Election in the time of COVID-19: Reconciling conflict between two constitutional rights*

My home state of Bihar recently saw the conclusion of a full-fledged Vidhan Sabha election in the midst of a roaring pandemic.

As is the law under Section 159 of the Representation of the People Act, 1951 ("Act"), government employees across districts were appointed as polling officers who were to discharge their duties under the supervision of District Election Officers-cum-District Magistrates ("DEO"). Increased numbers of booths due to the pandemic warranted requirement of more government staff. As a result, a lot of government employees with pre-existing medical conditions also ended up with election duties. I happen to know this because my father was one such government employee.

Polling duty is serious responsibility. It necessitates management of large numbers of voters so as to ensure that the manner in which the election is conducted is in complete consonance with the procedure prescribed by the Election Commission. For certain acts of misconduct as well lapses occurring at the polling stations, the Act stipulates penalty in the form of imprisonment for polling officers. While a few of these ailing employees in Bihar were exempted from duty after they made relevant representations before the DEO/medical board, applications of others did not meet the same fate even though they had supporting documents to prove the genuineness of their medical condition. How such assignment of election duty exposed government employees with pre-existing condition to the virus and put their lives at risk does not merit explanation.

The election is past us now. Its impact on the pandemic situation in Bihar is yet to be seen. What remains material is that in the next few months, lots of panchayats, wards of municipal corporations/municipalities and quite a few States will hold elections. Bihar has set a precedent that the pandemic is not going to delay regular conduct of elections. During such pandemic-ridden elections in the future, how does one ensure well-being of such ailing government employees who have been assigned election duties? Can the extant law help us do that? It seems like it can.

In a 2007 judgment decided by a division bench (Election Commission of India Vs. St. Mary's School and Ors. AIR 2008 SC 655), the Supreme Court of India has held that although right to exercise franchise is an important right, such right cannot trump a fundamental right guaranteed under Part III of the Constitution. In the opinion of the Court, while reconciling an apparent conflict between two constitutional rights, a fundamental right cannot be thwarted to uphold another constitutional right. Although the fundamental right in question in this case was 'right to education', by necessary extension, the reasoning should also apply to the 'fundamental human right to health care' guaranteed under Article 21 of the Constitution.

Proviso to Section 26(1) of the Act provides, inter alia, that if a polling officer is absent from the polling station, the presiding officer may appoint any person who is present at the polling station to be the polling officer during the absence of the former officer, and inform the concerned DEO accordingly. Section 26(3) of the Act also envisages a situation in which the presiding officer, owing to illness or other unavoidable cause, is obliged to absent himself from the polling station. In such a situation, the said Section 26(3) mandates that functions of such absentee presiding officer shall be performed by such polling officer as has been previously authorised by the concerned DEO to perform such functions during any such absence.

By placing reliance on the aforesaid provisions of the Act and the judgment of the Supreme Court, government employees with pre-existing medical condition may make representations before the concerned DEO/authority and pray for appropriate relief. COVID is here to stay; so are elections. Citizens have to look out for themselves.

*The views discussed hereinabove are solely my own and in no way reflect the views of any organisation/firm I am associated with. The information provided hereinabove does not, and is not intended to, constitute legal advice.