Right to health takes precedence over right to campaigning: MP HC directs FIR against Kamal Nath, Narendra Tomar for COVID-19 protocol breach

The Madhya Pradesh High Court recently directed the District Magistrates of Datia and Gwalior to ensure that FIRs are registered against former Chief Minister Kamal Nath and Union Minister Narendra Singh Tomar for alleged violation of COVID-19 norms during election campaigns (Ashish Pratap Singh v. State of MP & Ors)..Political leaders like Kamal Nath and Narendra Singh Tomar are alleged to have committed cognizable offences by breaching COVID-19 protocol in election campaign congregations, the Court was told. While FIRs were registered against the candidates for whom the campaign congregation was held as well as the organisers of the event, no FIRs were registered against Tomar and Nath.Additional Advocate General Ankur Mody assured the Court that FIRs would be registered against these political leaders. Thus,the Court directed the District Magistrates of Gwalior and Datia, where the congregations were held, to ensure the same..These directions from the High Court come close on the heels of the conduct of Assembly by-elections. for which campaigning is underway. The Court noted that every candidate has a statutory right to propagate their manifesto and the same has taken the colour of a fundamental right under the right to information. However, in light of the pandemic, it noted,"In a contest/clash between right to campaigning and right to health and life, it is obvious that the right to health and life takes precedence. Right to health and life is comparatively more exalted, sacred and precious right when compared with the right to canvassing & campaigning. Thus, the right of candidate to campaign has to yield to the right to health and life of the electorate.".Noting that it cannot be a silent spectator to the rampant violation of COVID-19 protocol, the High Court has directed all District Magistrates under its jurisdiction to refrain from granting permission to hold physical congregations for political campaigns, unless it can be proved that conduct of a virtual election campaign is not possible..This permission order of the Magistrate, however, will come into effect only after it has been approved by the Election Commission of India in writing..The conditions, however don't stop there. The order reads:"The holding of physical congregation even if permitted by District Magistrate and Election Commission of India, can take place only after the political party/candidate intending to hold a congregation deposits money with the District Magistrate which is sufficient to purchase double the number of masks and sanitizers required for protecting and sanitizing the number of persons expected in the congregation and also when candidate files an undertaking on affidavit that he shall be personally liable to distribute masks and sanitizers to all the members of the congregation before the meeting/congregation starts.".Noting the ulterior motives of political parties to coax people out of the safety of their homes with a view to garnering votes, the order notes,."The holding of physical congregation even if permitted by District Magistrate and Election Commission of India, can take place only after the political party/candidate intending to hold a congregation deposits money with the District Magistrate which is sufficient to purchase double the number of masks and sanitizers required for protecting and sanitizing the number of persons expected in the congregation and also when candidate files an undertaking on affidavit that he shall be personally liable to distribute masks and sanitizers to all the members of the congregation before the meeting/congregation starts."Madhya Pradesh High Court.The High Court had earlier, on October 3, passed an interim order asking the DMs to ensure that in case of violation of COVID-19 protocol, FIRs be registered against candidates, organizers, as well as the political, governmental or State or social functionaries in whose name or on whose behest and behalf the said congregation take place..Despite this order, seevral large congregations were held breaching the safety measures and protocol. Therefore, the Court on October 12 directed the concerned District Magistrates to treat the contents of an application detailing violations and breaches in such congregations as well as the report of an amicus curiae as information for registering FIRs under Section 154 of the Code of Criminal Procedure..The petitioner in the case was represented by Advocates Veer Singh Sisodiya and Suresh Agarwal.Advocate General Purushaindra Kaurav and Additional Advocate General Ankur Mody represented the state government. Additional Solicitor General Praveen Newaskar appeared for the Union of India. While Advocate Alok Katare represented two of the respondents, Advocates Sanjay Dwivedi, Raju Sharma and V. Sharma assisted the Court as Amicus Curiae..The case will be heard next on Friday, October 23.