Mind Your Language, Milords! Madras High Court Has No Business Slandering EC In Such Absolute Terms

There is nothing more unedifying than to see one constitutional authority using its superior rank to put down another with harsh and intemperate words. The Election Commission (EC) surely has to shoulder a large share of the blame for not coming down hard on violations of Covid-safety codes while conducting the assembly elections in five states, but surely the Madras High Court went too far in suggesting that the EC should face murder charges for allowing parties and candidates to flout Covid safety rules.

The bench comprising justices Sanjib Banerjee and Senthil Ramamoorthy is quoted by The Times of India as saying to the EC: “You are the only institution responsible for the situation that we are in today. You have been singularly lacking any kind of exercise of authority. You have not taken measures against political parties holding rallies despite every order of this court saying ‘maintain covid protocol, maintain covid protocol, like a broken record…”. The bench added that the EC “should be put up on murder charges…for being the most irresponsible institution.” (Italics mine)

The bench threatened to stop the counting of votes on 2 May if the EC did not put in place a foolproof plan for enforcing Covid-appropriate behaviour and safety.

This is at best impotent hyperventilation, at worst a bid to undercut the legitimacy of the EC – something West Bengal Chief Minister Mamata Banerjee latched on to throw in her own punches at the commission.

Consider the words in italics in the bench’s observations above. Murder? Really? Surely court delays have caused more death and distress than election rallies? And is EC the only one accountable for the lapses? And political parties and voters who refuse to mask themselves get a free pass? And is the EC the most irresponsible institution? Can’t the same be said about courts which make such wildly intemperate remarks against a major constitutional authority?

One hopes the Supreme Court pulls up the bench for such remarks. It is unwarranted even assuming that the EC is indeed guilty – and solely guilty – of poor policing of the elections. But it is difficult to see the Supreme Court enter the picture, given how powerful lawyers can browbeat its judges to not hear matters concerning state courts.

Last week Dushyant Dave, senior lawyer, blasted the outgoing Supreme Court Chief Justice, S A Bobde, for wanting to shift some of the Covid-related cases from state high courts to itself due to the divergence in orders issued by some of them.

Dave fulminated: “Let me ask SC, let me ask CJI Bobde frontally, what have you been doing? You were hearing for months the matter between Tata and Cyrus Mistry. Was that the case to be heard during Covid-19 time and decided in favour of Tatas where Mr (Harish) Salve argued and succeeded? Was that the matter or were there far more important matters that you were supposed to decide that you just want to ignore? You don’t want to decide 370, CAA, you don’t decide the bail applications of thousands of citizens who are languishing in jail. You don’t decide about the Covid preparedness of the government, but suddenly you hear this corporate giant’s matter and now today you say you want to suo motu do something (about what High Courts are doing with covid cases).”

Clearly, some powerful lawyers will intimidate the judiciary and get away with murder, even though one can agree with him that the Supreme Court under Bobde had nothing much to show for itself during his 17-month tenure. But Dave is hardly interested in all important cases that were left undecided during the Bobde tenure.

He cleverly mentioned only the cases he thought were important (CAA, Article 370), and conveniently left out the ones involving even wider interest – such as Sabarimala, and the late Swami Dayananda Saraswati’s petition on freeing temples from government control.

The Sabarimala review petitions were filed in late 2018 and early 2019, and the free temples petition in 2016, but for Dave only CAA and Article 370 are important matters.

Vivek Tankha, another senior lawyer, gratuitously advised the top court on Twitter to focus on bringing the Union of India to book over oxygen shortage, et al, and that “state High Courts should be allowed to monitor at micro level. Supreme Court has neither time nor details to deal with challenges facing states. HCs enjoy public faith…”.

So, this senior lawyer can indirectly tell the top court to mind its own business and give the high courts a pat on the back when it suits him politically to do so.

And what exactly have the high courts been doing on Covid? The Allahabad High Court on its own ordered a lockdown in five Uttar Pradesh cities, which is not the job of the judiciary. And what has the Bombay High Court been doing at the very epicentre of the current Covid outbreak, Maharashtra?

It has been suo motu hearing a PIL on rising Covid cases in the state’s prisons. It has been restrained in asking the state, the Centre and the Brihanmumbai Municipal Corporation to respond to a PIL on mismanagement of Covid and the Remdisivir shortage (read other stories on what state HCs have been doing here, here, here, here) even while the Madras High Court has been talking “murder”. And this despite the fact that Maharashtra’s massive outbreak preceded the Tamil Nadu one by at least a month or more.

The courts can do a lot to help ameliorate the lot of the people in this time of Covid and deep anxieties about lives and livelihoods. But it cannot do so at the expense of undercutting the authority of other constitutional bodies.

And yes, Milords should mind their language.