CHENNAI: The Madras High Court on Monday directed the Election Commission of India to file a reply to the petition moved by the ruling party in Tamil Nadu, DMK, challenging the legality of a clause in the rules governing the pre-certification of poll advertisements by political parties that says that appeals against decisions of Chief Electoral Office (CEO) can be filed only before the Supreme Court.
The first bench of Chief Justice SV Gangapurwala and Justice J Sathya Narayana Prasad, after hearing the petition challenging the vires of Clause 3.8 of the Handbook for CEOs and DEOs on Media Matters, 2024, along with three other petitions on rejection of permissions for advertisements, asked the ECI to file the reply on April 17, 2024 and subsequently, adjourned the hearing to the same date.
The petition was filed by RS Bharathi, former MP and DMK’s organisation secretary, challenging the Clause 3 (3.8) - Part B of the Handbook released on August 24, 2023, which provides for filing appeals against the decisions of the State Level Media Certification and Monitoring Committee (SLMCMC) headed by the CEO on pre-certification of poll advertisements only before the Supreme Court.
According to Clause 3.8, the MCMC has the right to refuse certification for an advertisement that it does not find fit to be published in the media. Appeals can be made against the decision of both District level MCMC and Additional / Joint CEO-level Committee to SLMCMC headed by CEO of the State. Only, the Supreme Court of India can entertain the appeal against the order of SLMCMC on pre-certification.
Appearing for the petitioner, former Advocate General R Shanmugasundaram, noted that the state election authorities are performing public duties and are therefore instrumentalities of the state whose action can be subjected to judicial review by the High Court.
“Clause 3. 8 is in violation of the basic structure of the Constitution,” he told the court.
He said the state level certification committee (SLCC) and the SLMCMC have passed orders rejecting the DMK’s application for pre-certification of advertisements, including the one on-Stalin calls for protecting India.
This decision was made in an arbitrary and mechanical manner without application of the mind, he said and noted that the party was not given an opportunity to be heard.
The senior counsel quoted a Supreme Court judgement, wherein, it was stated that no appeal against the decision of a tribunal will directly lie before the Supreme Court under Article 136 of the Constitution, but instead aggrieved party will be entitled to move the High Court under Articles 226 and 227.
He sought the court to exercise its jurisdiction and powers under Article 226 of the Constitution and pass appropriate orders on the petitions filed by the DMK.
Advocate Niranjan Rajagopalan, representing the ECI, submitted that the decisions of the SLMCMC headed by the CEO cannot be challenged before the High Court but it can be done only before the Supreme Court. He stated that an order of the Supreme Court, in this regard, has been extended time to time to all elections.
However, the bench asked him to explain whether such order was extended to the current polls too.