Madras High Court Refuses To Defer Urban Local Body Polls Amid Covid Third Wave

The Madras High Court has refused to postpone the urban local body polls likely to be notified by the State Election Commission before January 27, even though the petitioners vehemently opposed conducting elections in light of the third wave of the pandemic. The order was passed after hearing all the counsels appearing for the petitioners in a course of three days.

The first bench of Acting Chief Justice Munishwar Nath Bhandari and Justice PD Audikesavalu noted that it cannot go against the direction given to the Tamil Nadu State Election Commission (TNSEC) by the apex court to abide by the constitutional mandate to conduct elections every five years. On 27th September 2021, Supreme Court had directed the TN SEC to notify the polls within four months based on the undertaking given by the Commission.

The court accepted the petitioners' contention that the High Court has vast powers under Article 226 of the Constitution.  However, the court further observed as follows:

"...The question however would be, in the exercise of said jurisdiction, can we go against direction of the apex court? This is not a case here we have refused to exercise jurisdiction under Article 226 in reference to the bar under any statute, but to maintain judicial discipline and not to pass an order contrary to an apex court order", the court noted at the outset.

The court also refused to accept the argument of one of the petitioners, doctor M. Nakeeran, that he couldn't approach the Supreme Court instead of High Court since he was not a party to the original litigation at the apex court involving State Election Commission. The court observed that State Election Commission, in its wisdom, did not file an application seeking further postponement of elections in light of surge in the number of covid infected citizens. The court remarked that this must have been because of its confidence in the directions detailing the  Covid Protocol to be adhered to, dated 10th December, 2021. The court also noted that no one prevented the petitioner from approaching the Supreme Court with the said grievance based on the grounds pleaded before the High Court. 

..."In light of aforesaid, present matter can be examined further in reference to constitutional mandate under Article 243 for holding elections. The aforesaid has been noted by the apex court while passing the order in September. The constitutional mandate cannot be ignored altogether only for the reason that elections were not held in the past five years, which was otherwise scheduled in 2016. The failure does not mean to be replicated or extended further, rather a serious view must be taken to abide by the mandate. Constitutional mandate cannot be ignored by constitutional bodies like State Election Commission since they have a higher responsibility to comply with the mandate as a constitutional authority."

The court noted that paragraph 9 of the order issued by SEC on 10th December puts in place a comprehensive protocol to be maintained during elections. Referring to the saem, the court further observed as below:

"It shows that all precautions have been given for elections to be notified for the local body polls. Direction given in para 9 takes care of the present scenario of Covid 19 and does not permit election campaigns in large groups. It also mandates that house to house campaigning would not be permitted if there are more than 3 supporters at a time. Directions have also been given to maintain social distancing therein. The directions have been given to all the political parties and candidates alike to exercise a degree of responsibility in campaigns and party meetings..While State Election Commission has issued appropriate instructions in paragraph quoted above with a further direction on action for non compliance of instructions, we don't find any justification to issue the directions sought by the petitioners."

The court also observed that it does not find that the State has violated the provisions of the Disaster Management Act, 2005 via any of the directions given by it in its orders. The State Government has not failed to discharge the duties entrusted to it under Section 38, 39 and 40 of Disaster Management Act, 2005, contrary to the submisisons made by the petitioners, the court added.

However, to make sure that the State Election Commission demands strict compliance of the directions issued by themselves, the court added as follows in the order:

"This court, however, taking cognisance of the issue raised by the petitioners, so as to see that the order passed by SEC has complied and directions given therein are applied by all political parties and candidates contesting elections for which it was previously made clear that, while disposing of the petition, the court would keep the matter open to see that if elections are notified and held,  the compliance of the protocol envisaged by SEC is strictly complied with. Any violation thereupon can be brought to the notice of court to pass an appropriate order so as to provide all safeguards for citizens. In view of the above, while passing the final order on the prayer made, we will be keeping this matter alive in reference to compliance of directions given not only in para 9 of the order dated 10.12.2021, but even to pass any other appropriate order in case of failure of anyone concerned with election to comply with directions given by SEC."

Therefore, the court has categorically stated that if notification is issued for holding elections, elections would be conducted by strictly complying with the directions in the SEC order dated 10,12,2021 and in compliance with any subsequent notifications addressing the situation of Covid-19 pandemic. To ensure compliance, the court has directed the registry to place the disposed off matter10 days after issuing notification of elections for urban local bodies again. 

Refusing the final request by the petitioners to restrain the SEC from notifying the polls for a few weeks via an interim order to afford them an option to approach Supreme Court, the court stated that it had initially given the petitioners an option to move Supreme Court. However, the petitioners opted to argue the matter in full before the High Court as a result of which the current order dismissing the petitions have been passed.

When the petitioners referred to the Madras High Court's order in granting liberty for approaching Supreme Court by extending the interim stay on Puducherry local body polls, the court observed that,

"We have gone through the order dated 01.12.2021 and find that the facts in that case are quite different from those of this case. In the said case. while entertaining the writ petition, the court passed orders extending interim stay that continued from time to time. When the matter came up before the court, as per constitutional mandate, the election was required to be conducted in light of direction given by apex court to hold elections within the stipulated time frame. Then, the issue therein was deferment of elections in absence of identification and notification of OBC category and the plea that the elections couldn't be notified in that backdrop. The court accordingly issued an extension of stay taking into account peculiar facts of the case in reference to OBC reservation in Puducherry. The already operating interim order was extended for two weeks in the said case. Apart from that. no interim order was passed otherwise."

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