Centre for Consumer Education v. Kerala State Election Commission and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 13TH DAY OF AUGUST 2020 / 22ND SRAVANA, 1942** ## **WP(C).No.16487 OF 2020** ## **PETITIONER/S:** **CENTRE FOR CONSUMER EDUCATION** **(REG. NO. K 497/88), KP 6/399, 1ST FLOOR, VADAKKAN BUILDINGS, MUNDANKAL P.O., PALA, PIN - 686 574, REPRESENTED BY ITS MANAGING TRUSTEE SRI JAMES VADAKKAN.** **BY ADVS. SRI.JOHNSON MANAYANI SRI.JEEVAN MATHEW MANAYANI** ## **RESPONDENT/S:** - **1 KERALA STATE ELECTION COMMISSION CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM - 695 033., REP. BY ITS STATE ELECTION COMMISSIONER.** - **2 THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **3 SECRETARY TO HEALTH AND FAMILY WELFARE SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **4 SECRETARY TO LOCAL SELF GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **5 SECRETARY TO GOVERNMENT MINISTRY OF HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT OF INDIA, NIRMAN BHAVAN, NEW DELHI - 110 011.** - **6 NATIONAL DISASTER MANAGEMENT EXECUTIVE COMMITTEE OFFICE OF NATIONAL DISASTER MANAGEMENT COMMITTEE, A-1, SAFDARJUNG ENCLAVE, NEW DELHI – 110 029, REP. BY ITS CHAIRMAN.** **2** ## **W.P.(C)No.16487/2020** **7 STATE DISASTER MANAGEMENT EXECUTIVE COMMITTEE OFFICE OF THE STATE DISASTER MANAGEMENT COMMITTEE, SECRETARIAT, THIRUVANANTHAPURAM - 695 001, REP. BY ITS CHAIRMAN. 8 UNION OF INDIA REP. BY ITS SECRETARY TO HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT OF INDIA, NIRMAN BHAVAN, NEW DELHI – 110 011. R1 BY SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM SRI.RANJITH THAMPAN, ADDL. AG, SRI.V.MANU, SR.GP FOR R2 TO R4 AND R7, SRI.P.VIJAYAKUMAR, ASG FOR R5,R6 AND R8 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C)No.16487/2020** **3** ## **JUDGMENT** Dated this the 13[th] day of August, 2020 ## **S.Manikumar, C.J.** Instant writ petition is filed seeking the following reliefs: "(i) Issue a Writ of Mandamus, or any other appropriate writ, order or direction, directing the 1[st] respondent - Kerala State Election Commission, not to conduct election to the Local Self Government Bodies in Kerala, till the COVID-19 pandemic is completely under control; (ii) Declare that the initiation of election process by the 1[st] respondent Commission to the Local Self Government bodies, during the COVID-19 Pandemic period, is legally incorrect and unsustainable." 2. Facts leading to the filing of the writ petition are that, petitioner is representing a Non Governmental Organisation. State of Kerala is facing grave disasters, Covid-19 disease, earthquakes and landslides. Steps are taken under the Disaster Management Act, 2005 and the Kerala Epidemic Disease Ordinance, 2020, and certain restrictions are in force consequent to the same. 3. Petitioner has contended that even the fundamental rights guaranteed under Article 19 of the Constitution of India are kept in abeyance or suspended. Even the right to an association, public gathering, trade and transport are curtailed or restricted. In such circumstances, initiation of election process, by the Kerala State Election **W.P.(C)No.16487/2020** **4** Commission, Thiruvananthapuram (1[st] respondent) is incorrect and travesty of justice. 4. The tenure of the local bodies will expire on 12.11.2020. Conducting elections during a pandemic period will cause spread of disease and disaster. In view of the same, petitioner has filed Exhibit-P4 petition dated 3.8.2020, before respondents 1 to 7, pointing out the abovesaid facts. However, the 1[st] respondent is proceeding with the election process. Hence, the writ petition, for the reliefs, as stated above. 5. In support of the prayers, petitioner has raised the following grounds: - A. The decision of the Kerala State Election Commission, respondent No.1, to conduct elections to Local Self Government Institutions in the State, during the month of October-November, 2020, in the midst of COVID-19 pandemic is illegal, arbitrary, unjustifiable, and should be prevented by this Court. - B. The community transmission of COVID-19, in Kerala, is now becoming a reality. The number of positive cases is increasing day by day. If election is conducted as scheduled, it would result in community spreading, across the State, in Villages, Towns and Cities, and would lead to a catastrophe difficult to control. - C. The 1[st] respondent, while proceeding to conduct the election as scheduled, has failed to see that when the election is conducted, there would be a campaign by the political parties. In such campaigns, large gatherings are inevitable. Campaign through social media is not a solution. It may be **5** ## **W.P.(C)No.16487/2020** in letter, but reality is far away. When the campaign for election is not effective, it will adversely affect the right of the voters to know about the candidates. This will be violative of the fundamental right to know. - D. It is not easy to observe social distancing during the campaign on the day of polling. Large number of employees engaged in the COVID-19 preventive activities, have to be spared for election duty. It is reported that Police Officers, who are engaged for duty, are affected by the disease, in large numbers. Representatives of the political parties have to go to the houses of the voters for supply of name slips etc., which would also result in spreading of the disease. - E. If the election is conducted as proposed, polling will be very low, as the voters will be reluctant to go to exercise their franchise, fearing social gathering and possibility of spreading of disease. Due to poor polling percentage, the result will be undemocratic, as the minority would rule the majority. - F. - COVID-19 preventive measures are conducted at the Grama Panchayat level. If election is conducted, those representatives, who are now looking after the COVID-19 preventive activities, will have to pay attention to the election related activities. If the election is conducted and new representatives have to take charge, it will adversely affect the co-ordination of COVID-19 preventive activities. It is not a right time to conduct elections to the Local Self Government Institutions. G. India is a welfare State and the Constitution of India makes it imperative for the State to secure its citizens, rights guaranteed under Article 21, which guarantees every **W.P.(C)No.16487/2020** **6** citizens' protection of his life and personal liberty, and which is a repository of all the important human rights, essential for a person or citizen. When there is a natural calamity, the State, as guardian of the people, is obliged to provide help, assistance, and support to the victims of such natural calamities and save their life. H. Conducting elections in these circumstances is unconstitutional and is not helpful to the community, but unsafe to the community. The constitutional obligation of the State cannot be abrogated, by conducting election to the Local Self Government Institutions, in the midst of rapid spreading of Covid —19. I. Article 243 E of the Constitution says about the duration of Panchayat etc. Under Article 243 E(1), every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for 5 years from the date appointed for its first meeting and no longer. Under Article 243 E(3), an election to constitute a Panchayat shall be completed: - a) Before expiry of its duration specified in clause (I); - b) Before the expiration of a period of 6 months from the date of its dissolution. - J. Article 243 (K) of the Constitution of India says about election to the Panchayat. As per Article 243(K)(1), the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner, to be appointed by the Governor. - K. As per Article 243K(4) of the Constitution of India, subject to the provisions of the Constitution, the Legislature of the State may, by law, make provision with respect to all **W.P.(C)No.16487/2020** **7** matters relating to, or in connection with, elections to the Panchayats. Respondent No.1 ought to have exercised the power under Article 243-K of the Constitution of India, in the same manner as done in the State of Karnataka, and postponed the local body elections, in the State of Kerala. This is an extraordinary situation, wherein the 1[st] respondent has to exercise his power given under Article 243K of the Constitution of India. - L. The State Legislature has the power to make law, to extend the conduct of election to the Panchayats, by making a law. - M. Experiments are going around the world to find out a vaccine, either to prevent or to cure the disease. Reports say that vaccines would be found during early January, 2021 and, therefore, there is no urgency to conduct the election in this situation. - O. The decision to conduct election to the Local Self Government Bodies, as scheduled, is a lethal threat to the health and consequently, the life of each and every person residing in the State and hence, it is in contravention of the fundamental rights guaranteed under Article 21 of the Constitution of India. - P. Public interest will over weigh the political consideration. Balance of convenience is in favour of postponing the election, rather than conducting the election, as scheduled. - Q. Conducting election to the Local Self Government Bodies in Kerala is contrary to law, principles of justice, equity and good conscience, and ought to be prevented by this Court. 6. The Kerala State Election Commission, Thiruvananthapuram, represented by its State Election Commissioner, the 1[st] respondent, has **W.P.(C)No.16487/2020** **8** ## filed a statement dated 13.08.2020, which reads thus: "1. State Election Commission is constituted under Articles 243K / 243ZA of the Constitution of India, for the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats/Municipalities. 2. Articles 243E and 243U of the Constitution of India mandates that the election to constitute a Panchayat/Municipality shall be completed before the expiry of its duration. As per the above Constitutional provisions, the term, of the present Panchayats at all level, Municipalities (except Mattannur Municipality), and Municipal Corporations would expire on 11-11-2020, and the General Election to constitute Panchayats and Municipalities will have to be held before 11-11-2020, so that the new members shall be in office on 12-11-2020. 3. In **Kishan Singh Tomar v. Municipal Corporation of the city of Ahmedabad and others** [(2006) 8 SCC 352] **,** a Constitution Bench of the Hon'ble Supreme Court held that Article 243-U of the Constitution of India (which corresponds to Article 243-E in the cases of Panchayats), is a mandatory requirement and it is incumbent upon the State Election Commission to carry out the mandate of the Constitution and to see that elections to the Municipalities are conducted before the expiry of its duration of five years, as mandatorily specified in Article 243U(1). 4. State Election Commission is conscious of the mandate of the Constitution that it is incumbent on the part of the Commission to conduct election to Local Self Government Institutions, before the expiry of the duration of the present bodies. Accordingly, the preparations for holding elections are in full swing, though the **W.P.(C)No.16487/2020** **9** election process has not commenced and no date has been fixed for the poll. The election machinery of the State is alerted so as to be in a state of readiness for timely holding of election. 5. The State Election Commission is also aware and conscious of COVID-19 Pandemic and the advisories of the Governments, to contain the spread of virus. The Commission is tracking the COVID-19 situation in the State. The Commission has already arranged a meeting with the Director of Health Services of the State on 17-08-2020 regarding the conduct of election during the pandemic. The Commission is also convening meetings with other stakeholders including political parties, State authorities and District Collectors soon to have their inputs, views and suggestions regarding the conduct of the General Election to the Local Self Government Institutions. 6. As submitted, the State Election Commission has not yet fixed the programme for election and no notification for election has been issued. The decision as to how and when to conduct election will be taken by the State Election Commission, after deliberations with the stakeholders and examining all the inputs so received, and after a comprehensive assessment." 7. Though, initially on the basis of the statement of facts in the writ petition, Mr.Johnson Manayani, learned counsel for the petitioner, made strenuous submissions, after going through the statement filed by the Kerala State Election Commission, Thiruvananthapuram, represented by the State Election Commissioner, it was submitted that he is satisfied with the said statement. 8. On the basis of the statement dated 13.08.2020 filed by the **W.P.(C)No.16487/2020** **10** Kerala State Election Commission, Thiruvananthapuram, respondent No.1, Mr. Murali Purushothaman, learned standing counsel made submissions. 9. Heard learned counsel for the parties and perused the material available on record. 10. True that the country is facing a difficult situation, where activities in many fields have become standstill or restricted due to COVID-19 pandemic. In the present pandemic situation in Kerala, when will the COVID-19 would be under complete control is unable to be predicted, and for that matter, whether this Court, under Article 226 of the Constitution of India, can direct the State Election Commission, respondent No.1, not to conduct elections to the Local Self Government Bodies, is the issue to be answered. 11. Kerala State Election Commission has to discharge its obligations, as well as statutory functions and duties in accordance with the mandates and diktats contained under the Constitution of India. In the above said backdrop, can the initiation of the process by the State Election Commission, respondent No.1, for conducting the election to the Local Self Government Institutions, during COVID-19 pandemic be declared as legally incorrect and unsustainable, in exercise of powers under Article 226 of the Constitution of India is the issue to be decided in this writ petition. **W.P.(C)No.16487/2020** **11** 12. Part IX of the Constitution of India deals with Panchayats. Article 243E deals with duration of Panchayats etc., and the same reads thus: ## “ **243E. Duration of Panchayats, etc.** (1) Every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer. (2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1). (3) An election to constitute a Panchayat shall be completed- (a) before the expiry of its duration specified in clause (1); - (b) before the expiration of a period of six months from the date of its dissolution: PROVIDED that where the remainder of the period for which the dissolved Panchayat would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Panchayat for such period. (4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Panchayat would have continued under clause (1) had it not been so dissolved. ” ## 13. Bare reading of Article 243E of the Constitution of India makes it clear that every Panchayat shall continue for five years from the date **W.P.(C)No.16487/2020** **12** appointed for the first meeting and no longer, and under Article 243(3), an election to constitute a Panchayat shall be completed before the expiry of its duration specified in clause (1) of Article 243E. Similar is the constitutional mandate under Article 243 U of the Constitution of India so far as the election to the Municipalities is concerned. Since we are not concerned with any dissolution in contemplation of the 2[nd] limb of the said provision, there is no need to delve into the same. 14. Article 243 of the Constitution of India mandates the Kerala State Election Commission to conduct elections for the Local Self Government Institutions, in order to constitute Panchayats at various levels, and Municipalities, before the expiration of its duration and such Panchayat shall continue only for five years from the date appointed for its first meeting and no longer. In the light of the constitutional mandate, conducting elections before the expiry of the period of five years is imminent. At the risk of repetition, State Election Commission, in the statement dated 13.08.2020, has stated thus: “6. The State Election Commission is conscious of the mandate of the Constitution that it is incumbent on the part of the Commission to conduct election to Local Self Government Institutions before the expiry of the duration of the present bodies. Accordingly, the preparations for holding elections are in full swing, though the election process has not commenced and no date has been fixed for the poll. The election machinery of the State is alerted so as to be in a state of readiness for timely **W.P.(C)No.16487/2020** **13** ## holding of election. 7. The State Election Commission is also aware and conscious of Covid-19 Pandemic and the advisories of the Governments to contain the spread of the virus. The Commission is tracking the Covid-19 situation in the State. The Commission has already arranged a meeting with the Director of Health Services of the State on 17-08-2020 regarding the conduct of election during the pandemic. The Commission is also convening meetings with other stakeholders including political parties, State authorities and District Collectors soon to have their inputs, views and suggestions regarding the conduct of the General Election to the Local Self Government Institutions. 8. As submitted, the State Election Commission has not yet fixed the programme for election and no notification for election has been issued. The decision on how to and when to conduct election will be taken by the State Election Commission after the deliberations with the stakeholders and after examining all the inputs so received and after a comprehensive assessment." 15. In **Kishansing Tomas v. Municipal Corporation of the** **City of Ahmedabad and Others** [(2006) 8 SCC 352], the Hon'ble Supreme Court considered the scope of Articles 243-E, 243-K, 243-ZA, 243-U and 324 of the Constitution of India and, at paragraphs 12 to 14 and 16 to 22 held as under: “12. It may be noted that Part IX-A was inserted in the Constitution by virtue of the Constitution (Seventy Fourth) Amendment Act, 1992. The object of introducing these provisions was that in many States the local bodies were not working properly and the timely elections were not being held and the nominated bodies were continuing for long periods. Elections had been irregular and many times unnecessarily delayed or postponed and the elected bodies **W.P.(C)No.16487/2020** **14** had been superseded or suspended without adequate justification at the whims and fancies of the State authorities. These views were expressed by the then Minister of State for Urban Development while introducing the Constitution Amendment Bill before the Parliament and thus the new provisions were added in the Constitution with a view to restore the rightful place in political governance for local bodies. It was considered necessary to provide a Constitutional status to such bodies and to ensure regular and fair conduct of elections. In the statement of objects and reasons in the Constitution Amendment Bill relating to urban local bodies, it was stated: "In many States, local bodies have become weak and ineffective on account of variety of reasons, including the failure to hold regular elections, prolonged supersessions and inadequate devolution of powers and functions. As a result, urban local bodies are not able to perform effectively as vibrant democratic units of self-Government. Having regard to these inadequacies, it is considered necessary that provisions relating to urban local bodies are incorporated in the Constitution, particularly for : (i) putting on a firmer footing the relationship between the State Government and the Urban Local Bodies with respect to : (a) the functions and taxation powers, and (b) arrangements for revenue sharing. (ii) ensuring regular conduct of elections. (iii) ensuring timely elections in the case of supersession; and (iv) providing adequate representation for the weaker sections like Scheduled Castes, Scheduled Tribes and women. Accordingly, it has been proposed to add a new Part relating to the Urban Local Bodies in the Constitution to provide for- (f) fixed tenure of 5 years for the Municipality and reelection within a period of six months of its dissolution." 13. The effect of Article 243-U of the Constitution is to be appreciated in the above background. Under this Article, the duration of the Municipality is fixed for a term of five years and it is stated that every Municipality shall continue for five years from the date appointed for its first meeting and no longer. Clause (3) of Article 243-U states that election to **W.P.(C)No.16487/2020** **15** constitute a Municipality shall be completed -(a) before the expiry of its duration specified in clause (1), or (b) before the expiration of a period of six months from the date or its dissolution. Therefore, the constitutional mandate is that election to a Municipality shall be completed before the expiry of the five years' period stipulated in Clause (1) of Article 243-U and in case of dissolution, the new body shall be constituted before the expiration of a period of six months and elections have to be conducted in such a manner. A Proviso is added to Sub-clause (3) Article 243-U that in case of dissolution, the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period. It is also specified in Clause (4) of Article 243-U that a Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would have continued under Clause (1) had it not been so dissolved. 14. So, in any case, the duration of the Municipality is fixed as five years from the date of its first meeting and no longer. It is incumbent upon the Election Commission and other authorities to carry out the mandate of the Constitution and to see that a new Municipality is constituted in time and elections to the Municipality are conducted before the expiry of its duration of five years as specified in Clause (1) of Article 243-U. 16. A similar question came up before the Constitution Bench of this Court in Special Reference No. 1 of 2002 with reference to the Gujarat Assembly Elections matter. The Legislative Assembly of the State of Gujarat was dissolved before the expiration of its normal duration. Article 174(1) of the Constitution provides that six months shall not intervene between the last sitting of the Legislative Assembly in one session and the date appointed for its first sitting in the next session and the Election Commission had also noted that the mandate of Article 174 would require that the Assembly should meet every six months even after dissolution of the House and that the Election Commission had all along been consistent that normally a Legislative Assembly should meet at least every six months as contemplated by Article 174 even where it has been dissolved. As the last sitting of the Legislative Assembly of the State of Gujarat was held on 3.4.2002, the Election Commission, by its order dated 16.8.2002, had not recommended any date for holding **W.P.(C)No.16487/2020** **16** general election for constituting a new Legislative Assembly for the State of Gujarat and observed that the Commission will consider framing a suitable schedule for the general election to the State Assembly in November-December, 2002 and therefore the mandate of Article 174(1) of the Constitution of India to constitute a new Legislative Assembly cannot be carried out. The Reference, thus, came up before this Court. 17. Speaking for the Bench, Khare, as he then was, in para 79 of the answer to the reference, held : (SCC p.288) "79. However, we are of the view that the employment of the words "on an expiration" occurring in Sections 14 and 15 of the Representation of the People Act, 1951 respectively show that the Election Commission is required to take steps for holding election immediately on expiration of the term of the Assembly or its dissolution, although no period has been provided for. Yet, there is another indication in Sections 14 and 15 of the Representation of People Act that the election process can be set in motion by issuing a notification prior to expiry of six months of the normal term of the House of the People or Legislative Assembly. Clause (1) of Article 172 provides that while promulgation of emergency is in operation, Parliament by law can extend the duration of the Legislative Assembly not exceeding one year at a time and this period shall not, in any case, extend beyond a period of six months after promulgation has ceased to operate....The aforesaid provisions do indicate that on the premature dissolution of the Legislative Assembly, the Election Commission is required to initiate immediate steps for holding election for constituting Legislative Assembly on the first occasion and in any case within six months from the date of premature dissolution of the Legislative Assembly." 18. Concurring with the foregoing opinion, Pasayat, J. in para 151, stated as follows :(SCC p. 322) "The impossibility of holding the election is not a factor against the Election Commission. The maxim of law impotentia excusat legem is intimately connected with another maxim of law lex non cogit **W.P.(C)No.16487/2020** **17** ad impossibilia. Impotentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. "Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him." Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like an act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance with the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom's Legal Maxims, 10[th] Ed., at pp 196263 and Craies on Statute Law, 6[th] Edn., p. 268.) These aspects were highlighted by this Court in Special Reference No. 1 of 1974. Situations may be created by interested persons to see that elections do not take place and the caretaker Government continues in office. This certainly would be against the scheme of the Constitution and the basic structure to that extent shall be corroded." 19. From the opinion thus expressed by this Court, it is clear that the State Election Commission shall not put forward any excuse based on unreasonable grounds that the election could not be completed in time. The Election Commission shall try to complete the election before the expiration of the duration of five years' period as stipulated in Clause (5). Any revision of electoral rolls shall be carried out in time and if it cannot be carried out within a reasonable time, the election has to be conducted on the basis of the then existing electoral rolls. In other words, the Election Commission shall complete the election before the expiration of the duration of five years' period as stipulated in Clause (5) and not yield to situations that may be created by vested interests to postpone elections from being held within the stipulated time. 20. The majority opinion in Lakshmi Charan Sen & Ors. Vs. A.K.M. Hassan Uzzaman & Ors. (1985) 4 SCC 689 held that the fact that certain claims and objections are not finally disposed of while preparing the electoral rolls or even assuming that they are not filed in accordance with law **W.P.(C)No.16487/2020** **18** cannot arrest the process of election to the Legislature. The election has to be held on the basis of the electoral rolls which are in force on the last date for making nominations. It is true that the Election Commission shall take steps to prepare the electoral rolls by following due process of law, but that too, should be done timely and in no circumstances, it shall be delayed so as to cause gross violation of the mandatory provisions contained in Article 243-U of the Constitution. 21. It is true that there may be certain man-made calamities, such as rioting or breakdown of law and order, or natural calamities which could distract the authorities from holding elections to the Municipality, but they are exceptional circumstances and under no circumstance the Election Commission would be justified in delaying the process of election after consulting the State Govt. and other authorities. But that should be an exceptional circumstance and shall not be a regular feature to extend the duration of the Municipality. Going by the provisions contained in Article 243-U, it is clear that the period of five years fixed thereunder to constitute the Municipality is mandatory in nature and has to be followed in all respects. It is only when the Municipality is dissolved for any other reason and the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any elections for constituting the Municipality for such period. 22. In our opinion, the entire provision in the Constitution was inserted to see that there should not be any delay in the constitution of the new Municipality every five years and in order to avoid the mischief of delaying the process of election and allowing the nominated bodies to continue, the provisions have been suitably added to the Constitution. In this direction, it is necessary for all the State governments to recognize the significance of the State Election Commission, which is a constitutional body and it shall abide by the directions of the Commission in the same manner in which it follows the directions of the Election Commission of India during the elections for the Parliament and State Legislatures. In fact, in the domain of elections to the Panchayats and the Municipal bodies under the Part IX and Part IX A for the conduct of the elections to these bodies they enjoy the same status as the Election Commission of India.” 16. In the light of the statement of the Kerala State Election **W.P.(C)No.16487/2020** **19** Commission, respondent No.1, exploring the possibility of conducting the Local Self Government Institution elections and of the fact that, so far no decision has been taken by the State Election Commission and notification issued, as to how and when to conduct elections to the Local Self Government institutions, the first prayer sought for by the petitioner cannot be granted. 17. Conduct of elections to the Local Self Government institutions depends upon the decision of the Kerala State Election Commission. Ultimately, after a comprehensive assessment, if the Kerala State Election Commission decides to conduct the elections for the Local Self Government institutions and issues any notification, a cause may arise to challenge, but not at this stage, when the decision to conduct election is yet to be taken. 18. The second prayer in the writ petition is to declare the initiation of the election process by the Kerala State Election Commission, to the Local Self Government Institutions, during the COVID-19 pandemic period, as legally incorrect and sustainable. ## 19. Article 243 (K) of the Constitution of India reads thus: “(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. **W.P.(C)No.16487/2020** **20** (2) Subject to the provisions of any law made by the Legislature of a State, the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine: PROVIDED that the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. (3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1). (4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating ” to, or in connection with, elections to the Panchayats. 20. Initiation of the process, publication of notification, conduct of elections and publication of results are, inter alia, various stages in exercise of powers under Article 243K of the Constitution of India. But, in the wake of COVID-19 epidemic and the consequential circumstances, setting out the reasons, as to how deployment of staff and others engaged in prevention and spread of the disease, the petitioner has sought for: (ii) Declare that, the initiation of the election process by the 1[st] respondent to the Local Self Government bodies, during the Covid-19 Pandemic period, is legally incorrect and unsustainable. **21** ## **W.P.(C)No.16487/2020** 21. It is trite law that mandamus cannot be issued, restraining the statutory authorities from discharging their duties. Mandamus, if any, would amount to issue directions to disobey the law. However, in the current scenario and on the facts and circumstances of this case, as per the statement dated 13.08.2020 by respondent No.1, the preparations for holding elections are in full swing, though the election process has not commenced. Placing on record the said statement, the second prayer sought for by the petitioner also cannot be granted. In the result, placing on record the statement of the Kerala State Election Commission dated 13.08.2020, writ petition is dismissed. Sd/- **S.Manikumar, Chief Justice** Sd/- **Shaji P.Chaly Judge** vpv **W.P.(C)No.16487/2020** **22** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE PROFILE OF CENTRE FOR CONSUMER EDUCATION. EXHIBIT P2 A TRUE COPY OF A LIST OF ELECTIONS POSTPONED AS OF JULY 31, 2020 DUE TO THE IMPACT OF COVID - 19, PUBLISHED BY THE INTERNATIONAL FOUNDATION FOR ELECTORAL SYSTEMS IN THEIR WEBSITE. EXHIBIT P3 TRUE COPY OF THE NEWS ITEM PUBLISHED BY THE HINDUSTAN TIMES IN THEIR WEBSITE DATED 28.5.2020. EXHIBIT P4 A TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE RESPONDENTS 1 TO 7 DATED 3.8.2020.** /true copy/ P.A. to Judge