Shanimol Usman vs The Election Commission Of India
2021 Latest Caselaw 10915 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

              THE HONOURABLE MR.JUSTICE N.NAGARESH

 SATURDAY, THE 03RD DAY OF APRIL 2021/13TH CHAITHRA, 1943

                     WP(C).No.8891 OF 2021


PETITIONER:

              SHANIMOL USMAN
              AGED 54 YEARS
              W/O.ADV.A.MOHAMMED USMAN, CANDIDATE,
              AROOR LEGISLATIVE ASSEMBLY CONSTITUENCY,
              ALAPPUZHA DISTRICT,
              RESIDING AT POOPPARAMBIL HOUSE, ALUSSERY WARD,
              HEAD POST OFFICE, ALAPPUZHA - 688 001.

              BY ADVS.
              SRI.GEORGE POONTHOTTAM (SR.)
              SRI.A.L.NAVANEETH KRISHNAN
              SMT.NISHA GEORGE

RESPONDENTS:

     1        THE ELECTION COMMISSION OF INDIA
              NIRVACHAN SADAN, ASHOKA ROAD,
              NEW DELHI - 110 001,
              REPRESENTED BY ITS SECRETARY.

     2        THE CHIEF ELECTORAL OFFICER
              KERALA, ELECTION DEPARTMENT,
              KERALA LEGISLATIVE COMPLEX,
              VIKAS BHAVAN P.O.,
              THIRUVANANTHAPURAM - 695 033.

     3        THE RETURNING OFFICER
              NO.102, AROOR ASSEMBLY CONSTITUENCY,
              (JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
              (GENERAL)), MULLAKKAL, ALAPPUZHA,
              ALAPPUZHA DISTRICT - 688 011.

              R1-3 BY ADV. SHRI.DEEPU LAL MOHAN, SC, ELECTION
              COMMISSION OF INDIA

     THIS WRIT PETITION (CIVIL) HAVING COME UP             FOR
ADMISSION ON 03.04.2021, THE COURT ON THE SAME             DAY
DELIVERED THE FOLLOWING:
 WP(C) No.8891/2021
                                 :2 :




                        JUDGMENT

~~~~~~~~~

Dated this the 3rd day of April, 2021

The petitioner, who is a candidate contesting in

Aroor Legislative Assembly Constituency, is before this Court

seeking to direct the 1st respondent to permit videography of

the polling proceedings in booths, where there are double

votes, at the expense of the petitioner, in terms of the

directions issued by the 1st respondent. Incidental reliefs are

also sought for.

2. The petitioner would contend that there are more

than 2573 double votes in the Constituency where the name

of voters appears more than in one place. Ext.P1 is a list

drawn by the petitioner in respect of such double votes. The

petitioner submitted Ext.P3 letter to the Chief Electoral Officer

requesting to take necessary steps to avert the possibility of

double voting. However, no positive action is taken, WP(C) No.8891/2021

contended the petitioner.

3. The petitioner would point out that as per Ext.P4

Circular dated 17.01.2007 of the Election Commission of

India, video or digital photography of the proceedings inside

the polling station is permitted. The petitioner further pointed

out that a Division Bench of this Court has considered the

issue of large scale double votes, in W.P.(C) No.8034/2021

and has given general directions to avert double voting by any

voter.

4. The learned Senior Counsel assisted by the

counsel for the petitioner, relying on the judgment in Janak

Singh v. Ram Das Rai and others [(2005) 2 SCC 1], argued

that the Hon'ble Apex Court has suggested deployment of

Central Paramilitary Forces not only for keeping law and order

situation outside the polling booths but also inside the polling

stations and vote counting centres, so that local administrative

staff cannot use the powers available to them in favour of any

candidate. The Apex Court also suggested installation of

electronic gadgets for video recording and its exhibition and WP(C) No.8891/2021

close circuit cameras inside the polling station. The Apex

Court as well as this Court were conscious of the fact of

electoral manipulations by double voting and it is under such

circumstances that the Apex Court in the judgment in Janak

Singh v. Ram Das Rai and others (supra) and the Division

Bench of this Court in W.P.(C) No.8034/2021 have given

remedial suggestions/directions.

5. The learned Senior Counsel urged that the double

vote in the Constituency of the petitioner is majorly

concentrated in 39 booths and booth numbers of such polling

booths are given in paragraph 10 of the writ petition. The

learned Senior Counsel contended that if videography of the

proceedings in these booths are permitted, the casting of

double votes can easily be curbed.

6. The learned Standing Counsel for the Election

Commission of India contended that the Election Commission

has already made arrangements for webcasting of electoral

proceedings in 46% of the polling stations. The Election

Officers have made verification and an ASD list has been WP(C) No.8891/2021

given to all political parties. The political parties are also at

liberty to give a list of such double votes, to the respondents.

Voting by such voters, who have double votes, will be verified

and monitored. These steps will be sufficient to prevent the

likelihood of double voting.

7. The learned Standing Counsel further contended

that Rule 49J of the Conduct of Elections Rules, 1961

provides for challenging of identity of electors. Learned

Standing Counsel further pointed out that Rule 49K of the

Conduct of Elections Rules provides for safeguards against

personation. Every elector about whose identity the presiding

officer or the polling officer, as the case may be, is satisfied,

shall allow his left forefinger to be inspected by the presiding

officer or polling officer and an indelible ink mark to be put on

it. In the present elections to the State Legislative Assembly,

the respondents have also directed that whenever a voter,

who is allegedly having more than one vote, casts his vote in

any polling booth, such voter will be made to remain in the

polling station till the indelible ink is dried. This would be WP(C) No.8891/2021

sufficient safeguard against double voting, contended the

learned Standing Counsel.

8. I have heard the learned Senior Counsel assisted

by the learned counsel for the petitioner and the learned

Standing Counsel appearing for the respondents.

9. As stated by the learned Standing Counsel for the

1st respondent, in 46% of the polling stations, arrangements

are already made for webcasting of polling process. Other

safeguards like exchange of ASD list have also been made.

10. The petitioner has pointed out certain polling

booths where there are a large number of double votes. It is

the apprehension of the petitioner that if any of those booths

are not covered by 46% polling booths, where the Election

Commission has already decided webcasting, then the double

votes casted in the remaining booths may affect the result of

the election. Therefore, in all the booths pointed out by the

petitioner in paragraph 10 of the writ petition, either

webcasting should be done or the candidates should be

permitted to videograph the entire election process, WP(C) No.8891/2021

contended the learned counsel for the petitioner.

11. It is to be kept in mind that now only less than 72

hours are remaining for the conduct of polling. In such

circumstances, there cannot be any mandatory direction to the

Election Commission which would affect the free flow of

election.

12. However, the respondents have a duty to see that

double voting is not permitted and necessary effective

remedial measures are taken following the general guidelines

given by the Division Bench of this Court in W.P.(C)

No.8034/2021.

In such circumstances, the writ petition is disposed

of with a direction to respondents 1 and 2 to consider whether

the polling booths identified by the petitioner in paragraph 10

of the writ petition are covered by the webcasting

arrangements already made in 46% polling booths. If there

are any booths mentioned in paragraph 10 of the writ petition

remaining not covered by these arrangements already made,

respondents 1 and 2 may consider the number of double WP(C) No.8891/2021

votes existing in those booths as indicated by the petitioner in

the writ petition and consider the feasibility of webcasting or

videographying the election process inside such polling

booths.

Sd/-

N. NAGARESH, JUDGE

aks/03.04.2021 WP(C) No.8891/2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE LIST SHOWING THE PERSONS HAVING DOUBLE VOTES INCLUDED IN THE VOTERS LIST PREPARED BY THE 1ST RESPONDENT FOR AROOR CONSTITUENCY.

EXHIBIT P2 TRUE COPY OF THE LIST SHOWING THE FATHER'S NAME/HUSBAND'S NAME OF SOME OF THE PERSONS INCLUDED IN EXHIBIT P1 LIST.

EXHIBIT P2(A) TRUE COPY OF THE RELEVANT PORTION OF THE VOTERS LIST IN BOOTH NO.88 OF AROOR ASSEMBLY CONSTITUENCY.

EXHIBIT P2(B) TRUE COPY OF THE RELEVANT PORTION OF THE VOTERS LIST IN BOOTH NO.156 OF AROOR ASSEMBLY CONSTITUENCY.

EXHIBIT P2(C) TRUE COPY OF THE RELEVANT PORTION OF THE VOTERS LIST IN BOOTH NO.96 OF AROOR ASSEMBLY CONSTITUENCY.

EXHIBIT P2(D) TRUE COPY OF THE RELEVANT PORTION OF THE VOTERS LIST IN BOOTH NO.101 OF AROOR ASSEMBLY CONSTITUENCY.

EXHIBIT P3 TRUE COPY OF THE LETTER DATED 10/03/2021 ISSUED BY THE PETITIONER TO THE CHIEF ELECTORAL OFFICER, KERALA.

EXHIBIT P4 TRUE COPY OF THE LETTER NO.447/2007-

PLN-IV DATED 17/01/2007 ISSUED BY THE ELECTION COMMISSION OF INDIA.

EXHIBIT P5 TRUE COPY OF THE LETTER NO.464/INST/2009/EPS DATED 03/03/2009 ISSUED BY THE ELECTION COMMISSION OF INDIA.

WP(C) No.8891/2021

EXHIBIT P6 TRUE COPY OF THE LETTER NO.33870/B1/2020/SEC DATED 09/11/2020 ISSUED BY THE STATE ELECTION COMMISSION.

EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 01/04/2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 01/04/2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 31/03/2021 IN W.P.(C) NO.8629/2021 PASSED BY THIS HON'BLE COURT.