Election procedure is an essential aspect of ‘Democracy’ in a country like India. But are elections more important than the lives of the people? No doubt it is true that the Election Commission of India (hereinafter ‘ECI’ for brevity) has lost its independence and is chained in the hands of the ruling party’s government and it was only during the tenure of Mr.T.N. Seshan as the Chairman of ECI that the ECI asserted its independence for a span of 15-20 years. If the people won’t be alive, then how come they would be able to cast their vote? Holding ECI alone guilty of the disastrous second covid wave would be like protecting the actual guilty.

But why is the ECI alone is not at fault?

• Prime Minister Modi proclaimed in the February that India have won over covid pandemic. Maybe if this proclamation wouldn’t have been made, then we could have better prepared for the second wave
• Farmer’s protest was also continuing at that point of time which increased the cases.
• Kumbh Mela was also organized which contributed to the surge in the covid cases.
• Another important event was West Bengal Assembly elections and rallies.
• Finally, the medical health infrastructure was crumbling as is evident from the shortage of oxygen, medicines and proper treatment.

Let us observe as to how the world dealt with elections during the pandemic as covid-19 is a global problem. In Czech Republic, date of Assembly elections was September, 2020 but were postponed to October, 2021, in Ethiopia, the Parliamentary elections were to be held in August, 2020 but were postponed till June, 2021and so on and so forth. Even recently, in March, 2020, elections to 18 Rajya Sabha seats were postponed by the ECI due to the Covid-19 pandemic.

The ECI could have taken into account the successful examples like that of South Korea which took several measures to prepare a proper plan for holding elections such as it conducted its election by disinfecting polling centers, and mandating voters practice physical distancing, wear gloves and masks and use hand sanitizer, voters also had their temperatures checked on arrival at the booths.

Those who had a temperature above 99.5 degrees Fahrenheit were sent to booths in secluded areas, even covid-19-positive voters were allowed to mail their ballots, while self-quarantined voters were allowed to vote after 6 p.m.

But why ECI was adamant on holding elections on time? In N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency, Namakkal, Salem District and four Others (1952 SCR 218), it was held that election is very essential for the democracy and that it should be concluded as soon as possible. This judgement is being cited time and again for the non-postponement of any election.

However, this judgement was talking about conducting elections in normal circumstances. Supreme Court didn’t ask for conducting elections at the earliest during this pandemic when the entire nation is looking like a cremation or burial ground and scores of people are dying. In Election Commission of India v. State of Haryana (1984 SCR (3) 554), it was held that the ECI is the sole authority to decide as to when and how to conduct the elections.

Now many political parties along with a large share of population are claiming that the assembly elections be it in Bihar or in West Bengal or Panchayat elections in U.P. could have been postponed. But, could the opposition have accepted it, not at all.

What could the opposition parties have done instead is that:

• They could have positively and constructively criticized the covid mismanagement
• They could have used the parliamentary platform when it’s in session for putting questions to the ruling party
• They could have questioned the arbitrary use of powers by the Centre
• They could have come up with an alternative government or a shadow cabinet.

The ECI is mandated under law to hold elections at any time within six months before the five-year term of the Lok Sabha or Legislative Assembly expires. The polls are timed in a way that the new Assembly or Lok Sabha is in place on the day of the dissolution of the outgoing House.

In the case of early dissolution, ECI has to ensure a new Lok Sabha or Assembly is in place within six months of the dissolution. According to Article 85(1) and Article 174(1) of the Constitution of India,1950, the six months is the constitutionally defined limit between two sessions of the House/Assembly respectively.

If this is the scenario, then we must find out what we can do. In some exceptional cases, the process can be postponed or even scrapped after its announcement under extraordinary circumstances and the mechanism for doing the same is available under Section 153 of the Representation of the People Act, 1951, *hereinafter ‘Act’ for brevity) read with Article 324 of the Constitution of India, 1950, wherein the ECI can extend the time for completing an election, but such extension:

• Should not go beyond the six months and
• Should not go beyond the date of the normal dissolution of the Lok Sabha or the Assembly.

However, there is a ground for election postponement which is that under Article 172(1) it is provided that in case of a state of Emergency, an election can be postponed for one year at a time in addition to a period of six months after the Emergency is lifted. There is no specific legal provision that specifies the circumstances under which elections can be deferred in non-Emergency situations. However, law and order, natural calamities like earthquakes and floods, or any other compelling circumstances which are beyond ECI’s control can be the grounds for extension.

But there are certain legal issues involved. Powers under Section 153, Act can be exercised only after an election schedule has been notified. If the ECI wants to postpone elections, it will have to be done through its extraordinary powers under Article 324. Under Article 324, the ECI will have to inform the government of its inability to hold polls on time. The government can decide the future course, that is, to impose President’s Rule or allow the incumbent Chief Minister to continue for six more months.

But, the ECI could have asserted powers and directed that all rallies for Bengal elections be held virtually, instead of 8 phases, the election will be finished within 3 phases only and also that no one would be allowed to caste vote without a mask on. What could one expect from the common man when the Prime Minister, Home Minister and several other big politicians held rallies and were much satisfied with such huge numbers of people flocking in their respective rallies. This is not less than a self-inflicted disaster imposed by the citizens upon themselves.

ECI could have advised the Central Government to amend the Constitution so as to make way for postponement of elections due to such pandemic. It is correct to say that Democracy is important and so does the elections, but the lives came first. In my opinion, blame game will go on, accountability will be fixed one day, what is to be done is that we should try to save as many lives as possible.

Now, international support from various countries in the form of oxygen tanks, concentrators, raw materials for vaccines etc. is arriving but the manner in which our mismanagement has been highlighted in the International media, I consider it to be a shame for Indians.

Now as the elections have been ended, it is necessary for the Chief Ministers of these states to focus fully upon the security and safety of its citizens. The manner in which several High Courts together with Supreme Court reacted to the elections being conducted amidst the second wave is also commendable but still lack of independency was seen in judiciary as well. In order to make judiciary independent, the appointment process of the judges has to be made transparent, similarly to ensure independence of ECI, there is a need to change the appointment process of the members and chairman of ECI. The President on the advice of the Centre has the power to appoint anyone as member and chairperson of the ECI, so here is the lack of transparency which needs to be changed.

Award Winning Article Is Written By: Mr.Anurag Agarwal

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