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Sunday, September 26, 2021

Judiciary trains guns on Election Commission, says “It should be charged with murder”

We often hear about separation of powers between different institutions in our Constitutional set up, and how each is supposed to work in harmony with the others. Executive/Bureaucracy, Legislature, Judiciary form the 3 main arms, and various autonomous institutional bodies like Election Commission, CAG, tribunals are part of the set-up. The elected representatives and PM are the ones with the final decision-making authority, subject to checks and balances by the other arms. Or so it should be in any sane, functional democracy.

But things work very differently in the ‘largest democracy in the world.’ Here, the judiciary rules supreme.

Yesterday, the Madras HC gave a tongue-lashing, of the sort one would give to a juvenile criminal, to the Election Commission terming it “the most irresponsible institution in the country” which “should probably face murder charges for not preventing parties from breaching Covid-19 protocols during campaigning during the Assembly elections”.

It also warned of stopping the counting process on May 2 unless proper plans were drawn up for the process.

A bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy, while hearing a plea moved by Tamil Nadu Transport Minister M.R. Vijayabhaskhar, said: “You (EC) are the only institution responsible for the situation of Covid and should probably be put on murder charges for not preventing political parties from misuse of Covid 19 protocol. You have been singularly lacking any kind of exercise of authority. You have not taken measures against political parties holding rallies despite the court saying ‘Maintain Covid protocols, maintain Covid protocols’.”

The minister had petitioned the court seeking direction to the Election Commission to follow a slew of measures in ensuring fairness during the counting of votes on May 2 for Karur constituency where he had contested the elections as an AIADMK candidate. There were 77 candidates in fray at Karur constituency.

“We assure you that we will stop counting if we do not find before May 2 a blueprint on how proper maintenance of Covid protocol is assured so that this state does not succumb to the idiosyncrasies any further,” the bench said.

Questions for the judiciary

Q. Which idiosyncracy prevented the Supreme Court from ordering farmers unions protesting on Delhi’s borders to move to designated protest zones?

Q. Why weren’t the protests disbanded even after they showed clear contempt of court by refusing to talk to the SC-appointed expert panel, and even outright rejected the centre’s offer to put the 3 laws on hold for 18 months on which time objectionable clauses in the laws could be sorted out?

Q. The judiciary said it wanted to be considerate of protestors to avoid any bloodshed and law & order issues. Yet, during the tractor rally on 26 January, the protestors broke the commitment made to authorities by starting their rally before the agreed upon time and by taking a different route, rioted on roads and stormed into the Red Fort. Close to 400 cops were injured that day and one protestor died when his tractor overturned at high speed. In the next hearing, the SC downplayed the violence saying ‘farmers had paid a visit to Delhi’.

Q. A protest which originated among a section of rich farmers in Punjab, and which was later joined by certain farming communities in Haryana and West UP, is still holding the capital to ransom, 5 months after it started. If there is one event which is responsible for the Covid second wave in North Bharat, it is this ‘farmers’ protest which involved several NRI visitors from UK, Canada and USA, who in all likelihood spread the virulent UK strain of the Covid virus in Punjab, Delhi and outwards.  Who is accountable for the suffering of locals living in Delhi’s border areas, and other Delhi residents whose oxygen supplies have been delayed due to critical roads being occupied by these protestors?

Q. When lockdown was first announced, the entire country witnessed how attendees of the Tablighi Jamaat event in Delhi failed to heed calls to declare themselves to authorities for testing and quarantine. In some places, they and their local supporters even attacked police parties which approached them in mosques and madrasas. When they were finally taken to quarantine centres, they misbehaved with nurses and staff in the most shocking manner, some even defecating and urinating in corridors. All of the foreign Jamaatis (close to a 1000) who were charged by police were let off by our courts, with Bombay HC judges  T V Nalawade and M G Sewlikar even lambasting police for ‘harassing and victimising’ foreign ‘guests’, who they said had been made scapegoats and victims of ‘propaganda’. Which other country allows its rules to be violated thus by foreigners? Had an example been made of such violators during the first wave, wouldn’t everyone else have paid more heed?

Is such lacerating criticism of EC justified?

It is easy for the judiciary to blame all and sundry because it has been given the role of ultimate arbitrator in the Constitutional scheme of things. But that right is not absolute. Each institution has to exercise its rights judiciously, using appropriate and tempered language even while critiquing the work of others.

The Election Commission of Bharat is regarded as an exemplary body all across the world, with an impeccable record of conducting free and fair elections across the country for many decades now. With several innovations like introduction of EVM, online application for voter identity card, model code of conduct etc., it has completely changed the face of our elections, which before 1980-90 were subject to the ravages of ballot stuffing and fraud voting.

It must be remembered that last July when the EC proposed virtual campaigning by all parties in light of the pandemic, it was the Opposition parties (Congress, RJD, Communists etc), who opposed it calling it ‘discriminatory and violative of equality norms’. We all know what would have happened if EC had still gone ahead with a digital-only campaign rule – a PIL would have been filed in SC and a mid-night hearing scheduled to ‘save democracy’ which the ‘BJP was murdering under cover of Coivd’ it would have been alleged.

To those criticizing the multiple phases of rallying in West Bengal, this is the first time that voters in many parts of the violence-prone state have been able to vote fearlessly due to presence of central forces, that can only be deployed in significant numbers in a phased campaign.

Yes, the optics of large election rallies and roadshows in Bengal did not look good, and an argument can be made that those visuals and those from Kumbh Mela led to commoners in other parts relaxing their guard. But no one in their right mind can blame election rallies or Kumbh for the situation in Maharashtra, which just like in the first wave is suffering the most in the second wave too. And for the record – mass election rallies in West Bengal were suspended by BJP and subsequently by all parties after the 6th phase, and Kumbh too was cut short by 2 weeks by most akharas. But the farmers protest are not just continuing, they are refusing to even get tested and demanding on-site vaccination! Has any court taken suo-motu notice of this reckless and irresponsible behavior?

However, Madras HC did make a comment against VIP culture which we can all agree with – “When it comes to life, there should be no VIP culture. It should be first come first serve. Everyone should be equal. There seems to be despair that it is on the basis of influence that beds are allotted.”

However, the Madras HC judges should pass this message to Delhi HC which suo motu initiated a PIL to get Covid-19 vaccination on priority for judges, court staff and lawyers, as ‘frontline workers’. And they should also advise Delhi HC to immediately reject the Delhi government’s order reserving 100 rooms at the 5-star Ashoka Hotel as a COVID-19 facility for judges, judicial officers of Delhi High Court and their families.

Conclusion

In 2007, PM Manmohan Singh had advised the judiciary not to overstep. However, Judicial overreach has grown manifold since then and judges now openly talk about their supremacy over ‘majoritarian governments’ and that judging is a ‘self-expression’ of a judge’s personal beliefs. For the Madras HC to blame the EC for the Covid situation in the country is not just ridiculous, it amounts to making a scapegoat of an important Constitutional insitution. Our judiciary needs to rein in its autocratic impulses, and operate within the boundaries of the Constitutional framework.

But as we write this, a Supreme Court Bench of JusticesDY Chandrachud, L Nageswara Rao and Ravindra Bhat is hearing the Suo Motu (of its own accord) case registered to ‘examine COVID-19 issues such as the supply of essential drugs, manner of vaccination, and lockdown’. Earlier, the Bench was headed by former CJI SA Bobde. Truly, we are living in the ‘Age of Judiciary’.


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