Can campaigns for free elections be run during elections? Supreme Court issues directions

A Bench of Justices B.R. Gavai and Sandeep Mehta passed an interim Order directing district magistrates across the country to decide on applications submitted for permission to hold yatras to educate voters about elections within three days of receipt.

—

ON Friday, the Supreme Court directed district magistrates across the country to decide on applications submitted for permission to hold yatras to educate voters about elections within three days of receipt.

A Bench of Justices B.R. Gavai and Sandeep Mehta passed an interim Order to this effect.

The Bench also questioned the blanket imposition of Section 144 of the Code of Criminal Procedure (CrPC) ahead of every Lok Sabha or state legislature election.

The Bench was hearing a public interest litigation filed by social activists Aruna Roy and Nikhil Dey filed through advocate-on-record Prasanna S.

Advocate Prashant Bhushan, who appeared for Roy and Dey, submitted that something "very fantastic" is happening. In the last six months, blanket Orders under Section 144 of the CrPC have been issued from the time of announcement of an election by the Election Commission of India (ECI) till the end of the election.

This left Justice Gavai wondering, "How could such Orders be issued?"

Section 144 of the CrPC empowers a magistrate to issue directions to "persons" to either abstain from certain conduct, or direct persons in control of certain property to specifically engage in certain conduct.

Directions can be issued under this clause only if "immediate prevention or speedy remedy is desirable", and if a magistrate considers that such directions are "likely to prevent" or "tend to prevent", any "obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety or a disturbance of public tranquility, or a riot, or an affray".

On March 16 this year, the ECI announced the dates for the Lok Sabha elections of 2024. With this, the Model Code of Conduct (MCC) came into force. The MCC is a set of guidelines by the commission that spells out how political parties and candidates must conduct themselves during the election campaign and polling.

Also read: Election Commission of India amidst diminishing public confidence

Failure to adhere to the MCC may invite severe censure by the commission and also result in a ban on campaigning by the leader of the political party accused of violating the MCC.

In some cases, the commission may also order the registration of a first information report (FIR) against the violator of the MCC.

In their petition, Roy and Dey have highlighted the "indiscriminate" practice of magistrates and state governments to pass blanket Orders under Section 144 of the CrPC to prohibit any meetings, gatherings, processions or dharnas ahead of every Lok Sabha or state legislature election and until the declaration of results.

The petitioners contend that these blanket prohibitory Orders directly affect civil society and the general public from freely discussing, participating in, organising, or mobilising on issues affecting them ahead of elections.

Both Roy and Dey are part of a civil society group called the Rajasthan Election Watch (REW) which has been monitoring elections in Rajasthan since 2003–04.

REW is associated with the Association for Democratic Reforms (ADR) at the national level. Their work includes extracting information from affidavits of candidates and delivering it to citizens, and creating awareness among the citizens to send complaints related to violations of the MCC to the ECI.

They also claim that they make efforts to monitor communal and hate-motivated messages and convey them to the police administration.

The petitioners contend that the following restrictions imposed under Section 144 have a bearing on the civil and political rights of common citizens as well as civil society during the time of election.

"No person shall raise slogans or make inflammatory slogans which hurt communal harmony, nor shall give any speech, address, nor shall print, or distribute or cause to be distributed such pamphlets, posters, election materials, nor shall make or cause to be distributed any such amplifier, radio, tape recorder, loudspeaker, audio-video cassettes or do or get any kind of publicity done through any other electronic devices, and nor for such act shall motivate or provoke to any other person.

"Any person without the permission of concerned deputy block officer and deputy block magistrate at a public place for political purposes shall not organise any procession, meeting and rally etc. and nor with the prior permission of concerned deputy block magistrate shall use the voice broadcasting device."

Also read: A ghost in the machine? On EVMs, democracy deficit and its constitutionality

The petitioners argue that though their group had been able to undertake its activities unhindered, it had to repeatedly obtain permissions even for basic mobilisation activities such as jeep-yatras or street corner meetings during the Rajasthan state assembly elections in 2023. The petition goes on to state that the experience has been similar during the present general elections.

"This requirement for permissions has been necessitated by the issuance of blanket prohibitory Orders passed under Section 144 of the Code of Criminal Procedure, 1973," the petitioners argue.

The petitioners highlight that this practice is prevalent not only in Rajasthan but in many other states as well. The petitioners have brought to the notice of the court the Orders passed by some of the magistrates in Rajasthan during the state elections of 2023 and the impending general elections.

They have also placed on record similar Orders issued in parts of the National Capital Territory of Delhi and Gujarat.

"The prevalence of this practice and the misuse of the provision across states has constrained the petitioners to approach this Hon'ble Court under Article 32 of the Constitution," the petitioners submit.

Attacking the pervasive imposition of Section 144 of the CrPC, the petitioners contend that blanket prohibitory Orders thwart and obstruct public participation in the democratic process, and that such a disproportionate exercise directly impinges upon freedoms guaranteed under Article 19, the right to vote and violates a basic feature of the Constitution, i.e., free and fair elections.

They also argue that the repeated imposition of prohibitory Orders under Section 144 of the CrPC has allowed the State to impose restrictions on freedoms under Article 19 as a rule, while the exercise of freedoms under Article 19 has become an exception during elections.

"It is ironic that these democratic rights have been restricted on the grounds of elections— an exercise in furtherance of democracy. Democratic conduct of elections suffers as a result of these prohibitory Orders, creating a climate of fear and chilling effect among citizens as public participation is made subject to a strict policing licence and permit regime," the petitioners submit.

Also read: Black economy persists with or without electoral bonds

The petitioners also contended that they wrote several letters to the Rajasthan election commissioner, chief secretary, Rajasthan government, Chief Election Commissioner of India, director general of Rajasthan police, district election officers of Ajmer, Alwar, Barmer, Bikaner, Dungarpur, Jaipur, Jaisalmer, Jodhpur, Sikar, Rajsamand and Udaipur, requesting copies of all Section 144 Orders issued in Rajasthan in light of state elections.

The petitioners claim that they sent many reminder letters and emails to the authorities, however, they did not receive any response to their complaints, which in turn had the effect of restricting their movement in a campaign for free and fair elections.

In their petition, Roy and Dey submitted that they had followed up with the Chief Election Commissioner by personally visiting the ECI office on October 8 2023, and they were directed towards the deputy election commissioner in Rajasthan.

Then they had approached the chief election officer of Rajasthan during October 2023, and they were directed towards the same deputy election commissioner.

Thereafter, the petitioners personally followed up with the deputy election commissioner, who informed them that their application for permission had been received and had been put into motion.

However, the petitioners state that the permission is for time-bound issues and their democratic rights and capacity to act and contribute to the national elections are being curtailed and stifled by the indecision on their application.

The petitioners in the Supreme Court submitted that in their election monitoring yatras, they give publicity to the MCC and run voter awareness campaigns. The MCC provides the general conduct for political parties and their candidates which includes:

1. No party or candidate shall indulge in any activity that may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic.

Also read: Why has the SC refused to issue an interim Order to stay the selection and appointment of Election Commissioners?

1. Criticism of other political parties, when made, shall be confined to their policies and programme, past record and work. Parties and candidates shall refrain from criticism of all aspects of private life not connected with the public activities of the leaders or workers of other parties. Criticism of other parties or their workers based on unverified allegations or distortion shall be avoided.
2. There shall be no appeal to caste or communal feelings for securing votes. Mosques, churches, temples or other places of worship shall not be used as a forum for election propaganda.
3. All parties and candidates shall scrupulously avoid all activities which are 'corrupt practices' and offences under the election law, such as bribing of voters, intimidation of voters, impersonation of voters, canvassing within 100 metres of polling stations, holding public meetings during the period of 48 hours ending with the hour fixed for the close of the poll, and the transport and conveyance of voters to and from polling stations.
4. The right of every individual to a peaceful and undisturbed home-life shall be respected, however much the political parties or candidates may resent his political opinions or activities. Organising demonstrations or picketing before the houses of individuals by way of protesting against their opinions or activities shall not be resorted to under any circumstances.
5. No political party or candidate shall permit its or his followers to make use of any individual's land, building, compound wall, etc., without his permission for erecting flag-staffs, suspending banners, pasting notices, writing slogans, etc.
6. Political parties and candidates shall ensure that their supporters do not create obstructions in or break up meetings and processions organised by other parties. Workers or sympathisers of one political party shall not create disturbances at public meetings organised by another political party by putting questions orally or in writing or by distributing leaflets of their own party. Processions shall not be taken out by one party along places at which meetings are held by another party. Posters issued by one party shall not be removed by workers of another party.

Also read: Explained: On Arun Goel's resignation, what is the law on appointment and termination of services of election commissioners?

Regarding meetings, the MCC provides that the party or candidate shall inform local police authorities of the venue and time of any proposed meeting well in time so as to enable the police to make necessary arrangements for controlling traffic and maintaining peace and order.

The MCC also provides that a party or candidate shall ascertain in advance if there is any restrictive or prohibitory Order in force in the place proposed for the meeting.

If such Orders exist, they shall be followed strictly. If any exemption is required from such Orders, it shall be applied for and obtained well in time.

The MCC also makes it obligatory that if a permission or licence is to be obtained for the use of loudspeakers or any other facility in connection with any proposed meeting, the party or candidate shall apply to the authority concerned well in advance and obtain such permission or licence.

Organisers of a meeting shall invariably seek the assistance of the police on duty for dealing with persons disturbing a meeting or otherwise attempting to create disorder. Organisers themselves shall not take action against such persons.

The MCC also provides instructions on processions by political parties and their candidates as follows:

1. A party or candidate organising a procession shall decide beforehand the time and place of the starting of the procession, the route to be followed and the time and place at which the procession will terminate. There shall ordinarily be no deviation from the programme.
2. The organisers shall give advance intimation to the local police authorities of the programme so as to enable the latter to make the necessary arrangements.
3. The organisers shall ascertain if any restrictive Orders are in force in the localities through which the procession has to pass, and shall comply with the restrictions unless exempted specially by the competent authority. Any traffic regulations or restrictions shall also be carefully adhered to.

Also read: Parliament clears new election commissioner Bill that removes CJI from the appointment committee

1. The organisers shall take steps in advance to arrange for passage of the procession so that there is no block or hindrance to traffic. If the procession is very long, it shall be organised in segments of suitable lengths, so that at convenient intervals, especially at points where the procession has to pass road junctions, the passage of held-up traffic could be allowed by stages thus avoiding heavy traffic congestion.
2. Processions shall be so regulated as to keep as much to the right of the road as possible and the direction and advice of the police on duty shall be strictly complied with.
3. If two or more political parties or candidates propose to take processions over the same route or parts thereof at about the same time, the organisers shall establish contact well in advance and decide upon the measures to be taken to see that the processions do not clash or cause hindrance to traffic. The assistance of the local police shall be availed of for arriving at a satisfactory arrangement. For this purpose, the parties shall contact the police at the earliest opportunity.
4. Political parties or candidates shall exercise control to the maximum extent possible in the matter of processionists carrying articles which may be put to misuse by undesirable elements, especially in moments of excitement.
5. The carrying of effigies purporting to represent members of other political parties or their leaders, burning such effigies in public and such other forms of demonstration shall not be countenanced by any political party or candidate.