in the expectation that all concerned shall strictly adhere to this regimen in letter as well as in spirit.

Copy of the above instruction is available on the ECI website https://eci.gov.in.


Election Commission

[Press Release dt. 15-01-2021]

Case BriefsHigh Courts

Kerala High Court: A. Muhamed Mustaque J., upholding the decision of the Election Commission, dismissed the present Writ Petitions and clarified the applicability of Kerala Local Authorities (Prohibition of Defection) Act, 1999.

 Brief Facts

Three writ petitions were filed by the members of Ranny-Pazhavangadi Grama Panchayat aggrieved by the decision of the Kerala State Election Commission (for short, the ‘Election Commission’) declaring that the petitioners are disqualified for being members of Ranny-Pazhavangadi Grama Panchayat as provided under Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (for short, the ‘Act’) and further disqualified to contest as candidates in any election of the local body for a period of six years.

The cause of action for disqualification arose on 23-5-2017. Abraham from LDF (the party to which the petitioners allegedly belong) was the President of the Grama Panchayat at that time. A No-Confidence Motion was moved against him. Subsequently, a whip was issued by the parties of LDF coalition to all its members. Defying the whip all these petitioners voted in favour of the motion. In defence before the Election Commission, the petitioners alleged that they did not receive the aforementioned whips, hence, no provision of the Act was attracted. With respect to candidature, it was originally admitted by the petitioners that they contested the election as nominees of political parties forming part of the LDF coalition but after closing of the evidence, they filed an application for deleting those admissions by way of amendment.

 Issue

  1. Whether petitioners were independent candidates or supported by political party in question?
  2. Whether the whip issued was conveyed to the petitioners as per Kerala Local Authorities (Prohibition of Defection) Act, 1999?
  3. Whether supporting the no-confidence motion, amount to voluntary giving up of membership under the said Act?

Observation

Placing reliance over the findings of Election Commission, the Court agreed with the submission made by the counsel for respondents that the petitioners contested election with the support of political party and the whip issued, therefore, assumes significance. The Court also accepted the applicability of Rule 3(2)(a) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 wherein, any person who contested election as a candidate in support of a political party shall be treated as a member of that political party. Further, Court made the following observation with respect to service of whip to the rightful person, as per Kerala Local Authorities (Prohibition of Defection) Act, 1999

“There are two limbs under Section 3(1)(a) of the Act, second limb would be attracted only when there was a valid whip and servicing the whip in a manner referred under Section 3(2) r/w 4(2) of the Rules. The service referred as above is mandatory. There is no dispute in regard to the fact that the whip was not served on the Secretary of the Local Self Government Institutions. Therefore, the second limb cannot be attracted to this matter. The finding of the Election Commission would also show that no copy of the whip was served on the Secretary.”

In reference with issue 3, the Court said,

“The petitioners support to the No Confidence Motion was against the interest of the political parties which supported them as candidates. This amounts to voluntarily giving up of the membership. It is to be noted that there was no dispute on CPI(M), CPI and JD(S) were part of the coalition. Thus acting against the interest of coalition by party members of the constituents of the coalition amount to acting against their own party. The Election Commission entered into a finding based on the materials before it, there was valid whip and the petitioners were aware of such whip. Though such whip cannot be relied to attract second limb of Section 3(1)(a) of the Act, nothing bars the Election Commission for placing reliance on it for disqualifying a member based on the ground referred in the first limb of Section 3(1)(a).

The Court further cited Rama Bhaskaran v. Kerala State Election Commission, 2018(2) KLT 600, Manoj Madhavasseril v. Kerala State Election Commission, 2018(1) KLT 1047 and Chandran v. Kerala State Election Commission, 2019(1) KLT SN 18 and Lizy Valsan v. Suja Salim, 2015 (3) KLT SN 61 in furtherance of its said observation.

Decision

While dismissing the present Writ Petitions, the Court upheld the decision of Election Commission of debarring the petitioners from contesting future elections.[Boby Abraham v. Kerala State Election Commission, 2020 SCC OnLine Ker 4507, decided on 15-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Judge Bench of Priyantha Jayawardena, Vijith K. Malalgoda and Murdu N. B. Fernando, JJ., rejected a motion requesting the court to issue a Sinhala translation of the judgment delivered in the fundamental rights application which was filed alleging that the Proclamation issued by the former President, by Gazette No. 2096/70 as on 09-11-2018 dissolving the Parliament and calling for the election of the Members of Parliament, was contrary to Articles 10, 12(1), 12(2), 14(1)(a), 14(1)(c) and 14(1)(f) of the Constitution.

The instant application was filed against the Attorney-General in terms of Article 35 of the Constitution on the basis that the aforementioned Gazette was issued by the former President, the petitioner being Attorney-at-law had filed the application in the interest of public praying to suspend the operation of the Proclamation issued by the President dissolving the Parliament, to stay the holding of Parliamentary Elections, to declare that the respondent had violated the petitioner’s fundamental rights and to quash the said Proclamation dissolving Parliament.

The Court explained that the petition of the said fundamental rights application in which the judgment was delivered, was filed by Rajavarothiam Sampanthan citing the Attorney-General, the Chairman and the members of the Election Commission as respondents and the petitioner was neither a party nor an Attorney-at-Law who represented any of the parties in the said application. Thus, rejecting the motion the Court held that the petitioner was not entitled under Article 24(3) of the Constitution to obtain a translation of the judgment delivered in the said application.[Aruna Laksiri Unawatuna v. Maithripala Sirisena, SC (FR) Application No. 357 of 2018, decided on 14-10-2020]


Suchita Shukla, Editorial Assistant has put this story together

COVID 19Hot Off The PressNews

Election Commission of India approved the broad guidelines for conduct of general/bye-elections during the COVID-19 period.

After the onset of the COVID-19 pandemic in India, the Ministry of Home Affairs (MHA) and Ministry of Health and Family Welfare (MoHFW) have been issuing guidelines from time to time.

In their latest circular dated 29-07-2020, MHA has issued comprehensive guidelines/directives to be followed countywide. Similarly, the Ministry of Health & Family Welfare has also issued SOP on disinfection, sanitization, and prevention for containing COVID-19.

Earlier, Commission, on 17-07-2020, had sought views/suggestions of National/State Political Parties till 31-07-2020 and had further extended the period टिल 11-08- 2020 on request of the Political parties. Commission has considered the views/suggestions received from various Political Parties and Chief Electoral Officers of States/UTs on the election campaign and public meetings.

Salient features of the guidelines include the following:

The Commission has revised the norms of number of persons accompanying the candidate and number of vehicles at the time of nomination. It has also created optional facility to fill the nomination form and the affidavit online and submission of the same, after taking print, before the RO concerned. For the first time, the candidates will have the option to deposit security amount for contesting the elections online. Keeping the containment guidelines in view, the Commission has limited the number of persons including candidate for door to door campaign to five. Public meeting and road shows shall be permissible with suitable instructions subject to containment instructions issued by the MHA/State. Face Mask, Sanitizer, Thermal scanners, gloves, face shield and PPE kits shall be used during the electoral process ensuring social distancing norms. Hand gloves shall be provided to all the electors for signing on the voter register and pressing button of EVM for voting.

The Chief Electoral Officers of concerned States/UTs, shall make comprehensive State/District & AC election plans regarding arrangement and preventive measures following these guidelines taking local conditions into account. These plans will be prepared in consultation with Nodal Officer for COVID-19 in their respective States/UTs.

Guidelines are available at https://eci.gov.in/files/file/12167-guidelines-for-conduct-of-general-electionbye-election-during-covid-19/


Election Commission

[Press Release dt. 21-08-2020]

Op EdsOP. ED.

Introduction

Eradication of political corruption is one of our long sought-after aspirations as a country to achieve an ideal democratic structure. However, in practical terms, these issues are far from being eliminated. Through media reporting, actions that count as an unethical or corrupt practice can also be seen very frequently. One of them is canvassing based on religion. While living in India we proudly adorn the title of being the largest democracy in the world and we also have the privilege of having the greatest democratic elections in human history. Elections in India are known as the Grand Festival of Democracy. However, in a country where elections are so important, there are certain things which make politics in India a dirty game, and Section 123(3) of the Representation of the People Act of 1951[1] (hereinafter referred to as ‘the Act’) is enacted to put a hold on one of the many ill practices.

Article 19(1)[2] defines the much-revered freedom of speech and expression. As mandated by the Constitution, freedom of speech and expression is a natural right which means that citizens acquire this right by birth. All the citizens hold the freedom of speech and expression but, it does not act as an unconditional licence. Therefore, certain reasonable restrictions are placed under Article 19(2) of the Constitution. Section 123(3) of the Act prohibits canvassing by an electoral candidate to woo voters in the name of race, caste, religion, community and language. It also prohibits usage of religious symbols or national symbols or flag for canvassing purposes. Usage of the aforesaid are considered to be corrupt practices. The electoral candidates cannot promise any public policy which they propose to implement on being successful. Article 25 of the Constitution guarantees the citizens of India, freedom of conscience and allows every citizen the right and freedom to profess, practice and propagate the religion of one’s choice subject to public order, health and morality.

The authors have attempted to compare Article 19(1)(a) of the Constitution of India and Section 123(3) of the Act and have studied whether Section 123(3) of the Act is violative of Article 19(1)(a) or not in the context of the demographical feature of India and in the backdrop of the voters of the constituencies.

The Role of Election Commission

The Election Commission of India is a constitutional body, deriving its source of powers and functions from Article 324 of the Constitution of India. Entry 72 of Union List – Schedule 7 provides for the source of power to Parliament to regulate and frame laws with respect to elections to Parliament, State Legislatures and the election of the President and the Vice- President of India.

The Election Commission of India (hereinafter referred to as ‘the ECI’), over the years has passed rigid orders barring candidates like Maneka Gandhi, Azam Khan, and Giriraj Singh from campaigning and canvassing for votes, on the grounds of making communal speeches, which were against Section 123(3) of the Representation of People’s Act, 1951. In all the cases, the ECI reasoned out that the aforesaid candidates acted in contravention to the Model Code of Conduct (‘MCC’) which comes into force after the declaration of election is announced by the ECI and fell squarely within the ambit of ‘corrupt practices’, by appealing in the name of caste or communal feelings to secure votes. MCC stipulates that no political party or candidate can secure votes based on caste and religion. In many constituencies, there are poor people who do not possess the knowledge about the voting rights and the requisite knowledge with respect to corrupt practices, etc.

Some candidates try to take advantage of such public ignorance and use religion as to appeal for votes. The candidates often make hollow promises that, ‘if’ they are voted to power, then they will roll-out every possible schemes and benefits for the people of one distinct religious sect.

The Election Commission endeavours to take all the necessary measures to ensure that free, fair and peaceful elections in the country. However, it has been observed in practice, that the guidelines issued by the Election Commission are not followed strictly, rather there is an attempt to flout the rules, which leads us to an inevitable conclusion, that there is a strong need for electoral reforms in the country. The Preamble of the Indian Constitution states that India is a democratic and a secular nation. The word “democratic” means that we have the right to choose our own representatives. A Government of the People, For the People and By the People. “Secular”, on the other hand, means that our country does not have an official State sponsored religion unlike many other countries of this world. For example, Pakistan is known by the official name – “The Islamic Republic of Pakistan” which clearly indicates that Pakistan has a State religion but, on the other hand India’s Constitution bars any State religion. The election being the most important and integral part of any democracy, should remain sacrosanct and therefore, it is again important to reiterate the fact that the candidates should not appeal for votes in the name of religion or any other class differentiation; it defeats the ethos of a healthy democracy.

Judicial Interpretations

The Indian judiciary has decided multiple cases on the aspect of “corrupt practices”. In S.R Bommai v. Union of India[3], the Supreme Court observed that secularism is a part of the basic structure of the Constitution. A section of people sometimes describes such an attitude of neutrality towards religious belief as compassionate neutrality, although religious freedom is guaranteed to everyone in India, the faith, religion, and belief of a person are immune from the radar of the State. All are equal before the State and have the right to equal treatment. There is no place for religion in machinery and the working of the State.

If the Constitution mandates the State to remain neutral in perception and behaviour vis-à-vis religion, the same requirement applies to political parties and their electoral candidates as well. The Constitution does not recognise, nor, does it allow the mixing of religion and State power. Concerning Section 123(3) of the Act, the Supreme Court in  S.R. Bommai[4] judgment warranted broader interpretation of Section 123(3) of the Act, thereby rejecting the restrictive reading of the provision as limited to the candidate and her or his opponent(s). However, this was an obiter dicta made in the judgment and is a not a part of the ratio of the judgment, as the case of S.R. Bommai was not directly related to Section 123(3) of the Act, but at the same time, favoured and observed the need for a broader interpretation of Section 123(3) of the RP Act, 1951.

It is important to mention that the Supreme Court has already upheld the constitutional validity of Section 123(3) of the RP Act, 1951 way back in the 1950s in  Jamuna Prasad Mukhariya v. Lacchi Ram[5] on the touchstone of fundamental right to freedom of speech and expression.

In  Manohar Joshi v. Nitin Bhaurao Patil  [6] the Supreme Court rather opined the opposite. The case came up during the Maharashtra State Assembly elections following the ghastly and the much-detested Mumbai riots of 1992-93, where Manohar Joshi, a prominent face of a political party promised to declare Maharashtra as the first Hindu Rashtra in India, if elected to power. The Supreme Court observed that Hindutva is a “way of life and state of mind”, thus there was no problem with it being invoked during the election. The Supreme Court decided this case in favour of Manohar Joshi by resorting to a debatable reasoning that such an exhortation did not amount to “corrupt practice” and though “despicable”, it can at best be described as a “hope” and “not appeal for votes on the ground of his religion.” This judgment was widely criticised by noted jurists in India and abroad.[7] However, such a practice is in violation of Article 25, as it places reasonable restrictions and the State has the liberty to make any law that restricts such economic, financial, political exhortation or activities which may be associated with religious practices.

Section 123(3) of the RP Act, 1951, strictly prohibits any appeal of votes in the name of religion, along with other caveats. The reason being that, India is a secular nation and it has no official religion, however, if we turn a blind eye to these electoral campaigns which are squarely a part of “corrupt practices” especially wooing voters in the name of religion, shall be against the ethos of democracy and secularism which is a part of the basic structure of the Constitution.

If we try to analyse the verdict of Manohar Joshi[8], from the perspective of a common man belonging to a particular religious sect, such a decision would instil fear in the minds of those people, as it runs counter to the constitutional morality and ethos imbibed by the framers of the Constitution.

In  Kanti Prasad Jayshanker Yagnik v. Purshottamdas Ranchhoddas Patel[9], the Supreme Court stated by a majority of 2:1, that the appeal of a political leader to the mass with respect to the fact that voting for a party will be against the religion does not amount to corrupt practice. The Supreme Court observed that, vide Section 123(3) of the RP Act, the candidate or his or her agent should not appeal to the voters for voting or refrain from voting for any person on the basis of their religion, that is, the candidate’s religion which means, that they should vote candidate on the basis of qualities and not on the religious grounds.

In  Dr. Ramesh Yashwant Prabhoo v. Prabhakar Kashinath Kunte and Bal Thackarey v. Prabhakar Kashinath Kunte [10] an election campaigning speech was made on the grounds of religion and a particular religious sect was maligned. The Court agreed with the High Court, that the speeches were within the ambit of corrupt practices of wooing of voters in the name of religion as covered under Section 123(3) of the RP Act, 1951.

In  Abhiram Singh v. C.D. Commachen [11], a seven-Judge Bench of the Supreme Court held that, calling for votes in elections based on religion, caste, race, community or language, including that of the electorate, would constitute a ‘corrupt practice’ under Section 123(3) of the RP Act, 1951 and  would call for the candidate to be disqualified. The Supreme Court opined that, “Election is a secular exercise and hence a process must be followed.” The relationship between man and God is an individual decision and this should be kept in mind,” ruled the Supreme Court in a 4:3 majority judgment.

The seven-Judge Bench of the Supreme Court held that an appeal in the name of religion, race, caste, community or language is inadmissible under the Representation of the People’s Act, 1951 and would constitute a corrupt practice adequate to nullify the election in which such an appeal was made regardless as to whether the appeal was in the name of the nominee’s religion. It is not an appeal to discuss matters relating to religion, caste, race, community or language which are of concern to voters on those grounds. The issues of constitutional importance include caste, race, religion and language.  The Constitution deals with them and includes provisions based on those features for the improvement of disabilities and discrimination. These are issues of concern to the electorate, especially where large segments of the population have been deprived of basic human rights due to caste and race-based prejudice and discrimination. The majority view was that, a secular State cannot identify itself with any religion or religious domination. This necessarily means that religion cannot play any role in the governance of a country that must be secular in nature at all times. The object of the RP Act, 1951 is to achieve the purity in elections and to ensure that the elections are free and fair, which means that caste, religion, language and community must be kept out of the electoral process.

The dissenting view (minority), held that, “to hold that a person seeking to contest an election is prohibited from speaking of the legitimate concerns of citizens that the injustices they face on the basis of the characteristics of origin of religion, race, caste, community or language would be remedied is to reduce democracy to abstraction,” which means that if there is a real problem that is related to religion, democracy would be reduced to abstraction.

Conclusion

In secular politics, correct behavior or propriety requires that an appeal for votes should not be made based on the religion of the candidate, which in itself is not an index of the suitability of the candidate for membership of the House.

Article 19(2) allows for the imposition of reasonable restrictions on the exercise of the right conferred by Article 19(1)(a), which means that Section 123(3) of the Representation of the People’s Act, 1951 falls within the scope and ambit of “reasonable restrictions” and Section 123(3) is not an anti-thesis to Article 19(1) (a) as observed by the  Supreme Court in the judgment of Lacchi Ram in 1955[12] and also in the judgment of Bal Thackarey[13].

It can be safely concluded, that even if it is assumed that the Section 123(3) is a fetter only to be saved as a condition under which the candidate has the statutory right to contest the election, however, the fact that the system of separate electorates had been rejected by the framers of the Constitution and that secularism has been recognised to be a part of the basic structure of the Constitution, are relevant considerations to consider the fetter imposed by Section 123(3) of the RP Act, 1951, as a reasonable restriction on freedom of speech and expression, to maintain the code of conduct, required by morality and the propriety of social norms and to ensure free and fair elections which is also a part of the basic structure of the Constitution.

However, in our opinion, an electoral speech cannot, by itself, fall within the scope of sub-section (3) of Section 123, unless it can be interpreted as an appeal to vote for a candidate on the premise that, the candidate belongs to a particular religious community and that he is trying to woo voters based on religion and announcing packages as a part of his speech, or to abstain from voting for the candidate based on his religion. The mere reference to any religion in an election speech does not come within the definition of sub-section (3) and/or subsection (3-A) of Section 123, as a reference may be made to any religion in the context of secularism or to any political party to discriminate against any religious group or, more generally, for the conservation of Indian culture. In short, the mere use of the word ‘Hindutva’ or ‘Hinduism’ or the reference in an election speech to any other religion does not bring it within the scope of Section 123(3) and/or sub-section (3-A) to Section 123, unless the additional elements indicated in the provision, are also present in that speech. It is also essential to see the meaning and significance of the speech, and how it is likely to be perceived by the audience to whom the speech has been addressed.

Therefore, it is a task for the Election Commission to ensure that a strict vigil is kept and also it is also required that the election petitions are decided in a time-bound manner, as there are examples of election petitions getting decided after a period of four to five years, which allows a returned candidate to get away with a perpetration and the concept of free and fair elections are defeated.


*Advocate-On-Record, Supreme Court of India and Senior Associate, L&L Partners, New Delhi

**3rd Year Law Student, MAIMS, GGIPSU, New Delhi

[1] Representation of the People Act, 1951

[2] Article 19 of the Constitution

[3] (1994) 3 SCC 1  

[4] Ibid.

[5](1955) 1 SCR 608

[6] (1996) 1 SCC 169  

[7] https://www.outlookindia.com/magazine/story/endorsing-hindutva/200472

[8] (1996) 1 SCC 169

[9] (1969) 1 SCC 455

[10] (1996) SCC  130

[11] (2017) 2 SCC 629

[12](1955) 1 SCR 608

[13] (1996) SCC 130


Image Credits: Ecuador Times

Case BriefsHigh Courts

Andhra Pradesh High Court, Amravati: A Division Bench of J.K. Maheshwari, CJ and B. Krishna Mohan, J., addressed a Public Interest Litigation wherein a direction was sought to declare the proclamation, attempt or conduct of Andhra Pradesh State Election Commission in not conducting any election/poll for any post where there is only a single candidate in the fray for such post in any constituency, during the ensuing elections to be held for the members of local governing bodies in lieu of notifications and thereby depriving the electors’ of their right to vote in the form of NOTA against such single candidate.

Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 2006

A Public Interest Litigation was filed referring to the amendment introduced in 2018 to the Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 2006.

In the above-stated Rules, insertion was Rule 35-A was done after Rule 35, which was as follows:

(1)“Notwithstanding anything contained in these Rules, in the Postal Ballot Papers and in the Ballot papers used for conduct of poll at polling stations with Ballot Boxes or Electronic Voting Machines (EVMs), provision shall be made for ‘None of the Above’ (NOTA) option for the benefit of those electors who may wish to exercise their option of not voting to any of the candidates in the fray. The last panel of the ballot paper below the last candidate shall be earmarked for ‘None of the Above’ (NOTA) option.

(2) The State Election Commission may give such directions, as may be necessary, for effective implementation of ‘None of the Above’ (NOTA) option.”

What do the stated Rules say?

In case of  Postal Ballot Papers used for conduct of poll at polling stations with Ballot Boxes or Electronic Voting Machines (EVMs), ‘None of the Above’ (NOTA) provision is required to be made.

When can NOTA be exercised?

NOTA applies in case where there is contest of election and as per the language set up in Rule 35-A of the Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 2006, when there is an election through Ballot Boxes or EVM’s only then the said option can be exercised.

Hence, Court in view of the fact that, in cases where candidates have been declared uncontested, NOTA cannot be applied, dismissed the present petition. [A.V. Badra Naga Seshayya v. State of A.P., 2020 SCC OnLine AP 509 , decided on 20-07-2020]

COVID 19Hot Off The PressNews

At present, the country, as the rest of the world, is grappling with COVID-19 pandemic. It is evident that Government along with other agencies is engaged in the mammoth task of controlling the spread of this pandemic and taking various measures to manage and minimize its impact on public health and the national economy. The numerous steps being taken by the Government and Civil Society organisations  require vast resources for which contribution from all sources, including reducing the burden of salaries on the exchequer, might be helpful.

In view of the foregoing, Commission has decided to contribute in the form of voluntary reduction of thirty per cent in the basic salary paid by the Election Commission of India to Chief Election Commissioner Sh Sunil Arora and Election Commissioners Sh Ashok Lavasa and Sh Sushil Chandra for a period of one year commencing 1st April, 2020.


Election Commission

[Press Release dt. 13-04-2020]

[Source: PIB]

Hot Off The PressNews

Commission to implement the directions of Supreme Court concerning criminal antecedents of candidates by reiterating its existing instructions with suitable modifications

Election Commission has consistently espoused rigorous and loftiest normative standards in public life.

Supreme Court on 13-02-2020 in Contempt Pet. (C) No. 2192 of 2018 of W.P. (C) No. 536 of 2011 invoking Article 129 and Article 142 of the Constitution of India directed as under:

“1) It shall be mandatory for political parties [at the Central and State election level] to upload on their website detailed information regarding individuals with pending criminal cases (including the nature of the offences, and relevant particulars such as whether charges have been framed, the concerned Court, the case number etc.) who have been selected as candidates, along with the reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates.

 2) The reasons as to selection shall be with reference to the qualifications, achievements and merit of the candidate concerned, and not mere “winnability” at the polls.

 3) This information shall also be published in: (a) One local vernacular newspaper and one national newspaper; (b) On the official social media platforms of the political party, including Facebook & Twitter.

 4) These details shall be published within 48 hours of the selection of the candidate or not less than two weeks before the first date for filing of nominations, whichever is earlier.

 5) The political party concerned shall then submit a report of compliance with these directions with the Election Commission within 72 hours of the selection of the said candidate.

 6) If a political party fails to submit such compliance report with the Election Commission, the Election Commission shall bring such non-compliance by the political party concerned to the notice of the Supreme Court as being in contempt of this Court’s orders/directions.”

Election Commission whole-heartedly welcomes this landmark order, which is bound to go a long way in setting new moral yardsticks for overall betterment of electoral democracy. Earlier, Commission on 10 October 2018 issued detailed instructions and guidelines along with amended form of affidavit for ensuring publicity of criminal antecedents by the candidates and the concerned political parties for the information of voters. This is being implemented in all the elections since November, 2018.  Now, Commission proposes to reiterate these instructions with suitable modifications in order to implement the directions of Hon’ble Supreme Court in letter as well as in spirit.

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Election Commission

[Press Release dt. 14-02-2020]

[Source: PIB]

Hot Off The PressNews

Registration of political parties is governed by the provisions of Section 29A of the Representation of the People Act, 1951. An association seeking registration under the said Section has to submit an application to the Commission within a period of 30 days following the date of its formation, as per the guidelines prescribed by the Commission in exercise of the powers conferred by Article 324 of the Constitution of India and Section 29A of the Representation of the People Act, 1951.

In order to enable applicants to track the status of the application, the Commission has launched a “Political Parties Registration Tracking Management System (PPRTMS)”.

The salient feature in the PPRTMS is that the applicant, who is applying for party registration from 1-01-2020 will be able to track the progress of his/her application and will get the status update through SMS and e-mail.  The status can be tracked through the Commission’s portal at the link https://pprtms.eci.gov.in/. The Commission in the month of December, 2019,  has amended the guidelines and issued a Press Note dated 02.12.2019 regarding registration of political party for the information of the general public.  The new guidelines have been put to effect from 01-01-2020.


Election Commission

[Press Release dt. 01-01-2020]

[Source: PIB]

Case BriefsHigh Courts

Uttaranchal High Court: A writ petition was contemplated by Ramesh Ranganathan, CJ and Alok Kumar Verma, J. where the petitioner sought a writ of mandamus to command the respondents to consider the petitioner’s grievances and to consider linking the Voter ID Card of every valid adult voter with his Aadhaar Card, further it was sought that Voter ID card to be treated as valid document for casting vote in every election and to have a common list for every election either for Parliament, Assembly or for Local Bodies and Panchayats.

It was addressed in the Court that Article 243C in Part IX of the Constitution of India, related to the composition of Panchayats and under Clause (1), and the State Legislature makes provision for the composition of Panchayats. Article 243 C(2) stipulated that all seats in Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area and, for this purpose, each Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area.

Shobhit Saharia, learned counsel for the Election Commission of India, contended that no relief was sought against the Election Commission of India, the petitioner had, in effect, sought the electoral roll, prepared by the Election Commission of India under the Representation of the People Act, 1951, to form the basis for preparation of the electoral rolls for Panchayati Raj Institutions and Urban Local Bodies in the State of Uttarakhand. It was unnecessary to dwell on this aspect any further since the preparation of an electoral roll was prescribed in the State of Uttarakhand by law made by the State Legislature called the “Uttarakhand Panchayati Raj Act, 2016

It was further highlighted that provisions, similar to Article 243K in Part IX of the Constitution of India, were also prescribed for Urban Local Bodies under Article 243 ZA in Part IXA of the Constitution of India. In terms of the provisions of the Panchayati Raj Act, 2016, a separate electoral roll was required to be prepared for Panchayats in the State. The mode and manner in which these electoral rolls were to be prepared were also stipulated.

The Court noted that it was up to the State Legislature to prescribe by law, that the electoral rolls prepared for Parliamentary and Legislative Assemble Elections should be the basis of for elections to Panchayat Raj Institution and Urban Local Bodies. Court further observed that it was out of their purview to decide and direct such issues and was totally the wisdom of the legislature. Court appreciated the intentions of the petitioner that he wanted to ensure that all those who had the right to vote were permitted to exercise the franchise and arbitrary deletion of their names from the electoral rolls was avoided.

It was held that the power of superintendence conferred on Election Commission was similar to the power conferred on the State Legislature. The Court observed the scope of Article 324 of the Constitution of India, in A.C Jose v. Sivan Pillai, (1984) 2 SCC 656,  where it was held that, “when there is no Parliamentary Legislation, or Rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections; and where the Act or the Rules are silent, the Commission has plenary powers, under Article 324 of the Constitution of India, to give any direction in respect of the conduct of elections.”

Hence the petition was dismissed as the representation was already made before the Election Commission.[Ravindra Jugran v. State Election Commission, 2019 SCC OnLine Utt 913, decided on 12-09-2019]

Hot Off The PressNews

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Sanjiv Khanna and Deepak Gupta, JJ has has asked 21 opposition parties to file response over the Election Commission’s affidavit in a case where the Parties sought direction that 50 per cent EVM results should be matched and cross-checked with Voter Verified Paper Audit Trails (VVPAT) before the declaration of results in the upcoming General Elections. The bench directed the 21 opposition parties (petitioners) to file a rejoinder to the affidavit of the poll panel before April 8.

On Friday, the Election Commission (EC) of India, in an affidavit, told the court that there is no need to increase VVPAT count to match it with EVM. It had said that the existing system is full-proof and more VVPAT  count means 6 days delay in the counting of votes in Lok Sabha election. The court had directed EC to file an affidavit on why physical verification of VVPATs should not be extended to more than one polling station per Assembly segment.

The court is hearing a plea filed by 21 opposition leaders led by Andhra Pradesh Chief Minister N Chandrababu Naidu, seeking a random count of VVPAT slips of at least 50 per cent EVMs in each Assembly constituency before the declaration of Lok Sabha election results. The petition has challenged the decision of the Commission to check VVPATs of only one randomly selected booth of a constituency. The petitioners have said that this will account only for 0.44 per cent of the votes polled.

(Source: ANI)

Hot Off The PressNews

Supreme Court: The Court has ssued a notice to the Election Commission regarding alleged non-implementation of the top court’s past order of publishing the criminal record of candidates in newspapers. The bench Rohinton Fali Nariman and Vineet Saran, JJ sought the Election Commission’s response within a week.

The contempt petition is filed by lawyer and BJP leader, Ashwini Upadhyay. Upadhyay, in his petition, claimed that the EC had allegedly failed to enforce the Court’s earlier order of September 25, 2018 that said that it is mandatory for candidates to publish in newspapers
about the pending criminal cases against them during their filing of nomination paper during the election.

Upadhyay, in his petition, claimed that the ECI had allegedly failed to ensure the disclosure of criminal antecedents and the Central government has not made a law to debar criminals from contesting the elections.

Seven phase elections in the country will begin on April 11 and conclude on May 19. Counting of votes will take place on May 23.

(Source: ANI)


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Candidates with criminal antecedents| Parliament has exclusive jurisdiction to lay down disqualification for membership; Court cannot legislate: SC

Hot Off The PressNews

Supreme Court: The Election Commission of India (ECI) has told the bench of S A Bobde and S A Nazeer, JJ that it will hold by-elections on vacant assembly seats of Tiruparankundram, Ottapidaram and Aravakurichi in Tamil Nadu within a reasonable time. The Court was hearing a plea filed by the DMK seeking a direction to the poll panel for holding the by-elections on these three vacant assembly seats.

The bench, while taking on record the submissions of the ECI’s counsel, disposed of the petition and observed that the court cannot determine the timing of elections and it was for the poll panel to decide.

The counsel appearing for the Dravida Munnetra Kazhagam (DMK) had earlier told the apex court that there are 21 vacant assembly seats in Tamil Nadu but the poll panel has notified by-polls for only 18 seats. He had said that by-polls on 18 vacant seats are scheduled to be held on April 18 along with the Lok Sabha polls in the state. It was argued that ECI should be asked to hold the by-elections on the remaining three assembly seats along with the general elections.

On March 15, the Court had asked the ECI to respond to the DMK’s plea seeking by-polls for Tiruparankundram, Ottapidaram and Aravakurichi assembly constituencies. The poll panel had earlier told the court that the by-polls for three assembly seats were not announced as some election petitions were pending in the Madras High Court.

(Source: PTI)

Hot Off The PressNews

Supreme Court: The Supreme Court has agreed to hear the plea of 21 opposition leaders, led by Andhra Pradesh Chief Minister N Chandrababu Naidu, seeking that VVPAT slips of at least 50 per cent of voting machines in each assembly constituency be checked randomly in the Lok Sabha elections. The leaders from six national and 15 regional parties, claiming to represent 70-75 per cent of the population, have also sought the setting aside of the Election Commission of India (EC) guideline on random verification of one assembly seat.

The 3-judge bench of Ranjan Gogoi, CJ and Deepak Dupta and Sanjiv Khanna, JJ said that notice be issued to the EC, and the Chief Election Commissioner (CEC) should depute an officer to assist the court in the matter.

The parties include the Congress, Nationalist Congress Party, Aam Aadmi Party, CPI (Marxist), CPI, Trinamool Congress, Samajwadi Party, Bahujan Samaj Party, Rashtriya Lok Dal, Loktantrik Janata Dal and the Dravida Munnetra Kazhagam (DMK). The petition has sought quashing of the EC guideline which provides that random verification of Voter Verifiable Paper Audit Trail (VVPAT) slips shall be conducted in one polling stations in case of assembly election and in each assembly segment in case of Lok Sabha election. It also sought a further direction to the election commission for random verification of at least 50 per cent electronic voting machines (EVM) using the VVPAT per assembly segment/ assembly constituency.

The Court will next hear the matter on March 25, 2019.

(Source: PTI)

Hot Off The PressNews

The Election Commission of India has directed that all electors in all constituencies who have been issued Electors Photo Identity Card (EPIC) have to produce the Electors Photo Identity Card for their identification at the polling station before casting their votes. Those electors who are not able to produce the EPIC shall produce one of the following alternative photo identity documents for establishing their identity. The list of eleven documents is:

  1. Passport,
  2. Driving License,
  3. Service Identity Cards with photograph issued to employees by Central/State Govt./PSUs/Public Limited Companies,
  4. Passbooks with photograph issued by Bank/Post Office,
  5. PAN Card,
  6. Smart Card issued by RGI under NPR,
  7. MNREGA Job Card,
  8. Health Insurance Smart Card issued under the scheme of Ministry of Labour,
  9. Pension document with photograph,
  10. Official identity cards issued to MPs/MLAs/MLCs, and
  11. Aadhaar Card.

Overseas electors shall have to produce their original passport only for identification.

To assist the Voters, the Commission has further directed its officers that in the case of EPIC, minor discrepancies in the entries therein should be ignored provided the identity of the elector can be established by the EPIC. If an elector produces an EPIC which has been issued by the Electoral Registration Officer of another Assembly Constituency, such card shall also be accepted for identification, provided the name of that elector finds place in the electoral roll pertaining to the polling station where the elector has turned up for voting.  If it is not possible to establish the identity of the elector on account of mismatch of photograph, etc. the elector shall have to produce one of the above mentioned alternative photo documents.

On earlier occasions, the Commission had allowed Photo Voter Slip as a document for identification. However, there have been representations against its use as a stand-alone identification document on the grounds of misuse as these are printed after the finalisation of the roll and distributed just close to the poll through Booth Level Officers. The design of Photo Voter Slip does not incorporate any security feature. In fact, Photo Voter Slip was started as an alternative document as the coverage of EPIC was not complete in earlier years. Currently more than 99 per cent electors possess EPIC, and more than 99 per cent adults have been issued Aadhar Cards.

Taking all these facts in view, Commission has now decided that Photo Voter Slip shall henceforth not be accepted as a stand-alone identification document for voting.  However, Photo Voter Slip will continue to be prepared and issued to electors as part of the awareness building exercise.  In order to make it clear to the electors that Photo Voter Slips shall not be accepted as a stand-alone identification document for voting, the words `THIS SLIP WILL NOT BE ACCEPTED FOR THE PURPOSE OF IDENTIFICATION IN POLLING STATION. YOU ARE REQUIRED TO CARRY EPIC OR ONE OF THE 11 ALTERNATIVE DOCUMENTS SPECIFIED BY THE COMMISSION FOR VOTING” shall be printed on the Photo Voter Slip in bold letters.

All Returning Officers and all Presiding Officers are being informed of these instructions. A copy of the instructions translated in the vernacular language will be supplied to each of the Presiding Officers. The Order shall be got published in the State, Gazette, immediately and publicised through print/electronic media for information of the general public and electors immediately and at very regular intervals till the date of polling.

[Source: PIB]

Election Commission