Pleas In SC Seeks Direction To Chief Election Commissioner To Postpone Bihar Legislative Assembly Elections [Read Petition]

Two Petitions have been filed before Supreme Courts seeking a direction to the Chief Election Commissioner for the postponement of the impending Bihar Assembly Elections on account of the national COVID crisis and the state being flood-torn.

One of the pleas, by lawyer-social worker Rajesh Jaiswal, prays the apex court for a direction to the Chief Election Commissioner to not recommend to the government of Bihar to publish the notification of election to its state legislative assembly in the official gazette until such time the competent authority declares the state of Bihar a Covid-free and flood-free state.

The petition, filed through AOR Shantanu Sagar, is desirous that the Commissioner decide his application in this behalf and refrain from recommending elections to the legislative assembly of the state of Bihar.

The petitioner wonders whether the Election Commission has total unawareness of the "extraordinary circumstances and prohibitions" in the whole nation, and more particularly the constituencies which are likely to go for the polls, and has "convinced itself that free and fair elections could be held" amidst the prevailing state of affairs. He questions the feasibility of the conduct of polls when even public meetings are banned and it is extremely hazardous to the candidates to contest or to indulge in the election propaganda and even when voters would be either afraid to vote and be deprived of their right to vote or risk their safety to participate in the election.

The petition enumerates the following moot question for the consideration of the top court:

Whether the powers of the Election Commission under Article 324 include all powers necessary for the smooth conduct of elections, including framing of the schedule and calendar for election of the legislative assembly?

Whether under sections 14 and 15 of the Representation of Peoples Act, 1951, the President or the Governor fixes the date or dates for holding elections on the recommendation of the Election Commission, which is in its exclusive domain?

Whether unless the electoral roll is prepared strictly in accordance with the provisions of the 1950/1951 Act and the 1960 Rules, it has no sanctity, and the election conducted on such defective electoral roll will tilt the balance of power and the consequent election will also not inspire confidence of the people?

Whether the Approach of the respondent Election Commission can be to give the total go by to the extraordinary situation prevailing in the entire world and more particularly in the state of Bihar? "This court cannot remain a passive spectator in this extraordinary situation and leave the nation to the mercy of the Election Commission, and the court can certainly satisfy itself if the Election Commission had kept its eyes, ears and mind open, and whether it is able to show that all relevant factors including the consideration as to what advantage was to be secured as against the risk to be faced, entered into its reckoning", submits the plea.

Whether the powers of this Court under Article 32 are wide enough to include the power to intervene in the present situation?

The second petitioner, Avinash Thakur, a dairy farmer, is aggrieved by the news published by the Times of India on August 12 which quotes the chief election commissioner as saying that the Bihar Assembly elections, 2020 will be held as per schedule, ignoring the fact that Bihar is grappling with Covid 19 and the floods.

"There is a very high degree of risk of coronavirus exposure at in-person polling places", it is urged in the plea through Advocates Ashutosh Thakur and Neeraj Shekhar.

At present, the polls are expected to be held in Bihar in October, 2020 to elect 243 members of the Bihar legislative assembly. The plea contends that announcing the elections at this time will impose an additional burden on an already embattled administration. The politicians in administration are now focusing on election preparation instead of battling with flood and COVID 19.

"The population of around 50,00,00 in 14 out of Bihar 38 districts is affected by floods in 113 blocks and 1,059 panchayats. The flood hit persons have been taken to flood relief camps where there is high risk of spread of infection/virus and no steps are being taken by the state government to identify those flood-hit people and test COVID-19 suspects in the population", it is submitted.

It is contended that declaring an election during a pandemic/flood is completely devastating, wrong and, in a way, will take away the right to vote of the citizens in flood-hit areas who are struggling for their life. It is urged that the right to vote is a fundamental right under the right to life guaranteed under Article 21

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