Kerala High Court
Varkala Kahar vs The Election Commission Of India on 19 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
FRIDAY, THE 19TH DAY OF APRIL 2024 / 30TH CHAITHRA, 1946
WP(C) NO. 16024 OF 2024
PETITIONER:
VARKALA KAHAR
AGED 73 YEARS
CHIEF ELECTION AGENT OF SRI. ADOOR PRAKASH, CONGRESS I
CANDIDATE, ATTINGAL PARLIAMENTARY CONSTITUENCY,
THIRUVANANTHAPURAM DISTRICT., PIN - 695141
BY ADVS.
NISHA GEORGE
A.L.NAVANEETH KRISHNAN
SIDHARTH.R.WARIYAR
RESPONDENTS:
1 THE ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN, ASHOKA ROAD, NEW DELHI REPRESENTED BY
ITS SECRETARY, PIN - 110001
2 THE CHIEF ELECTORAL OFFICER KERALA
ELECTION DEPARTMENT, KERALA LEGISLATIVE COMPLEX, VIKAS
BHAVAN P.O., THIRUVANANTHAPURAM, PIN - 695033
3 THE DISTRICT COLLECTOR/ELECTION OFFICER
DISTRICT COLLECTORATE, CIVIL STATION, KUDAPPANANKKUNNU,
THIRUVANANTHAPURAM, PIN - 695043
4 THE ELECTORAL REGISTRATION OFFICER/ TAHSILDAR
ATTINGAL PARLIAMENTARY CONSTITUENCY, ATTINGAL TALUK
OFFICE, CIVIL STATION, ATTINGAL, KACHERINADA,
THIRUVANANTHAPURAM, PIN - 695101
STANDING COUNSEL ELECTION COMMISSION OF INDIA, BY ADV
DEEPU LAL MOHAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 16024 OF 2024
2
JUDGMENT
The petitioner has filed this writ petition with the
following prayers;
"i. Direct the respondents to ensure that persons whose
particulars are given in Exhibits P3 and P6 shall not be
allowed to cast their votes in more than one place;
ii. Direct the Respondents 2 and 3 to ensure that Central
Force is deployed to all the booths to ensure free and fair
election.
iii. Direct the Respondents to identify the double entries
with the use of recognized software and apps of the
Election Commission of India to ensure that the double
entry voters are not allowed to cast their votes in more
than one place."
2. When the matter is taken up for consideration today,
Sri.George Poonthottam, the learned Senior Counsel for the
petitioner submits that Ext.P3 produced along with the writ
petition is a portion of the final voters' list. Though Ext.P1
complaint was filed as early as on 15.12.2023, there are double
entries existing in Ext.P3, which are not deleted by the Election
Commission.
3. A statement has been filed on behalf of respondents
1, 2 and 4. It is relevant to extract paragraphs 20, 22, 23, 25
and 26 of the said statement, which read as follows;
WP(C) NO. 16024 OF 2024
20. It is further submitted that in view of the
allegations in Ext. P5 representation (dated 12-04-2024) and
as part of preparation of Absentee/Shifted/Dead voters list
(ASD list) in respect of Attingal Lok Sabha Constituency, the
District Election Officer, Thiruvananthapuram has as per
proceeding No. E1-820845/2024 dated 16-04-2024, issued
direction to Assistant Returning Officers and Electoral
Registration Officers concerned to constitute special team to
be headed by an Officer not below the rank of Junior
Superintendent to verify the electoral roll and to identify the
voters who are liable to be included in the
Absentee/Shifted/Dead categories and to segregate the list
booth wise and submit report after getting the ASD list
confirmed by Booth Level Officers. The true copy of
proceeding No. E1-820845/2024 dated 16-04-2024 of the
District Election Officer, Thiruvanthapuram is produced
herewith and marked as Annexure - R4.
22. In this context, it is pertinent to note that
Paragraph 10.7.2 of the Handbook of Returning officers
published by Election Commission of India provides as follows:
10.7.2 In addition to the working copies of Electoral
Rolls, after distribution of Voters Slips to the Voters,
A.S.D. (Absentees, Shifted and Dead) list has to be
prepared by the BLOS. The said list is also to be
furnished to the Presiding Officer along with Voters list
to avert bogus voting.
Further, in order to prevent impersonation at the time
of poll, the below noted special measures in respect of
Absentee, Shifted and Dead electors, are to be followed:
i) List of ASD voters should be prepared polling station
wise and it should be ensured that each Presiding
Officer is provided with a separate list of Absentee,
Shifted and Dead Electors (ASD List)
ii) On the day of poll, every elector, whose name
appears in such a list, shall have to produce EPIC for
his/her identification or any one of the alternative photo
identity documents permitted by the Commission. The
Presiding Officer shall verify the identification
document personally and the details should be properly
registered by the Polling Officer concerned in the
register of voters in Form 17A.
iii) The First Polling Officer shall inform the Polling
Agents about the ASD elector who has come to vote by
WP(C) NO. 16024 OF 2024
reading out his/her name loudly.
iv) Thumb impression of such electors shall also be
obtained in addition to signature against the column of
"signature/thumb impression" of Register of voters
(Form 17A). The thumb impression shall be in addition
to the signature even in the case of an elector who is a
literate and can sign.
v) A declaration shall also be obtained from the ASD
electors in the format given below:
FORM OF DECLARATION ABSENTEE BY ELECTOR WHOSE
NAME IS IN ABSENTEE/SHIFTED/DEAD LIST
I hereby solemnly declare and affirm that I am the same
person whose name appears at Serial number... of Part
number .... of the existing electoral roll of the .....constituency
which was prepared/revised with respect to first date of
January/April/ July/ October...... as qualifying date. I am aware
that impersonation at the elections is an electoral offence
under the section 171 D of the Indian Penal Code....Thumb
impression of the elector Name
Certified that the above declaration was made and subscribed
by the elector above named before me.
......Signature of the Presiding Officer
......Number and name of the polling station.
Dated ....
vi) Presiding Officer shall maintain a record and give a
certificate at the end of the poll (to be kept with Form
17A for scrutiny) that so many electors from the ASD
list were allowed to vote after proper scrutiny.
vii) If videography/photography is being done in the
polling station, such electors shall be photographed and
their record kept.
viii) Micro observers, who are present, should ensure
that these instructions with regard to Absentee. Shifted
and Dead electors are meticulously followed and make a
specific mention about this in their report.
WP(C) NO. 16024 OF 2024
ix) The Presiding Officer shall be briefed, in accordance
with the Commission's latest instructions) specially
about these procedures to be followed in Polling
stations for electors who are in the list of Absentee,
Shifted and Dead electors.
23. Moreover, in order to support the free and fair
election process during the House of Parliamentary
Constituency Election, 2024, an ASD Monitor Mobile
Application (Version 1.0.3 April 2024) has also been developed
at the instance of the Chief Electoral Officer, Kerala,
specifically for the purpose of monitoring the voters that are
included in the ASD list. Thus, if any person included in the
ASD list turns up for voting, the Presiding Officer/First Polling
Officer will log into the ASD Monitor App and enter the serial
number of the ASD voter in the electoral roll and also capture
and upload his photo in the said Mobile App. Accordingly, as
per letter No. EL9/26/2024-ELEC dated 06-04-2024, the 2nd
Respondent has instructed all District Election Officers and
Returning Officers to ensure strict compliance of functioning
of ASD Monitor Application. The true copy of letter No.
EL9/26/2024-ELEC dated 06-04-2024 issued by the 2nd
Respondent to all the District election Officers and Returning
Officers along with copy of roles and responsibilities of various
officers in Poll Manager and ASD Monitor Application is
produced herewith and marked as ANNEXURE-R2(d).
25. Besides, as part of security measures, arrangements
have been made for webcasting of Polls in 1423 polling booths
in Attingal Parliamentary Constituency, which is one of the
force multiplier tools to prevent any possibility of
impersonation. Further on the date of poll, political parties are
entitled to appoint one Polling Agent and two relief agents in
each Polling Station. The important duty of Polling Agent is to
help the Presiding Officer to detect and prevent impersonation
of voters by challenging persons who try to impersonate
voters.
26. In addition to the above, as Force Multiplier, 15
'Micro Observers' will be deployed in 15 polling stations which
are identified as vulnerable booths and shadow booth to keep
extra vigil at Polling Booth and Force Deployment Plan has
also been prepared in consultation with the Central Observer'
and accordingly adequate force, both CAPF and Kerala Police,
is being deployed as per directions of Election Commission of
India. Besides, two Company of Central Armed Police Force
has already been deployed in the District.
An additional affidavit has also been filed on 19.04.2024 on
WP(C) NO. 16024 OF 2024
behalf of respondents 1, 2 and 4.
4. The learned Standing Counsel appearing for the
Election Commission submits that all precautionary measures
are being taken to ensure a free and fair conduct of the election
in the State and to ensure sanctity of the electoral roll. It is
further submitted that no person will be allowed to cast
unauthorized votes in the ensuing election. According to the
learned Standing Counsel, the process for identifying the
double entries in the final voters' list is under process and once
the list of the double entry voters is ready, the ASD
(absentee/shifted/dead) voters' list can be furnished to the
respective candidates or to their election agents.
5. In a constitutional democracy, the government is a
government, of the people, by the people and for the people;
and each of us have a participatory role in electing the
government. On the day of election, the vote that each citizen
casts, counts as of the same value. So, our constitution and our
law provide for one citizen, one vote and one value. That is the
great power of our nation as a constitutional democracy.
Hence, on a consideration of the entire facts of the case, I am of
WP(C) NO. 16024 OF 2024
the opinion that the writ petition can be disposed of, recording
the statement and additional statement dated 18.04.2024 and
19.04.2014 respectively filed by the Election Commission.
Accordingly, the writ petition is disposed of, directing
respondents 1, 2 & 4 that while conducting the election
scheduled to be held on 26.04.2024, they shall strictly adhere
to the undertaking given by them before this Court in the form
of statements and shall take all possible steps to ensure that
one citizen casts only one vote and double entry voters are not
allowed to cast their vote in more than one place. It is also
made clear that once the list of the double entry voters is ready,
the ASD (absentee/shifted/dead) voters' list shall be furnished
by respondents 1, 2 & 4 to the respective candidates or to their
election agents.
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
bka/-
WP(C) NO. 16024 OF 2024
APPENDIX OF WP(C) 16024/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF LETTER NO. ATL/MP/393/2023
DATED 15.12.2023 ADDRESSED TO THE CHIEF
ELECTORAL OFFICER.
Exhibit P2 TRUE COPY OF COMPLAINT DATED NIL
ADDRESSED TO THE ELECTORAL REGISTRATION
OFFICER, ATTINGAL.
Exhibit P3 TRUE COPY OF THE LIST PREPARED BY THE
PETITIONER TAKEN FROM THE VARIOUS THE
ASSEMBLY CONSTITUENCIES IN ATTINGAL
PARLIAMENTARY CONSTITUENCY SHOWING
DOUBLE ENTERED NAMES OF 130 PERSONS.
Exhibit P3(a) TRUE COPY OF THE RELEVANT PORTION OF
VOTERS LIST OF VARKALA ASSEMBLY
CONSTITUENCY - PART 163 SHOWING DOUBLE
ENTRIES WITH NAME AND PHOTOGRAPHS OF
THE VOTERS.
Exhibit P3(b) TRUE COPY OF THE RELEVANT PORTION OF
VOTERS LIST OF VAMANAPURAM ASSEMBLY
CONSTITUENCY - PART 67 SHOWING DOUBLE
ENTRIES WITH NAME AND PHOTOGRAPHS OF
THE VOTERS.
Exhibit P3(c) TRUE COPY OF THE RELEVANT PORTION OF
VOTERS LIST OF ARUVIKKARA ASSEMBLY
CONSTITUENCY - PART 115 SHOWING DOUBLE
ENTRIES WITH NAME AND PHOTOGRAPHS OF
THE VOTERS.
Exhibit P3(d) TRUE COPY OF THE RELEVANT PORTION OF
VOTERS LIST OF ATTINGAL ASSEMBLY
CONSTITUENCY - PART 203 SHOWING DOUBLE
ENTRIES WITH NAME AND PHOTOGRAPHS OF
THE VOTERS
Exhibit P3(e) TRUE COPY OF THE RELEVANT PORTION OF
VOTERS LIST OF CHIRAYINKEEZHU ASSEMBLY
CONSTITUENCY - PART 5 SHOWING DOUBLE
ENTRIES WITH NAME AND PHOTOGRAPHS OF
THE VOTERS.
Exhibit P3(f) TRUE COPY OF THE RELEVANT PORTION OF
VOTERS LIST OF NEDUMANGAD ASSEMBLY
CONSTITUENCY - PART 40 SHOWING DOUBLE
ENTRIES WITH NAME AND PHOTOGRAPHS OF
WP(C) NO. 16024 OF 2024
THE VOTERS.
Exhibit P4 TRUE COPY OF THE RIGHT TO INFORMATION
REPLY NO. E1-8062/2023 DATED
30.03.2024.
Exhibit P5 TRUE COPY OF THE COMPLAINT DATED
12.04.2024 BEFORE THE ELECTION
COMMISSION OF INDIA AGAINST THE
ELECTORAL OFFICER.
Exhibit P6 COMPACT DISK (CD) OF THE ENTRIES IN
EXHIBIT P3 FORM A PART
Exhibit P7 TRUE COPY OF THE LETTER NO.
2720/EL3/2021/ELEC. DATED 23.3.2021
ISSUED BY THE CHIEF ELECTORAL OFFICERS
TO ALL THE DISTRICT ELECTION OFFICERS
RESPONDENT ANNEXURES
Annexure R2(e) The true copy of minutes of meeting
convened by District Election Officer,
Thiruvananthapuram on 01-03-2024
Annexure R2(a) The true copy of proceeding No. EL-
505971/2023 dated 20-12-2023, issued by
the District Election Officer,
Thiruvananthapuram
Annexure R2(b) The true copy of letter No. E1-245/2024
dated 17-04-2024 addressed by the 4th
Respondent to the District Election
Officer, Thiruvananthapuram
Annexure R2(c) The true copy of proceeding No. E1-
820845/2024 dated 16-04-2024 of the
District Election Officer,
Thiruvananthapuram
Annexure R2(d) The true copy of letter No.
EL9/26/2024-ELEC dated 06-04-2024
issued by the 2nd Respondent to all the
District Election Officers and
Returning Officers along with copy of
roles and responsibilities of various
officers in Poll Manager and ASD
Monitor Application
