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Case Number

Writ Petition No. 22681 of 2008

Attorney(S)

Mr. P.H Manoj Pandiyan
Mr. J. Raja Kalifulla, Govt. Pleader
Mr. A. Mohammed Ghouse

Judges

A.K Ganguly, C.J
F.M Ibrahim Kalifulla, J.

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Smart Summary

Structured Summary of the Opinion (Delivered by The Honourable the Chief Justice)

Factual and Procedural Background

This writ petition was filed in public interest by Mr. P.K. Sekar Babu, who claims to be a Member of the Tamil Nadu Legislative Assembly representing the Radhakrishnan Nagar Assembly Constituency. The petition was filed to ensure free and fair elections to Ward Nos. 18 and 44 of the Corporation of Chennai, where elections were scheduled for 18.9.2008.

The petition record contains the following numeric particulars (as stated in the opinion):

Ward No. 18: 10,424 voters, approximately 12 polling booths; of these voters 5,195 are men and 5,229 are women.
Ward No. 44: 8,872 voters, approximately 9 polling booths; of these voters 4,548 are men and 4,324 are women.
Total voters in the two wards: 19,296, divided into 21 booths, yielding roughly 900 voters per booth.
Voting was to be conducted using Electronic Voting Machines (EVMs).

The petitioner alleged apprehensions that outsiders with antisocial backgrounds would be allowed into the wards, would intimidate genuine voters and affect the fairness of the elections. The petitioner had made a representation to the State Election Commissioner and to the Chief Secretary on 9.9.2008. The petitioner also relied on prior irregularities in earlier Corporation elections, noting that a previous writ petition had resulted in several ward elections being set aside by a majority of a Division Bench.

The matter was heard and disposed of by the Court after hearing the parties and recording undertakings and directions to ensure the election process.

Legal Issues Presented

Whether a writ petition founded on apprehension of interference by outsiders/antisocial elements in impending local elections can be entertained and appropriate preventive directions issued by the Court before the alleged interference has actually occurred.
What specific measures (if any) should be directed by the Court to ensure that the elections to Ward Nos. 18 and 44 are conducted free and fairly on 18.9.2008.

Arguments of the Parties

Petitioner's Arguments

The petitioner apprehended that large numbers of outsiders with antisocial records were being allowed to enter the two wards and would threaten, intimidate and deprive genuine voters of their franchise.
The petitioner made a detailed representation to the State Election Commissioner and the Chief Secretary on 9.9.2008 seeking protection of the electoral process.
The petitioner relied on earlier elections where irregularities occurred and where a subsequent writ petition led to setting aside several ward elections by a majority judgment of a Division Bench.

Respondents' (Government) Arguments

The Government Pleader stated that two senior IAS officers were appointed as Election Observers: Shri P.M. Basheer Ahmed for Ward No.18 and Shri Kosalaraman for Ward No.44, and that both had furnished reports with suggested changes to booth arrangements.
The entire election process would be videographed (both inside and outside the polling booths).
Chennai City Police had prepared a Bundobast Scheme for holding the elections; a booklet containing this scheme and guidelines had been produced to the Court.
Phone numbers of the two observers had been published in newspapers so that complaints could be made immediately in case of any attempt to manipulate the election process.
The Government Pleader assured the Court that all steps had been taken to ensure free and fair elections and that past irregularities would not be repeated.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
D.A.V. College, Bhatinda vs. State of Punjab, A.I.R. 1971 S.C. 1731	That when there is a threat to a person's fundamental right, the person can approach the Court at the stage when the threat exists and need not wait until the threat is translated into action.	The Court relied on this principle to hold that the writ petition framed on apprehension could not be dismissed merely because the apprehension related to a prospective threat.
Mohinder Singh Gill vs. The Chief Election Commissioner, A.I.R. 1978 S.C. 851	Emphasised that elections must be conducted according to a fair procedure and highlighted the paramount importance of a citizen's right to vote.	The Court invoked this precedent to underscore the constitutional importance of protecting the voter's right and the necessity of judicial protection where that right is threatened.

Court's Reasoning and Analysis

The Court began by reaffirming the constitutional importance of the right to vote, noting that the voter's right to cast his vote amounts to freedom of choice and expression and "partakes of a nature of a Fundamental Right" under Article 19(1)(a) of the Constitution (as stated in the opinion). On that foundation the Court observed that a citizen may approach the Court at the stage when a threat to the right to vote is apprehended (citing D.A.V. College, Bhatinda).

Applying these principles, the Court held that it could not dismiss the petition simply because it was founded on apprehension. However, the Court also observed that the petition lacked adequate particulars identifying specific attempts or persons intending to vitiate the election atmosphere. The Court repeatedly asked counsel for particulars, and counsel primarily referred to the petitioner's representation.

The Court noted that the petitioner's representation had received a written response from the Secretary, Tamil Nadu State Election Commission dated 15.9.2008, containing an assurance that all arrangements had been made for free and fair elections. On that basis the Court directed that the written assurance given to the petitioner be strictly followed by the State Election Commission.

Because the petitioner specifically apprehended the entry of outsiders with questionable criminal backgrounds, the Court directed the "third respondent" to step up vigil within the territorial limits of the wards from that day. The opinion explicitly set out police powers and expectations:

The police were directed to take all possible steps to ensure that no person with criminal antecedents was given a free hand on the date of election and that no such person should be allowed to overpower or intimidate voters.
The Court recorded that, on the eve of election, police are entitled to effect preventive arrests for maintenance of law and order, and the third respondent was directed to use these powers as necessary.

The Court further gave specific directions designed to secure the integrity of the polling area and the identity of voters:

Voters should be allowed to cast votes on the basis of their voter identity cards or some other identifying documents.
No person who is not a genuine voter and who is not carrying a valid voter identity card or identifying document should be allowed to go within 200 meters of the polling booth.
Exceptions to the 200-meter restriction were to include the candidates, their accredited polling agents, other polling officials and police personnel.
No vehicle other than those belonging to officials should be allowed within 200 meters of the polling booth; police were to enforce this.
Polling booths were to be videographed both from inside and outside.

The Court also recorded the Government Pleader's assurance that the polling booths would be videographed and that the State Government was committed to ensuring free and fair elections; the Court expressed the expectation that these assurances would be honored.

Finally, the Court made clear that the directions applied to the petitioner as well and that the petitioner was bound by them.

Holding and Implications

DISPOSED OF

Direct Effect on the Parties and Immediate Consequences:

The Court disposed of the writ petition after recording the Government Pleader's undertaking and issuing the directions summarized above.
The Court directed that the Secretary, Tamil Nadu State Election Commission's written assurance dated 15.9.2008 to the petitioner be strictly followed.
The third respondent (explicitly addressed in the order; the parties list identifies the third respondent as the Commissioner of Police, Egmore, Chennai-8) was directed to increase vigilance in the territorial limits of the relevant wards to prevent entry and activity by persons with questionable criminal antecedents, and to take preventive action as necessary.
Specific operational directions were given: voter identity checks, a 200-meter exclusion zone for non-genuine voters, limited vehicle access within 200 meters, videography of polling booths, and the exceptions for candidates, accredited polling agents, officials and police personnel.
The directions were declared binding on the petitioner as well as on the respondents.
There was no order as to costs; M.P. No.1 of 2008 was closed.

Broader Implications:

The opinion emphasizes protection of the fundamental nature of the right to vote and confirms that preventive judicial intervention is available where there is a credible apprehension of interference with that right. The opinion does not purport to lay down a new precedent beyond applying established Supreme Court authorities and the Court's factual directions; the decision's immediate effect is procedural and directive as to the conduct of the specified elections.

Additional Information Explicitly Recorded in the Opinion

The Court recorded the identities and contact-related measures that were presented in the proceedings:

Names of the two appointed observers: Shri P.M. Basheer Ahmed (Observer for Ward No.18) and Shri Kosalaraman (Observer for Ward No.44).
The respondents and addresses to whom the order was directed are listed at the end of the opinion: (1) State Election Commissioner, Tamil Nadu Election Commission; (2) Chief Secretary, State of Tamil Nadu; (3) Commissioner of Police, Egmore, Chennai-8; (4) Commissioner, Corporation of Chennai.

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P.K Sekar Babu Petitioner v. The State Election Commissioner, Tamil Nadu Election Commission, Revathy Street, Vadapalani, Chennai-26.

( Delivered by The Honourable the Chief Justice ) Heard the learned counsel for the parties. This writ petition has been filed, in public interest, by one Mr. P.K. Sekar Babu, who claims to be a Member of the Tamil Nadu Legislative Assembly representing the Radhakrishnan Nagar Assembly Constituency. He has filed this petition in order to ensure free and fair elections to two wards of the Corporation of Chennai, viz. Ward Nos.18 and 44, in which elections are to be held on 18.9.2008.

2. It appears that in Ward No.18, there are about 10,424 voters and there are about 12 polling booths. In Ward No.44, there are 8,872 voters and there are about 9 polling booths. Out of the 10,424 voters in Ward No.18, there are 5,195 men voters and 5,229 women voters. Out of the 8,872 voters in Ward No.44, there are 4,548 men voters and 4,324 women voters. Out of the polling booths which have been set up in these two wards, there are some polling booths which are meant solely for women and there are some solely for men and there are some in which both men and women can cast their votes. In all, it is going to be an election in which only there 19,296 voters divided into 21 booths. Therefore, the arrangement is for about 900 voters per booth. Admittedly, the elections will be conducted using the Electronic Voting Machines.

3. Learned counsel for the writ petitioner submits that he apprehends that the elections will not be conducted in a free and fair manner. According to him, large number of antisocial elements, who are outsiders, are being allowed to enter the two wards in question and they will threaten and intimidate the genuine voters and will invade the rights of the voters to exercise their franchise. It is submitted that apprehending such eventualities, the petitioner has made a detailed representation to the State Election Commissioner and also to the Chief Secretary of the State Government on 9.9.2008. It is also submitted that in the last elections which took place to the Corporation of Chennai, several irregularities were committed and after the elections were held, a writ petition challenging the said elections was filed before this Court and this Court, by a majority opinion by two learned Judges, as against one was pleased to hold that the elections were not conducted in a free and fair manner and consequently, the election in several wards was set aside. Learned counsel for the petitioner submits that the same thing may be repeated this year too.

4. Learned Government Pleader appearing on behalf of the respondents, on the other hand, submits that for this year, in order to ensure free and fair elections, two senior I.A.S. Officers have been appointed Election Observers. For Ward No.18, one Shri. P.M. Basheer Ahmed, I.A.S. has been appointed an Observer. He has given his first report about changing of some arrangements in certain booths falling within Ward No.18. The other Observer who has been appointed in respect of Ward No.44 is one Shri. Kosalaraman. He has also given his report in order to ensure free and fair elections. Learned Government Pleader further submits that the entire election process will be videographed and the Chennai City Police has come out with a Bundobast Scheme for holding such elections. He has handed over to us a booklet containing such scheme with various guidelines. Learned Government Pleader also submitted that the phone numbers of these two Observers have been already announced in newspapers and in case of any attempt to fudge the election process by anybody, these Observers can be immediately contacted and a complaint can be lodged. Learned Government Pleader submitted that all steps have been taken to ensure free and fair elections.

5. Learned counsel for the petitioner submitted that in the past also, similar assurance was given to the Court, which has been recorded in the order of a Division Bench of this Court dated 11.10.2006 passed in Writ Petition No.38702 of 2006. The said assurance is to the following effect :-

"Learned Government Pleader appearing for the State Election Commission has brought to our notice that as per the Polling Officers Guide issued by the State Election Commission, and also the Model Code of Conduct issued by him, only authorized persons can enter the polling booth, and states that the provisions of the Code shall be strictly implemented. He also states that the Guidelines relating to Circular dated 26.9.2006 and the Minutes of the Meeting of the Election Commission with the top police officials dated 13.9.2006 shall also be strictly implemented."

Learned counsel for the petitioner submitted, despite the said assurance which was recorded by this Court, the elections were not conducted in a free and fair manner and this could be seen from the majority judgment of the Division Bench of this Court.

6. The importance of holding a free and fair election in a democracy can hardly be over-emphasized. The Apex Court has held that a voter's right to cast his vote amounts to his freedom of choice and freedom of expression in favour of a candidate whom he wants to elect. Therefore, it partakes of a nature of a Fundamental Right under Article 19(1)(a) of our Constitution and it is the duty of the State to protect the said right. This Court is of the opinion that if there is any attempt at any quarter for infringement of the said right, a citizen can come to this Court praying for holding of a free and fair election. It has been held by the Supreme Court that when there is a threat to a person's fundamental right, he can approach the Court at the stage when the threat is there and he need not wait till that threat is translated into actual practice vide D.A.V. College, Bhatinda vs. State of Punjab, A.I.R. 1971 S.C. 1731.

7. The importance of protecting a citizen's right to vote has been emphasized by the Supreme Court time and again and it has been very poignantly stated by a Constitution Bench of the Supreme Court in the case of Mohinder Singh Gill vs. The Chief Election Commissioner, New Delhi reported in A.I.R. 1978 S.C. 851. Justice V.R. Krishna Iyer, speaking for the majority of the judges in the Bench, held that the election must be conducted according to a fair procedure and in order to highlight the importance of a person's right to cast his vote, the learned Judge quoted an eloquent passage from Sir Winston Churchill. We should do well to remind ourselves of the message emanating from those words :

"At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point."

8. Considering all these well laid principles, we cannot dismiss the writ petition at this stage just because of the reason that the petition has been filed on the basis of an apprehension.

9. However, we find that in the petition, the particulars are sadly lacking. We have repeatedly asked the learned counsel for the petitioner to point out any particulars from which it will appear that any attempt is made from any interested quarter for vitiating the election atmosphere. The learned counsel only could refer to his representation. We find that the representation of the petitioner has been answered by the Secretary, Tamil Nadu State Election Commission by his communication sent to the petitioner dated 15.9.2008. In the said communication, the Secretary, Tamil Nadu State Election Commission, has assured the petitioner that all arrangements have been made to ensure free and fair elections. We, therefore, direct that the assurance which has been given to the petitioner in writing in answer to the petitioner's representation must be strictly followed by the State Election Commission.

10. The petitioner's apprehension is that there is entry of outsiders with antisocial record in the wards which are going to polls on 18.9.2008. This Court directs the third respondent to step up its vigil in respect of the territorial limits of the wards in question from today in order to ensure that persons with questionable criminal record or background are not allowed free entry in those areas. It is well known that on the eve of election, the police is entitled to effect preventive arrests for the purpose of maintenance of law and order. The third respondent is, therefore, directed to take all possible steps to ensure that no person with criminal antecedents is given a free hand on the date of the election and that no such person should be allowed to overpower or intimidate voters.

11. This Court has been informed that the voters' list itself is a printed one and it contains the photographs of all the valid voters printed on it. In that view of the matter, this Court directs that the voters should be allowed to cast their votes on the basis of their voter identity cards or some other identifying documents and that no person who is not a genuine voter and who is not carrying a valid voter identity card or an identifying document should be allowed to go within 200 meters of the polling booth. This is, of course, subject to the condition that the candidates contesting the elections or their accredited polling agents and other polling officials or police personnel could be allowed to go within 200 meters from the polling booth, but others should not be permitted inside the said area. This has to be ensured by the police. This Court also makes it clear that no vehicle other than the vehicles belonging to the Officials should be allowed within 200 meters of the polling booth. This also should be ensured by the police.

12. We have been assured by the learned Government Pleader that the polling booths will be videographed both from inside and outside. This Court has been repeatedly assured by the learned Government Pleader that whatever might have happened in the past, it will not be repeated this time and the State Government is committed to ensure free and fair elections. We hope and expect that the said assurance would be honoured.

13. This Court also makes it clear that the aforesaid directions which have been given by this Court to the respondents also apply in the case of the petitioner and it is made very clear that the petitioner is also bound by these directions.

14. Recording the undertaking of the learned Government Pleader and issuing the aforesaid directions, this writ petition is disposed of. There shall be no order as to costs. Consequently, M.P. No.1 of 2008 is closed.

ab To

1. The State Election Commissioner, Tamil Nadu Election Commission, Revathy Street, Vadapalani, Chennai-26.

2. The Chief Secretary, State of Tamil Nadu, Fort St. George, Chennai-9.

3. The Commissioner of Police, Egmore, Chennai-8.

4. The Commissioner, Corporation of Chennai, Ripon Buildings, Chennai 3

P.K Sekar Babu Petit... v. The State Election C...