'Our Hands Are Tied': Madras High Court Suggests Parties To Approach SC For Postponement Of Urban Local Body Polls

The Madras High Court has expressed its difficulty in allowing the plea for postponing the urban local body polls in light of the worsening pandemic situation, given the prevailing Supreme Court order requiring the State Election Commission to notify the polls within four months, latest by January 27.

The Division Bench of Acting Chief Justice Munishwar Nath Bhandari and Justice P.D Audikesavalu orally remarked that it cannot go against the Supreme Court order mandating the notifying of elections within four months.

It therefore suggested Senior counsel S. Prabhakaran, appearing for the Petitioner, to approach the Supreme Court.

Prabakaran on the other hand contended that the situation has undergone a substantial change since the Supreme Court's September 2021 order. He further submitted that it is the prerogative of the Election Commission or the State Government to approach the Supreme Court, whereas the petitioner is at the mercy of High Court. 

The plea has been filed by Doctor M. Nakkeran seeking a writ of mandamus to postpone the polls in light of the Covid-19 third wave and the impact of Omicron variant.

Earlier, the High Court had refused to grant any relief in the form of an interim stay on notifying/ conducting urban local body polls.

Today, it expressed that it cannot interfere in election matters or direct the Election Commission to approach the Supreme Court. It further added that the State Government and the Election Commission will have taken stock of the prevailing situation if they notify the urban local body polls.

The bench also pointed out that the State Election Commission has released a comprehensive circular about the Covid Protocol that must be adhered to during the elections. 

The bench further opined that it cannot impose any order against the view taken by Supreme Court; it can only pass an order to ensure strict adherence to the guidelines already published by TNSEC. It added that the counsels have the discretion to withdraw the petitions and approach the Supreme Court.

Senior Counsel S. Prabhakaran vehemently argued that the number of containment zones are rising daily and the number of streets with three or more covid cases are abnormally high.

He also relied on the statistics that over 30,000 streets in Tamil Nadu are currently locked. Senior Counsel also added that his representations to the State Election Commission and the State Government were placed in cold storage and not acted upon by the authorities even when Article 47 casts an obligation on the state to preserve public health.

At this juncture, the bench told the counsel that there will be much less commotion in urban local body polls when compared to state assembly elections.

The court asked the counsel about the justification that can be accorded to the postponement of urban local body polls when State Assembly Elections were notified by Election Commission of India in other states like Punjab and Uttar Pradesh.

The court stuck to its initial observation that adherence to the Covid Protocol and Vaccination was the only way out of the third wave of pandemic. The petitioner, being a doctor, could have pressed for strict compliance of Covid Protocol during the election process over a plea for postponement, the bench added.

"As we have already pointed out, there is a constitutional mandate to conduct elections. Unfortunately, in Tamil Nadu, it has not happened since 2016", Justice P.D Audiksavalu noted while iterating that the court can make sure that the Protocol is strictly observed by all political parties and candidates.

Acting Chief Justice Munishwar Nath Bhandari also recalled an instance while he was serving at the Allahabad High Court whereby he kept a petition pending to make sure that the court's mandate about not pasting posters in court premises or in the city for the entire duration of Bar Association Elections was strictly observed. 

Before concluding, the court has asked all the counsels to take a call on whether they would press the petition here or opt to move the Supreme Court.

The court will hear the other counsels appearing for the petitioners tomorrow.

Background

Last Friday, appearing for the doctor, Senior Counsel S. Prabhakaran, submitted that the state has been in the clutches of an extreme pandemic situation. The rising number of cases each day has become a grave concern and the conduct of polls without considering the prevailing situation will be catastrophic, contended the counsel. By now, numerous containment zones have been demarcated by the Government, he added.

He added that Tamil Nadu State Election Commission is likely to notify the polls soon since the Supreme Court had directed the Commission to notify the polls within four months, the last date within that time frame being January 27.