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Writ petition in Madras HC complaining about imposition of Sec.144 in Puducherry during elections.
A writ petition was filed in the Madras High court on 4th April 2021 complaining about the complaining of an order passed under Section 144 of the Code of Criminal Procedure,1973 by the District Magistrate in Puducherry. The writ was filed by R.Rajangam who is the secretary of the Communist Party of India from Puducherry. The petitioner filed a Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorari to the district collector of Puducherry. The matter was heard by Coram of Chief Justice Sanjib Banerjee and JUstice Senthilkumar Ramamoorthy.
The fifteenth legislative assembly election is to be held on 6 April 2021 to elect members from 30 constituencies of the Legislative Assembly in the union territory of Puducherry in India. For relevant reasons for conducting smooth elections an order dated 22nd March 2021 was made public on 1st April 2021 which is to come to effect from 4th April 2021 from 7 pm Onwards. The order was issued by the District Magistrate stating imposition of section 144 of Criminal Procedure Code,1973 that is a prohibition from gathering of more than 5 people at a time in the union territory of Puducherry from 4th April to 6th April, 48 hours prior to legislative elections in Puducherry.
The petitioner argued that the order was irrelevant as there was such unrest, the possibility of mischief, friction among the community, or threat of any riot-related activities during the elections in Puducherry and there was such solid grounds to impose section 144 in Puducherry. He emphasized that on election day when the citizens would be exercising their basic democratic right, their right to move freely or do the daily chores should not be restricted. Also issuing such orders and imposing such restrictions even when there is no unrest or outset in the territory would build a sense of fear among the voter that there is a possibility of violence or trouble and would opt not to step out for voting. The petitioner submitted that such orders are not issued in other states during elections irrespective of sensitive areas. The petitioner insisted that there was a sine qua non for the passing of this order. Also, it was pointed out by the petitioner that the order was passed in an unnecessary hurry without giving any notice in accordance with Section 134 of the Code and the entire object indicates a kind of premeditated mind to instill fear in the minds of the citizens.
The Election Commission in response said that the prohibition is restricted to “unlawful assembly & movement, holding of public meetings, carrying of weapons, sticks, banners, placards, etc., by any person ... and ... shouting of slogans and using of Loud Speakers and acting in any manner detrimental to public peace and tranquility...” The Election commission also mentioned the exception to the restrictions which were religious functions, marriages, funerals, and the gathering of people inside polling booths for voting purposes. An excuse was also given saying that in every general election since 2014, section 144 was imposed in Puducherry. The election commission justified that the "restrictions should not be regarded as a blanket prohibition of movement or assembly but confined to the specific areas spelled out in the fourth paragraph of the order dated March 22, 2021. The union territory referred to "standard operating procedure for last 72 hours till counting" published in December 2016 by EC of India. The court turned down the reference saying that such orders can only be issued but not as a routine exercise without any unrest.
The court was of the opinion that the restrictions imposed by the authorities should be reasonable and in proportion to the anticipated problem and the decision should be justiciable. The court also said that the Election commission should have clearly mentioned the amount of prohibition and should have specified the extent to which they are applicable. Also, such sections should not be imposed on the grounds that it was imposed previously without any solid reason to do it. The court found the petitioner's suggestions justified that it is unreasonable to issue order 10 days prior. The court ordered the Election Commission to issue a clarification as mentioned and displayed it on the official sites of EC and Union territory of Puducherry.
