The observations of the HC and the apparent inability of the ECI to fulfil its responsibility during the conduct of elections in a free and fair manner without endangering the health and lives of the electorate are a reflection of the inadequacy of the current political process.
On April 26, the Chief Justice of the Madras High Court made the caustic remark whether the officials of the Election Commission of India (ECI) were on some other planet when political parties took out election rallies that violated COVID safety protocols.
The causticity of the judge was not surprising considering that COVID cases had increased enormously in Tamilnadu and Puducherry after huge rallies were organised during the recent election campaign. Despite several judicial orders, the ECI turned a blind eye to political parties taking out Assembly election rallies without adhering to COVID-19 safety protocols.
Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy remarked, while hearing a writ petition, that public health was of paramount importance and that it was distressing to note that Constitutional authorities had to be reminded of it. They pertinently observed that only when a citizen survives, would he/she be able to enjoy the rights that a democratic republic guarantees to him/her.
The judges also pointed out that “the situation now is of survival and protection and everything comes next”. They communicated a dire warning to the ECI that if a blueprint on the maintenance of COVID-19 protocol at the counting centres was not produced before the court by April 30, then the Court would not hesitate to stall the counting of votes scheduled for May 2, and order postponement of counting to June or July.
It is not without reason that the Chief Justice of the Madras HC wondered how the ECI could have allowed political parties to hold massive rallies with people not wearing masks and not following physical distancing norms. “You have been the most irresponsible institution in the last few months. You are the only institution singularly responsible for the situation we are facing today,” he commented.
The observations of the HC are very substantial. The Election Commission of India draws its mandate from the Constitution of India. Article 324 reads that the superintendence, direction and control of all elections to Parliament, the State legislatures, and the offices of the President and Vice-President shall be vested in the EC. The Article has been interpreted by courts and by orders of the ECI from time to time to mean that the power vested in it is plenary in nature. It is seen as unlimited and unconditional in the matter of holding elections. In other words, the ECI can take any action it deems fit to ensure that elections and the election process are safe, free and fair.
The independence of the ECI is purportedly guaranteed by clauses in the Constitution that declare that the Chief Election Commissioner cannot be removed from office except in the manner provided for the removal of a Supreme Court judge and that the conditions of his service cannot be varied to the incumbent’s disadvantage after appointment.
The ECI’s powers extend to postponing elections to any constituency, cancelling an election already notified, and even to abrogate or annul an election already held.
The point in elaborating the powers of the ECI is that while elections are in progress, it is in effect, the supreme plenary power. These powers are expected to be exercised for conducting free and fair elections without interference from the central or state governments or any political part or group. They are supposed to be exercised in favour of protecting the limited political rights granted to the people under the Constitution and for the wellbeing of the citizens of India. On several earlier occasions however, the ECI has shamelessly declared itself as ‘toothless’ to ensure the safe and free and fair conduct of elections. And now, we are witnessing the unique situation wherein the Madras HC is slapping on the wrists of the ECI for endangering the health and lives of citizens by allowing the violation of COVID safety norms. The.
All these raise two questions. Firstly, why did the HC wait until the campaigns are over to point fingers at the ECI? The Higher Courts have powers to take suo moto cognisance of situations in which grave injustice or harm is being done to the people. Secondly, why did the EC, despite being the plenary power during elections, fail to take decisive action when norms were violated by contesting parties?
In spite of the Courts and the ECI being Constitutional bodies vested with powers to act within their mandates to secure the rights and well-being of the people, it appears that in the final analysis they are subservient to the Executive, to the Central Government and the Cabinet in particular, who took the decision to conduct the elections even when the lives of people would be endangered.
The observations of the HC and the apparent inability of the ECI to fulfil its responsibility during the conduct of elections in a free and fair manner without endangering the health and lives of the electorate are a reflection of the inadequacy of the current political process where supreme power resides in the hands of the Executive, particularly in the hands of the Cabinet of the party in power. They are a reflection on the powerlessness of other Constitutional bodies to exercise their mandates in defence of the safety, security and well-being of the people of the country.