ILNS: The Supreme Court special bench of Justices A.M. Khanwilkar and Hrishikesh Roy on Saturday refused to interfere in the Allahabad High Court order which had dismissed a petition to defer counting of votes for the Uttar Pradesh gram panchayat elections, held on ballot paper. However, the top court put strict conditions, including RT-PCR tests for all and a three-day curfew around the counting centers. The court also said that any mishap at the counting centers will be the responsibility of the officer responsible for that center.
During the hearing, the court had asked Additional Solicitor General Aishwarya Bhati if the counting of votes for the UP gram panchayat polls can be deferred by a couple of weeks till the infrastructure for fighting the massive Covid surge is in place. The ASG conveyed that deferment will not be possible, and strict safety measures will be in place when counting happens on Sunday and for two days after that. Counting is of paper ballots.
The court pointed out that votes polled for 2,41,000 seats will have to be counted at 829 centres and that adequate safety precautions will have to be taken, a massive task.
Advocate on Record Ruchira Goel appeared for the State of Uttar Pradesh.
The court said: “We have to hear the Election Commission first. What steps have they taken?”
ASG Bhati said: AoR Ruchira Goel has filed the list of measures running in 27 pages.
Justice Khanwilkar: “The evolving situation is a dynamic situation. Have you assessed on it? What is your current assessment?”
ASG: “In the four-tier election in the gram panchayat we have made a chart where elections have been conducted and where counting will be done. Counting is required for around 2 lakh seats. All election officers have to go through RT-PCR test and have to maintain social distancing.”
Justice Khanwilkar: “What is the infrastructure regarding temperature checking and oxygen checking at entry points?”.
ASG Bhati: Everything will be checked. Victory processions are banned and strict action will be taken against the wrongdoers.
Justice Khanwilkar: “You have to assess the situation at the micro level whether you have to do counting or have to postpone in any area. Have you done anything regarding that?”
ASG: “Even in the second surge the state has decided to go on with the counting. Each of these 829 Centres will be monitored and situation will be assessed timely.”
Justice Khanwilkar: “We just want to understand what will be the nature of activity and governance required. As you have 2,41,000 seats and counting at 829 centres. You should give us specific information how counting will be safely carried out at each centre.”
ASG: “Counting will not be at the same time.”
Justice Khanwilkar: “You are explaining us about staggering the counting. Have you assessed the situation regarding this? You have to take a call on that. Despite the current situation we are going ahead with the counting. I am asking myself, ‘can I proceed with the counting? Can I not wait for the health infrastructure to be improved and wait for two weeks, and do counting after that assessing the situation’? Otherwise you will end up in a situation where you say we tried to control but we could not manage the crowd.”
ASG: “It is on Sunday, and curfew is imposed in UP. This is paper ballot counting, and will take at least three days.”
Justice Khanwilkar: “When is counting taking place?”
ASG: “From tomorrow.”
Justice Khanwilkar: “How are you going to manage the situation on Monday and Tuesday, when there is no curfew?”
ASG: “Curfew will be there till Tuesday.”
ASG: “We are taking all the steps and not taking this petition as an adversarial petition.”
Justice Khanwilkar: “We will take the view of the petitioner.”
Advocate Shoeb Alam said: “In Maharashtra all process of elections have been kept in abeyance.”
Justice Khanwilkar: “Maharashtra situation is different there is no counting there. We have to assess the situation today, this counting not elections. We have to decide upon that. They are conscious of the ground reality. This problem is going to be there and how to deal with it. Property is not important, but life is most important.
“What has happened in the past, we cannot decide by. We have to decide by what the situation is now. Ms Bhati, we are not able to asses. What will be the staff, centre-wise. How are you going to accommodate counting staff?”
ASG: “By staggering the counting and by staggering the staff. There may not be more than 75 people at any Centre. Also the representative of the candidate will be limited.”
Justice Khanwilkar: “How will you reduce that number?”
ASG: “Only one or two representatives for a seat of gram panchayat will be allowed. “
Justice Khanwilkar: “How can candidates enter the premises, and how can the counting be done without the representatives of the candidates?”
ASG: “75 is the limit we put in place.”
Justice Khanwilkar: “Make a note and submit. 700 teachers have died during the election process. Teachers association has moved an application.”
ASG: Five states are in the election process. There are states where there is no activity the cases are surging. Infrastructure is in place to start the Counting process from tomorrow. Teachers also available for the process.”
Justice Khanwilkar: “Who has filed this application for teachers association?”
Petitioner Shoeb Alam: “This is some teachers association who has made representation to the Chief Minister.”
Justice Khanwilkar: “Where is the date of death mentioned who have died and died due to Covid? Have you seen this document Ms Bhati?”
ASG: “It has not been served to me. The HC has taken cognizance of it.”
Justice Khanwilkar: “Show us the order of the HC.”
ASG showed the order of the Allahabad High Court of April 27. She said: “Please see the last four paragraphs. The enquiry is going on and we have to file reply to it.”
The high court directed to Election Commission to take all measures in the Panchayat polls. And put the matter up for May3.
ASG: “The enquiry is already set up. News is there that they (teachers) have contacted Corona, but that has to be ascertained. Enquiry is going on and there may be different other factors for the death.”
Petitioner: “If the enquiry is started it will be going to take the time. The state says “Stay at Home” and in the middle of that they are going to go on with the election counting. It is the ballot paper and the saliva is used to affix the paper. Which is dangerous.” The petitioner read the Guidelines of the State Election Commission. “On the April 29 it (the notice and guidelines) were issued and counting is on May 2. RT-PCR test result takes 2-3 days. The polling staff has to be there and agents have to provide negative RT-PCR test for entering the polling Centre.”
Advocate Nikhil Majithia, counsel for UP Employees’ Association. Said: “At each centre there will be Staff to control the Situation. The total number of employees at each Centre will be 700. I have requested the counting be deferred.”
Justice Khanwilkar: “Don’t give us wrong figure. ASG said there will be curfew where no one will be allowed to go out. We are generally taking note of the situation.”
Advocate Nikhil: “The Covid protocol from the State Election Commission proved to be ineffective. Let this process be deferred.”
Adv Ram Kishor Singh Yadav, for one of the Petitioners, said: “These elections were supposed to take place in December 2020 and were delayed till now. If they are delayed for 10-15 days more there would be no problem.”
Justice Khanwilkar: “Why only for 10-15 days?”
Yadav: “At least one counting Centre needs 10,000 persons at one time.”
Justice Khanwilkar: “How could you say that?”
Yadav: “Each member needs 10-15 counting agents. And each seat has 10-15 candidates. There is less RT-PCR test kits and other issues are there. Curfew is not brought in for this counting process and going on from long time. And it’s weekly curfew.”
Justice Khanwilkar: “We are conscious of the figures. If there is anything else tell us.”
ASG:-“There is another order passed on April 30, where RT-PCR test is available at each counting Centre. There will not be 150 counting officials at each or counting Centres. It will be rotation-wise. Also they wear gloves and masks. We are walking the tight rope, but we are not shying away from the responsibility. Rapid Antigen test will be available at each Centres.”
Justice Khanwilkar: “Come to the point where it is written and/or? Whether it will be for all or few?”
ASG: “Allow us to proceed with the Counting. There is curfew in place.”
Justice Khanwilkar: “Curfew means strict curfew.”
ASG: “Yes I will assure milord there will be strict curfew.”
Justice Roy: “Ms Bhati, you said you have 800 Centres. if we say one officer identified by name and designation be assigned to each centre, can you take instructions, Ms Bhati? If that is possible to do if we allow the counting to take place.”
ASG: “Senior Administrative Officials have already been deputed to all Centres and they are officer of Principal Secretary level IAS officers.”
Justice Roy: “He is not only responsible for monitoring but also for situation. If something goes wrong he should bear the responsibility.”
Adv Shoeb: “There should be CCTV monitoring. And the Centre be managed by an Officer and the Officer will be held accountable. We are looking at huge crowds that may assemble at the Centres.”
ASG: There is a class one officer appointed as the returning officer at each Centre. CCTV is also there at each Centre. And it will be preserved.”
Justice Khanwilkar: We have heard the Counsels. The present Petition filed challenging the order of the Allahabad HC which had dismissed the request to defer the Panchayat Election 2021. We decline to interfere in the said decision of the Allahabad HC. We took note of the State of Uttar Pradesh that necessary guidelines are in place issued by the State Election Commission.
“All the measure shall be adhered by Stakeholders and duty holders. It has been stated that strict curfew may be imposed around the Counting Centres where only agents and representatives may be allowed. No general public is allowed,” the judge said in the order.
Justice Khanwilkar: “No rallies will be allowed after the announcement of results. This assurance has been placed on record. In recent notification issued by the State Government regarding the RTPCR test at Centre, the word ‘and/or’ shall be changed to ‘and’, so that all have to go through RTPCR test at the Centres.
“The State Election Commission also agreed to notify the name of person at each counting centre and may be held accountable for each counting centre. Everybody who is entering the Centres shall adhere to the guidelines-issued. Needless to observe that representatives of the candidate shall produce the negative RT-PCR test report.”order-1