The Gujarat High Court on Monday (15th February,2021) comprising of a bench of Justice J.B. Pardiwala and Justice Ilesh J. Vora underlining that the Election Commission is empowered to issue all necessary directions for the purpose of conducting smooth, free and fair elections, rapped the State Election Commission (SEC) over an "unruly incident". (Sarifaben Isubbhai Mahetar v. State Election Commission)
The Bench reminded the SEC of its power in a plea filed in connection with an unruly incident, wherein 32 Congress party Candidates' mandate papers for municipality polls in Palitana town were allegedly torn in Bhavnagar district on the last day of filing nominations by "hooligans".
Facts in brief
As per the case of the Petitioner, 36 prospective candidates/Petitioners (of Congress Party) were about to submit their mandate forms for contesting election of Palitana municipality in all the nine wards comprising of 36 posts of municipal councilor, around 02:30 PM on 13th February 2021.
However, when the City President of the party were about to submit the mandate forms of all the 36 prospective candidates on behalf of their party, in the Premises of the Nagar Palika Office itself, which is under CCTV Surveillance and also under the police supervision, some disgruntled elements intervened and tore apart the mandate forms and hence the petitioners could not submit the same in time by 03:00 PM.
The nominations were to be filed/submitted from 8th February 2021 to 13th February 2021.
Thus, they moved their plea before the high court seeking an urgent hearing in the matter stating the mandate forms were torn up for " reasons beyond their control and on account of absolutely malicious and unfair intervention on the part of disgruntled elements of the opposing party" on February 13.
The contention of the parties
It was alleged in their plea that such disgruntled elements by tearing apart the mandate forms of the petitioners prevented them from submitting their mandate well within the scheduled time in accordance with law.
It was alleged that the unprecedented situation took place within the premises of the Nagar Palika Office which is also under CCTV Surveillance, yet the respondents have chosen to turn a blind eye to it, so as to facilitate uncontested elections to ensure smooth victory of the members of Bhartiya Janta Party who are contesting the local body elections.
It was further alleged that the police authorities were present at the Nagar Palika Office and yet in complete derogation of its duties and obligations nothing was done to address the situation.
The counsel appearing for the State Election Commission(Mr. Mihir Joshi), submitted that having regard to the peculiar facts and circumstances of the case, more particularly, the fact that the nomination forms duly filled up by all the writ applicants were already accepted by the Returning Officer in time, the State Election Commission shall ensure that their nominations are not rejected only on the ground that they were not in a position to produce the mandate of the political party in time, i.e, before 3:00 O' clock on 13th February, 2021 on account of the unruly event.
According to Mr. Joshi, the production of the mandate of a particular party is a part of the guidelines, and in extreme cases like the one on hand, the same can be waived or relaxed to a certain extent in the larger interest of justice. Mr. Joshi, the learned senior counsel wants the writ applicants to file a representation at the earliest addressed to the State Election Commission as regards the subject matter of this writ application with a request that their nominations for the ensuing Palitana Nagarpalika Election be accepted.
Court's observations
The Court noting that the facts of the case are quite gross and disturbing observed that,
" The Election Commission is sufficiently clothed with the power though not vested under the Act (Representation of the People Act), but even by invoking the plenary powers conferred on it under Article 324 and issue appropriate directions for the conduct of free and fair elections in a given case."
" Here is a case of an unruly event which occurred in the office premises of the Returning Officer itself. Few hooligans forcefully entered into the premises of the Returning Officer and created a ruckus. In the words of the Returning Officer himself, there was looting of the mandate forms, assault and a systematic attack on 36 writ applicants herein, who wanted to file their nomination forms along with the mandate of their political party", the Court further remarked.
The Court further noting that the Legislators are not prophets but pragmatists. So it is that the Constitution has made comprehensive provision in Article 324 to take care of situations like the one on hand also said,
"The object of providing a State Election Machinery is only in such direction to ensure purity in the electoral process. In a contingency of this nature, could it be said that the State Election Commission is helpless and has to be a silent spectator? To our mind, the State Election Commission is not without power to remedy the situation."
The Counsel for the Election Commission in this backdrop submitted before the Gujarat HC that the State Election Commission shall ensure that petitioners' nominations are not rejected only on the ground that they were not in a position to produce the mandate of the political party in time, i.e, before 3:00 O' clock on 13th February 2021 on account of the unruly event
Lastly, the Court noted that the facts and circumstances of the case on record undoubtedly disclose that the purity of the election process was irretrievably sullied on 13th February, 2021 at 3:00 O" clock in the office of the Returning Officer.
The Court disposed of the writ plea in these terms,
"We strongly condemn the unruly incident that occurred within the premises of the Returning Officer on the fateful day and date. In view of the aforesaid statement being made by the learned senior counsel appearing on behalf of the State Election Commission, we need not now adjudicate this writ application on merits. We dispose of this writ application in the aforesaid terms."
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