ECI Grossly Failed To Address Complaints: Calcutta HC Restrains BJP From Further Publishing Offending Ads Being Violative Of MCC

The Calcutta High Court restrained Bharatiya Janata Party (BJP) from further continuing with the publication of the offending advertisements as the same were violative of Model Code of Conduct (MCC).

The Court was dealing with a petition filed by All India Trinamool Congress (TMC) party which was prejudiced adversely by certain advertisements being published in newspapers by BJP, the rival political party.

A Single Bench of Justice Sabyasachi Bhattacharyya said, “… the ECI has grossly failed to address the complaints raised by the petitioner in due time. This court is surprised that no resolution worth the name has been arrived at regarding the said complaints till date, more so, since most of the phases of the electoral process are already over and only two phases are left and the entire election process shall be concluded by June 04, 2024.”

The Bench added that a resolution of the complaints after the election is over means nothing to the court and, as such, in view of the failure on the part of the Election Commission of India (ECI) to interdict and act on the complaints of TMC in due time, the court is compelled to pass an injunction order.

Senior Advocate Jishnu Saha represented TMC while Senior Advocate Lakshmi Kr. Gupta represented ECI and Senior Advocate Ratnanko Banerji represented other respondents.

Factual Background -

By relying on certain clauses of MCC, the senior counsel for the petitioner/TMC argued that criticism of other parties or their workers based on unverified allegations or distortion is to be avoided and that apart, during the election period, the print media should refrain from publishing any unverified allegation against any candidate or political party, either directly or impliedly. TMC had annexed certain ads which were offending from its perspective and it contended that despite repeated complaints having been lodged with ECI, it did not take any steps thereon.

Only after filing a writ petition on May 18, 2024, a communication was made indicating that the ECI had issued a show cause notice to BJP, which was to be replied by May 21, pertaining to the ad published during the silent period on May 12. It was argued by TMC that by virtue of such slanderous ads, the newspapers were carrying an agenda from BJP which was diametrically contradictory to MCC. On the other hand, the senior counsel for ECI submitted that the Commission has the power to look into the matter to ensure compliance of its advisories and MCC.

The High Court after hearing the arguments of parties observed, “It is well-settled by the Supreme Court and by various High Courts of the country on several occasions that the court cannot interdict in an election process so as to throw a spanner in the wheels of the election and/or to halt the election process altogether. … The purpose of the court can at best be, in a challenge under Article 226 of the Constitution of India, to facilitate the process of election and not to halt the same or to prevent the smooth process of the election.”

The Court noted that the petitioner/TMC does not seek to interdict the process of election or to halt the same but clearly to facilitate free and fair elections, which is in consonance with the purpose enumerated in Articles 324 and 329.

“Moreover, the present challenge is wider in scope than the limited and restricted focal lens of the conduct of the electoral process and also hits at the rights of the petitioner and its functionaries under Article 21 of the Constitution of India as well as under Article 19 of the Constitution of India, in order to practice, profess and propagate their political philosophy as well as to have a right to a free and fair electoral process”, it further noted.

The Court remarked that even as per the ECI, the advisories of ECI do not entitle the ECI to pass any restraint order as such or take any penal action against the political party is concerned but merely to censure the said political party if there is a violation of the MCC.

“… the remedy sought before the writ court, to vindicate and protect the fundamental rights of the petitioner, cannot be granted by the ECI, since the scope of exercise of power of the ECI is merely to ensure that the advisories issued by it are adhered to. … The writ petition is not merely to restrain media houses but primarily to restrain the respondent no.2, being the ruling political party of the country having the responsibility to lead from the forefront, from publishing advertisements which squarely violate the political rights of the petitioner and its functionaries”, it also observed.

Moreover, the Court emphasised that as per MCC, during the election period, the print media should also refrain from publishing any unverified allegation against any candidate or political party either directly or impliedly as per guidelines issued by the Press Council of India.

“It may be mentioned here that the apprehension of the ECI that its decision on the complaints made by the petitioner may be prejudiced by any order of this court is illusory, since the power of issuance of injunctions by writ courts in the context of ensuring free and fair election process is beyond the limited power of the ECI to deal with the complaints”, it added.

The Court, therefore, restrained BJP from further continuing with the publication of such ads till June 4, 2024 or until further order, whichever is earlier. It further restrained the party from publishing ads in any form of media which is violative of MCC during the said period.

Accordingly, the High Court listed the case in the monthly list of June 2024.

Cause Title- All India Trinamool Congress v. Election Commission of India and Others

Appearance:

Petitioner: Senior Advocate Jishnu Saha, Advocates Soumen Mohanty, Ayan Podder, Agnish Basu, Soham Dutta, Syed Kishwar, and Riddhi Jani.

Respondents: Senior Advocates Lakshmi Kr. Gupta, Ratnanko Banerji, Advocates Anuran Samanta, Arunabha Deb, Soumabho Ghose, Ashika Daga, Kanishk Kejriwal, Tirthankar Das, and Raunak Das Sharma.

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