P.K. Sekar Babu v. The State Election Commissioner,Tamil Nadu Election Commission,Revathy Street, Vadapalani, Chennai & Ors

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 16..09..2008C O R A MThe Honourable Mr. A.K. Ganguly, Chief JusticeandThe Honourable Mr. Justice F.M. Ibrahim KalifullaWrit Petition No.22681 of 2008P.K. Sekar Babu.. Petitioner versus1.The State Election Commissioner,Tamil Nadu Election Commission,Revathy Street, Vadapalani, Chennai-26.2.The Chief Secretary,State of Tamil Nadu,Fort St. George, Chennai-9.3.The Commissioner of Police,Egmore, Chennai-8.4.The Commissioner,Corporation of Chennai,Ripon Buildings, Chennai-3... Respondents- - - - -Prayer : Petition filed under Article 226 of theConstitution of India for a writ of mandamus directing therespondents to conduct free and fair election by takingvideographs for the polling booths in respect of WardNos.18 and 44 of the Chennai Corporation and prevent theoutsiders unconnected with the respective Corporation Wardsfrom entering into the polling booths on the date ofelection, i.e. on 18.9.2008 or on any other subsequent datenotified by the first respondent as well as to theconsequent counting date by providing sufficient andnecessary police protection by Central Reserve Police Force(CRPF) on the basis of the petitioner's representationsdated 9.9.2008 and 13.9.2008 and also appoint anIndependent Observer to the election wards.- - - - - https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr. P.H. Manoj Pandiyan For Respondents-1 to 3 : Mr. J. Raja Kalifulla, Govt. Pleader for R1 to R3 For Respondent-4 : Mr. A. Mohammed Ghouse for R4- - - - -O R D E R( Delivered by The Honourable the Chief Justice )Heard the learned counsel for the parties. This writ petitionhas been filed, in public interest, by one Mr. P.K. Sekar Babu, whoclaims to be a Member of the Tamil Nadu Legislative Assemblyrepresenting the Radhakrishnan Nagar Assembly Constituency. He hasfiled this petition in order to ensure free and fair elections to twowards of the Corporation of Chennai, viz. Ward Nos.18 and 44, inwhich elections are to be held on 18.9.2008. 2. It appears that in Ward No.18, there are about 10,424 votersand there are about 12 polling booths. In Ward No.44, there are8,872 voters and there are about 9 polling booths. Out of the 10,424voters in Ward No.18, there are 5,195 men voters and 5,229 womenvoters. Out of the 8,872 voters in Ward No.44, there are 4,548 menvoters and 4,324 women voters. Out of the polling booths which havebeen set up in these two wards, there are some polling booths whichare meant solely for women and there are some solely for men andthere are some in which both men and women can cast their votes. Inall, it is going to be an election in which only there 19,296 votersdivided into 21 booths. Therefore, the arrangement is for about 900voters per booth. Admittedly, the elections will be conducted usingthe Electronic Voting Machines.3. Learned counsel for the writ petitioner submits that heapprehends that the elections will not be conducted in a free andfair manner. According to him, large number of antisocial elements,who are outsiders, are being allowed to enter the two wards inquestion and they will threaten and intimidate the genuine voters andwill invade the rights of the voters to exercise their franchise. Itis submitted that apprehending such eventualities, the petitioner hasmade a detailed representation to the State Election Commissioner andalso to the Chief Secretary of the State Government on 9.9.2008. Itis also submitted that in the last elections which took place to theCorporation of Chennai, several irregularities were committed and https://hcservices.ecourts.gov.in/hcservices/ after the elections were held, a writ petition challenging the saidelections was filed before this Court and this Court, by a majorityopinion by two learned Judges, as against one was pleased to holdthat the elections were not conducted in a free and fair manner andconsequently, the election in several wards was set aside. Learnedcounsel for the petitioner submits that the same thing may berepeated this year too.4. Learned Government Pleader appearing on behalf of therespondents, on the other hand, submits that for this year, in orderto ensure free and fair elections, two senior I.A.S. Officers havebeen appointed Election Observers. For Ward No.18, one Shri. P.M.Basheer Ahmed, I.A.S. has been appointed an Observer. He has givenhis first report about changing of some arrangements in certainbooths falling within Ward No.18. The other Observer who has beenappointed in respect of Ward No.44 is one Shri. Kosalaraman. He hasalso given his report in order to ensure free and fair elections.Learned Government Pleader further submits that the entire electionprocess will be videographed and the Chennai City Police has come outwith a Bundobast Scheme for holding such elections. He has handedover to us a booklet containing such scheme with various guidelines.Learned Government Pleader also submitted that the phone numbers ofthese two Observers have been already announced in newspapers and incase of any attempt to fudge the election process by anybody, theseObservers can be immediately contacted and a complaint can be lodged.Learned Government Pleader submitted that all steps have been takento ensure free and fair elections. 5. Learned counsel for the petitioner submitted that in the pastalso, similar assurance was given to the Court, which has beenrecorded in the order of a Division Bench of this Court dated11.10.2006 passed in Writ Petition No.38702 of 2006. The saidassurance is to the following effect :-"Learned Government Pleader appearing for the StateElection Commission has brought to our notice that as perthe Polling Officers Guide issued by the State ElectionCommission, and also the Model Code of Conduct issued byhim, only authorized persons can enter the polling booth,and states that the provisions of the Code shall bestrictly implemented. He also states that the Guidelinesrelating to Circular dated 26.9.2006 and the Minutes of theMeeting of the Election Commission with the top policeofficials dated 13.9.2006 shall also be strictlyimplemented." https://hcservices.ecourts.gov.in/hcservices/ Learned counsel for the petitioner submitted, despite the saidassurance which was recorded by this Court, the elections were notconducted in a free and fair manner and this could be seen from themajority judgment of the Division Bench of this Court.6. The importance of holding a free and fair election in ademocracy can hardly be over-emphasized. The Apex Court has heldthat a voter's right to cast his vote amounts to his freedom ofchoice and freedom of expression in favour of a candidate whom hewants to elect. Therefore, it partakes of a nature of a FundamentalRight under Article 19(1)(a) of our Constitution and it is the dutyof the State to protect the said right. This Court is of the opinionthat if there is any attempt at any quarter for infringement of thesaid right, a citizen can come to this Court praying for holding of afree and fair election. It has been held by the Supreme Court thatwhen there is a threat to a person's fundamental right, he canapproach the Court at the stage when the threat is there and he neednot wait till that threat is translated into actual practice – videD.A.V. College, Bhatinda vs. State of Punjab, A.I.R. 1971 S.C. 1731.7. The importance of protecting a citizen's right to vote hasbeen emphasized by the Supreme Court time and again and it has beenvery poignantly stated by a Constitution Bench of the Supreme Courtin the case of Mohinder Singh Gill vs. The Chief ElectionCommissioner, New Delhi reported in A.I.R. 1978 S.C. 851. JusticeV.R. Krishna Iyer, speaking for the majority of the judges in theBench, held that the election must be conducted according to a fairprocedure and in order to highlight the importance of a person'sright to cast his vote, the learned Judge quoted an eloquent passagefrom Sir Winston Churchill. We should do well to remind ourselves ofthe message emanating from those words :"At the bottom of all tributes paid to democracy isthe little man, walking into a little booth, with a littlepencil, making a little cross on a little bit of paper – noamount of rhetoric or voluminous discussion can possiblydiminish the overwhelming importance of the point."8. Considering all these well laid principles, we cannot dismissthe writ petition at this stage just because of the reason that thepetition has been filed on the basis of an apprehension. 9. However, we find that in the petition, the particulars aresadly lacking. We have repeatedly asked the learned counsel for the https://hcservices.ecourts.gov.in/hcservices/ petitioner to point out any particulars from which it will appearthat any attempt is made from any interested quarter for vitiatingthe election atmosphere. The learned counsel only could refer to hisrepresentation. We find that the representation of the petitionerhas been answered by the Secretary, Tamil Nadu State ElectionCommission by his communication sent to the petitioner dated15.9.2008. In the said communication, the Secretary, Tamil NaduState Election Commission, has assured the petitioner that allarrangements have been made to ensure free and fair elections. We,therefore, direct that the assurance which has been given to thepetitioner in writing in answer to the petitioner's representationmust be strictly followed by the State Election Commission. 10. The petitioner's apprehension is that there is entry ofoutsiders with antisocial record in the wards which are going topolls on 18.9.2008. This Court directs the third respondent to stepup its vigil in respect of the territorial limits of the wards inquestion from today in order to ensure that persons with questionablecriminal record or background are not allowed free entry in thoseareas. It is well known that on the eve of election, the police isentitled to effect preventive arrests for the purpose of maintenanceof law and order. The third respondent is, therefore, directed totake all possible steps to ensure that no person with criminalantecedents is given a free hand on the date of the election and thatno such person should be allowed to overpower or intimidate voters. 11. This Court has been informed that the voters' list itself isa printed one and it contains the photographs of all the valid votersprinted on it. In that view of the matter, this Court directs thatthe voters should be allowed to cast their votes on the basis oftheir voter identity cards or some other identifying documents andthat no person who is not a genuine voter and who is not carrying avalid voter identity card or an identifying document should beallowed to go within 200 meters of the polling booth. This is, ofcourse, subject to the condition that the candidates contesting theelections or their accredited polling agents and other pollingofficials or police personnel could be allowed to go within 200meters from the polling booth, but others should not be permittedinside the said area. This has to be ensured by the police. ThisCourt also makes it clear that no vehicle other than the vehiclesbelonging to the Officials should be allowed within 200 meters of thepolling booth. This also should be ensured by the police. 12. We have been assured by the learned Government Pleader thatthe polling booths will be videographed both from inside and outside. https://hcservices.ecourts.gov.in/hcservices/ This Court has been repeatedly assured by the learned GovernmentPleader that whatever might have happened in the past, it will not berepeated this time and the State Government is committed to ensurefree and fair elections. We hope and expect that the said assurancewould be honoured. 13. This Court also makes it clear that the aforesaid directionswhich have been given by this Court to the respondents also apply inthe case of the petitioner and it is made very clear that thepetitioner is also bound by these directions. 14. Recording the undertaking of the learned Government Pleaderand issuing the aforesaid directions, this writ petition is disposedof. There shall be no order as to costs. Consequently, M.P. No.1 of2008 is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. abTo1.The State Election Commissioner,Tamil Nadu Election Commission,Revathy Street, Vadapalani, Chennai-26.2.The Chief Secretary,State of Tamil Nadu,Fort St. George, Chennai-9.3.The Commissioner of Police,Egmore, Chennai-8. https://hcservices.ecourts.gov.in/hcservices/

4.The Commissioner,Corporation of Chennai,Ripon Buildings, Chennai-3.+ 2 CC To Mr.P.H.Manoj Pandian, Advocate SR NO.52457+ 1 CC To Mr.A.Mohamed Gouse, Advocate SR NO.52592+ 1 CC to the Government Pleader SR NO.52481 Writ Petition No.22681 of 2008SCD {CO}TP/17.9.08