Case title:
Dr. Himanta Biswa Sarma v. The Election Commission of India and Ors.
Date of Order:
10/06/2022
Bench:
Justice Rumi Kumari Phookan
Parties:
Dr. Hemant BiswaSarma – Petitioner
The ECI – Respondent
Subject
Section 126 of the Representation of People Act, 1951 which restricts any public meetings or rallies conducted by election candidates 48 hours before the election was brought into scrutiny in the latest judgment by the Gauhati High Court in the matter of Dr. Himanta Biswa Sarma and the Election commission.
Facts
- The petitioner has filed this application under Section 482 read with Section 397 of the CrPC seeking to challenge the case pending against them in the court of Chief Judicial Magistrate at Kamrup (M) and a plethora of orders passed under the same umbrella.
- On the authority of the ECI, Election Department, Chief Electoral Officer, Vibekananda Phookan filed a complaint petition against the CM of Assam and the Chairman-cum-Managing director of a local news channel by the name “News Live” alleging that he has violated the Model Code of Conduct (MCC) of the Lok Sabha Elections.
- It was claimed by the complaining party that the CM had attended an Interview held at 7:55 P.M. on 10/04/2019 on the news channel and this was within the 48-hour silence period prescribed under Section 126 of the RP Act as the polling was set to be conducted on 11/04/2019.
- The application was filed on 14/05/2019 and the complainant was listed as the sole witness in front of the court.
- The court did not assume cognizance on the very first day and directed the complainant to file the related documents and the evidence of the alleged transgression. But the complainant failed to submit that which was asked before the stipulated time limit.
- After numerous instances of unresponsive behaviour from the complainant side, the court issued a direct notice to the Department Chief Electoral Officer of Assam the look into the matter and assign a person to replace the complainant who had retired from service. The Joint Secretary to the Government of Assam was designated to appear on behalf of the complaining party, he submitted all of the requested documents.
- A summons was issued for the Accused to appear in the court on 11/02/2022 almost 2 and a half years after the filing of the case.
Arguments Advanced by the Petitioner
- It was submitted by the learned counsel for the petitioner that despite the burden of proof lying on the complainant’s shoulders, the Hon’ble Trial court pursued the case for 3 years notwithstanding the fact that the complainant had repeatedly failed and neglected to file the relevant documents.
- The previous CJM had passed an order dated 30/11/2019 which gave an ultimatum to the complaining party that if the documents were not submitted within the established time limit, then the case will be dropped. This was overridden by the successor to the post of the CJM as specified in the order dated 10/01/2022 which sets an undesirable precedent.
- The petitioner further submits that owing to a phased manner of elections being followed in the state, there was no polling to be conducted in the next 48 hours in the region encompassing the Gauhati Parliamentary Constituency. And that the most recent elections were supposed to be conducted on 23/04/2019.
- Shortcomings of Section 126 were further highlighted by the petitioner in this incident as there was no account of exceptions in cases of such above-mentioned incidents. A similar incident had taken place in 2017 during the INC election campaign led by Rahul Gandhi, he was accused of violating the MCC.
Arguments Advanced by Respondents
- The affidavit was filed by Respondent No. 7 on behalf of 6 others.
- The document sought to deny the claims filed by the petitioner but did not pointedly state which one was denied and on what grounds.
- It was reiterated that the ECI was directly responsible for all the elections conducted in India right up to the president and the Vice president.
- Except for a brief statement of denial, the respondent’s affidavit does not explicitly refute any of the petitioner’s documents or arguments.
Relevant Provisions
- Section 126 of the Representation of People Act, 1951 imposes restrictions upon the electoral candidates 48 hours ahead of the polling time.
Issues Raised
- Validity of the Prima Facie cognizance taken by the CJM in the absence of integral documents.
- Legality of the impugned orders issued by the CJM.
Judgment
- The court noted the CJM’s persistence in continuing the matter despite lack of response from the complaining party, which would ideally lead to the dismissal of the issue under Section 203 of CrPC.
- And upon reviewing the CJM court’s basis of assuming cognizance, the Court stated that there weren’t enough documents for the court to act on in the first place and quashed the decision citing lack of persecution.
- And the court duly noted that there were no elections to be conducted in the Gauhati Constituency in the next 48 hours in course of which the interview was held, and on a channel that was local to the constituency.
Conclusion
All of the trial court’s decisions were quashed and the court expressed a need for the revision of Section 126 of the RP Act in order to modify and enhance it to better suit the modern trends in electoral practices.
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