Supreme Court asks Election Commission to drop ‘touch me not’ stand
On Monday, the Supreme Court sympathised with the Election Commission's hurt over Madras HC's searing "EC should face murder charges" observation. But it said that HC Judges must feel free to put bitter questions to the authorities to produce appropriate answers while dealing with citizen-centric litigation.
The HC’s observations were made on April 26 & 30 during the hearing of a Public Interest Litigation charging non-observance of Covid-19 norms during the just-held polls, & that it could risk the lives of lakhs of people. Election Commission sought removal of the observations & said uncalled for & non-contextual remarks by a constitutional court against a constitutional body delegated with conducting free & fair elections, without giving it an opportunity to explain, were not only in bad taste but had also demoralised officials.
Senior Lawyer Rakesh Dwivedi, appearing for the Election Commission said the High Court said all sorts of things against the commission in a series of “out of context remarks” without giving it an opportunity to explain.
He asked, "If the PM or a CM holds a rally & two lakh people gather, what can the EC do? Police and CRPF are not in EC's administrative control. EC's role remains confined to carrying out free & fair elections & managing related officials. Dignity of the EC & its officials needs to be protected. When the HC says EC & its officials must face criminal proceedings & FIRs should get registered, what remedy could the officers have?"
A bench of Justices D Y Chandrachud & M R Shah said HCs played a vital role in protecting the fundamental rights of people & had a wider jurisdiction than even the SC. The Bench said, "We understand the point of view of the EC & its hurt feelings. But we have to protect the sanctity of HCs & the judicial process of scrutiny. HC judges should have the liberty to ask questions & not feel restrained while dealing with matters relating to public interest.”
Elucidating the process of scrutiny in constitutional courts, Justice Chandrachud said, "I would not have made such a remark (as was done by Madras HC). Ordinarily, we are careful not to say anything during the hearing which is inappropriate for inclusion in the order." Justice Shah said, "In adjudication of issues relating to public interest, there is always a human element that is involved & judges reflect the public sentiment while asking questions to the authorities. Treat the Madras HC observations like a bitter pill, which a doctor gives to patients for speedy recovery."
The bench further said, "We understand why EC felt pained. But for the EC to say that the HC was trying to overwhelm it or trying to demean it will not be correct. Parliament is the sovereign body of representatives for India. Yet, the Supreme Court can examine the validity of laws enacted by the sovereign body & strike them down. That does not make the Supreme Court more powerful than Parliament. So, it will be completely unacceptable if the EC says it is not amenable to judicial scrutiny."
It said that Judges, in accomplishment of their constitutionally mandated task, have to ask uncomfortable questions with the sole purpose of producing better responses & stimulate the executive to discharge its duties. The bench added that the EC's SLP said that it was an independent constitutional body & the HC was an independent constitutional authority & that both should not tread on one another's jurisdiction. The bench suggested to the EC not to adopt a “touch me not” approach but promised to strike a balance between the roles of the EC & the HC in the context of the issue arising from the observations made by Madras HC.
Recognising the service rendered by the EC, the bench said, "In the last 70 years, the EC has given free & fair elections, which is the essence of democracy. EC is an important pillar of democratic set up in India." The bench reserved its order & indicated that it could be pronounced on Thursday.