With India witnessing what is being called a ‘COVID-19 tsunami’ marked by a profuse increase in daily cases, the Election Commission of India (ECI) is facing vast criticism for the upsurge in cases that ensued from political rallies conducted in states of Tamil Nadu, Assam, West Bengal, Kerala and the Union territory of Puducherry. Taking note of the haphazard conduct of election rallies, the Madras high court made a critical remark that the ‘ECI should be put up on murder charges for being the most irresponsible institution’. The condemned conduct of ECI has gripped our minds with questions such as ‘Can the ECI cancel or postpone state assembly elections?’, ‘Is it enough to just issue guidelines and not ensure whether they are being followed?’ and ‘How far is the ECI responsible for causing the second wave of COVID-19 ?’. This article attempts to clear the role and powers of the ECI in ensuring a safe and fair election.

The Election Commission of India is a constitutional body singularly responsible for election processes in the territory of India. It is operational under Art. 324 of the Constitution of India and the Representation of People Act, 1951. The ECI, a 3 member commission consisting of a chief election commissioner and two election commissioners complies with The Election Commissioner Amendment Act, 1989. Under clause (2) of Art. 324, the President of India is empowered to appoint a chief election commissioner and other election commissioners. It is mandated for the ECI to hold elections within six months before the Lok Sabha and Legislative assembly expires from its tenure of five years. The dubiety on powers of the ECI to postpone or cancel elections is elucidated through Section 58(A) of the Representation of People Act on grounds of bribing voters and Article 172(1) in a state of emergency, but none of these two facilitate the postponement of elections in case of a health emergency. Does that mean the situation has reached an impasse? Not quite. ECI is authorized to postpone elections under extreme circumstances like that of a natural calamity, pandemic, or situation that impairs the conduction of elections. Through Section 153 of the Representation of the People Act along with Article 324 of the Constitution of India, the ECI could extend the dates stating its inability to conduct polls at the time, imposing President’s rule or allowing the incumbent Chief Minister to perform for six more months. Pandemic was a reason enough to do so, but as speculated the ongoing COVID-19 pandemic is likely to stay for the next 2 years, halting elections for such a long time will go against the spirit of democracy. What could have been done instead? India had efficiently curbed the spread of COVID-19 until February 2021 but it was not adequate, it was still imperative to follow the COVID-19 protocols to return to normalcy. Flouting social distancing and COVID-19 norms during the rallies undid the progress made in terms of curbing the number of cases. Instead of rushing to conduct elections, the ECI should have postponed the elections for some time and should have used this interval to prepare for ordered polls respecting the need of the hour while protecting democratic lines. Banning physical rallies would have been a commendable step. Promoting virtual campaigns through social media, TV, and online platforms would have saved people from getting out on the roads during the pandemic.

Another issue of discussion arose when the ECI responded to the Madras High Court’s statement, stating that enforcement of COVID-19 protocols was the responsibility of State authority under the Disaster Management Act, 2005. Surely, under the Disaster Management Act, state authorities have to ensure COVID-19 compliance for campaign purposes, but does that mean the ECI has a clean hand? The contention arises here. The term election as defined under article 324 includes the entire process of election. It is a broad term that puts extensive responsibility on the ECI for each process occurring after the issuance of notification to conduct elections. In a notification dated 9th April 2021, addressed to state political parties, the ECI reiterated strict observance of COVID-19 protocols during election rallies, meetings, etc. It mentioned COVID-19 rules being flouted in disregard and clarified that the commission shall not hesitate from banning public meetings, rallies in the case of further breach of guidelines. It is not enough to issue notifications without pursuing to act in furtherance of the aforesaid. The ECI did mention strict adherence but failed to catch up on tackling the disregard. The commission can not get away by putting the onus on state authorities. The constitution of India situated authority on the ECI singularly for the conduct of political leaders, and it can not be discharged on the account of lack of care by state authorities. 

In another interesting turn of events, the election commission urged the Madras High Court to gag the media from reporting the oral observations of the court during the hearing of the election-related cases. This request was rightly denied by the court as it is unbecoming of government agencies of such massive public importance to resort to opacity in its conduct. This decision of the Madras High Court was also upheld by the supreme court as it observed that “The media discharges an important function in adding vitality to democracy and it cannot be restricted from covering court proceedings in any manner” while also characterising the High court’s remarks as harsh and inappropriate.

It is apparent from the pictures taken of these rallies that there was severe negligence of COVID-19 norms. Slipshod management of COVID-19 protocols during rallies indeed proved disastrous for already shaky and overburdened healthcare infrastructure and that is evident from a sharp rise in the COVID-19 graph of these states after the elections. The lack of concern to take note of social distancing norms distinctly displays the level of concern leaders have for their people. Only when citizens survive is when they enjoy democracy, A dead man casts no vote.

Ayushi Purohit, a first-year BA.LLB student, has a keen interest in constitutional laws and politics. (The opinions expressed in this publication are those of the author/s. They do not purport to reflect the opinions or views of The Policy Observer or our members.)

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