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 BriefsCOVID 19High Courts

Calcutta High Court: The Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J., in view of the resurgence of COVID-19 pandemic expressed that

“We are dealing with an extraordinary situation and this calls for extraordinary measures. It is in public interest that the Administration must ensure that all the COVID protocols are strictly adhered to by all concerned including those engaged in election campaigning activities.”

“If the Administration finds that a person, whether engaged in election campaigning or otherwise, if flouting the COVID protocols, such person must have been taken to task immediately.”

Two petitions were filed expressing concern that the people participating in the ongoing election campaigns were not adhering to COVID protocol and that could cause serious spike in COVID-19 cases in the State.

Through newspaper reports and photographs published in newspapers, it has been noted that people engaged in campaigning including in some cases the candidates have not always been wearing masks nor are maintaining prescribed social distancing.

Petitioner’s counsel submitted that Election Commission is well aware that COVID guidelines are being flouted by the people engaged in election campaigning.

Whereas Counsel for the Election Commission submitted that everything necessary was being done to ensure that COVID guidelines were adhered to by the people engaged in election campaigning.

Bench noted that a Press Note was issued by the Election Commission of India on 26-02-2021 containing the COVID guidelines for the conduct of the Legislative Assembly Elections in Assam, Kerala, Tamil Nadu, West Bengal and Puducherry.

An undated Circular was also placed before the Court that laid down the measures that have been taken and are to be taken by the polling booths in the wake of the second wave of COVID-19 pandemic.

High Court noted that the Election Commission of India and the Chief Electoral Officer, West Bengal had laid down guidelines and taken measures to ensure public health safety during the election days keeping in view the resurgence of COVID-19.

“…Guidelines need to be implemented in a stricter manner.”

 Court directed that:

  • District Magistrates of all the districts in the State of West Bengal shall ensure that all the guidelines laid down by the Election Commission of India and the Chief Electoral Officer, West Bengal, are strictly implemented in their true letter and spirit.
  • Stringent measures against the persons who fail, neglect or refuse to obey the COVID protocols.
  • Callous, irresponsible and non-chalant attitude or behavior of some of the members of the society cannot be permitted to endanger the lives of the other members of the society.
  • For enforcement of social distancing and to avert deadly disaster, Administration may resort to Section 144 CrPC.

What is mandatory?

  • wearing of masks has to be made mandatory at all gatherings.
  • sanitizers must be made available liberally;
  • safe distancing norms must be followed at all gatherings;
  • the Administration shall do its best to ensure that there are no large congregations, and
  • public awareness through distribution of pamphlet and miking should be resorted to.

Bench requested the member of all political parties contesting Assembly Elections and travelling across the State for campaigning purpose to ensure that at every gathering all persons shall wear masks and maintain the safe distancing norms.

Chief Electoral Officer, West Bengal may issue further guidelines as it may deem necessary.

Matter to be listed on 19-04-2021 when Chief Electoral Officer shall file a report in affidavit form with regard to measures taken for implementation of guidelines holding a safe election. [Nitish Debnath v. Election Commission of India, WPA (P) No. 117 of 2021, decided on 13-04-2021]


Advocates before the Court:

Mr. Srijib Chakraborty, Mr. Arindam Das, Smt. Rumali Sarkar, Ms. Anushka Mahato and Smt. Sonia Parvin Mondal, for the Petitioner (WPA (P) 117 of 2021)

Mr. Manisankar Chattopadhyay | for the Petitioner (WPA (P) 118 of 2021)

Mr. Y. J Dastoor, Ld. ASG Mr. Phiroze Edulji  and Ms. Amrita Pandey | for the Respondent No. 2,3 & 4 (WPA (P) 117 of 2021)  And for the Respondent no.1 (WPA (P) 118 of 2021)

Mr. Sonal Sinha | for the State Election Commission

Mr. Dipayan Choudhury Mr. Suvradal Choudhury Mrs. Priyanka Chwdhury | for the Election Commission Of India & Chief Electoral Officer in WPA (P) 117 of 2021 & Election Commission of India in WPA (P) 118 of 2021

Case BriefsHigh Courts

Madras High Court: The Division Bench of Sanjib Banerjee, CJ and Senthilkumar Ramamoorthy, J., expressed that:

Election Commission has sufficient authority to put checks and balances in place that allow a Minister or the like to enjoy the status yet not spend official funds for campaigning or election purposes.

Petitioner sought prohibition on Ministers and the like from campaigning in the elections as they hold public offices, draw a salary from the government and were in a position to exert undue influence.

Further, it was added that the petitioners shall be restrained to campaign for their party candidates contest in the general elections (except their candidature).

In an ideal world, there should be a level playing field where government functionaries do not use the perks and benefits in the office while they campaign for election purposes.

Further, it was noted that a Minister may be willing to shed his official bandobast to attend a rally merely as a politician, the very status of the Minister and the requirement to give him security cover may not permit the freedom that would be required for the purpose. This goes more so with higher officials like Chief Ministers and those holding cabinet positions at the Centre.

It was stated that the petitioner’s idealism may be slightly out of place. However, Strict Election Commission could put some guidelines in place, adding to the present ones in order to at least ensure that the government funds are not brazenly used for campaigning purposes as is usually being indulged.

Bench in view of the above added that the malaise is now deep-rooted.

One has to wear allegiance to a political leader, if not on the sleeve at least visibly crying out of the pocket. And these are not only at election time but adopted as a perennial measure, almost as a talisman to ward off the evil eye. 

High Court held that the Election Commission will deal with the petitioner’s representation, if not for the upcoming elections, then for the future elections. [Ahimsa Socialist Party v. Chief Election Commissioner, WP No. 5179 of 2021, decided on 23-03-2021]


Advocates before the Court:

For Petitioner: Mr. T. Sivagnanasambandan

For Respondents: Mr. Niranjan Rajagopal

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

Case BriefsCOVID 19High Courts

Madras High Court: A Division Bench of Sanjib Banerjee, CJ. and Senthilkumar Ramamoorthy, J., requested all political parties and candidates, who hold meetings and go campaigning all over the State, to ensure that at every gathering masks are worn by all and that social distancing norms are maintained without exception.

The Court was hearing a petition filed under Article 226 of the Constitution of India praying for issue of Writ of Mandamus directing the State of Tamil Nadu and the State Chief Election Commissioner to prevent the election campaign in 234 constituencies in the State Assembly Election to be held next month. The petitioner had forwarded a representation on 2-3-2021 to such effect but the authorities did not respond to the petitioner or take any action in terms thereof.

The Court noted that: “It is no doubt a matter of concern that the Covid cases have been rising in the recent days and a second wave appears to be upon us.

However, as per the Court, since the assembly elections have been notified and the process is about to be completed by voting next month, it cannot be interfered with at this stage.

Accordingly, the High Court disposed of the instant petition by requesting all political parties and candidates, who hold meetings and go campaigning all over the State, to ensure that at every gathering masks are worn by all and that social distancing norms are maintained without exception. The Court further said that it may do well for the Election Commission to send a message in such regard to all candidates and in respect of all gatherings at campaign meetings and the like. [A. Jalaudeen v. State, WP (MD) No. 5766 of 2021, decided on 22-3-2021]

Case BriefsForeign Courts

Supreme Court of The United States: In a significant decision, the Court by a ratio of 6:3, declined to review petitions challenging Pennsylvania’s “mail-in ballots” policy. The lawsuits that the court turned down concerned Republican Party’s bids to invalidate Pennsylvania’s extended mail ballot due date. It was claimed that Pennsylvania’s policy of ‘accepting timely sent ballots that arrived up to three days after Election Day was illegal’.

Pennsylvania has a long history of lim­iting the use of mail-in ballots. However in October 2019, the Pennsylvania Legislature overhauled its election laws and gave all voters the option of voting by mail, and it extended the deadline for officials to receive mail bal­lots by several days to 8 p.m. on Election Day. Then, in response to COVID–19, the legislature again amended the law but decided not to ex­tend the receipt deadline further. Displeased with that decision, the Pennsylvania Demo­cratic Party sued in state court. It argued that the court could extend the deadline through a vague clause in the State Constitution providing, in relevant part, that “elec­tions shall be free and equal.” [Art. I,§5]. The Pennsylvania Supreme Court agreed and held that the “free and equal” provision enabled the court to extend the deadline three days to accommodate concerns about postal delays.

Although the SCOTUS majority refused to entertain any more petitions, however, Clarence Thomas, Samuel Alito and Neil Gorsuch, JJ., dissented from the majority. Clarence Thomas, J., stated that it is the Federal Constitution, not state con­stitutions, which gives state legislatures the authority to regulate Fed­eral elections; the Republicans had a strong argument that the Pennsylvania Supreme Court’s decision violated the Constitution by overriding “the clearly expressed intent of the legislature”. He further observed that it is fortunate that the Pennsylvania Supreme Court’s decision to change the receipt deadline for mail-in ballots did not appear to have changed the outcome in any federal election, but he also pointed out that, “We may not be so lucky in the future. Indeed, a sep­arate decision by the Pennsylvania Supreme Court may have already altered an election result. A different petition argues that after Election Day the Pennsylvania Supreme Court nullified the legislative requirement that voters write the date on mail-in ballots”. Thomas, J., also pointed out that in 2018 the percentage of mail-in ballots cast was at 4%, but the legislature dramatically expanded the process in 2019, thereby increasing the mail-in ballots cast in 2020 to 38%. According to Thomas, J., this expansion impeded post election judicial review be­cause litigation about mail-in ballots is substantially more complicated. “The Pennsylvania Supreme Court issued its decision about six weeks before the election, leaving little time for review in this Court. And there is a reasonable expectation that these petitioners—the State Republican Party and leg­islators—will again confront non legislative officials alter­ing election rules. … we failed to set­tle this dispute before the election, and thus provide clear rules. Now we again fail to provide clear rules for future elections. The decision to leave election law hidden beneath a shroud of doubt is baffling. By doing nothing, we invite further confusion and erosion of voter confidence”.

Samuel Alito, J., (for himself and Neil Gorsuch, J.,) observed that the Republican petitions present an important and recurring constitutional question, that whether the Elections or Electors Clauses of the United States Constitution Art. I, §4, cl. 1; Art. II, §1, cl. 2, are violated when a state court holds that a state constitutional provision overrides a state statute governing the manner in which a federal election is to be conducted. Noting that since this constitutional issue has baffled the lower courts time and again, therefore a SCOTUS review would have been helpful to provide a clear path for them to follow in case of future disputes of such nature. Moreover, now, that the Presidential Election is over, there is no reason for refus­ing to decide the important question that these cases pose. “The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legisla­ture simply by claiming that a state constitutional provi­sion gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.” Bush v. Palm Beach County Canvassing Bd., 2000 SCC OnLine US SC 81.[Republican Party of Pennsylvania v. Veronica Degraffenreid (Nos. 20–542), 592 U. S. (2021), decided on 22-02-2021]


Sucheta Sarkar, Editorial Assistant has put this story together.

Case BriefsHigh Courts

Himachal Pradesh High Court: Jyotsna Rewal Dua J., dismissed the petition being non-maintainable.

The petitioner by way of this instant petition has challenged the election of Respondent 5 as Member, Block Development Committee, Misserwala, District Sirmour in the elections to Panchayati Raj Institutions of the State concluded in January 2021. The writ petition has been filed seeking that the respondent election commission may be directed to start the fresh election and declare the election under challenge as null and void.

The issue before the High Court is the maintainability of writ petitions under Article 226 of the Constitution of India vis-à-vis Article 243-O of the Constitution of India in respect of limitation in exercise of judicial review by the Court in election matters.

Section 162 of the H.P. Panchayati Raj Act provides that no election under the Act shall be called in question except by an election petition presented in accordance with the provisions of the chapter and Section 175 of the Act enumerates the grounds for declaring election to be void.

The Court stated

 “We are also conscious of the limitations set forth on such exercise of judicial review in view of bar of jurisdiction imposed by Article 243-O of the Constitution of India, which is quoted hereinbelow:-

“243-O. Bar to interference by Courts in electoral matters- Notwithstanding anything in this Constitution-

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under article 243K, shall not be called in question in any court;

(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State.”

 The Court further relied on judgment Laxmibai v. Collector, Nanded, (2020) 12 SCC 186 wherein it was observed the maintainability of writ petitions under Article 226 of the Constitution of India vis-a-vis Article 243-O of the Constitution of India in respect of limitation in exercise of judicial review by the Court in election matters, it was held that all election disputes must be determined only by way of an election petition. This by itself may not per-se bar judicial review, which is the basic structure of the Constitution but ordinarily, such jurisdiction would not be exercised. The relevant paragraphs of the judgment are extracted hereinafter:

 “15. It is true that the High Court exercises a plenary jurisdiction under Article 226 of the Constitution of India. Such jurisdiction being discretionary in nature may not be exercised inter alia keeping in view of the fact that an efficacious alternative remedy is available therefor. (See Mrs.

  1. Article 243-O of the Constitution of India mandates that all election disputes must be determined only by way of an election petition. This by itself may not per se bar judicial review which is the basic structure of the Constitution, but ordinarily such jurisdiction would not be exercised. There may be some cases where a writ petition would be entertained but in this case we are not concerned with the said question.
  2. ….a writ petition should not be entertained when the main question which fell for decision before the High Court was non-compliance of the provisions of the Act which was one of the grounds for an election petition in terms Rule 12 framed under the Act.”
  3. Section 10A of the 1959 Act and Section 9A of the 1961 Act read with Articles 243-K and 243-O, are pari material with Article 324 of the Constitution of India. In view of the judgments referred, we find that the remedy of an aggrieved person accepting or rejecting nomination of a candidate is by way of an election petition in view of the bar created under Section 15A of the 1959 Act. The said Act is a complete code providing machinery for redressal to the grievances pertaining to election as contained in Section 15 of the 1959 Act. The High Court though exercises extraordinary jurisdiction under Article 226 of the Constitution of India but such jurisdiction is discretionary in nature and may not be exercised in view of the fact that an efficacious alternative remedy is available and more so exercise restraint in terms of Article 243-O of the Constitution of India. Once alternate machinery is provided by the statute, the recourse to writ jurisdiction is not an appropriate remedy. It is a prudent discretion to be exercised by the High Court not to interfere in the election matters, especially after declaration of the results of the elections but relegate the parties to the remedy contemplated by the statute. In view of the above, the writ petition should not have been entertained by the High Court. However, the order of the High Court that the appellant has not furnished the election expenses incurred on the date of election does not warrant any interference.”

 The Court thus held that “the instant writ petition is not maintainable at all and the same is accordingly dismissed with liberty reserved to the petitioner to avail appropriate alternate remedy in accordance with law.” [Kauser v. State Election Commission,  2021 SCC OnLine HP 227, decided on 08-02-2021]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Uttaranchal High Court: Manoj K. Tiwari, J., disposed of a writ petition while issuing directions which was filed by the member of General Body of a Society, which runs a Government Aided Inter College, namely, “Inter College Kimsar, Pauri Garhwal”.

Petitioner contended that last election to constitute Committee of Management was held in the year 2010 and term of elected Committee of Management had expired in 2013 and no elections were held thereafter, thus he was before the Court.

The Court reminded that Section 34(4) of Uttarakhand School Education Act, 2006 provided for the appointment of Authorized Controller and proviso to Section 34(4) provided that Authorized Controller shall not continue for a period exceeding five years in a school. The second proviso to Section 34(4) of the Act, however, was an exception to the provision contained in the first proviso and it provided that in exceptional circumstances, the Authorized Controller may continue to function even after a period of five years.

The Court stated that Inter College Kimsar was a private educational institution, run by society and the college has to be managed by an elected Managing Committee, whose term would be three years and thus not holding elections was against the bye-laws of the society and duly approved Scheme of Administration of the college.

The Court disposed off the petition with directions of holding the elections.[Alam Singh Rawat v. Additional Director of Education,  2021 SCC OnLine Utt 45, decided on 07-01-2021]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Uttaranchal High Court: Manoj K. Tiwari, J., while allowing the present petition, issued directions for the conduct of elections in the institute in question, holding that, “Holding elections at regular intervals is mandated by law, to ensure that democratically elected Management Committee looks after the affairs of the college.”

 Background

Grievance of the petitioner is that last election to constitute Committee of Management was held in the year 2010 and term of elected Committee of Management expired in 2013 and no elections were held thereafter. Presently an Authorized Controller appointed by respondent 1, is looking after the affairs of the Inter College.

 Observation

Court noted the relevant provisions of the Uttarakhand School Education Act, 2006 and said, “Section 34(4) of Uttarakhand School Education Act, 2006 provides for appointment of Authorized Controller and proviso to Section 34(4) provides that Authorized Controller shall not continue for a period exceeding five years in a school. The second proviso to Section 34(4) of the Act, however, is an exception to the provision contained in the first proviso and it provides that in exceptional circumstances, the Authorized Controller may continue to function even after period of five years… In the present case, last election was held in the year 2010 and thereafter no election has been held. Such state of affairs is against the byelaws of the society and duly approved Scheme of Administration of the college. Thus it is in the interest of all concerned that elections to constitute Management Committee are held at the earliest.”

 Decision

While allowing the present petition, Court issued the following directions;

(i) Authorized Controller shall get advertisement published in two newspapers for inviting applications from eligible persons for induction as member of the society within two weeks.

(ii) Competent Authority shall thereafter prepare a voter list within next three weeks.

(iii) Competent Authority shall fix a date for election at the earliest, but not later than two weeks from the date of preparation of voter list.

(iv) Authorized Controller shall handover charge to the newly elected Managing Committee, within seven days from the date of declaration of result of election.[Alam Singh v. Additional Director of Education, 2021 SCC OnLine Utt 45, decided on 07-01-2021]


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Case BriefsHigh Courts

Bombay High Court: A Vacation Bench of Ravindra V. Ghuge, J., allowed the petitioner, a transgender person, to contest the panchayat elections from a seat reserved for women candidate.

Backdrop

The petitioner was aggrieved by the rejection of her nomination form by the Returning Officer. She had decided to choose the female gender, and hence had tendered her nomination form for contesting the election from the ward reserved for women-general category. The reason for rejecting the nomination form was that the petitioner is a transgender. It was stated that there is no reservation for the transgender category in the instant village panchayat elections.

Submissions

A.P. Bhandari, Advocate for the petitioner, on instructions, made a categoric statement before the High Court that this was the first occasion wherein the petitioner had opted for a right to a self-perceived gender identity and had selected the female gender for all purposes during her lifetime. He submitted that the petitioner, henceforth, shall not switch over to the male gender under any circumstances anytime in future during her lifetime.

S.B. Pulkundwar, AGP, and A.B. Kadethankar, Advocate for the Election Commission, submitted that they would not argue beyond the provisions of law and would not make submissions contrary to the law laid down by the Supreme Court in National Legal Services Authority v. Union of India, (2014) 5 SCC 438. It was stated that the Returning Officer was likely to be unaware of the law and must have been in a dilemma while deciding the issue of acceptance of the nomination form of the petitioner.

Analysis & Decision

The High Court relied heavily on and followed the law laid down in the “NALSA case” [National Legal Services Authority v. Union of India, (2014) 5 SCC 438] wherein the Supreme Court has comprehensively dealt with the issue of the rights of transgender people. The Court noted that the Government of India has introduced the Transgender Persons (Protection of Rights) Act, 2019 and has permitted a transgender person to have a right to be recognised and such transgender is permitted to have a right to self-perceived gender identity.

In the present case, the petitioner had opted for the female gender as her self-perceived gender identity and made a solemn statement, which was recorded as the statement made to the Court, that henceforth in her lifetime she would not switch over to the male gender driven by opportunism and would continue to opt for the female gender, in future, save and except if there is a reservation provided for transgender in public life.

It was observed by the Court:

“It is quite apparent that the Returning Officer was handicapped insofar as the knowledge of law was concerned while deciding the fate of the nomination form of the petitioner. No other contesting candidate has taken any objection against the petitioner. It is the Returning Officer, who was circumspect about the nomination form of the petitioner and hence, opted to reject the form believing that the petitioner can neither be a male nor a female and the ward has been reserved for women general category. There is no ward reserved for the transgender.”

In view of the above, this writ petition filed by the petitioner was allowed. The impugned order passed by the Returning Officer was quashed and set aside. Since the nomination form of the petitioner was otherwise complete in all respects, the same stood accepted and she was permitted to contest the election from the ward and category which she had opted for in her nomination form. [Anjali Guru Sanjana Jaan v. State of Maharashtra, 2021 SCC OnLine Bom 11, decided on 2-1-2021]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Surya Prakash Kesarwani and Dr Yogendra Kumar Srivastava, JJ., a dispute relating to the election of the Matsya Jivi Sahakari Limited, a co-operative society, cannot be called in question under writ jurisdiction of the High Court in light of the U.P. Co-operative Societies Rules, 1968 and the U.P. Co-operative Societies Act, 1965.

The instant petition was filed to seek a direction to decide the petitioner’s claim with regard to election proceedings of a co-operative society namely Matsya Jivi Sahkari Limited.

Standing Counsel appearing for the State respondents drew the attention of this Court to the provisions under Section 70 of the Uttar Pradesh Co-operative Societies Act, 1965 and the proviso to sub-section (1) thereof and also to Rule 444-C (2) of the Uttar Pradesh Co-operative Societies Rules, 1968, to contend that once an election of a co-operative society has been held, the remedy available to the aggrieved party is by seeking a reference of the dispute to the Registrar.

Bench noted that the manner of settlement of disputes is provided under Chapter IX of the Act, 1965.

Further, Section 70 is in respect of disputes which may be referred to arbitration and in terms thereof, the disputes specified under sub-section (1) are to be referred to the Registrar for action in accordance with the provisions of the Act and the rules and no Court shall have jurisdiction to entertain any suit or other proceedings in respect of any such dispute.

In terms of Section 70 (1), a dispute relating to an election under the provisions of the Act or the rules made thereunder, shall not be referred to the Registrar until after the declaration of the result of such election.

Adding to the above, Court also explained that Sub-rule (1) of Rule 444-C provides that the election in a co-operative society shall not be called in question either by arbitration or otherwise except on the grounds specified under clause (a) and clause (b) under sub-rule (1).

In terms of sub-rule (2) a dispute relating to an election shall be referred by the aggrieved party within forty-five days of the declaration of the result.

In the instant case, elections of the co-operative society in question were already held and the results thereof were also declared.

In view of the aforesaid facts and situation, any complaint, grievance or dispute which is being sought to be raised with regard to the elections, is to be referred to the Registrar on an appropriate application by the aggrieved party.

High Court in light of the above discussion of provisions held that:

“Any grievance, complaint or dispute relating to the election proceedings of a co-operative society can be called in question on the grounds specified under sub-rule (1) of Rule 444-C by applying for a reference by making an appropriate application under Section 70 of the Act, 1965.”

Since the whole mechanism with regard to the settlement of disputes in regard to a co-operative society election has been provided, Court is not inclined to exercise extraordinary jurisdiction under Article 226 of the Constitution of India.

Hence, the petition was dismissed. [Matsya Jivi Sahkari v. State of U.P., 2020 SCC OnLine All 1505, decided on 16-12-2020]

Case BriefsHigh Courts

Kerala High Court: Raja Vijayaraghavan V J., while allowing the present petition, discussed the importance of free and fair elections and further issued necessary directions for the conduct of local self-government elections.

Background

The present petition was heard jointly with WP (c) 27590 of 2020 and WP (c) 27596 of 2020, filed by candidates/election agents raising apprehensions of threats and violence by the rival party workers on the days leading to the election to the Local Self Government Institutions in the State of Kerala. In all these cases, the petitioners assert that their opponents, who owe allegiance to the party in power, would get support from the executive machinery of the State and neither them nor their party workers will be permitted to approach the voters and convince them in a free manner. They contend that there would be violence on polling day and there is a reasonable possibility of their booth agents as well as the voters being threatened and obstructed. According to them, if the atmosphere in and around the polling booth is not peaceful, it would prevent voters from venturing out and casting their vote. In some of the writ petitions, the petitioners contend that their constituency is politically very sensitive and there have been incidents of poll violence during the last elections. According to them, technology has progressed to such an extent that it is perfectly possible for the Election Commission to set up cameras in and around the polling booth and carry out web casting which would dissuade the troublemakers from interfering with the election process. In some of the writ petitions, directions are sought to be issued to the Election Commission to ensure that impersonation of voters and casting of bogus votes are avoided. They also request that enough contingent of law enforcement officers be deployed to maintain peace and calm in and around the polling stations so that the voters can exercise their franchise and elect their person of choice.

 Observations

Court issued directions to specific authorities so to ensure proper conduct of elections, in addition to laying down the Constitutional idea behind creating Part IX and Part IX-A of the Constitution. It said, “The Panchayats and Municipalities are ‘institutions of self-governments’ and their seats are filled up in a democratic manner by direct elections. The local bodies are responsible for the implementation of various centrally-sponsored, State-funded, and externally-aided schemes for poverty alleviation, employment generation, sanitation, capacity building, women’s social and economic empowerment apart from the provision of basic amenities and services. In other words, under the Constitutional scheme, for a more effective development at the grass-root level, vast powers are granted to the local self-government institutions.”

With respect to free and fair elections, the Court noted, “It needs no reiteration that it is in the interest of the citizenry that elections to the local body are conducted in a free and fair manner and well-meaning candidates, who are honest and competent, with integrity and good conscience, get elected to the local bodies. It is in order to effectuate the said purpose that an independent Election Commission has been constituted in each of the States in the country for superintendence, direction and control of the electoral rolls. The duty cast upon the Election Commission to conduct and manage the election with the aid of the State Government machinery is onerous.”

Court further gave instructions to the authorities involved in the conduct of elections, in the order as follows;

Police protection to the candidates and their election agents

With respect to the pleadings made by the Government pleader, to accord proper police protection throughout elections, the Court remarked, “From the statistics it appears that about 1.68 lakhs persons have submitted nominations. It would not be possible for the police to extend protection to each and every candidate. However, in those petitions, wherein the candidates or their election agent have submitted complaints complaining of threat before the police, the Superintendent of Police of the area shall take note of the threat perceptions and grant protection to the candidates and their agents.”

Facility for webcasting and video recording of election proceedings

With respect to the prayer made for allowing video recording, the Court noted, “Since the Election Commission has taken the decision to identify the polling booths on the threat perceptions and intelligence reports given by the police, this Court will not be justified in interfering with the discretion of the Election Commission and the high level officers of the State in that regard. Though ideally, videography ought to have been provided in all booths due to the resource limitations it would not be possible to undertake such an activity. However, the Election Commission has identified accredited videographers and the candidates will be at liberty to approach the District Electoral Officer and on payment of necessary fees by the person as authorised by the candidate or his election agent, the Commission shall permit videography to be carried out.”

Maintaining peace and tranquility on Election day

Court permitted zero tolerance policy in hypersensitive constituencies and moreover said, “Even in polling stations which have not been categorised as sensitive and in those cases wherein the candidates or the election agents are before this Court in these writ petitions, enough number of police personnel shall be posted to rule out any incidents of violence or election malpractice.”

Prevent electoral malpractices such as impersonation and bogus voting

Addressing the present issue, the Court observed, “The grievance regarding impersonation and bogus voting though raised by the petitioners, such a possibility would be non existent as the issuance of valid voter IDs and the availability of the photograph of the voter in the voters slip and the provisions of the Act with regard to identification of voters would obliterate such issues.”

Decision

Court disposes the present batch of petitions, issuing directions aforementioned.[Lijina M.V v. State of Kerala, 2020 SCC OnLine Ker 7148, decided on 11-12-2020]


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Hot Off The PressNews

Supreme Court of The United States: The Court on Friday rejected a bid from Texas’ Attorney General, supported by President Donald Trump, to block the ballots of millions of voters in battleground states that went in favor of President-elect Joe Biden. Texas’ motion for leave to file a bill of complaint was denied due to lack of standing under Article III of the Constitution. The Court further observed that, “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections”. Although, Samuel Alito and Clarence Thomas, JJ., noted that they would have allowed the case to be filed – “I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue”.

In the recently held US Presidential Elections, the “Swing States” of Pennsylvania, Michigan, Georgia and Wisconsin, swung in favour of Joe Biden. The lawsuit was brought by Texas’ Attorney General, Ken Paxton, who sought to sue the abovementioned States and invalidate their election results.

Incumbent President, Mr. Donald Trump and his allies have repeatedly raised allegations of foul play committed during counting of the votes; especially in the “Swing States”.

This is not the first instance of thwarting the Republican Party’s efforts to challenge the legitimacy of the Election results. On 08-12-2020, the SCOTUS in a “one sentence” Order, refused a request from Pennsylvania Republicans to overturn Joe Biden’s victory in the state of Pennsylvania. The Republicans have lost about 50 challenges to the presidential election, as Judges in at least eight states have repeatedly rejected a litany of unproven claims — that mail-in ballots were improperly sent out, that absentee ballots were counted wrongly, that poll observers were not given proper access to the vote count and that foreign powers hacked into and manipulated voting machines.

[Texas v. Pennsylvania, decided on 11-12-2020]


Source: CNN


Sucheta Sarkar, Editorial Assistant has put this story together

Hot Off The PressNews

Supreme Court of The United States (SCOTUS): In a major setback to the Republican Party’s attempts to invalidate the results of recent Presidential Elections, Full Bench of the SCOTUS in a “one sentence” Order, refused a request from Pennsylvania Republicans to overturn Joseph R. Biden Jr.’s victory in the state of Pennsylvania. The results of the Election have already been certified and submitted.

Dismayed by the defeat of the “Grand Old Party” (GOP) in the 2020 Elections, incumbent President, Mr. Donald Trump has been raising qualms over the process involved vis-à-vis the mail-in ballots and absentee ballots on mainstream and social media.

However, this is not the first instance thwarting the efforts of the Republican Party to challenge the legitimacy of the Election results. The Republicans have lost about 50 challenges to the presidential election, as Judges in at least eight states have repeatedly rejected a litany of unproven claims — that mail-in ballots were improperly sent out, that absentee ballots were counted wrongly, that poll observers were not given proper access to the vote count and that foreign powers hacked into and manipulated voting machines.

The emergency petition from the Republicans was addressed to Samuel Alito, J., who has jurisdiction over the Pennsylvania courts. He referred it to the whole court, which issued the order. The one-sentence order was issued with no noted dissents or comment from any of the nine Judges.[Kelly, Mike et al. v. Pennsylvania, decided on 08-12-2020]


Source: New York Times and CNN


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Case BriefsHigh Courts

Himachal Pradesh High Court: Ajay Mohan Goel J., while allowing the present petition, set aside the orders of the preceding authority holding the original election petition as patently defective.

Background

Facts of the case are briefly mentioned hereunder;

  1. That the petitioner was declared elected in the elections for the post of Pradhan, Gram Panchayat Hinner, in December 2015.
  2. That an Election Petition was filed by Smt. Radha Devi (respondent herein) under the Himachal Pradesh Panchayati Raj Act, 1995 (hereinafter referred to as “1994 Act”) on the ground that the nomination papers filed by the petitioner concealed the real facts and the petitioner was further involved in unfair election practices along with her family members.
  3. That it was further alleged by the respondent in present case that the police and electoral staff failed to discharge their duties in consonance with law and several persons who were not eligible to cast their vote, were permitted to do so, despite her objections and objection of her Polling
  4. That the election petition was resisted by the elected candidate, on the ground of maintainability, cause of action and the principle of estoppel. It was moreover denied by the elected candidate that she had indulged in any concealment of facts in the nomination paper or there was any infirmity in the nomination paper so filed by her.
  5. That it was further denied by the candidate that the elected Pradhan had indulged in any unfair practice during or after the election process.
  6. That the Sub Divisional Officer (Civil) – cum – Appellate Authority (Election Petition), vide order dated 02-03-2019, adjudicated in favour of the respondent herein, finding that the nomination papers of the petitioner was not properly scrutinized as per the norms of H.P. Panchayati Raj Act, 1994 and Himachal Pradesh Panchayati Raj Election Rules, 1994.
  7. That an appeal was thereby preferred before the Deputy Commissioner under Section 181 of the 1994 Act, which was dismissed vide order dated 09-01-2020, concurring with the findings of the Sub Divisional Officer.
  8. That the elected Pradhan, aggrieved by the aforementioned orders, has preferred the present petition praying to quash the same and hold the election of the petitioner herein, legal and valid.

 Contention

Counsel for the petitioner primarily argued that the original election petition as filed by the respondent herein was defective and not as per the statutory mandate of the 1994 Act read with relevant rules framed thereunder.

Counsel for the respondent emphasized more on the merits of the case and the rationale upon which the preceding authorities agreed to the contentions of the respondents in the original election petition. 

 Observations

The Court, first, decided to consider the maintainability of the original petition so filed, refraining from making any observation upon the validity/voidability of the election held, as per Section 175 of the Act of 1994. Considering the mandatory requirements for moving an election petition, the Court referred Section 164 of the Act which provides that “an Election Petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. Proviso thereto contains that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and particulars thereof.” The Court further reproduced the language of Order VI Rule 15 which deals with verification of pleadings and noted that, “A perusal of the original record demonstrates that Election Petition has not been verified at the foot by the Election Petitioner. In the absence of Election Petition having been verified at the foot, there is no compliance of Order VI, Rule 15(2) of the Code of Civil Procedure. It is not mentioned in the Election Petition as to at which place the same was prepared and signed by the election petitioner, as the Election Petition is conspicuously silent with regard to the place of its preparation/having been signed by the election petitioner.”  Moreover, it was noted that the Election Petition was not accompanied with an affidavit as required by Section 164(1) of the 1994 Act, supporting the malpractices so alleged. Another inconsistency was noted by the Court in the words, “… the factum of the purported affidavit (as mandated by Code of Civil Procedure, 1908) sworn in, in support of the election petition having been prepared on 28-01-2016, whereas the Election Petition being prepared and signed on 29-01-2016, cannot be overlooked and ignored by this Court while holding that the Election Petition when filed, was a defective Election Petition.”

The Court also cited the case of G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776, acknowledging the settled law that an opportunity to correct the curable defects must be given but at the same time observed, “this judgment does not come to the rescue of the election petitioner in this case, because as already mentioned hereinabove, the purported affidavit sworn in, in favour of the election petitioner predates the Election Petition, which cannot be said to be substantial compliance of law nor it can be said that the Election Petition accompanied with a predated affidavit entails such defect which can be termed to be curable. It appears that no one took the care or the pain to scrutinize the Election Petition, as it ought to have been done, which has resulted in grave miscarriage of justice to the present petitioner, as she stands non suited on the basis of a defective Election Petition, which not only stood entertained by the Authorized Officer, but also adjudicated upon on merit.”

Decision

While allowing the present petition, the Court allowed the petitioner to perform her duties as Pradhan, Gram Panchayat Hinner without any unnecessary fetters.[Nisha Thakur v. Radha Devi, 2020 SCC OnLine HP 2866, decided on 03-12-2020]


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Case BriefsHigh Courts

Karnataka High Court: A Division Bench of Abhay S. Oka CJ. and Ashok S. Kinagi J., while partly allowing the present petition, discussed the powers and obligations of the State Election Commission and the limited intervention of the State Government in exercise of such powers.

Background

By this petition under Article 226 of the Constitution of India, the petitioners have sought a writ of mandamus for enjoining the second respondent; the State Election Commission (for short ‘SEC’) to conduct elections to 6015  Grama Panchayats in the State of Karnataka before the expiry of five years term, as provided in clause (3) (a) of Article 243E of the Constitution of India. Apart from seeking the Writ of Mandamus, the challenge is also made against the order passed by the SEC on 28-05-2020, postponing the elections to all the Gram Panchayats in the State, owing to an ‘extraordinary situation’ created by the spread of COVID – 19. In its statement of objections filed on 30-06-2020, the SEC relied on the case of Kishansing Tomar v. Municipal Corporation of Ahmedabad, (2006) 8 SCC 352, where it was held by the Supreme Court that certain man-made calamities or natural calamities, which could prevent the authorities from holding elections can be treated as ‘exceptional circumstances’. It was then pleaded that COVID – 19 has created such extraordinary circumstances, that calls for postponement of the elections. Additional objections were filed to reiterate that all steps taken were in compliance with the statutory powers of the SEC and that there is no intention of delaying the elections for an undefined period. The State Government, echoing the same stand in its affidavit said, that there will be approximately 2,95,64,498 voters in the Grama Panchayat elections and the number of candidates may  be around 2,50,000. There is a likelihood of candidates and voters not strictly following the social distancing norms and failing to comply with the other standards released by the Ministry of Health, and therefore, it shall be in the interest of the public health and governance, to postpone the conduct of elections for the time being.

 Contentions

Shri Ravivarma Kumar, Senior Counsel appearing for the petitioners has referred to 73rd Constitutional Amendment. He pointed out that the entire object of the amendment was to ensure that the State  Government should not interfere with the local self-government and Panchayats. He further invited the Court’s attention to Article 243K of the  Constitution of India which lays down that the SEC is vested with the powers of superintendence, direction, control and preparation of electoral rolls as well as the conduct of elections of the Panchayats.

K. N. Phanindra, Senior  Counsel appearing for the SEC submitted that fixing of the schedule of elections and issuance of the calendar of events is within the exclusive domain of the SEC and it is an independent power of the SEC. He submitted that when it comes to elections to Panchayats and Municipal bodies, the SEC enjoins the same status as that of the Election Commission of India. He further pointed  out the steps taken by the SEC in this regard and submitted that tentative schedule of election has already been produced in a sealed cover along with the memo. He pointed out that in the meeting held between the SEC and the executive authorities, the majority of the Deputy Commissioners were of the view that elections should be held during November or  December, 2020.

Shri Prabhuling K. Navadgi, Advocate General for the State relied on the decision of the Supreme Court in K.S. Puttaswamy (Privacy-9J) v. Union of India, (2017) 10 SCC 1, and Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, arguing the need to achieve a balance between compelling State Interest and public health and the concept of Transformative Constitutionalism.

Observations

Drawing difference between the powers of SEC and the State Government with respect to conduct of elections, the Court observed, The SEC is an independent body created under the Constitution and the SEC must function independently of the State Government in exercise of its powers of superintendence, direction and control of Panchayat elections. The State Government has no control over the SEC in these matters. In fact, as held in the case of Kishansingh Tomar, the State is duty bound to abide by the directions of the SEC in the same manner in which it is under a mandate to follow the directions issued by the Election Commission of India during the election of Parliament and State Legislature.  In  fact, the  SEC while conducting elections of panchayats or Municipalities enjoys the same status which is enjoyed by the Election Commission of India for conducting elections for Parliament and State Legislature.”

With respect to the discretionary power of the SEC to decide of ‘exceptional circumstances’ to postpone the elections, the Court remarked, “(…)it is for the SEC to take a call and take a decision at its discretion on the existence of the exceptional circumstances. But SEC cannot altogether ignore the constitutional mandate. To meet  a  particular  contingency, the SEC can hold elections in a phase-wise manner.”

Dismissing the State’s argument of not being able to provide machinery for the proper conduct of elections, the court said, The stand of the Government cannot be accepted inasmuch as, when it comes to providing necessary staff for the conduct of elections, the State Government does not come into picture. It is for the Hon’ble Governor to provide requisite staff to the SEC.”

 Decision                 

Allowing writ of Mandamus, the Court held, “It is only in very exceptional circumstances that the SEC can conduct elections after expiry of the term of Panchayat. Whether such exceptional circumstances exist or not is a matter within the exclusive domain of the SEC. The State Government plays no role in deciding whether such exceptional circumstances are in existence. For deciding whether such circumstances are in existence, it is always open for the SEC to  consult the Government on factual aspects; We, therefore, direct the State Election Commission to finalize the schedule of elections of  Grama  Panchayats.”[KC Kondaiah v. State of Karnataka, WP No. 7987 of 2020, decided on 13-11-2020]


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Case BriefsForeign Courts

Supreme Court of the United States (SCOTUS): While deciding upon the application for stay presented in relation to Alabama Secretary of State’s decision to ban curbside voting despite the ongoing COVID–19 crisis and the willingness of certain Alabama counties to assist voters with disabilities, the Court with a ratio of 5:3 allowed the application thereby allowing Alabama election officials to put a ban on curbside voting. The Court thus put a stay on a Federal District Court order which had lifted the ban on Alabama counties from offering curbside voting in light of the COVID-19 pandemic. Sonia Sotomayor, Stephen Breyer and Elena Kagan, JJ., dissented with the majority.

 Facts and Trajectory of the Case

 Curbside Voting allows a person with disability to vote outside the polling place or in their cars.  In order to be effective, the curbside voting system must include:  (1) signage informing voters of the possibility of voting curbside, the location of the curbside voting, and how a voter is supposed to notify the official that she is waiting curbside; (2) a location that allows the curbside voter to obtain information from candidates and others campaigning outside the polling place; (3) a method for the voter with a disability to announce her arrival at the curbside [a temporary doorbell or buzzer system would be sufficient, but not a telephone system requiring the use of a cell phone or a call ahead notification]; (4) a prompt response from election officials to acknowledge their awareness of the voter; (5) timely delivery of the same information that is provided to voters inside the polling place; and (6) a portable voting system that is accessible and allows the voter to cast her ballot privately and independently. Alabama law neither prohibits nor requires curbside voting.

 John H. Merrill, the applicant and also Alabama’s Secretary of State, imposed a ban on curbside voting. The ban was challenged by the Alabama voters who sought to block the Secretary’s ban in light of the coronavirus pandemic. The District Court held that the Secretary’s ban violated the Americans with Disabilities Act (ADA) by forcing voters with disabilities (for whom COVID–19 is likely to be fatal) to risk unnecessary exposure to the virus if they wish to vote in person. The District Court in its order allowed counties that are ready to adopt curbside voting to do so. The 11th Circuit temporarily stayed other parts of the District Court’s order but declined to freeze the part of the order permitting curbside voting thereby culminating in the instant appeal.

 The Dissent

While the majority did not assign any reasons to their decision to retain the ban on curbside voting in Alabama, the dissenting Judges elucidated their reasons. Sonia Sotomayor, J., observed that, “As of October 20, 2020, Alabama’s Department of Public Health has identified 174,528 cases of COVID–19 in the State”. She noted that in order to combat the spread of COVID–19, the Centers for Disease Control and Prevention have recommend that States consider curbside voting. She further observed that the District Court found that the Secretary’s ban deprives disabled voters of the equally effective “opportunity to participate in” the “benefit” of in-person voting. The District Court’s injunction is a reasonable accommodation, given the short time before the election. It does not require all counties to adopt curbside voting; but simply gives prepared counties the option to do so. This remedy respects both the right of voters with disabilities to vote safely and the State’s interest in orderly elections and it does not risk creating voter confusion and consequent incentive to remain away from the polls.

To drive the dissenting Judges’ reasoning, Sotomayor, J., referred to the testimony of one of the voters who challenged the ban in the District Court,- a Black man in his 70s  suffering from asthma and Parkinson’s disease, named Howard Porter Jr. Porter recalled that his ancestors had died for the right to vote. “And while I don’t mind dying to vote,” he said, “I think we’re past that — we’re past that time”. Sotomayor, J., concluded by stating that, “With election officials in at least two counties “ready and willing to help vulnerable voters” by allowing curbside voting, the Supreme Court should not stand in the way.”[John H. Merrill v. People First of Alabama, 2020 SCC OnLine US SC 8, decided on 21-10-2020]


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Hot Off The PressNews

Press Council of India while considering the communication received from Election Commission of India advises the print media to refrain from publishing article which in any way whatsoever predict the results of the elections during the prohibited period under Section 126A to ensure free, fair and transparent election.

In the council’s view, the prediction of election results in any form or manner by way of predictions, etc. by astrologers, tarot readers, political analysts or by any persons during the prohibited period is a violation of the spirit of Section 126A which aims to prevent constituencies still going to polls from being influenced in their voting by such predictions about the prospects of the various political parties.

Print media is hereby advised not to publish/publicise any such article of results, during the prohibited period i.e. between 7 am on 28-10-2020 and 6.30 pm on 07-11-2020 in the current General Election to the State Legislative Assembly of Bihar, 2020 to ensure free and fair elections.

Hence, in view of the above, newspapers/ news agencies are advised to adhere to the above mentioned time frame before publishing the article of elections results, etc.


Press Council of India

[Dt. 20-10-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Alok Kumar Verma, J., dismissed an application which was filed under Section 482 of the Code of Criminal Procedure, 1973 to quash the Charge Sheet.

Elections of the Legislative Assembly of Uttarakhand were held in the year, 2012. The applicant had contested the said election as a candidate of the Indian National Congress Party. While contesting the said election, the present applicant had printed a picture (photo) of Lord Badrinath in his handbills as well as pamphlets. On account of this illegal act on the part of the applicant to influence the voters and used the religious feelings of local people, an FIR was lodged against the applicant under Section 125 of the Act, 1951 and Section 153A of the Penal Code, 1860. After the submission of charge sheet when the Chief Judicial Magistrate took cognizance under Section 171-F of the Penal Code read with Section 123 (3) of the Act, 1951 against the present applicant and passed the summoning order, being aggrieved by which the applicant had filed a revision which was allowed by the Sessions Judge and in pursuance to the revisional order the Chief Judicial Magistrate took the cognizance in the offence punishable under Section 125 of the Act, 1951 and issued summons to the present applicant. The counsel for the applicant, Pankaj Purohit contended that the applicant was already a popular candidate and was well known in the constituency, he was given the charge of “Youth Welfare and Sports” portfolio in the Government; he completed his tenure of five years as a Cabinet Minister in the Government. He further contended that from the bare perusal of the FIR, it was evidently clear that no offence is made out as defined under Section 125 of the Act, 1951; by mere printing of pamphlets with the picture of Shri Badrinath Temple, no offence under Section 125 of the Act, 1951 was constituted; during the investigation, no evidence was collected by the Investigating Officer which would infer the promotion of religious enmity or hatred between two communities on account of the fact of printing of the pamphlets, containing the photo of Lord Badrinath Temple. The counsel for the State, S.S. Adhikari assisted by P.S. Uniyal on the contrary contended that Investigating Officer had found credible evidence against the applicant for his involvement in commission of the crime; there was a specific case against the applicant for his involvement in commission of the crime.

The Court while dismissing the application set aside the prayers of quashing the charge-sheet and explained that “it was fundamental duty of every citizen to promote harmony and the spirit of common brotherhood and fraternity amongst all the people of India transcending religious, linguistic and regional or sectional diversities. For fair and peaceful election, during the election campaign, party or candidate should not indulge in any activity which may create mutual hatred or cause tension between different classes of the citizens of India on ground of religion, race, caste, community or language.”

The Court further held that the applicant was not able to show at this stage that allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the applicant.[Rajendra Singh Bhandari v. State of Uttarakhand, 2020 SCC OnLine Utt 551, decided on 21-09-2020]


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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


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