There is no doubt that the Election Commission of India (ECI) has primacy on the issue of how to conduct elections and control over law and order, too, passes on to the Commission during elections. However, just like any other authority, the Commission is required to act reasonably, rationally and without the slightest hint of bias, the Madras High Court observed on Sunday.
After holding a special sitting to hear a public interest litigation petition filed by R. Rajangam, secretary, Communist Party of India (Marxist), Puducherry Pradesh Committee, the first Division Bench, comprising Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy, disapproved of a prohibitory order passed by the Puducherry Collector under Section 144 of the CrPC. The judges agreed with the petitioner that the 48-hour prohibition on unlawful assembly and movement, shouting of slogans and use of loudspeakers from Sunday evening till the completion of polling in the Union Territory on April 6 might create a scenario of committed voters alone stepping out to vote and others choosing not to vote, fearing the possibility of trouble or violence.
The Bench recorded the submission of ECI counsel Niranjan Rajagopalan that a clarification would be issued forthwith “so that ordinary citizens do not remain under any fear over the next 48 hours and can go about their usual activities without any apprehension”. However, the citizens must follow COVID-19 protocols at all times and they must be seen wearing masks and maintaining physical distance, the judges added.
The present court order should be displayed on the websites of the ECI and the Union Territory of Puducherry, the court said.
Recording the petitioner’s submission that the prohibitory order was passed on March 22 but made public only on April 1, the judges wondered how the Puducherry Collector could issue such an order a fortnight in advance.
“The present kind of unreasoned order, prepared 10 or 15 days in advance and produced a day or two before it becomes effective, goes against the ethos of Section 144 of the Code, though it must be acknowledged that the Union Territory says that the notice was published on the Union Territory's website on March 23, 2021. Officials must be reminded that curbs are imposed on citizens and their freedom of movement and the like only when there is an imminent need thereof or [when] it is in the larger public interest. Due care and caution must be exercised to ensure that the restrictions are not unreasonable or suffocating,” the judges said.
Authoring the verdict, the Chief Justice said, “Every citizen in a free country can do anything lawful that the citizen chooses, and even the slightest of restrictions on the citizens’ movement has to be justified. In the present case, the impugned notice of March 22, 2021 is singularly lacking in indicating any cogent reason for imposing restrictions on citizens' movement and how citizens may choose to go about their business.
“It is also facetious that a blanket prohibitory order is passed merely because it was done on one or two previous occasions, and despite the order not indicating any basis for any apprehension of trouble or unlawful activities. The issuance of a supercilious prohibitory order on the ruse that it would lead to a smooth conduct of the election cannot pass muster without there being any justifiable basis therefor.”
