Is Madras high court justified in blaming EC for the Covid crisis?

Attributing the spurt in coronavirus infections exclusively to the working of an institution descends into suspension of reasoning.

WrittenBy:Anand Vardhan
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A number of controllable and uncontrollable factors can be examined as reasons behind the ferocity of the second wave of the Covid pandemic in India. The scientific community is still trying to grasp the possible causes, so exclusively attributing the spurt in infections to the working of an institution descends into suspension of reasoning. Yet, that is what the Madras high court did when it castigated the Election Commission of India as being “the only institution responsible for the situation”, going to the extent of remarking the body should be “put on murder charges probably”.

The high court made these observations while hearing a petition by MR Vijayabhaska, a contestant in Karur constituency of Tamil Nadu, demanding compliance with Covid regulations during the counting of votes on May 2. The court expanded the scope of the hearing and hauled the EC over the coals for not stopping political parties from abusing Covid protocols.

Last week, the Calcutta high court had expressed dissatisfaction with the EC for not compelling political parties to observe Covid norms during the Bengal campaign. Early this week, the Allahabad high court took note of the reported deaths of about 135 government employees deputed for panchayat election duty in Uttar Pradesh and asked the State Election Commission why action shouldn’t be taken against it for failing to ensure compliance with safety guidelines.

However, it’s the tone and tenor of the oral observations made by the Madras high court, and the resultant marking of the EC as the causal agent of the second wave of the pandemic in Tamil Nadu and Puducherry, that’s worrisome and indifferent to the holistic understanding of the situation.

While the oral remarks can be dissected for many flaws, the EC’s April 27 press note gives some clues about the factual and legal aspects the court didn’t take into account. The poll body also made clear that the oral remarks reported in the press didn’t find mention in the final order.

First, the EC’s communique emphasised clarity in understanding institutional responsibility. “Enforcement of Covid-19 measures is the responsibility assigned to the State Disaster Management Authority,” it said, adding that the agency “didn’t stop public gatherings” during the campaign period. Moreover, citing its consistent approach since the Bihar assembly election late last year, the EC said, “The commission has always emphasised...that the state authorities shall ensure Covid compliance in the matter of public gatherings etc for campaign purposes. On no occasion, the commission takes over the task of SDMA for enforcement of Covid-19 instructions.”

The poll body also pointed out that the Calcutta high court had considered this legal framework in its April 23 order which said any “department or institution” can’t excuse itself from obeying the EC’s commands, and asked the concerned institution to act “in support of what the EC is carrying forward”.

The larger point, though, is that there is confusion about the nature and extent of powers of the EC, a constitutional body drawing its authority from Article 324. In enforcing Covid protocols, for instance, it could be asked why their violation shouldn’t be regarded as the flouting of the model code of conduct, a set of campaign regulations consented to by all political parties? This may lead to another question about the apparent limits of the model code itself and how the EC often seems constrained to implement it beyond a point.

The lack of legal backing for the model code can sometimes make the EC look toothless in the face of frequent violations. When a parliamentary committee recommended giving legal teeth to the model code by including it in the Representation of People Act, 1951, the EC wasn’t eager because it anticipated the practical problems. One obvious problem was that every matter related to the model code would lead to prolonged litigation in courts, disrupting the election calendar. Notwithstanding this concern, paragraph 16A of the Election Symbols Reservation and Allotment Order, 1968 can still be cited to suspend or withdraw recognition of a political party in case of serious violation of the model code. However, such action could still face a legal challenge. As PDT Achary, former secretary general of the Lok Sabha, pointed out recently, the non-enforceable legal status of the code makes any punitive action citing it legally doubtful. Moreover, using a harsh measure like derecognising a political party will seriously disrupt the political process itself, as one of the stakeholders would abruptly disappear from the fray.

Second, the EC’s communiqué talked about conclusions drawn with the advantage of hindsight rather than assessing the situation as prevailing at the time of the campaign. That might, however, make it look as lacking in foresight and precautionary wisdom. With specific reference to Tamil Nadu, the commission said campaigning ended on April 4, and “fortunately, the second wave of Covid-19 was yet to be fully visible by that time”. In fact, one might add that even in Bengal, it was only in the later phases of polling that outrage over violation of coronavirus safety norms by political parties surfaced in media commentary and political reactions. Till then, the talk revolved mostly around the usual themes of political analysis and, ironically, about which party and leader was attracting larger crowds.

The same was true of the assembly election in Bihar, the first major electoral exercise in the country during a pandemic. All anticipation about it being a milestone in virtual rallies and digital campaign had soon made way for large rallies and even the media joined the guessing game of reading popular mood by the size of the crowds attending rallies addressed by prime minister Narendra Modi, RJD leader Tejashwi Yadav or chief minister Nitish Kumar.

Moreover, the onus also lies on messaging by the political class, particularly leaders who carry political capital with their followers. Why couldn’t Modi or Tejashwi or Mamata Banerjee or MK Stalin use their credibility and appeal to dissuade their followers from mass gatherings? Reflecting on this issue, sociologist Dipankar Gupta lamented that it was a crisis of “campaign redundancy”. “Political leaders who are considered credible sources spoil it all by not fully trusting their powers. Consequently, they go on trying to win people over when they no longer need to, resulting in what may be called ‘campaigning redundancy’. On account of this, popular views get a further boost from leaders who could have just as easily used their ‘source credibility’ status to scorch them,” Gupta wrote.

Examining the inability of the present set of leaders to overcome campaign redundancy, he observes, “When [people] see a source-credible leader without a mask and disinterested in social distancing, they feel the old, comfortable world is still around and they need not panic. Established behavioural practices continue because source-credible leaders are afraid to test their strength and that helps the coronavirus to happily multiply.”

In the not distant past, the judiciary as well as the Election Commission benefitted as repositories of trust because of the general sense of disillusionment with the political class, especially within the growing middle class of the country. It isn’t surprising that the era of judicial activism and the emergence of a robust poll body coincided in the last decade of the last century and the first decade of the present century. It was also a period when various studies showed high public trust in the EC. Even in times of polarized political narratives, this still holds true for large sections of the electorate, if not all.

However, there is always a danger of desperate times and popular sentiments tempting the judiciary to play to the gallery. The fine balance between holding institutions accountable and sticking to the holistic core of public reasoning is at stake in the process. In its choice of words while taking the poll body to task, the Madras high court has seemingly yielded to the trappings of judicial populism. While noting the concerns, the public discourse can do without such verbal excess.


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