NEW DELHI: The Supreme Court on Monday sympathised with the Election Commission‘s hurt over Madras High Court‘s searing “EC should face murder charges” observation but said HC judges must feel free to put bitter questions to the authorities to elicit proper responses while dealing with citizen-centric litigation.
The HC’s observations were made on April 26 and 30 during the hearing of a PIL alleging non-observance of Covid-19 norms during the just-held polls, and that it could endanger the lives of lakhs of people. The EC sought erasure of the observations and said uncalled for and non-contextual remarks by a constitutional court against a constitutional body entrusted with conducting free and fair elections, without giving it an opportunity to explain, were not only in bad taste but had also demoralised officials.
For the EC, senior advocate Rakesh Dwivedi said the HC said all sorts of things against the commission in a series of “out of context remarks” without giving it an opportunity to explain. “If the PM or a CM holds a rally and two lakh people gather, what can the EC do? Police and CRPF are not in EC’s administrative control. EC’s role remains confined to carrying out free and fair elections and managing related officials. Dignity of the EC and its officials needs to be protected. When the HC says EC and its officials must face criminal proceedings and FIRs should get registered, what remedy could the officers have?” Dwivedi asked.
A bench of Justices D Y Chandrachud and M R Shah said HCs played an important role in protecting the fundamental rights of people and had a wider jurisdiction than even the SC. “We understand the point of view of the EC and its hurt feelings. But we have to protect the sanctity of HCs and the judicial process of scrutiny. HC judges should have the liberty to ask questions and not feel restrained while dealing with matters relating to public interest,” the bench said.
Explaining the process of scrutiny in constitutional courts, Justice Chandrachud said, “I would not have made such a remark (as was done by Madras HC). Ordinarily, we are careful not to say anything during the hearing which is inappropriate for inclusion in the order.” Justice Shah said, “In adjudication of issues relating to public interest, there is always a human element that is involved and judges reflect the public sentiment while asking questions to the authorities. Treat the Madras HC observations like a bitter pill, which a doctor gives to patients for speedy recovery.”
The bench further said, “We understand why EC felt pained. But for the EC to say that the HC was trying to overwhelm it or trying to demean it will not be correct. Parliament is the sovereign body of representatives for India. Yet, the Supreme Court can examine the validity of laws enacted by the sovereign body and strike them down. That does not make the Supreme Court more powerful than Parliament. So, it will be completely unacceptable if the EC says it is not amenable to judicial scrutiny.”
It said judges, in discharge of their constitutionally mandated task, have to ask uncomfortable questions with the sole purpose of eliciting better responses and invigorate the executive to discharge its duties.
The bench added that the EC’s SLP said it was an independent constitutional body and the HC was an independent constitutional authority and that both should not tread on one another’s jurisdiction. The bench suggested to the EC not to adopt a “touch me not” approach but promised to strike a balance between the roles of the EC and the HC in the context of the issue arising from the observations made by Madras HC.
Recognising the service rendered by the EC, the bench said, “In the last 70 years, the EC has given free and fair elections, which is the essence of democracy. EC is an important pillar of democratic set up in India.” The bench reserved its order and indicated that it could be pronounced on Thursday.