Thread by @barandbench

Saturday Hearing in #SupremeCourt

Justice AM Khanwilkar led bench of Supreme Court to shortly hear a plea seeking directions so that #COVID19 restrictions and guidelines are followed for the Uttar Pradesh panchayat polls counting day

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Bench assembles
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Advocate Shoeb Alam: Has your lordships received the two compilations filed?

Justice Khanwilkar: Let ASG Aishwarya Bhati join

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ASG Bhati: we had circulated a compendium today morning. can we request the court master to circulate it. My learned colleague Ruchira Goyal filed it. Its by the state.

ASG Bhati: all four stages of elections are over. before take you to the steps being taken by the state election commission to adhere to COVID guidelines. Please take a look at the data

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Justice Khanwilkar: the evolving situation is dynamic and what you thought sometime back may not be relevant. have you assessed the current situation

Bhati: we passed orders yesterday and day before yesterday

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ASG Bhati: these elections took place in four stages. Out of total 8 lac seats, counting only required for 2 lac seats. the two orders passed by the state commission is annexed. On April 29 the order is in sync with guidelines proposed by ECI for counting in assembly polls

Bhati: candidates who have negative covid rt pcr test or antigen will only be allowed in the counting centre. everyone has to wear fask and practice social distancing.

Justice Khanwilkar: at the time of entry along with negative report is temperature also checked

Bhati: yes

Bhati: Crowd should not gather and these are all mandated under the Disaster Management Act. The area will be sanitised. The tables will be kept at distances. Whoever has symptoms will not be allowed. no victory processions

Justice Khanwilkar: so multiple seats counting will happen at each centre. so each candidate can remain present or his representative?

Bhati: I have been told counting will be staggered and not all panchayat seats will happen together.

Justice Khanwilkar: where is guidelines?

Justice Khanwilkar: at macro level you have to decide whether you have to carry on the counting or you can defer it. Have you taken a call

Bhati: its a choice between devil and the deep sea. we have felt imperative and there is deficit of grassroots governance.

Bhati: thats why we have decided to go ahead with the counting. the rural nigrani committees play a crucial role in maintaining covid precautions in such areas. we are also bound by the high court directions. state has felt it is imperative counting is needed

Bhati: counting is required only for one fourth seats. senior officers are deputed at all 829 counting centres and take on the spot decisions on any aspect required.

Justice Khanwilkar: okay

Justice Khanwilkar: 2.40 lac seats have to count & 800 centres are there and each centre has to take a load of 300 seats. each seat will have 10 candidates. so we want to understand the nature of activity that will be required governance of high order needed, then 8000 candidate

Justice Khanwilkar: centre wise specific planning needs to be done by you

Bhati: all seats will not be counted at one time. only 8 tables will be set up at one time. time will be divided accordingly. everyone has info about when their seats are being counted

Bhati: most sought after the seat is for Gram pradhan.

Justice Khanwilkar: have you taken any first place decision to go ahead with counting taking into account the current situation. then comes aspect of staggered counting

Justice Khanwilkar: Have you applied your mind so that after two weeks situation is under control, with healthcare facilities.

Bhati: a considered decision has been taken in that regard. the entire administrative measures have been put in place for counting.

SC: cant the counting wait for two weeks so that medical infrastructure improves and situation also improves

Bhati: surge is still ahead of us and we have to take the decision with regard to disaster management act

Justice Kahnwilkar: what about situation will come up where you will tell us that at that moment, things were not under control. What happens at the counting centres, tensions build up in such centres

ASG Bhati: Counting is on Sunday because there is curfew in UP. We are confident that we will be able to control.

SC: curfew is tomorrow. how will you manage the situation on Monday and tuesday

ASG: curfew will be till Tuesday 7 am

SC: you will have to extend it then

ASG: it is not a bureaucratic or sluggish exercise. we are on our high guard

SC: if some matters have not been paid attention to the you have to look at it

ASG: if there is constructive suggestions on the other side we will take into account

Adv Alam: the counting needs to be deferred. Maharashtra state election commission has also kept the counting process in abeyance

Justice Khanwilkar: Maharashtra's situation is different.

Alam: I wanted to submit they have taken into account the severity and deferred it

Alam: we are dealing with ballot papers and 60 crore ballot papers were printed for this. total candidates were about 3.6 lakh candidates for the BDC and 50,000 candidates for Zilla Panchayat. 73 percent voting took place..

Alam: UP says social distancing and covid protocols will be followed but what is not being said is counting goes on for two to three days. in previous occasions counting could have been in 48 hours. here where we are attemtpoing to reduce numbers impossible to wrap up in 3 days

Judges discuss certain documents from the petitioner which have not been received

Alam: 600 teachers have lost their lives for conducting this election.

SC: How many teachers are required for counting

Alam: I may not have the exact number of teachers required. lacs and lacs of administrative staff is required

Alam: Allahabad HC has taken cognizance of those things

Justice Khanwilkar: but the hc permitted to go ahead with that.

Alam: the protocol was said down but not followed.

Adv Alam: It is a nationa emergency and a calamity we are all facing. These election centres are a bed of infection, nobody should be sent there. These elections can be deferred by at least two to three months

Justice Khanwilkar: We have to take into account the current situation into account. you keep telling us about the past. Situation is different today. we want to know if authorities have considered the current situation

Justice Khanwilkar to state: You are in the position to solve it and minimize the loss of life. Property and funds are not important. It is life which is the most important. If there is anything to be supplemented, then we will put it to the State.

SC: We are still not able to understand the counting centres. There will be hundreds of seats at these centres. What will be the staff numbers and where will be they? Some centres may not be so big and then how will they be accommodated?

ASG: Counting will happen in shift of 8 hours each and new officers will come in. sanitisation will take place. If it’s more than 75, then it will not happen. 75 is the maximum gap which has been fixed. These are essentially schools.

SC: You should have given one hypothetical situation. 75, you say, every centre will have 75 people handling the papers. How can candidates and representatives enter then inside?

ASG: If it exceeds 75, a broadcast system will be put in place and they can watch it outside

SC: almost 700 teachers have died to the elections what are you dong about it?

ASG: states which have no election they are also experiencing a surge. delhi has no elections but even then there is a surge. when polling started we were not in midst of second wave

ASG: we have not faced any lacunae that teachers are not available for counting

SC: Mr Alam pointed towards an application

Alam: UP prathmik shikshak has moved an application where representation was made to CM on April 29 stating number of deaths which has taken place

SC: where is the fact mentioned that deaths were due to COVID19?

Alam reads the application by teachers in Hindi: all these teachers died during duty of state polls

SC: Corona was the reason

Alam: yes that is their averment

Alam says applicant teachers association has a fear of death in them

Justice Khanwilkar: if the High court has dealt with this grievance then let us see it

ASG Bhati: high court had taken cognisance of this on April 27

ASG Bhati: Enquiry is going on and we will submit a reply before the High Court. media report says none of the covid protocol was followed and thus court took notice of it and the HC sought to know why actions should not be taken who did not take action

ASG Bhati: the high court will take it up again on May 3. enquiry has been initiated and it is still going on

Justice Khanwilkar: is it factually correct?

Bhati: it needs to be considered if they contracted COVID during elections or before polls. it is indeed a difficult probe

Alam: today the call of the moment is people should stay where they are. state is also saying stay in home. now for counting teachers have to travel from all over to centres. these ballot papers are also subjected to saliva for counting which can lead to mass spread

Alam: this counting can be deferred for a while so that at least some lives can be saved. SEC should themselves come forward and announce this.

Alam: our whatsapp messages and everything is flooded for helping people suffering from covid. polling staff has to be there in the centres. if a person is infected and not showing any symptom and number of people have normal temperature or spo2 levels then they will be allowed

Alam: Despite the mammoth spread on 27th and 28th even then counting is being carried out as per the state affidavit. thus this process should be deferred.

Adv Nikhil Majithia: around 700 staff has to be there in every centre. so there is a risk of spread..

Justice Khanwilkar: if 300 seats are in one centre there will be more than one candidate. but unless you have ready figures don't mention it.

Majithia: I appear for 200 employee associations and we requested to SEC that there has been loss of life thus we will not take part in counting process

SC: that's for you to decide. we are only dealing with situation at hand

Majithia: around 750 people of our own employees have passed away. covid protocols are not being followed

SC: we have taken note

Majithia: let this process be deferred that is our only submission

Adv Ram Kishore Yadav: elections were going to be held in December, 2020 and the government has delayed elections for five months. next 10 to 15 days will not make much of a difference.

SC: Why 10 days?

Yadav: till the situation improves My Lord

Yadav: each member gets atleast 80,000 votes and they need 8 to 10 counting agents. these agents are there from first-round till end, it may be two or three days. this data is from UP poll site. there are 3500 wards. nomination was received for 57,000 posts and 44,000 appeared..

Yadav: now Election commisison says they need rt pcr tests and these results will take 7 days and rapid antigen test kits are not available so candidates will not get counting agents. curefew on weekends is there and not for the polls.

Alam: state says total number of seats are 2,41,000 seats and counting will be for the same. if there are 5 candidates for each seat, then it will be...

SC: we are conscious of these facts and figures

Alam: if counting of polls carried ahead there has to be some responsibiity

Alam: UP is very idealist and believes covid protocols will be followed. my submission is it will not be followed.

ASG Bhati: none of the centres will have more than 150 officials and not more than 25 to 30 officials will be at one table. since its schools all tables in separate rooms. we are not shirking responsibility and we know we are walking on a tight rope

SC: In the April 29 circular it needs to be or but an in RT PCR and antigent test

Bhati: now we are making antigen test kits available at the counting centres

SC: but RT PCR test takes minimum of 24 hours

Bhati: since antigen kits are there in every centre all entering can get themselves tested

Khanwilkar: come to point one. it should be and and not or between rt pcr and antigent test

Bhati: we will put this to our officers and we will take this into account.

Bhati: mid may peak will be there. choice is between devil and deep sea. deferring it will throw the entire process in jeopardy. we can extend the curfew if counting exceeds

SC: there should be strict curfew when counting is on

Judges discuss order with each other
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Justice Hrishikesh Roy: there are 800 centres and if we say one officer identified by name and designation be entrusted to each centre. can you take instructions if that is possible to do if we allow the counting to take place

Justice Roy: the officer can be of someone in the joint secretary level

ASG Bhati: please give me a minute to discuss

Bhati: I have been informed Senior Administrative officials at the principal secretary IAS level is there allocated to each district to ensure covid protocols are followed

Justice Roy: we are talking about each centre

Bhati: you may make him responsible for all centres under district

SC: No, we are not on macro level

Bhati: please give me some minutes to discuss

Adv Alam: please also consider making CCTV cameras compulsory. concentration of people cannot be avoid beyond the counting centres. also please give us liberty to approach court in case there are violations

ASG Bhati: class I gazetted officer is appointed in each centre and UP will pass an order shortly stating they will ensure covid protocols are followed. We also have cctv cameras in place

SC: its also about protecting the footage recorded

Supreme Court dictates orders:

Justice Khanwilkar: plea to defer the polls was rejected after it was assured that essential measures to contain covid spread will be observed and guidelines issued by SEC and state will be followed. Fresh writ was filed later

Justice Khanwilkar: we have perused notifcations issued by SEC as on April 29 and April 30. the operative part mentioned will be observed by all without any exception. it is stated across the bar that curfew would be imposed in areas as identified by concerned authorities ...

Justice Khanwilkar: ...in and around counting centres to ensure all candidates and representatives visit the counting center and not general public. we are also assured that no victory rally will be allowed and it is placed on record.

Justice Khanwilkar: SEC states that changes will be made in April 29 notification where or will be read as and for candidates entering counting centre. CCTV recording will be done centre wise and preserved

Justice Khanwilkar: Curfew will continue till counting is completed in concerned counting centres. SEC has also agreed to notify names of person who shall be in charge of concerned counting centres and will be responsible for the concerned centre

Adv Alam: You can say that candidates or agents, every person should have RTPCR tests. Even the government employees therein

SC: although we dispose off the applications parties are at liberty to approach high court in case of issues which may arise later

Matter over

Adv Alam thanks the Supreme Court for holding a Saturday hearing

Justice Khanwilkar: Justice Roy has a personal difficulty and even then we have assembled here

Adv Alam: we are thankful to my lords for keep the show on and hold hearings during such times

SC: its a public service

ASG Bhati: I join my friend in this. we thank you

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