Election; K.M. Reghunath Vs. Inspector General of Police [Kerala High Court, 12-04-2011]

Constitution of India, 1950 – Article 226 – Election Law – Police Protection – Election commission must strictly ensure that the personal political preferences of the employees deployed for election duty do not in any way interfere with their functioning as officers/personnel in connection with the elections.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

R. Basant & K. Surendra Mohan, JJ.

Dated this the 12th day of April, 2011

W.P. (C) No. 10783 of 2011 W.P. (C) No. 11063 of 2011 W.P. (C) No. 11138 of 2011 W.P. (C) No. 11170 of 2011 W.P. (C) No. 11188 of 2011 W.P. (C) No. 11244 of 2011 W.P. (C) No. 11366 of 2011 W.P. (C) No. 11395 of 2011 W.P. (C) No. 11492 of 2011 W.P. (C) No. 11611 of 2011 W.P. (C) No. 11615 of 2011 W.P. (C) No. 11618 of 2011 W.P. (C) No. 11620 of 2011 W.P. (C) No. 11623 of 2011 W.P. (C) No. 11625 of 2011 W.P. (C) No. 11837 of 2011 W.P. (C) No. 11847 of 2011 W.P. (C) No. 11868 of 2011 W.P. (C) No. 11879 of 2011 W.P. (C) No. 11884 of 2011 W.P. (C) No. 11891 of 2011 W.P. (C) No. 11952 of 2011 W.P. (C) No. 12249 of 2011 W.P. (C) No. 12292 of 2011

For Petitioner: Sunny Mathew; For Respondents: T.K. Vipindas; Murali Purushothaman

J U D G M E N T

R. Basant, J.

1. Kerala, the State which boasts of 100% literacy, the State which takes pride in the healthy democratic culture that prevails in the State and which calls itself God’s own country – thanks to the commercial tourist jargon, is going to the polls tomorrow. It is now time for eleventh hour police protection petitions in this Court. These eleventh hour police protection petitions, if they are genuine and bona fide, must persuade us to hang our heads down in shamel. If there is such rampant perception that the polls would be marred by violence and unacceptable practices, there is definitely something fundamentally wrong in our democratic culture and traditions. We would like to wish away the apprehensions raised in these petitions as tensed responses of over cautious mind. But the number of the petitions and the nature of the allegations in the petitions persuade us to take them seriously and consider the same in detail.

2. We do so because we think that there are substantial issues at stake. The story of independent India has been the story of patience, hope and success of that small man with a small ballot paper, with a small pencil, waiting patiently in front of the polling booth to exercise his duty as part of the sovereign of this mighty country. Our progress may not have been spectacular, our development may have been inadequate, but as a nation, we pride that democracy has survived in this country. Mere survival may be a negative virtue. But in the Indian context the most outstanding achievement that the post independence generation can show case to this world is that survival despite heavy odds against this democratic experiment. Any threat to the democratic way of life in this country, exemplified by the periodic regular and apparently peaceful poll exercise, must therefore be deterred by every member of the polity. Courts can be no exception. These petitions though belated and filed on the eve of the closing of the Courts must hence necessarily receive our quality consideration.

3. In all, 24 petitions have been filed claiming police protection. They relate to 22 assembly constituencies. 4 petitions relate to two constituencies – Vamanapuram and Nadapuram. Others relate to 22 different constituencies. Some petitions are filed by the candidates themselves, while some others have been filed by agents / representatives acting on behalf of such candidates. The petitions have been filed belatedly. They have been filed between 06-04-2011 and 12-04-2011. In all petitions filed till 08-04-2011, notice was ordered to the Election Commission and we must note with appreciation that the Election Commission within such a short time has filed detailed counter statements in all those 15 matters explaining various steps taken and giving its response to various grievances raised by the petitioners.

4. The remaining petitions have been filed yesterday and today and in these circumstances, we have not been able to ascertain specific responses of the Election Commission to the assertions in those petitions. The learned Standing Counsel for the Election Commission was given notice. In such petitions also, general submissions in response have been made by the learned Standing Counsel Shri Murali Purushothaman for the Election Commission. In one petition, WP (C) No. 11891 of 2011, the Election Commission has not formally been arrayed as a party, evidently by oversight. Notice of that petition was also given to the learned Standing Counsel for the Election Commission. He has made his submissions in that petition also. In some of the petitions, the opposite party / rival contestant has been arrayed as a party. We have not chosen to issue notice to such respondents. The common prayer in all these petitions can be summarised thus: Purity of election may be maintained and the stream of fair, free and fearless election may not be permitted to be polluted.

5. The counsel wanted us to note that 22 out of these 24 petitions with the exception of one independent candidate from Vamanapuram assembly constituency and one LDF candidate from Nadapuram Constituency have been filed by UDF candidates. The argument is that this is indicative of the fact that violence is apprehended from the LDF candidates / supporters predominantly. To the statistician, this may be relevant. But for a Court, this input cannot persuade the Court to come to any conclusion as to who is at fault and who is likely to indulge in violence. We take note of that submission. But no conclusion or even impressions can follow from that circumstance.

6. We are choosing to dispose of these petitions by this common judgment. All the counsel for the petitioners have advanced arguments. The learned Government Pleader and the standing counsel for the Election Commission have responded to the arguments. It is unnecessary to advert specifically to the contentions raised in each of these 24 petitions. Suffice it to say that, the petitioners have raised their apprehension that there may not be free and fair elections. After having heard counsel, we identified the following seven broad blanks which are advanced by the petitioners to justify their apprehension that the ensuing polling may not be free and fair.

i) Identification by the Election Commission of polling stations as sensitive, more sensitive, troublesome, vulnerable etc. is not properly done on sound principles.

ii) The five measures pressed into service by the Election Commission to meet the threat to free and fair election are not employed diligently in respect of some of the booths in the assembly constituencies to which these petitions relate.

iii) Voter population may be deterred, particularly, the vulnerable section of women voters, from coming to the booth because of the climate of violence outside.

iv) Agents of candidates may not be permitted to reach the booths.

v) The arrangements made may not be sufficient to ensure a fearless atmosphere inside the booths.

vi) Bogus voting by false impersonation may be rampant.

vii) The officers deputed in connection with the polling duty may not Act fairly and may be have in a partisan manner.

7. The various petitions filed and the arguments advanced, highlight the above inadequacies with particular reference to the constituencies in question. The broad prayer made is that adequate police force may be deployed; directions may be issued to ensure that Central Paramilitary Force (CPMF) are available inside the booths; that videography may be done in all the booths or at least in the booths pointed out by the petitioners and if it is not possible for the Election commission to arrange such videography, candidates / petitioners at their expenses may be permitted to do the videography.

8. The Election Commission in its response and in the course of submissions of standing counsel submits that the schedule has all been fixed after considerable forethought. Before us, the detailed instructions given in connection with the polling have been placed. The Election Commission is more interested than anyone else in ensuring that elections go on and the free and fair nature of the election is not in any way endangered, submits the standing counsel. It is too late now and if any specific directions were issued in respect of each Constituency, it may be difficult for the Election Commission now to reschedule the arrangements in the very short time that is available before the actual commencement of polling. All possible steps have been taken and every direction of this Court shall be followed also if any special direction are found to be necessary, submits the learned standing counsel for the Election Commission. In respect of the seven specific areas of controversy, detailed submissions have made. We will advert to them and later we will consider those specific grievances.

9. The learned Government Pleader on behalf of the State submits that the Election Commission under its supervision is conducting its election. All necessary arrangements have been made by the State to give support to the Election Commission. Employees have been placed at the disposal of the Election Commission and they under law are deemed to be on deputation to the Election Commission. If there be any inadequacy or impropriety on their part, it is for the Election Commission to take action against them. So far as the State is concerned, every effort shall be made to support the Election Commission to ensure that free and fair poll takes place without any possibility of violence, submits the learned Government Pleader.

10. We shall now proceed to consider the seven specific areas of objections raised.

11. The first objection is about the classification of booths / polling stations as sensitive, most sensitive, troublesome, vulnerable etc. by the Election Commission. Petitioners have a grievance that some of the polling stations must have been categorised differently by the Election Commission. It is submitted that in some of the constituencies, the candidates have not been permitted to do any proper election campaign. The climate of violence prevailing in such constituencies have made it impossible for the candidate belonging to the opposition to do proper electioneering. The worries of the candidates and their political parties have been conveyed to the Election Commission, but the Election Commission has not categorised the booths appropriately. Judged from past events and the history of some of the booths, they must have been put on the highest alert. The first objection raised is that the categorization is not proper and correct.

12. The learned standing counsel for the Election Commission submits that the Election Commission had not mechanically accepted the statements of the political parties, but they have been duly considered and given effect to. All the available inputs have been collected by the Election Commission before mapping each constituency. The Constituencies have been categorized as sensitive, most sensitive, troublesome, vulnerable etc. on the basis of the authentic inputs that are available. The learned standing counsel submits that even these categorisations are not final. As we proceed to the time of polling, events may develop and if there be any instance warranting the alteration of categories, the same shall also be done by the Election Commission. If there be some untoward incident in one polling booth or in one constituency, required additional care shall be bestowed and necessary action shall be taken to ensure that free and fair polling is not affected. In these circumstances, the learned standing counsel contends that the mere fact that the categorization has not been acceptable to some of the political parties, candidates or their agents is not enough for this Court to issue any specific directions at this belated hour.

13. The assurance of the Election Commission may be accepted as the categorization done already is not conclusive and depending upon the developing situation, appropriate and necessary action shall be taken.

14. We have considered the objections on this aspect and the explanation offered. We accept the submission of the Election Commission. We expect the Election Commission to make necessary alteration of plans and to ensure that sufficient forces are deployed and sufficient corrective measures are taken depending upon the exigencies in each booth and in each constituency.

15. The second common objection raised is that the prescriptions made by the Election commission for the various booths in the constituencies are not adequate. According to the Election commission, mapping has been done. Vulnerable and sensitive booths have been identified.

# To ensure a peaceful, free and fair election, the following five steps are taken by the Election Commission.

# i) Deployment of outside Central forces.

# ii) Live Web casting will be done from selected polling stations – viewed by District Election Officers / Chief Electoral Officer / Election Commission of India level.

# iii) The entire proceedings in identified booths where video camera is arranged will be recorded and photographs of all electors who enter the polling station will be taken.

# iv) Voter identity card / voter slip to be issued by the Election Commission of India will be verified outside the polling station itself before allowing to enter the polling stations.

# v) Micro Observers will be selected and posted by Central Observers.

16. The grievance of the petitioners is that in some of the booths, micro observers have been posted while in some others which are equally critical, such micro observers have not been posted. Central Paramilitary forces have been posted in some booths, but they have not been deployed in some others of equal criticality. Videography and digital cameras have been deployed in some booths, while in others the same has not been done. Web casting also is not similarly proposed to be done in some of the booths while in some others the same has been done. In respect of the 15 petitions, filed prior to 08-04-2011, the Election Commission has filed detailed statements showing the steps, taken in the relevant booths.

17. The learned standing counsel for the Election Commission submits that it is not practically possible or feasible for the Election Commission to employ all the five remedial measures shown above in all the booths concerned. Exercise of discretion by the election officers is necessary depending upon the needs of each booth. Considered and evaluated in the light of the past events and the experiences, the Election Commission has chosen to prescribe the remedial measures that are required for each booth. This has been done with great care. If necessary, additional facilities can be provided for each such booths, if circumstances warrant such deployment.

18. Perhaps, ideally, it can be said that all the five remedial measures could have been employed in all the booths in question, but pragmatism dictates that it would be idle for this Court to hold that all the five remedial measures must invariably be deployed in all the booths. We have rendered our consideration to the materials available. We are, unable to hold on the basis of the materials presently available that the Election Commission has not exercised informed choice of methods that must be deployed in each booth. How things turn out will have to be assessed later. But at the moment, we are of the opinion that it is not necessary for this Court to intervene and issue any specific direction in respect of any booth to employ additional safeguards / measures referred above also. We find merit in the submission of the learned Standing Counsel for the Commission that it may not be possible for the Commission to arrange videography in all booths. Permitting private videographers inside the booth without prior planning may create more problems than they are likely to be solved, we accept. We accept the undertaking that wherever necessary videography shall be employed even now. We do expect the Election Commission to ensure that wherever necessary, additional measures are also taken of the five measures indicated above to ensure free and fair election.

19. The third objection raised is that the voter population may be deterred from coming to the booths because of the climate of violence outside. This may particularly affect the turn out of woman volts, it is urged specifically. In some of the areas, violence is employed to deter voters approaching the election booths to cast their votes. This has to be prevented, submits the learned counsel for the petitioners.

20. The learned standing counsel for the election commission as well as the learned Government Pleader counter this contention. To allay unnecessary apprehensions, necessary steps have already been taken. Route marches of police and Central paramilitary Force have been held in constituencies which are potentially troublesome. Sufficient publicity has been given to educate voters that if there be any obstruction to free and fair exercise of their franchise, they can complain to the officials. Prompt action shall be taken by the Election Commission and the State, we are assured. It is the duty of the respondents to ensure zealously that no voter is deprived of his right to exercise his franchise on account of obstruction or the climate of violence which is said to prevail in some areas / booths. We expect the Election Commission and the State to take necessary action. We accept their assurance. We find no reason to issue any specific directions in this regard in respect of any constituency or polling station.

21. Fourthly, it is contended that even if booth agents or candidates may be given protection and support after they enter the booth, there is real possibility of the booth agents being threatened and being deterred from coming to the polling booths. Necessary action may be taken by this Court. In this regard, it is submitted. No specific instances are pointed out. If there were such specific allegations, probably, this Court could have issued specific individual directions to afford protection for such booth agents. We are assured by the learned standing counsel for the Election Commission and the learned Government Pleader that if there be any such specific complaints of the booth agents not being able to reach the booths ecause of unjustified illegal obstruction, they can pass on the information in the toll free number that has been provided and immediately appropriate action shall be taken. Vague submissions cannot evoke any specific or positive action from this Court, in the circumstances of these cases, we have to accept the submission of the standing counsel for the Election Commission and the learned Government Pleader that if there be any complaint about illegal obstruction of booth agents, necessary action shall forthwith be taken. Such booth agents can certainly make use of the toll free complaint number that has been provided.

22. Fifthly, the apprehension is aired that there may be violence inside the booths interfering with the right of the voter to cast his vote freely and fearlessly. The learned standing counsel for the Election Commission assures the Court that all necessary steps have been taken to ensure that there is no possibility of any semblance of violence inside the booths. Only after verifying the electoral identity card and the voters slip shall any person be permitted to approach the booth. Possibility of presence of others in the booth is thus effectively excluded. Sufficient forces are deployed outside the booth and wherever necessary inside the booth also. In these circumstances, the apprehension aired that there may be violence inside the booth does not appear to be justifiable, contends the learned standing counsel. We find, force in that submission.

23. Sixthly, it is contended that bogus votes by impersonation may be polled. It is the bane in some parts of the state that there is indiscriminate and violent resort to impersonation and casting for bogus votes, submits counsel. The petitioners vehemently request that appropriate preventive measures may be ordered and protection may be afforded to prevent casting of bogus votes by impersonation in any constituency.

24. The learned standing counsel for the Election Commission submits that at least in this election, such possibility must be reckoned as non – existent or remote. No person can cast his vote unless he has with him the electoral identity card issued to him or the voters slip issued by the Election Commission. The identity card and the voters slip issued by the Election Commission has the photograph of the voter in them. It is easy for anyone to verify the identity of the voter because of the availability of the photographs in these two indispensable documents. The learned Standing counsel further points out that it is the burden of the Presiding Officer also to ensure that the identity of the voter is established by perusal of either the electoral identity card or the voters slip. Only therafter shall he be permitted to cast his vote. Those without these vital documents shall not be permitted to vote. Before they are permitted to vote, their identity will be verified by the Presiding Officer also. Whether there is challenge or not, the identity of the voter will be identified by the Presiding Officer. In these circumstances, the apprehension about the bogus votes by impersonation is non – existent and the Election Commission hopes to ensure that atleast in this election in Kerala, there is no such possibility of bogus votes by impersonation.

25. We find considerable force in that submission. If the process in the election booth is observed, followed and done in accordance with the rules, we find it rather difficult, nay impossible, for any person to cast bogus votes by impersonation as the photographs of such impersonator is unlikely to tally with the photograph in the voters slip and the electoral identity card issued by the Election Commission. Reasonably, therefore, we find no merit in this sixth apprehension expressed by the petitioners.

26. Lastly and seventhly, the contention is advanced that notwithstanding all the arrangements made by the Election Commission, the staff employed by the Election Commission in the booths may not Act independently and in an unbiased manner. It is submitted that the services of government servants and employees of public sector undertakings are utilised in the booths. They belong to a highly politicized group. In these circumstances, the petitioners express the apprehension that inside the booth the polling staff may behave in a partisan and biased manner. They may Act to help the party of their choice. That has to be effectively prevented. Independent observers may hence be posted in all the booths, it is prayed.

27. The learned standing counsel for the Election Commission counters this apprehension by stating that care has been taken to ensure that there is proper selection and training of personnel. It is unlikely that an atmosphere of partisanship and bias would be there in the polling booths. Wherever the commission felt it necessary, micro observers are posted in the booths concerned. There is no possibility for the apprehension conveyed by the petitioners actually materialising. The learned standing counsel points out that all the officers deployed for polling duty are deemed to be the employees of the Election Commission. Appropriate action shall be taken, if there is any element of partisanship or biased nature in the functioning of the polling officials. It is pointed that under law, the officers on duty are deemed to be on deputation to the Election Commission and action if any against the officers / men deployed for election duty is to be taken by the election Commission.

28. Be that as it may, we do not feel that the apprehension expressed by the petitioners are unfounded. We deem it necessary to Emphasise that the Election commission must strictly ensure that the personal political preferences of the employees deployed for election duty do not in any way interfere with their functioning as officers / personnel in connection with the elections. We expect the election Commission to alertly and strictly Act to ensure that no such employee / official deployed for election duty deviates from the path of propriety and virtue expected from him. Deterrent action will definitely have to be taken by the Election Commission to eliminate this possible malady. We accept the assurance of the Election Commission that the needful shall be done.

29. We have considered all the specific planks of objection raised by the petitioners. We have taken note of the response of the Election Commission and the State. Certain observations have been made by us above. We are satisfied that no further specific directions in respect of any particular booth or constituency is necessary. Accepting the submissions on behalf of the Election Commission and the State we are satisfied that these petitions can now be closed with the above observations.

30. We must alertly remind ourselves that peaceful polling and free and fair elections cannot merely be left to the Election Commission or the police. Members of the polity will have to realise the importance of exercise of franchise. Everyone concerned will have to show the requisite sense of responsibility. This includes the political parties as well. We would certainly expect all political parties before the poll starts tomorrow to call upon their rank and file to eschew violence. We would like them to declare that if there be any violence they are unlikely to get support of such political parties. That perhaps, it appears to us, can be the final assurance for a free and fair poll. Infrastructure has to be provided by the Election Commission. All necessary steps have to be taken by the Commission. But success of the election lies in the mindset of political parties, their leaders, their workers and finally of that little man with a bit of paper in his possession and waiting with a pencil to mark his preference. We do expect that undertakings given to us shall be complied with strictly and it shall be ensured that the election shall be conducted tomorrow in a fair and free manner.

31. With the above observations we allow these petitions in part to the above extent.

32. Hand over copy to all.

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