Denial of pre-certification for poll ads can be challenged only before Supreme Court, not any other court, says ECI

Madras High Court asks the commission to explain whether such a restriction imposed by the Supreme Court in April 2004 continues to be in force till date

The judges directed the ECI counsel to find out whether the Supreme Court order continued to be in force or not. 

The Madras High Court on Monday directed the Election Commission of India (ECI) to explain the rationale behind its insistence that denial of pre-certification for election advertisements can be challenged only before the Supreme Court and not any other court.

Chief Justice Sanjay V. Gangapurwala and Justice J. Sathya Narayana Prasad granted time till Wednesday for the ECI counsel to take instructions after senior counsel R. Shunmugasundaram for DMK argued that the ECI had no right to take away the writ jurisdiction of the High Courts.

Though ECI counsel Niranjan Rajagopalan said it was the Supreme Court which had imposed such a restriction on April 13, 2004, the senior counsel pointed out that the restriction imposed by the apex court had expired on May 10, 2004 itself and not extended beyond that.

After hearing them, the judges directed the ECI counsel to find out whether the Supreme Court order continued to be in force or not. The direction was issued while hearing three writ petitions filed by DMK against rejection of pre-certification for some of its posters, videos and audio recordings.

Opposing all three petitions, Mr. Rajagopalan said, clause 3.8 in Part B of ECI’s August 24, 2023 instructions clearly states that decisions taken by the State-level Media Certification and Monitoring Committee (MCMC), headed by the Chief Electoral Officer, could be challenged only before the Supreme Court.

In reply, Mr. Shunmugasundaram told the court that DMK had filed a fourth writ petition to declare clause 3.8 as ultravires the Constitution but the petition got numbered only on Monday morning and therefore not listed for admission along with the three other writ petitions challenging the MCMC’s rejection orders.

He contended that ousting the writ jursidiction of the High Court would amount to violating the basic structure of the Constitution. However, when Mr. Rajagopalan told the court that he was served with the affidavit in the fourth writ petition only a few minutes ago, the court granted him time till Wednesday to get instructions.