Election Commissioners and its role as Covid superspreader

The Election Commissioners who decided to conduct elections during pandemic super spread, and especially for spreading the risk over eight phases in Bengal should have resigned with shame after the Madras High Court found it solely responsible for 'murder' of thousands of people. But Advocate Mohit D. Ram, Standing Counsel representing Election Commission of India (ECI) resigned from his post in the Supreme Court stating that his values are not in consonance with the working methodology of the ECI. He wrote: "I have found that my values are not in consonance with the current functioning of the ECI; and hence I withdraw myself from the responsibilities of its panel counsel before the Supreme Court of India". The Election Commission was litigating for imposing gag order on media from reporting oral observation of the High Courts, which it found to be 'disparaging'.

Should we stitch the mouths of Judges and throttle the throats of media? Justice Chandrachud gave answer to this question: "The unfolding of the debate in the court of law is equally important and media has a duty to report. It is not only our judgements that are significant, but the dialogue also is." The Supreme Court explained this common sense to the Election Commission of India . It must be an eye opener for that Constitutional institution to know the constitutionally guaranteed powers of judiciary and the people.

An Election Commission that wants eight phases and prolonged campaigning for more than a month for assembly elections in West Bengal, claims that it is ready to conduct elections for all states and Lok Sabha simultaneously. It must be over confidence or their interest to fulfil the desire of the rulers. If some research or investigation finds the EC's eight phase election saga is the cause of super spread of virus resulting in genocide, why not they stand in box to answer this nation.

HC censures EC

"You (ECI) are the only institution responsible for the situation that we are in today. You have been singularly lacking any kind of exercise of authority…You have not taken measures against political parties holding rallies despite every order of this court saying maintain Covid protocol, maintain Covid protocol like a broken record". These anguish-filled-remarks are not from opposition parties. The Madras High Court used this language against ECI on 26th April .

The Court further said: "the significance of adhering to such protocol may have been lost on the EC going by puerile silence on the part of the Commission as campaigns and rallies were conducted without distancing norms being maintained and in wanton disregard of other items of the protocol….Public health is of paramount importance and it is distressing that constitutional authorities have to be reminded in such regard. It is only when a citizen survives that he will be able to enjoy the rights that a democratic republic guarantees. The situation is now one of survival and protection and everything else comes thereafter."

It has castigated the EC for the surge in Covid-19 cases during the second wave of the pandemic. When HC held the Commission "singularly" responsible for the spread of the viral disease, people found reason behind it. The HC reminded EC that it was the "the most irresponsible institution" and even said its officials may be booked under murder charges. People feel that unless someone tells EC in strong words, the need for accountability will not go into the minds.

Causing death by negligence or recklessness by refusing to see the killer virus is murder strictly as per the definition in IPC. Please read Sections 299 and 300 of Indian Penal Code which is working in India since 1860 which these IAS officers must have by hearted for their UPSC examinations. Murders are of two types . One is intentional murders and the other is reckless or negligent causing of death, if not with intention. When such cases are booked against Tablighi Jamaat in Delhi, for negligently spreading corona, why not Commissioners are booked for their decision to conduct prolonged elections which is as mad as a fanatic religious congregation is? What is wrong in Madras High Court's observation? EC should be happy that it was only an observation and not the judgment.

Instead of responding to these remarks in a responsible way the Election Commission has reacted with litigation. It is not their money anyway, to spend on lawyers and travel to Chennai. It pressed its advocates to plead with the HC on next day of hearing 30th April to restrain media from reporting. Chief Justice Sanjib Banerjee and Justice Senthil Kumar Ramamoorthy rejected the repeated requests to stop media from reporting. The EC wanted the media to confine to report observations from written orders and not the oral remarks during the hearings. The EC felt that Judges' remarks caused grave prejudice to the Commission and police complaints were being filed against their commissioners .

EC's language

Election Commission says the comments of HC were "uncalled for, blatantly disparaging and derogatory." These expressions were used by EC in its appeal to Supreme Court . If an individual faces baseless defamatory insinuation, he may approach court with these expressions. An institution like ECI, which is a 'state' under Article 12 of Constitution and a significant public authority with huge task of conducting elections without bias, is claiming that the comments are derogatory. If their decisions and actions are scrutinized and reviewed by judiciary and civil society, EC must correct itself. State institutions do not have 'reputation' to be protected under Section 500 of Indian Penal Code (criminal defamation) or claim huge compensation in torts cases. If they do not perform their constitutional duty, it is in fact Constitutional crime. Fortunately for them, Constitution of India did not prescribe jail terms for this kind of abdication of duties.

The Bench of Justice DY Dhananjay Y Chandrachud and Justice M R Shah emphasised that high courts must get "complete freedom" to decide issues before them, and that the "media is a very important and powerful watchdog of the judicial processes". Though mainstream TV media has totally forgot this duty, the civil society through some print media and in social media, is rightly exercising this freedom. How could EC come to Supreme Court on this point? Is it not far-fetched plea to restrain media about reporting observations of judges?

The questions raised by Madras High Court are unasked statements of the people. Neither EC nor the Government has any moral or legal right to criticise Tablighi Jamaat or Kumbhmela when they did not care to push millions of people into high risk of coronavirus in five states. It's a shame that all political leaders and parties joined these Kumbh Melas of the Elections. They should bear the joint liability for joining, behaving in a hazardous manner, as if none has any respect for common man's life.

We need to draw a comparison with IPL also. They might have not the culprits of organising huge people's congregations like these politicians, but they risked top players of cricket globally and organising staff. Until several persons tested positive, the cricket with high density of commerce with diluted sporting spirit was not postponed. Recklessness about the life.

Judges further explained: 'In today's time, we cannot say that media won't report contents of discussion in a court and only orders. Since the discussion is of equal public importance, we will put it on the same pedestal like our orders. There is a dialogue between the court and the lawyers and when they are reported, people get to know about the judicial process.

To sustain democracy, we need independent Election Commission. The Commission cannot be independent as long as the 'loyalty' is the foremost qualification to become its members. Incidentally, this is the problem of the Information Commission also. The EC should know that the third estate Judiciary shall question, and fourth estate media shall report.

(The writer is Professor of Law,

Bennett University and former Central

Information Commissioner)