Full Text
HIGH COURT OF DELHI
Date of Decision: 29th January, 2025
DHRONE DIWAN & ORS. .....Petitioners
Through: Petitioners in person
Through: Mr. Sidhant Kumar and Mr. Om Batra, Advocates for R-1/ECI
Ms. Suruchi Suri, SC for R-2
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA DEVENDRA KUMAR UPADHYAYA, CJ (ORAL)
JUDGMENT
1. This Public Interest Litigation (hereafter ‘PIL’) petition has been filed by young lawyers raising concerns about various malicious materials being circulated as part of electioneering and election campaign in the Elections scheduled to be held for the Legislative Assembly of Delhi.
2. Various materials have been brought on record of this writ petition by the petitioners which allegedly depict that by making spam calls, votes are being solicited by the candidates of the political parties on the basis of certain materials/messages which, according to the petitioners, are vilifying and hence cannot be permitted. The prayer clause of the writ petition is Digiltally extracted herein below:- “a. Declare this particular voice message, annexed with the writ as ANNEXURE P[5] (COLLY), as vilifying & malicious material and strict action be taken against its disseminators; b. Declare guidelines to curb gaps/ shortcomings and to identify vilified and malicious material for the purpose of political advertisement during elections; c. Direct respondent No. 1 to take necessary and strict action, derecognize or cancel candidature or symbol or impose penalty, against violators for dissemination of vilifying material in public domain and for influencing and creating biasness in the mind of the voters, especially when the election is round the corner; d. Direct respondent no. 1 to provide reasons as to why and how such vilified material is being propogated with or without due permission of the respondent; e. Direct respondent no. 1 to display all the certificates issued by them, for the purpose of advertisement, on their official website; f. Direct respondent no. 2 to display all the certificates issued by them, for the purpose of advertisement, on their official website; g. Direct respondent no. 2 to issue justification as to why and how such vilified material was being propogated during elections; h. Take action against respondent no. 1 and 2 for not able to conduct free and fair elections and for failure in performance of their duties; i. Direct respondent no. 3 to issue clarification, how such spammers have been able to operate and violate the right to privacy of citizens guaranteed under the Constitution. Action against respondent no. 3 be initiated for not able to monitor, curb and supervise spam calls; j. Direct respondent no. 4 to stop dissemination of vilifying material in public domain, creating negative influence upon voters; k. Direct respondent no. 1 to submit rationale, about the test that has been used to give such certification/ permission to AAP for dissemination of such vilifying content, if any such certificate was issued; l. Direct respondent no. 4 to issue clarification with respect to the dissemination of such vilifying material; m. Take action against respondent no. 4 for non-adherence of Model Code of Conduct, violation of 170/171/175 BNS, violation of free and fair elections and for violation of Representation of Peoples Act, 1951; n. Hon'ble Court may direct respondent no. 1 to postpone the elections, only to the extent the budget allows, for conducting free and fair elections and restraining dissemination of vilifying material in public domain; o. Create specific provisions to penalize such un-democratic and un-constitutional activities and further creation of specific IT laws to punish spam callers; p. Fixation of liabilities and punishment for the beneficiaries of vilifying material which is being used to hamper free and fair elections; and q. Pass any other or further order or relief which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case in favor of the petitioner and against the respondents. r. To issue an interim stay restraining and prohibiting all the respondents from disseminating this particular campaign in form of voice message(IVRS) till the final hearing and disposal of the writ petition; and”
3. Thus, essentially, the concern raised by the petitioners is in relation to circulation of such malicious material by the political parties and their candidates which is completely unwarranted and is vitiating the core atmosphere of the elections. In the wake of the said facts, the aforesaid prayers have been made.
4. So far as the conduct of elections to the Legislative Assembly is concerned, that is the primary constitutional duty cast upon the Election Commission of India under Article 324 of the Constitution of India where the Election Commission of India has been vested almost with plenary powers to take every step for ensuring free and fair elections while supervising the conduct of the elections.
5. It thus becomes the duty of the Election Commission to take proactive steps to check circulation of such messages which has the potential of vitiating the atmosphere.
6. Learned counsel representing the Election Commission of India has brought to the notice of the Court a judgment rendered by the Hon’ble Supreme Court in the year 2004, in the case of Secretary, Ministry of Information and Broadcasting v Gemini TV (P) Ltd. And Others, (2004) 5 SCC 714, which contains certain directions to the Election Commission of India. For the purpose of dealing with the complaint of the petitioners raised herein, the observations made and the directions given in paragraph 4, 5, 6, 7, 8 and 10 are relevant, which are extracted herein below:
Territories, as the case may be.
5. The Chief Electoral Officer of each State or Union Territory may appoint a committee for entertaining complaints or grievances of any political party or candidate or any other person in regard to the decision to grant or to refuse certification of an advertisement. The Committee so appointed shall communicate its decision to the Election Commission.
6. The Committee so constituted will function under the overall superintendence, direction and control of the Election Commission of India.
7. The decision given by the Committee shall be binding and complied with by the political parties, candidates or any other person applying for advertisements in electronic media subject to what has been stated above.
8. The comments and observations for deletion or modification, as the case may be, made, shall be binding and complied with by the political party or contesting candidate or any other person concerned within twenty-four hours from the receipt of such communication and the advertisement so modified will be resubmitted for review and certification.
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10. If any political party, candidate or any other person is aggrieved by the decision taken either by the Committee or by the designated officer/Election Commission, it will be open for them to approach only this Court for clarification or appropriate orders and no other court, tribunal or authority shall entertain any petition in regard to the complaint against such advertisement. This order shall come into force with effect from 16-4-2004 and shall continue to be in force till 10-5-2004.”
7. We have also been informed by the learned counsel representing the Election Commission of India that the complaint made by the petitioners has been taken cognizance of by the Election Commission which has instructed/directed the Chief Electoral Officer of National Capital Territory of Delhi vide letter dated 28.01.2025 to inquire into the allegations and submit a report to the Commission by 29.01.2025.
8. Learned counsel representing the Chief Electoral Officer has also tendered to the Court a ‘Handbook on Media Matters for Chief Electoral Officers and District Election Officers’, published by the Election Commission of India on 01.02.2024. The said handbook contains various steps which are to be ensured by the Chief Electoral Officer of the State as also by the District Election Officers. The handbook contains certain considerations to be made while issuing a certificate for the advertisements etc. Clause 3.[7] of the said handbook is extracted herein below: “3.[7] Taking cognizance of the increasing use of bulk SMS & recorded voice messages in election campaigning, the Commission in 2015 also included the bulk SMSs/ voice messages on phone in election campaigning within the purview of pre-certification of election advertisements. Legal Provisions, as apply on other modes of electronic media, shall also be applicable on bulk SMSs/Voice messages.”
9. In view of the facts noted above, we find that the Chief Electoral Officer of the State as also the District Election Officers are fully empowered and duty bound as well to check such messages and advertising materials being circulated by the political parties and their candidates which have the tendency of vitiating the atmosphere in the elections.
10. The complaint made by the petitioners has already been taken cognizance of as the Commission has directed the Chief Electoral Officer to inquire into the allegations and submit its report.
11. We thus direct that based on the inquiry report to be submitted by the Chief Electoral Officer pursuant to the letter dated 28.01.2025, appropriate action which may be warranted under law shall be taken by the Election Commission of India or any other authority competent to do so.
12. As regards the certain other prayers made in the petition, such as postponing the election etc., such prayers in the midst of the elections cannot be granted as no such ground in our opinion is available in the writ petition for grant of such prayers.
13. We thus dispose of the instant PIL petition taking note of the action which has been proposed to be taken by the Election Commission of India on the complaint made by the petitioners as also the provisions contained in the handbook on media matters issued by the Election Commission of India with the further hope and trust that appropriate action which may be warranted under law shall be taken not only on the complaint made by the petitioners but also for ensuring that the political parties and their candidates are checked and restrained from using any vitiating material during the election campaigns.
14. The petition along with application stands disposed of accordingly.
DEVENDRA KUMAR UPADHYAYA, CJ TUSHAR RAO GEDELA, J JANUARY 29, 2025