1. Supplementary affidavit of the Election Commission presented in Court is taken on record. This shall be read as part of I.A. No.2. We have heard Shri R.K. Garg, learned Senior counsel for the Election Commission and the learned Attorney General for the Union of India. Some of the learned Advocates General of the High Courts also expressed their views.
2. This order disposes of that part of I.A. No. 2 which pertains to the controversy between the Election Commissioner on the one hand and Governments of States and the Union of India on the other in, regard to the prescription of the number of 'Observers' of the level of Joint Secretary/ Director to be deployed by the Election Commission.
3. There seems to be a wide divergence in the assessments of the requirements in this behalf between the Election Commission which estimates the number of Observers at 400, and of the estimates of the Union of India which places the number at about 160. In suggesting the figure of 160, the Union of India, we are told, has also put in to the scales, the minimal requirements of the regular day-to-day administrative needs and the number of officers that could be spared to the Election Commission without prejudice to and consistent with the needs of the day-today administrative requirements.
4. The controversy placed before the Court for its directions is not susceptible of any easy solution as it essentially lacks an adjudicative disposition. There are no judicially manageable standards to assist the Court in adjudicating the issue. This is essentially an area of professional expertise in security management. Generally speaking, "the courts are hesitant to review operational decisions of the police or tell them how and when to exercise their powers in specific situations as the court is not in a position to determine what action particular situations will require. Nor will the courts review the disposition of forces and the allocation of resources to particular crimes or areas." (See Judicial Remedies in Public Law: Clive Lewis). This is not so for want of jurisdiction but for absence or inadequacy of judicially manageable standards.
5. Having regard to the urgency of the matter and our concern that any impasse that may develop in an area of utmost public concern in the ensuing elections is not desirable, we think, we should issue these interim directions:
(a) The Election Commission will, in respect of each State have a consultative meeting of its experts/advisors or nominated officers with the Chief Secretary, the Home Secretary, the Director General of Police and Inspector General of Police (Security and Intelligence) of the concerned State; the Director General of Intelligence Bureau, Government of India and the Home Secretary, Government of India or his nominee, to discuss and evolve standards on the basis of which an assessment of the number of Observers for each State could be determined.
(b) This exercise will have to be done separately with regard to each of the States going to polls.
(c) If the Election Commission accepts the proposals evolved at the consultative meeting, the Commission may adopt the same. But if it does not accept, the assessment valued at the meeting shall not be taken as binding on the Election Commission but shall form the basis for the Election Commission to make a reasonable assessment of the requisite number of observers to be followed up by a requisition to the Executive to make available the number of Observers to be deployed in the electoral process and in case that requisition is not accepted, to seek directions from this Court.
(d) This exercise in all the States going to the polls may be completed within a period of ten days from today.
(e) The Election Commission will immediately inform the Chief Secretary/Home Secretary of each of the States and the Home Secretary, Government of India and Director General (Intelligence Bureau) as to the date and time of meeting with regard to the concerned State.
(f) This exercise would give the Court some assistance in evolving some standards, if it becomes necessary to evolve these standards by a judicial order in view of para(c) above.
6. List on Thursday afternoon.