Can the Election Commission be held liable for rise in COVID-19?

By Radhika Goyal-

Introduction

The Election Commission plays a very important role in India. It is an independent autonomous body, and the constitution ensures, as in the case of the Supreme Court and the High Court, that it may able to function freely without any executive interference. The Election Commission administers the process of election in India at the National, State, and District level. The body regulates the election of Rajya Sabha, Lok Sabha, State legislative assemblies, State Legislative councils, and the office of Prime Minister and President.[1]

Background of the Election Commission

Part XV of the Indian Constitution deals with Election Commission. Article 324-329A of the constitution deals with the power, Functions, Tenure, eligibility, qualification, etc.[2]

Role of the Election Commission

The role of the Election Commission is to conduct free and fair elections. But it should be as per the norms and rules or regulations. And also, the Election Commission monitors the conduct of the political parties and candidates. So that no one can take elections for granted and follow as per the norms.[3]

Functions of the Election Commission

According to article 324(1), the Election Commission performs the following functions:

· The superintendence, direction, and control of the preparation of the electoral rolls and also the conduct of elections to Parliament, State Legislature, and to the office of President and Vice-President.

· The Election Commission should conduct election in a free and fair manner

· It ensures that no person shall be ineligible for inclusion in any such roll-on grounds only of religion, race, caste, sex, or any of them.

· The commission ensures that election to the Parliament and State Legislature are to be held based on adult suffrage

· Qualification of candidate also matters i.e., the candidate taking part in the election should be a citizen of India and not less than 18 years of age is not otherwise disqualified under the constitution or the Representation of People Act,1950.

· It guarantees that all political parties should submit regularly audited financial reports.

· Allot symbols to political parties and candidate

· The Election Commission should appoint tribunals for any doubts and disputes arising out of an election of the Parliament and State legislature.[4]

So, these are some of the functions of the Election Commission that should be followed and fulfill the duties while conducting the elections.

Is the Election Commission responsible for covid?

We know that Election Commission has conducted the elections in five states and they are West Bengal, Assam, Tamil Nadu, Kerala, and Puducherry, and announced the date on 27th February 2021. And later on, all election campaign was started and when this all scenario has started the cases of coronavirus also increased. And because of this, the whole situation lied upon the Election Commission of India. So, let's discuss, Is the Election Commission responsible for the covid situation.

If we think as a general person the answer is yes, that the Election Commission is responsible for covid. But if we think according to the law then many questions arise that they are responsible or not. But for me, Election Commission and the candidates, and the Aam Aadmi who participated in the election are responsible. As likewise, Election Commission is the one who conducts the election and gives all instruction to the political parties and their candidates. And because of the election people come up with the deadly coronavirus. so here Election Commission has the duty that they can cancel or postpone the election.

Then the next question arises, can the Election Commission cancel or postpone the election?

First, the Election Commission cannot cancel the election. Because once the period of five years is over of the Lok Sabha and State assembly then the election should be conducted. Article 172 of the Indian Constitution state that the normal tenure of the Legislative Assembly of every state is of five years but it may be dissolved earlier by the governor. During the emergency, the life of the assembly may be extended for one year.[5]

So, from the above Article-172, I can say that the Election Commission cannot cancel the election.

Second, yes, the Election Commission can be postponed but in a different or extraordinary circumstance. Section 153 of Representation of the People Act,1951 and Article 324 of the Indian Constitution state that the commission can postpone or extend the election but not beyond d six months. And because of this, I can say that yes Election Commission has made a mistake. They have the power that they can postpone the election. [6]

Further, we agree that the Election Commission issued guidelines but none of the parties follow their guideline, and the Election Commission also silent on this. And also, in front of the Election Commission, the political parties have started campaigns and rallies, there is no social distancing, people gather in the maximum amount, etc.

Therefore, due to this we all witness that because of massive meetings and elections, covid has spread rapidly in the states. And now the big question where our Election Commission? Why they did not stop the parties? What kind of role do they want to play? Is election being more important than the people’s lives?[7]

As we saw above Election Commission performs many functions from the conduct of an election in a free and fair manner to take over the actual conduct and supervision of the election.

In this regard, the recent case is there i.e., The Honourable Kolkata High Court has taken a look at or examined the power of the Election Commission that is under Article 324(6) of the Indian Constitution. The court observed that the President and Governor are the ones who aid and advise the council of Ministers but whatever they advise whether to the Union or State buy they cannot override the plenary powers of the Election Commission of India.[8]

Therefore, it is clear from the above case that the Election Commission enjoys the absolute power in the matter of connection of elections, and neither the ministers of Unions nor the State cannot override the power of the Election Commission.

So, from above we can say the person who has more powers than they have more responsibility but here the role of the Election Commission is questionable that they granted permission to the political leaders to conduct election campaigns in pandemics. Moreover, they issue guidelines but do not impose restrictions.

Then before the Honourable Madras High Court, a writ petition was filed by the District Secretary and the candidate of the Kaur Legislative Assembly constituency and put the allegation that Election Commission is responsible for covid surge and not to take any precautions and measures.

On this, the Hon’ble Madras High Court held that the Election Commission is singularly responsible for corona and should be put for murder charges.[9]

Because of this, the Election Commission filed the PIL in Hon’ble Supreme Court and the court held that the observation done by the Madras High Court is quite harsh. The power of ECI under Article 324 is supplement i.e., supplement. The court also said election conduct by ECI during this pandemic must go with the Disaster Management Act 2005 under which guidelines are issued by the Government of India and State Government and it the responsibility of NDMA/SDMA to implement the norms at the ground level. And also, the Election Commission issued the date when the situation was under control.[10]

So here Hon’ble Supreme Court has come up with that Election Commission is not singularly responsible and we cannot say that they are the only one who is responsible for covid-19.

Conclusion

There is said that “it takes two to make a quarrel”. From the above, I conclude that the Election Commission is not singularly responsible. In my view, if the Election Commission is 60% liable then the Government also 40% liable for example:

  1. The Election Commission issued a date when the situation was under control.

  2. The Election Commission also issued guidelines and protocols to be followed during the election.

  3. The Election Commission is not singularly responsible for the whole of the situation. Because other than five states where an election campaign is going, they can be responsible for them but not for other states because like Maharashtra, Delhi, Rajasthan there is no election in these states. So, we cannot say that they are singularly responsible for the whole of the second wave of the corona. And hence we cannot call them murders.

For me, every single person who participated in the election campaign and did not maintain the pandemic protocols is responsible that the Central and State government and also the Aam Aadmi. Because Election Commission never said and pressurize to the general public for attending the rallies and campaign. So, the public also accepts their negligence not only the Election Commission only.

We know in India the election is like a festival. Whatever date is decided then on that date only we celebrated it. But it proved that in my view Election Commissions is not only the responsible for covid but also every person who comes up for the election, participates in the election, conducts rallies, and meetings, etc. are responsible. Hence, Election Commission is not responsible for covid.

[1] Dr. J.N. PANDEY, CONSTITUTIONAL LAW OF INDIA 763 (55th ed.2018) [2] Drishti, Election Commission of India (January 29, 2019) https://www.drishtiias.com/important-institutions/drishti-specials-important-institutions-national-institutions/election-commission-of-india [3] Cleartax, Election Commission of India (April 27, 2021, 10:21 AM) https://cleartax.in/s/election-commission-india-eic [4] Dr. J.N. PANDEY, CONSTITUTIONAL LAW OF INDIA 765-769(55th ed.2018) [5] Nidhi Jacob, Polls During Covid Crisis: Is EC free to cancel or postpone the election, Factchecker (April 25, 2021, 8:11 PM) https://www.factchecker.in/explained/explainer-on-election-commission-of-india-covid-crisis-polls-west-bengal-factchecker-speaks-to-ex-cec-744271 [6] Nidhi Jacob, Polls During Covid Crisis: Is EC free to cancel or postpone the election, Factchecker (April 25, 2021, 8:11 PM) https://www.factchecker.in/explained/explainer-on-election-commission-of-india-covid-crisis-polls-west-bengal-factchecker-speaks-to-ex-cec-744271 [7] Sabyasachi Chakraborty, EC roles in conducting elections in 5 states during the pandemic, Tax Guru (3 weeks ago) https://taxguru-in.cdn.ampproject.org/v/s/taxguru.in/corporate-law/ec-role-conducting-elections-states-covid-pandemic.html?amp_js_v=a6&amp_gsa=1&amp&usqp=mq331AQHKAFQArABIA%3D%3D#aoh=16216282799222&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Ftaxguru.in%2Fcorporate-law%2Fec-role-conducting-elections-states-covid-pandemic.html [8] Nitish Debnath Vs. Election Commission of India &Or’s WPA (P) 129 of 2021 [9] (W.P. No 10441) [10]Times of India, Madras HC observations against Election Commission harsh and inappropriate: Supreme Court, The Times of India (May6,2021,11:36 IST) https://timesofindia.indiatimes.com/india/madras-hcs-observations-against-election-commission-harsh-and-inappropriate-supreme-court/articleshow/82425851.cms



Author- Radhika Goyal

LLM-II

New Law College, Pune

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