[Cites 8, Cited by 0]
Madras High Court
Kr.Periakaruppan vs The Chief Election Officer on 12 May, 2026
WP No. 19287 of 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders Reserved on : 11.05.2026
Pronounced on : 12.05.2026
CORAM
THE HON'BLE MRS. JUSTICE L. VICTORIA GOWRI
AND
THE HON'BLE MR. JUSTICE N. SENTHILKUMAR
WP No. 19287 of 2026
and
WMP Nos. 20543 & 20544 of 2026
KR.Periakaruppan
S/o.AL.Karuthan
Door No.252,Aralikottai Village
Singampunari Taluk, Sivagangai District-630 566
..Petitioner(s)
Vs
1. The Chief Election Officer,
Election commission of India,
Nirvachan Sadan, Ashoka Road, New Delhi-110 001.
2. The Chief Electoral Officer and
The Principal Secretary to Government
Public (Elections) Department,
Secretariat, Fort St.George, Chennai-600 009.
3. The District Election officer-cum-The Collector
Collectorate, Sivagangai District.
4. The Returning Officer,
No.185, Tirupattur Assembly constituency,
Sivagangai District-630 502.
5. The Returning Officer,
No.50,Tirupattur Assembly Constituency,
Tiruppattur District.
6. R.Seenivasa Sethupathi
..Respondent(s)
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WP No. 19287 of 2026
Writ Petition filed under Article 226 of the Constitution of India, praying
for issuance of Writ of Mandamus, to direct the Official Respondents herein to
forthwith secure the postal votes belonging to No.185 Tiruppattur Assembly
constituency which was wrongly sent to No.50, Tiruppattur Assembly
constituency and account the same to No.185, Tiruppattur Assembly
constituency, for the elections conducted for the 17th Tamilnadu Legislative
Assembly held on 23.4.2026.
For Petitioner : Mr. Mukul Rohatgi, Senior Counsel,
and Mr. N.R. Elango, Senior Counsel,
Assisted by Mr. K. Mohammed Hydher Ali.
For R1 to R5 : Mr. G. Rajagopalan,
for Mr. Tarun Rao Kallakuru
For R6 : Dr. Abhishek Manu Singhvi, Senior Counsel,
: Mr. V. Raghavachari, Senior Counsel,
Assisted by Mr. K.P.Anantha Krishnan, and
Mr. Pranjal Agarwal
ORDER
(Order of the Court was made by L.Victoria Gowri J.)
Heard the learned Senior Counsel Mr.Mukul Rohatgi representing learned
Senior Counsel Mr.N.R.Elango for the petitioner, the learned Senior Counsels
Mr.Abishek Manu Singhvi and Mr.Ragavachari for the 6 th respondent, the
learned Senior Counsel Mr. G. Rajagopalan for learned Counsel Mr.Tarun Rao
Kallakuru for the 1st to 5th official respondents at length and carefully perused
the materials available on record.
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2. Democracy breathes through the ballot. The Court, while
exercising jurisdiction under Article 226 of the Constitution of India in matters
touching elections, is required to walk with constitutional caution. It cannot,
under the guise of interim protection, trench upon the forbidden field reserved
for an election petition. At the same time, where a narrow and exceptional plea
is made for preservation of vital electoral material, so that the truth is not lost by
efflux of time, constitutional courts are not rendered helpless spectators.
3. Democracy is not sustained merely by the mechanical declaration
of results. It is sustained by the living faith of the citizen that every vote
lawfully cast is received, preserved, counted and accounted for in accordance
with law.
4. These Writ Miscellaneous Petitions have been filed seeking interim
protection in aid of the main writ petition, wherein the petitioner has questioned
certain alleged irregularities in the counting and accounting of votes in respect
of No.185 Tiruppattur Assembly Constituency in the General Elections to the
17th Tamil Nadu Legislative Assembly held on 23.04.2026.
5. In Election Commission of India Vs Ashok Kumar and others
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(2000)8 SCC 216, the Honourable Supreme Court held that if an election is
called in question in a manner which interrupts, obstructs or protracts the
election proceedings, judicial remedy must ordinarily be postponed until
completion of the election. However, the Hon’ble Apex Court further held that
judicial intervention is available where it merely corrects or smoothens the
progress of the election, removes obstacles, or preserves vital evidence which
may otherwise be lost.
6. The Hon’ ble Supreme Court clarified that actions of the Election
Commission are open to judicial review on grounds of mala fides, arbitrariness
or breach of law, but the Court must act with great circumspection and only
upon a clear and strong case.
7. In Mohinder Singh Gill and another Vs The Chief Election
Commissioner, New Delhi and others (1978) 1 SCC 405, the Honourable
Supreme Court emphasised that free and fair election is the heart of democracy
and that the election process must be protected from arbitrariness, illegality and
procedural unfairness.
8. In All India Anna Dravida Munnetra Kazhagam v. State Election
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Commissioner, 2007 (1) CTC 705, this Court, reiterated that constitutional
courts must be cautious in election matters, but are not powerless where the
complaint is one of arbitrariness, breach of law or necessity to preserve the
integrity of the electoral process.
9. This Court is conscious of the constitutional limitation engrafted
under Article 329(b) of the Constitution of India and the statutory mandate
contained under Sections 80 and 100 of the Representation of the People Act,
1951, which ordinarily require all election disputes to be adjudicated only by
way of an election petition. Equally, this Court is mindful of the consistent
judicial pronouncements of the Honourable Supreme Court cautioning
constitutional Courts against interdiction of the electoral process in exercise of
jurisdiction under Article 226 of the Constitution.
10. However, the present case stands on an altogether exceptional and
unprecedented factual footing, which, in the considered view of this Court, was
never within the legislative contemplation while enacting Section 100 of the
Representation of the People Act, 1951.The grievance projected before this
Court is not a routine challenge to counting, recounting, acceptance or rejection
of votes simpliciter.
11. The case on hand discloses a peculiar constitutional anomaly where
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a postal ballot admittedly relatable to a live and concluded election in one
constituency was allegedly diverted to another constituency bearing a similar
nomenclature and came to be rejected there, not on the ground of invalidity of
vote, impersonation, defective marking or statutory disqualification, but solely
because it was found in a different constituency.
12. Such a situation, where an identifiable vote belonging to one
constituency enters the electoral stream of another constituency and is
extinguished without any corrective restorative mechanism being invoked by
the election authorities, is not one expressly contemplated under the grounds
enumerated in Section 100 of the Act.
13. The statutory scheme under Section 100 principally contemplates
adjudication of disputes relating to improper acceptance or rejection of votes,
corrupt practices, non-compliance with statutory provisions, or material effect
on the result of the election. However, the present controversy arises from an
antecedent administrative failure in preserving the integrity of the electoral
chain itself, namely, the failure of constitutional authorities to restore an
admittedly misdirected postal ballot to its proper constituency before
culmination of the counting process. The absence of any immediate statutory
mechanism for correction of such an inadvertent but potentially decisive
constitutional error places the present case within a narrow and exceptional
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constitutional space warranting limited judicial intervention.
14. This Court is therefore of the considered view that the writ petition,
insofar as it seeks preservation of the disputed ballot, preservation of
videographic evidence and protection against irreversible constitutional
consequences pending recourse to the election remedy, cannot be treated as an
ordinary election dispute simpliciter. The maintainability of the present writ
petition rests not upon any dilution of the embargo under Article 329(b), but
upon the extraordinary factual situation which has emerged in the present case
and the constitutional necessity to ensure that the remedy of election petition
itself does not become illusory by disappearance or destruction of the
foundational electoral material.
15. The constitutional power under Article 226, being couched in the
widest possible terms, cannot remain wholly eclipsed where the Court is
confronted with a manifest administrative aberration capable of undermining
the purity of the electoral process itself, particularly in a case where the
electoral verdict stands separated by a solitary vote. The maintainability of the
present writ petition is therefore sustained not for the purpose of adjudicating
upon the validity of the election of the returned candidate, but for the limited
and narrowly tailored purpose of preserving electoral integrity and securing the
ends of constitutional justice in a situation which the Legislature itself appears
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not to have specifically foreseen while enacting Section 100 of the
Representation of the People Act, 1951.
16. We are conscious that election disputes stand on a distinct
constitutional footing. The mandate of the electorate cannot be lightly
interdicted by an interim order. A returned candidate cannot ordinarily be
restrained from functioning merely because an unsuccessful candidate has
raised a dispute.
17. However, the present case is not one where the petitioner merely
alleges general irregularities. The pleaded facts disclose three striking features:
i. The margin of victory is only one vote;
ii. There is an alleged discrepancy of 18 EVM votes between two official
sources; and
iii. One postal ballot allegedly belonging to No.185 Tiruppattur Assembly
Constituency was rejected in another constituency instead of being transmitted
to the competent Returning Officer.
18. In an election decided by thousands of votes, such matters may
stand on a different plane. But in an election decided by one vote, every vote is
not merely relevant; it is potentially determinative. The petitioner’s grievance
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regarding the postal ballot is not a mere request for recount. It is a complaint
that a vote allegedly belonging to one constituency was dealt with by an
authority of another constituency. If this allegation is ultimately found to be
correct, the matter would not merely involve an error of counting, but a
jurisdictional defect in the handling of a valid electoral record.
19. Similarly, the alleged discrepancy of 18 EVM votes between the
consolidated abstract and the official website of the Election Commission
cannot be brushed aside at the threshold, particularly when the margin of
victory is only one vote.The respondents may ultimately establish that the
discrepancy is clerical, technical or explainable. However, until such
explanation is placed before this Court on affidavit, the matter cannot be treated
as insignificant.
20. We are also conscious of the contention that the proper remedy is
an election petition. That contention deserves serious consideration at the final
hearing of the writ petition. However, at the interim stage, this Court is required
to examine whether an irreversible constitutional consequence is likely to occur
before the controversy is judicially examined.
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21. The floor test is not an ordinary legislative sitting. Participation in a
floor test may determine the survival or fall of a Government. If the sixth
respondent participates in such proceedings and his vote becomes decisive, the
consequence may travel far beyond the constituency and affect the
constitutional governance of the State.
22. We are not, at this stage, declaring the election of the sixth
respondent void. Nor is this Court seating the petitioner in his place. We are
only considering whether, pending prima facie scrutiny of serious electoral
anomalies in a one-vote result, the returned candidate should be permitted to
participate in a proceeding where his vote may alter the balance of power in the
House.
23. The balance of convenience, in the peculiar facts of this case, lies
in preserving constitutional neutrality. No prejudice of an irreversible nature
would be caused to the sixth respondent if he is temporarily restrained from
participating in the floor test, pending production of records and filing of
counter affidavits. On the contrary, if he is permitted to participate and his vote
becomes decisive, the injury caused to the petitioner and to the purity of the
electoral process may be incapable of meaningful correction.
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24. The principle that “election disputes must await an election
petition” cannot be converted into a principle that, constitutional courts must
remain silent, even when the issue is not merely the validity of an election, but
the immediate use of a disputed electoral mandate, to decide the fate of a
Government.
25. When the matter was taken up for hearing on 10.05.2026, this
Court directed the second respondent to file an affidavit, particularly with
regard to the action taken, if any, on the e-mail dated 05.05.2026 stated to have
been sent by the petitioner. Pursuant thereto, the matter was adjourned to
11.05.2026, on which date an affidavit came to be filed on behalf of respondents
1 to 5 by the first respondent.
26. In paragraph No.11 of the said affidavit, it has been stated that an
e-mail dated 05.05.2026 had been addressed by the petitioner to various
officials, besides another representation dated 08.05.2026 addressed to the fifth
respondent/District Election Officer, Sivagangai District, alleging that one
postal ballot belonging to No.185–Tiruppattur Assembly Constituency,
Sivagangai District, had been wrongly sent to No.50–Tiruppathur Assembly
Constituency, Tiruppathur District. However, according to the respondents, the
petitioner had not produced any supporting material or documentary proof
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substantiating the said allegation, except filing an affidavit in support of the
same.
27. It has been further averred in the said affidavit that Rule 54A(2) of
the Conduct of Election Rules, 1961 contemplates that no cover in Form 13-C
relating to postal ballots received by the Returning Officer after expiry of the
prescribed time shall be opened and that no vote contained therein shall be
counted. It has also been specifically stated that there exists no statutory
provision enabling transfer of a postal ballot from one Returning Officer to
another, particularly in view of the procedure governing opening and scrutiny of
postal ballots only on the date fixed for counting.
28. The affidavit further proceeds to state that transfer of a postal ballot
from one Assembly Constituency to another is neither contemplated nor
permitted under the existing statutory framework and therefore the request made
by the petitioner’s election agent seeking such transfer could not be acceded to.
29. The aforesaid stand taken by the official respondents, in the
considered opinion of this Court, itself reveals the existence of a procedural
vacuum in the electoral framework insofar as situations involving mistaken
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transmission of postal ballots from one constituency to another are concerned.
The categorical stand of the respondents that no statutory mechanism exists for
restoration or re-transmission of such a mistakenly diverted postal ballot
demonstrates that the present factual situation is one which had not been
specifically contemplated under the statutory scheme governing elections.
30. At the same time, the submission made on behalf of the official
respondents that such mistaken transfer of a postal ballot from one constituency
to another is an unforeseen and improbable occurrence, having regard to the
otherwise meticulous checks and balances incorporated in the electoral process,
cannot be lightly brushed aside. Nevertheless, the very emergence of such an
unprecedented situation, coupled with the admitted absence of any corrective
statutory procedure, persuades this Court to hold that the present case travels
beyond the contours of an ordinary election dispute simpliciter.
31. This Court is constrained to observe that the conduct of the 5th
respondent in the present case reflects a disturbing lapse in the discharge of
their statutory and constitutional obligations cast upon election authorities
entrusted with preservation of electoral purity. Once the 5th respondent noticed
that the disputed postal ballot did not pertain to No.50–Thiruppathur Assembly
Constituency, the least that was expected of the said authority, consistent with
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the doctrine of institutional fairness embedded in the electoral framework, was
to immediately take prompt corrective steps to restore and transmit the ballot to
the competent Returning Officer of No.185–Thiruppattur Assembly
Constituency, instead of mechanically rejecting the same as one belonging to
another constituency.
32. The rejection of a vote admittedly relatable to a live electoral
process, without undertaking restorative administrative measures, defeats the
very checks and balances consciously incorporated in the well-conceived
constitutional and statutory electoral architecture.
33. Election officials are not mere passive custodians of forms and
procedures; they are constitutional functionaries obligated to ensure that every
valid vote cast by a citizen reaches its lawful destination and receives due
consideration in accordance with law. Failure to adopt such elementary
corrective measures, particularly in an election decided by a margin of one vote,
amounts to a serious dereliction in preserving the sanctity, transparency and
reliability of the electoral process, which forms part of the basic democratic
structure underlying the Constitution itself.
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34. We are fully satisfied that a strong prima facie case has been made
out for a limited interim protective order.
Interim Direction
35. In view of the such discussion, there shall be an order of interim
injunction restraining the sixth respondent/returned candidate from voting or
otherwise taking part in any floor test, including, confidence motion, no-
confidence motion, trust vote or any voting proceeding in the Tamil Nadu
Legislative Assembly where the numerical strength of the House is tested, until
further orders of this Court.
36. It is made clear that this interim order shall not be construed as
setting aside the declaration of election of the sixth respondent, nor shall it be
treated as conferring any right upon the petitioner to be declared elected.
37. The official respondents shall forthwith secure and preserve all
records relating to counting of votes in No.185 Tiruppattur Assembly
Constituency held on 04.05.2026.
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38. The records to be preserved shall include the consolidated counting
abstract, statutory forms, round-wise counting sheets, EVM vote account
records, postal ballot records, rejected postal ballot covers, rejected postal ballot
papers, declarations, envelopes, proceedings relating to reverification of
rejected postal ballots, and all connected materials.
39. If any postal ballot alleged to have been received in relation to
No.185 Tiruppattur Assembly Constituency was received, handled, retained or
rejected at No.50 Tiruppattur Assembly Constituency, the same shall be
identified, sealed, secured and preserved separately, without opening or
tampering with the same.
40. The videographic footage relating to counting, postal ballot
scrutiny, rejection of postal ballots and reverification, if any, shall be preserved
in its original electronic form, along with back-up copies.
41. The respondents shall not destroy, overwrite, alter, transfer or part
with custody of any such material except in accordance with law and subject to
further orders of this Court or the competent election forum.
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42. This order shall not be construed as a direction for recounting, re-
accounting, reopening of ballot papers, validation of any rejected postal ballot,
or interference with the declaration of result already made.
43. The rights and contentions of all parties, including the availability
of remedy under the Representation of the People Act, 1951, are left open.
44. The respondents 1 to 5 and 6 shall file their counter affidavits, on
or before 19.06.2026. Post the writ petition on 19.06.2026.
(L.V.G.,J.) (N.S.,J.)
12.05.2026
Neutral Case Citation : Yes
klt
To
1. The Chief Election Officer, Election Commission of India,
Nirvachan Sadan, Ashoka Road, New Delhi-110 001.
2. The Chief Electoral Officer and
The Principal Secretary to Government
Public (Elections) Department, Secretariat, Fort St.George, Chennai-09.
3. The District Election officer-cum-The Collector,
Collectorate, Sivagangai District.
4. The Returning Officer,
No.185, Tirupattur Assembly Constituency, Sivagangai District-630 502.
5. The Returning Officer,
No.50,Tirupattur Assembly Constituency, Tiruppattur District.
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L.VICTORIA GOWRI, J.
and
N.SENTHILKUMAR, J.
klt
Pre-Delivery Order in
and
WMP Nos. 20543 & 20544 of 2026
12.05.2026
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