BJP Leader P.S. Tomar Moves SC, Challenging MPHC Order Directing Virtual Election Campaign for By-Elections
(Judicial Quest News Network)
The Bhartiya Janta Party Leader Pradyumn Singh Tomar has filed a plea in Supreme Court challenging the October 20 Madhya Pradesh High Court order which directed that political parties shall conduct election campaigns by Virtual mode, without physical gathering (Pradyumn Sing Tomar v. Ashis Pratap Singh & Ors).
Hon’ble High Court has issued various interim directions, which are in violation of Covid-19 Guidelines dated 29.09.2020 issued by the Election Commission of India (“ECI”); Covid-19 Guidelines dated 08.10.2020 issued by the Central Government and the State of Madhya Pradesh respectively.
ECI on 25.09.2020 issued Press Note declaring the conduct of bye-elections in Legislative Assemblies of various States including 28 seats in Madhya Pradesh Legislative Assembly. In Clause 5 of the said Press Note, the ECI, in exercise of its power under Article 324 of Constitution of India, formulated the Covid-19 Guidelines to be followed during the conduct of bye-elections. In Clause 13(3) of the Guidelines, the ECI specifically permitted the “public gatherings” and “election rallies” subject to Covid-19 guidelines being followed. The relevant Clause reads as under: –
“3) Election Meetings – Public gatherings/ rallies may be conducted subject to adherence to extant COVID-19 guidelines.”
Tomar who is contesting by-elections from Gwalior, seeks a stay on order, contending that it violates his right to conduct election campaigns through physical gatherings as permitted by the Election Commission of India
he Central Government also, in exercise of powers conferred under Section 10(2)(I) of National Disaster Management Act, 2005 (“NDMA Act”), by order dated 08.10.2020, permitted political gatherings beyond the existing limit of 100 persons in those assembly areas where
elections are being held subject to the condition specified therein. It was further directed that the detailed Standard Operating Procedure (“SOP”) shall be issued by the respective State Governments.
The High Court has passed orders in a PIL highlighting that various political parties are organizing political functions, which is increasing the Covid-19 cases and the State authorities are not taking any action against such political parties and its members. It was further prayed that political parties be restrained from organizing political functions.
The Hon’ble High Court by order dated 12.10.2020 directed the State authorities of Districts Gwalior and Datia to take action under Section 154 CrPC i.e., register FIRs where the protocol of Covid-19 were being breached.
the impugned interim order erroneously directed that that the political parties shall conduct the election campaign by virtual mode and not by physical gathering. It further restrained the District Magistrate of all districts from issuing any permission to any political party or candidate unless the District Magistrate is satisfied that conduct of virtual election campaign is not possible.
The Hon’ble High Court directed that the permission of District Magistrate for physical election campaign shall be effective only if the Election Commission of India approves the same in writing.
The petitioner submits that the order is completely erroneous and without jurisdiction for the following reasons
The Central Government also by order dated 08.10.2020 issued under Section 10(2)(I) of National Disaster Management Act, 2005, permitted “physical gatherings” in assemblies where elections are being held subject to specified restrictions;
12.3 The State of Madhya Pradesh also by order dated 08.10.2020 permitted “public gatherings” in assemblies where elections are being held subject to specified restrictions;
12.4 Where the Covid-19 protocol is being breached, the State authorities are taking action as per law and registered FIRs as evident from the Compliance Affidavit dated 18.10.2020 of Superintendent of Police of Districts Gwalior and Datia;
12.5 In the PIL filed by the Petitioner, there is no challenge to either the Covid-19 Guidelines dated 29.09.2020 issued by the Election Commission or the orders dated 08.10.2020 passed by the Central Government and the State of Madhya Pradesh respectively;
12.6 However, the High Court in complete disregard of orders passed by the Election Commission of India; Central Government and the State of Madhya Pradesh, directed the political parties to conduct election campaign only be virtual mode. The restraint on District Magistrates in issuing permission for public gathering and the condition to deposit double the money for masks and sanitizers is completely without jurisdiction;
12.7 The Hon’ble High Court has no jurisdiction to substitute the Guidelines issued by the Election Commission; Central Government and the State Government. The superintendence, direction and control over the conduct of elections in exclusively within the domain of the Election Commission as held in Mohinder Singh Gill vs. The Chief Election Commissioner, (1978) 1 SCC 405 and could not have been substituted by the High Court.
The SLP is filed through Advocate Astha Sharma, AOR, Tomar states that the High Court order is in complete disregard of orders passed by the Election Commission of India, the Central Government and the State of Madhya Pradesh.
The plea avers that “The restraint on District Magistrate in issuing permission for public gathering and the condition to deposit double the money for masks and sanitizers is completely without jurisdiction.
The genesis of the case lies in the press note issued by the Election Commission of India on September 25 which declared the conduct of by-elections in various states, including the by-elections for 28 seats in the Madhya Pradesh Legislative Assembly,
In Clause 5 of the said press note, the ECI, in exercise of the power conferred Under Article 324 of Constitution of India, formulated COVID-19 guidelines to be followed during the conduct of theses by-elections.
In Clause 13(3) of the Guide lines, ECI specifically permitted “public gatherings” and “election rallies”. Subject to COVID-19 guidelines being followed.
The holding of physical campaign by the political party where the permission is granted by the District Magistrate and approved by the Election Commission, shall take place only after the political party deposits the money with District Magistrate which is sufficient to purchase double the number of masks and sanitizers required for protecting the number of persons expected in the gathering.
