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.