Can Courts change the Dates of Election?

Introduction

COVID-19, a term we never knew of, is now the most talked about topic in the world. Since 2019, the world has faced enough sufferings owing to this corona virus. India has also had its share of sufferings on from this pandemic.

This pandemic has sparked a number of discussions ranging from; How will the Courts function? How will the schools function? To How will elections be conducted?

Elections, this one word encompasses a number of rights that are essentials of a democratic form of government. The right to vote, the right to elect my representative, the right to contest polls, etc. As has been said by a number of politicians and lately by Shri Narendra Modi, Elections are the ‘festival of democracy’ and similar to any other festival, this one is also incomplete without massive gatherings, roadshows, commotion, flamboyance, etc.

Indian Courts on Elections vis-à-vis Covid-19

In light of the massive COVID-19 outbreak, a point that came up for discussion was that how can a festival, even if it is a festival of democracy, be conducted in a situation wherein social distancing is the key to control the pandemic. In pursuance of these discussions, multiple PILs were and still are being filed in the Indian Courts to look into this matter. The relief sought by the courts is to postpone the date of elections. The Courts have at various instances dealt with the issue in a similar manner, by requesting the election commission to take appropriate measures. The Allahabad High Court in the Sanjay Yadav v. State of Uttar Pradesh had vide order dated 23.12.2021 acknowledged the fact that conducting elections in the manner they usually are in these pandemic times is an issue that needs to be looked after. Therefore, the Hon’ble Court requested the Prime Minister to look into the matter and also requested the Prime Minister to postpone the elections for a few months. Meanwhile, the Uttarakhand High Court on 05.01.2022 in the case of Sachdanand Dabral vs. Union of India asked the Election Commission to take appropriate measures for conducting elections in Uttarakhand in the wake of the rising COVID-19 cases.

After looking and analysing these orders, a point that prima facie comes up is that why are the Courts being a mute spectator? Do the Courts not have the authority to postpone the election dates?

Election Commission and its powers

To understand these questions, let us first understand the basis of the Election Commission and the powers vested in it.

Part XV of the Indian Constitution deals with Elections. Article 324 of the Indian Constitution deals with Superintendence, direction and control of elections to be vested in an Election Commission. Article 324 of the Constitution explains and gives meaning to the term ‘Election Commission’. Article 324(1) of the Indian Constitution is as follows:

“(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).”

The provision clearly states and gives a wide jurisdiction to the Election Commission to conduct elections. The Apex Court in the case of Kanhiya Lal Omar v. R.K. Trivedi[1], stated the wide scope entrusted by the Constitution in the Election Commission. The Court stated as follows:

“The superintendence, direction and control of the conduct of elections referred to in Article 324(1) of the Constitution are entrusted to the Commission. The words “superintendence”, “direction” and “control” are wide enough to include all powers necessary for the smooth conduct of elections……The word “election” in Article 324 is used in a wide sense so as to include the entire process of election which consists of several stages and it embraces many steps, some of which may have an important bearing on the result of the process.”

One thing that becomes very clear on a study of the Constitution and the case laws is that the Election Commission is the sole organisation responsible for elections in India. Having said this, the fact that the adjudication of any dispute arising out of elections is decided by the Courts does establish that although the election commission is the sole body responsible for conducting elections, but the adjudicating power vested in the Courts also extends to matters regarding elections. There have been various cases that have dealt with election related disputes, both in the Supreme Court and the High Courts.

In the present case scenario, wherein, the pandemic is responsible for the death of around 4,86,066,[2] and social distancing seems like the sole key to control this situation, can the Courts not interfere and postpone the festival of democracy on ground that conducting a festival in these tough times is putting at risk the Right to Life of the public at large.

Elections vis-à-vis Covid-19 around the World

All around the world, several elections have been postponed or rescheduled due to the risk of corona virus, be it the local elections in Australia or the Presidential Elections in Poland. The Courts in South Africa in light of COVID-19 crisis postponed the elections.[3] All around the world, the election commissions have recognised and acknowledged that corona virus possess a threat to the right to life and thus in its presence conducting of elections, a festival is nothing less than a threat to the public health at large.

Right to Life vs Elections

Article 21 of the Indian Constitution talks about the right to life and personal liberty as follows: “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The Apex Court has time and again widened the scope of this article. Be it in the M.C. Mehta Case[4], the T.N. Godavarman Thirumalpad case[5], or many other such cases. The Courts have held this article on the highest pedestal.

In today’s times, we have government-imposed lockdowns, schools are closed physically, courts are functioning virtually. Are these acts not proof enough of the fact that yes, there is a threat to life in wake of the COVID-19 pandemic? If not suo-moto, then after PIL’s are filed, is there any bar on the Courts to interfere with the date of elections? There is no specific provision that bars the Court from interfering, on the contrary there are multiple instances which show that the Hon’ble Courts can act in interest of justice. Also, as has been shown earlier, Courts around the world have also interfered with the dates of elections in light of this corona virus.

Another question that rises up for discussion is that after the Legislative Assembly is dissolved, who will be responsible for the functioning of the State? The Constitution in Part XVIII deals with emergency provisions. Although Emergency cannot be proclaimed on ground of corona virus, but the part does empower the President to assume charge over a State in exceptional cases for a maximum period of six months.

CONCLUSION

India as a nation has suffered enough at the hands of corona virus. The images of innumerable pyres burning is one that still shakes one’s heart. Having suffered so much are we yet to learn our lessons? The law that was once aimed to be framed in a manner that it was easy to understand even by a common man, is today becoming a spider’s web. Wherein some are shying from their responsibilities, but are so deep in the web that the masses are unable to comprehend the situation. Who has got what right, is a question that everyone points out, but then isn’t everything aimed at justice? Wasn’t law aimed to help the masses? If yes, then why are our Courts a mute spectator to the looming threat of right to life to the masses? If no, then is that the Law our law makers envisioned?

[1] (1985) 4 SCC 628

[2] https://www.mohfw.gov.in/

[3] https://www.elections.org.za/content/About-Us/News/Electoral-Court-grants-by-elections-postponement-due-to-coronavirus/

[4] (1999) 6 SCC 9

[5] (2002) 10 SCC 606