Madhya Pradesh High Court
Nagrik Upbhokta Margdarshak ... vs The State Of Madhya Pradesh on 22 September, 2021
Author: Chief Justice
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The High Court Of Madhya Pradesh
WP-15280-2021
(NAGRIK UPBHOKTA MARGDARSHAK MANCH THROUGH ITS PRESIDENT DR. P.G. NAJPANDE AND
OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS)
Jabalpur, Dated : 22-09-2021
Heard through Video Conferencing.
Shri Dinesh Kumar Upadhyay, learned counsel for the petitioner.
Shri Pushpendra Yadav, learned Additional Advocate General for the
respondents/State.
Shri Siddharth Seth, learned counsel for the respondents No.2 & 3.
This writ petition has been filed as Public Interest Litigation by the
Nagrik Upbhokta Margdarshak Manch with a prayer that the Election
Commission of India may be directed not to conduct bye-elections of
Parliamentary Constituency of Khandwa and Assembly Constituencies of
Prathvipur, Jobat and Rajgarh in the State of Madhya Pradesh. A further
prayer has been made to direct the respondents to conduct the bye-elections
only after assessing the ground situation of coronavirus in the State.
The Election Commission of India has filed reply to the writ petition.
A copy of its Press Note dated 05.05.2021 has been placed on record as
Annexure-R/1 stating that the Commission has reviewed the matter and has
decided that due to outbreak of the second wave of Covid-19 in the country,
it would not be appropriate to hold bye-elections till the pandemic situation
significantly improves and conditions become conducive to hold these bye-
elections. It has been further stated that the Commission will take a decision
in the matter at appropriate time in future after taking inputs from the
concerned States and assessing the pandemic situation from mandated
authorities like NDMA/SDMA.
A recently issued Press Note dated 04.09.2021 has also been placed on
record as Annexure- R/15 showing that after taking into consideration the
inputs and views of the Chief Secretaries of the concerned States and
respective Chief Electoral Officers, the Commission has decided not to hold
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bye-elections in other 31 Assembly Constituencies and 3 Parliamentary
Constituencies. However, considering the constitutional exigency and special
request from State of West Bengal, it has decided to hold bye-election in 159
- Bhabanipur. Much stricter norms have been kept by the Commission as an
abundant caution to safeguard from Covid-19 pandemic.
It is a settled position of law that Article 324 of the Constitution is a
reservoir of power for the Election Commission to act in such vacuous area
where enacted laws make no provisions or make 'insufficient provisions' to
deal with the situation confronting the Election Commission in the conduct of
elections as held in catena of judgments. Reference in this connection may be
made to the judgments of the Supreme Court in Mohinder Singh Gill vs.
The Chief Election Commissioner (1978) 1 SCC 405; Kanhiya Lal
Omar vs. R.K. Trivedi & Others [AIR 1986 SC 111]; Union of India vs.
Association for Democratic Reforms and Others [AIR 2002 SC 2112].
Even with regard to Covid-19 pandemic, the Election Commission has
issued Broad Guidelines for Conduct of General Elections/Bye-Elections
during Covid-19 as Document No.324.6.EPS.OT.001.2020 in August, 2020.
These guidelines deal in detail with political campaigns, meetings, number of
electors in polling station, polling station arrangements etc. Item 13(g) of
these guidelines clearly mentions that anybody violating instructions on
Covid-19 measures will be liable to be proceeded against as per the
provisions of Section 51 to 60 of the Disaster Management Act, 2005,
besides being liable for legal action under Section 188 of Indian Penal Code
and other legal provisions as applicable as specified in order dated
29.07.2020 of Ministry of Home Affairs.
The Supreme Court in Special Reference No.1 of 2002, AIR 2003
SC 87, decided on 28.10.2002, categorically held that the decision regarding
elections should not be interfered with as the Election Commission of India is
best suited to decide the same. It would be appropriate to quote the relevant
part of the judgment of the Supreme Court in para-80 which reads as under :-
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"80. So far as the framing of the schedule or calendar
for election of the Legislative Assembly is concerned,
the same is in the exclusive domain of the Election
commission, which is not subject to any law framed by
the Parliament. The Parliament is empowered to frame
law as regards conduct of elections but conducting
elections is the sole responsibility of the Election
Commission. As a matter of law, the plenary powers of
the Election Commission can not be taken away by law
framed by Parliament. If Parliament makes any such
law, it would repugnant to Article 324."
Even when the Bihar General Elections were announced and the
Supreme Court was approached by a writ petitioner to stay the same in
Avinash Thakur vs. Chief Election Commissioner & Others W.P.(C)
No.875/2020, the Supreme Court was not inclined to interfere with the matter
and the writ petition was eventually dismissed as withdrawn.
In view of the position of laws as noticed above, it must be held that
only the Election Commission of India is competent to decide as to when
should the bye-elections to Parliamentary Constituency of Khandwa and
Assembly Constituencies of Prathvipur, Jobat and Rajgarh should be held.
There is no reason to assume that such decision shall not be taken by the
Commissioner after assessing the situation of Covid-19 on ground. On the
contrary, the material produced on record clearly indicates the Election
Commission is fully cognizant of the situation of corona virus and has
therefore, taken a conscious decision for the time being not to hold the bye-
elections. This Court, therefore, would not be in exercise of its power of
Judicial review under Article 226 of the Constitution of India justified in
making any interference in the matter.
Accordingly, we do not find any merit in the writ petition, which in our
view, in any case, is premature. The writ petition is therefore, dismissed.
(MOHAMMAD RAFIQ) (VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGE
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Priya.P
Signature Not Verified
SAN
Digitally signed by priyanka pithawe mishra
Date: 2021.09.24 17:02:41 IST
