K. Surendran v Election Commission of India & Chief Electoral Officer, Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **THURSDAY, THE 3RD DAY OF JULY 2014/12TH ASHADHA, 1936** ## **WP(C).No. 10503 of 2014 (K)** **----------------------------** ## **PETITIONER(S):** **--------------------------** **K.SURENDRAN AGED 62 YEARS S/O.KANARAN, RESIDING AT SURIYA, CHALAD P.O. KANNUR DISTRICT.** **BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SRI.M.MANOJKUMAR (CHELAKKADAN) SMT.ASHA BABU SMT.AMMU CHARLES** ## **RESPONDENT(S):** **----------------------------** ## **1. ELECTION COMMISSION OF INDIA NIRVACHAN SADAN, NEW DELHI-110 001.** ## **2. THE CHIEF ELECTORAL OFFICER** ## **KERALA, THIRUVANANTHAPURAM-695 001.** **R1 & 2 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,ELE.COMMN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-04-2014, THE COURT ON 3.7.2014 DELIVERED THE FOLLOWING:** ## **WP(C).No. 10503 of 2014 (K)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** **EXT.P1.TRUE COPY OF THE CIRCULAR DATED 28/3/2014 ISSUED BY THE CHIEF ELECTORAL OFFICER** **EXT.P2.TRUE COPY OF THE REPRESENTATION DATED 2/4/2014 SUBMITTED BY THE HONOURABALE CHIEF MINISTER EXT.P3.TRUE COPY OF THE REPRESENTATION DATED 2/4/2014 SUBMITTED BY THE PRESIDENT OF KPCC.** ## **RESPONDENT(S)' EXHIBITS** **---------------------------------------** ## **ANNEXURE** - **A. COPY OF THE ORDER DTD.2.4.14 BY R1.** **B. COPY OF THE PROCEEDINGS DTD.2.4.2014 OF R1 ELECTION COMMISSION OF INDIA.** **C. COPY OF THE LETTER DTD.21.3.2014 ISSUED BY R1 ELECTION COMMISSION OF INDIA.** **D. COPY OF THE ORDER DTD.6.5.2014 OF THIS COURT IN W.P.(C) NO..13590O/2014.** ///True copy/// P.S. to Judge ## ALEXANDER THOMAS, J. ================== W.P.(C).No. 10503 of 2014 ================== ## Dated this the 3[rd] day of July, 2014 ## J U D G M E N T The facts necessary for the disposal of this matter are as follows: The petitioner claims to be the chief election agent of the candidate sponsored by a political party, viz., the Indian National Congress (I), to contest the Kannur Parliamentary constituency in the elections to Lok Sabha which was scheduled in April 2014. The petitioner avers that as per Rule 35 of the Conduct of Election Rules, 1961, it is stipulated that where the polling station is situated in a constituency, electors of which have been supplied with identity cards under the provisions of the Registration of Electors Rules, 1960, the elector shall produce his identity card before the presiding officer or the polling officer authorised by him in this behalf and that the Kannur Parliamentary constituency is one such area where the identity cards have bene issued under Rule 35(3) of the Conduct of Election Rules, 1961. It is his case as if the identity cards referred to in the above said Rule 35 (3) include the identity card issued by the Election Commission of India, a passport, a PAN (Permanent Account Number) card, Adhar card or such other identity cards issued under the authority of a w.p.c.10503/14 - : 2 :- Statute and that it cannot be substituted with anythingelse. He contends that in spite of this, the impugned Ext.P1 circular has been issued by the 1[st] respondent-Election Commission of India authorising the Booth Level Officers (BLOs) to issue the impugned authenticated photo voter slips to the voters and the voters are required to produce them at the time of polling avoiding production of identity cards and that the said impugned Ext.P1 circular is totally beyond the jurisdiction of the Election Commission as the said circular is contrary to the statutory prescription made in Rule 35(3) of the Conduct of Election Rules, 1961. That the identity card is the personal property of a voter and that the photo voter slip issued by the Booth Level Officers in terms of Ext.P1 is not permanent and it is an extract from the voters' list and cannot be called an identity card and that yet, photo voter slips in terms of Ext.P1 have been issued in the Kannur parliamentary constituency and that the same is completely contrary to the scheme of election law and in violation of the Conduct of Election Rules framed under the Representative of the People Act, 1951. It is also alleged by the petitioner that in Kannur district there are large scale electoral malpractices and that w.p.c.10503/14 - : 3 :- the polling agents are attacked and that the polling agents belonging to parties other than the Communist Party of India (Marxist) are attacked and violence is unleashed on the agents of other parties and that in such a place, which is notorious for crimes in connection with elections, if the identity slips as per Ext.P1 are issued by the Booth Level Officers and are permitted in the place of the identity cards issued as per Rule 35(3), then the entire election would be reduced to mere farce and will lead to large scale organized impersonation. It is also averred that Ext.P1 letter dated 2.4.2014 has been issued by the Chief Minister of the State addressed to the Election Commission of India and that Ext.P3 letter dated 2.4.2014 has also been issued by the President of the State Unit of the political party, to which the petitioner belongs, requesting the 1[st] respondent-Election Commission not to proceed with the issuance of photo identity slips in terms of the impugned Ext.P1. In the conspectus of the above said facts, it is urged by the petitioner that the impugned Ext.P1 circular pertaining to the authenticated photo voter slip is contrary to the above said statutory rule contained in Rule 35(3) of the Conduct of Election Rules, 1961 w.p.c.10503/14 - : 4 :- and that the impugned Ext.P1 circular is beyond the competence of the Election Commission under Article 324 of the Constitution of India and that even under that Article, the Election Commission cannot act contrary to the statutory rules and vary it by issuance of a circular like Ext.P1 and that the impugned Ext.P1 circular is liable to be declared altogether as void, inoperative and unenforceable and issued beyond the jurisdiction of the respondents. In this background that the petitioner seeks certiorari to quash the impugned Ext.P1 circular and for issue of a mandamus forbearing the respondents from implementing Ext.P1 circular during the time of polling in the Kannur constituency and instead insist that voters should bring the identity cards either in the form of photo identity cards issued by the Election Commission of India or such other manner permitted by the Election Commission. 2. The 1[st] respondent-Election Commission of India has resisted the pleas and contentions of the petitioner by submitting the pleadings in the form of a Statement dated 7.4.2014. The 1[st] respondent would primarily contend that one of the golden rules of the election jurisprudence as laid down by the Constitution Bench of w.p.c.10503/14 - : 5 :- the Apex Court as in the case in N.P.Ponnuswami v. the Returning Officer, Namakkal Constituency reported in AIR 1952 SC 64 and in a long line of case laws rendered thereafter as in the cases as in Shyamdeo Pd. Singh v. Nawal Kishore Yadav reported in (2000) 8 SCC 46 and other rulings that the underlying the plenary bar on judicial proceedings in election matters created by Article 329(b) of the Constitution of India is pre-emptory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between its commencement and the conclusion. It is further submitted that Ext.P1 circular dated 28.3.2014 issued by the 2[nd] respondent-Chief Electoral Officer, Kerala, is only based on Annexure A order dated 2.4.2014 issued by the 1[st] respondentElection Commission of India. Annexure B is the letter dated 2.4.2014 issued by the 1[st] respondent Election Commission of India addressed to the Chief Electoral Officers of all States and Union territories and Annexure C is the letter issued by the 1[st] respondent-Election Commission of India addressed to the Chief Electoral Officers of all States and Union Territories dealing with the w.p.c.10503/14 - : 6 :- manner and methods of distribution of photo voters' slips to the electors by the Both Level Officers (BLOs) etc. It is submitted by the respondents that the right to be included in the electoral roll, unless disqualified, is a constitutional right conferred by Article 326 of the Constitution of India and that the right of a citizen whose name is included in the electoral roll, to vote is also a statutory right, subject to prescribed restrictions and that Section 62 of the Representation of the People Act, 1951, provides that every person whose name is entered in the electoral roll of any constituency shall be entitled to vote in that constituency, subject to the provisions of sub section 2 (5) thereof. It is further pointed out by the respondents that Rule 37 (2)(b) of the Conduct of Election Rules, 1961, provides that if any elector fails or refuses to produce his identity card, he shall not be supplied with any valid paper or allowed to vote and that the said Rule 37(2)(b) is only a reasonable limitation intended to regulate the elector's right to vote so as to protect his own right to ensure that his right is not defeated by some unscrupulous elements through impersonation. That, at present all the States and Union Territories have Photo Electoral Rolls (PERs) and making the database of the w.p.c.10503/14 - : 7 :- computerised electoral rolls and the database of the Electoral Photo Identity Card (EPIC), the electoral roll of all the constituencies in all the States have been generated with the photographs of the voters. That in spite of being issued with EPIC, there might raise situations where the voters are unable to produce their EPIC for unavoidable reasons such as EPIC being lost or not being able to trace out on the date of the polling etc. or where the identity of the voter cannot be established through EPIC, for reasons such as photo being not clear, mismatch of photo etc. In all these situations, the statutory right of the voter to vote at the election cannot be permitted to be defeated for no fault of the elector or for justifiable reasons. The fundamental objective is that no genuine elector is denied his/her right to vote, which is a statutory right as per Section 62 of the Representation of the People Act, 1951. It is in view of these aspects that the Election Commission has in exercise of plenary powers under Article 324 of the Constitution of India issued Annexure A order dated 2.4.2014 directing that, for the general elections to the House of People 2014 and the State Legislative Assemblies of Andhra Pradesh, Arunachal Pradesh, Odisha and Sikkim and bye-elections from 27 assembly w.p.c.10503/14 - : 8 :- constituencies being held simultaneously, that all the electors who have been issued EPIC shall produce EPIC for their identification at the polling station before casting their votes and also that those electors who are not able to produce EPIC, shall produce one of the following documents for establishing their identity, namely: - (i) Passport - (ii) Driving License - (iii) Service Identity Cards with photograph issued to employee by Central/State Govt. PSU's/Public Limited Companies; - (iv) Passbooks with photographs issued by Bank/Post Office; - (v) PAN card. - (vi) Aadhar Card - (vii) Smart Card issued by RGI under NPR; ## (viii) MNREGA Job Card; - (ix) Health Insurance Smart Card issued under the scheme of Ministry of Labour. - (x) Pension document with photograph and - (xi) Authenticated Photo Voter Slip issued by the election machinery. w.p.c.10503/14 - : 9 :- Thereafter, as per Anx. B proceedings dated 2.4.2014, the 1[st] respondent Election Commission of India duly forwarded Annexure A order dated 2.4.2014 to the Chief Electoral Officers of all the States and Union Territories for compliance of the directions in Annexure A. Further, as regards the distribution of photo voter slips to the electors, the 1[st] respondent-Election Commission of India issued Annexure-C letter dated 21.3.2014 to the Chief Electoral Officers of all the States and Union Territories, detailing out the elaborate procedure to be followed for the distribution of photo voter slips. That in pursuance of the receipt of Annexure-C communication dated 21.3.2014, the 2[nd] respondent-Chief Electoral Officer has issued Ext.P1 communication dated 28.3.2014 to all the District Election Officers and Electoral Registration Officers in the State of Kerala detailing out the same in the local vernacular about the elaborate procedure to be followed for the distribution of photo voter slips as earlier ordered in Annexure A. 3. It is also pointed by the respondents that the EPIC referred to earlier is the identity card as envisaged in Rule 28 of the Registration of Electors Rules, 1960 and Rule 35(3) of the Conduct w.p.c.10503/14 - : 10 :- of Election Rules, 1961. Accordingly, it is contended by the respondents that the prayers of the petitioner are mutually contradictory. In this regard it is submitted by the respondents that the challenge mounted by the petitioner against Ext.P1 circular is on the premise that the same is contrary to the statutory prescription in the above said Rule 35(3) of the Conduct of Election Rules, 1961 read with Rule 28 of the Registration of Electors Rules, 1960 and the said contention proceeds on the premise that the only statutory permission is in terms of the above said Rule 35(3) read with Rule 28 and that the permission granted in Ext.P1 circular for the impugned authenticated photo voter slip would be contrary to the statutory prescription in Rule 35(3) and hence ultra vires and unlawful. Even prior to the 2014 elections, the 1[st] respondent-Election Commission of India had permitted many of the alternative documents among item Nos.(i) to (x) of Annexure A in the previous general elections in 2004 and also to some of the elections held in 2003 and even prior to that. This was done by virtue of the plenary powers conferred on the Election Commission as per Article 324 of the Constitution of w.p.c.10503/14 - : 11 :- India, so as to effectuate the right to vote of the elector. However, the petitioner challenges only the provision made for permitting authenticated photo voter slips issued by the election authorities referred to in Item (xi) of Annexure-A and no challenge is made by the petitioner as against the permission granted for use of other alternative identity documents like items (i) to (x) of Annexure-A. If the argument of the petitioner that the impugned photo voter slip is ultra vires Rule 35(3) is accepted, then the same would also result in making the use of items (i) to (x) of Annexure-A also equally unlawful and ultra vires, it is contended by the respondents. It is also pointed that the petitioner specifically pleads in paragraph 3 of the Writ Petition that identity cards include card is used by the Election Commission of India a passport, a PAN card and Aadhar card or such other identity cards issued under the authority of the State. It is contended by the respondents that EPIC is the only identity card issued directly under the authority of the Election Commission of India as per Rule 35(3) and therefore, on the one hand, the petitioner contends that authenticated photo voter slip issued by the Election authorities is ultra vires Rule 35(3) and on w.p.c.10503/14 - : 12 :- the other hand, the petitioner contends that alternative identity documents like passport, PAN Card, Aadhar card or such other identity cards issued under the authority of the statute is also permissible. Therefore, the plea is that the contentions of the petitioner based on the alleged violation of the statutory provision of Rule 35(3) are self-contradictory. It is also pointed out by the respondents that the first prayer of the petitioner challenging Ext.P1, though confined to the photo voter slip, will also deleteriously affect the other alternative identity documents, to which the petitioner has no objection. More importantly it is contended that the second prayer of the petitioner is essentially for a mandamus to direct the respondents not only to forbear them from implementing Ext.P1 circular during the time of the polling in Kannur constituency, but also to insist that voters bring the identity cards either in the form of photo identity cards issued by the Election Commission or such other manner permitted by the Election Commission. Accordingly, it is contended by the respondents that this specific prayer of the petitioner is for a mandamus to insist that the voters bring the identity cards either in w.p.c.10503/14 - : 13 :- the form of EPICs issued by the Election Commission under Rule 35 (3) or any such other manner permitted by the Election Commission. Since this is the specific prayer of the petitioner, Annexure-A is such permission granted by the 1[st] respondent-Election Commission permitting item Nos.(i) to (xi) mentioned therein as alternative documents other than EPICs issued as per the above said Rule 35(3) read with Rule 28. Therefore, in essence, the petitioner also cannot seek any relief interfering with the permission granted by the 1[st] respondent-Election Commission of India to use item Nos.(i) to (xi) of Annexure-A, including item No.(xi) thereof, which is the authenticated photo voter slip, issued by the election machinery, as alternative identity documents in the place of EPIC. Certain detailed aspects regarding the manner and method for permitting the above said alternative photo identity documents including authenticated photo voter slips have been dealt with in the pleadings of the respondents and also as to the details of the safeguards taken for the distribution of the authenticated photo voter slips as laid down in Annexures C and B, where also the details in that regard are dealt with. It is submitted by the respondents that the electoral roll w.p.c.10503/14 - : 14 :- of all the constituencies have been generated with photographs of electors by making the data base of the computerised electoral rolls and the data base of the EPIC. It is pointed out that the photo voter slips are prepared only from such computerised data base of Electoral Photo Identity Cards (EPICs) maintained by the Election Commission authorities. The respondents have also stated that almost a similar challenge in respect of certain other alternate identity documents was made during the general election of 2004 in W.P.(C).No. 13590/2004 and that this Court refused to interfere with the similar impugned orders of the 1[st] respondent-Election Commission of India as evident from Annexure-D. Similar challenge was also made in 2003 by filing W.P.(C).No.29853/2003, in which, this Court refused to interfere in the matter. Certain other decisions of the Division Bench of the Madras High Court and that of the Supreme Court interfering with the orders granted by the Allahabad High Court were also relied on and adverted to by the respondents. 4. It is also pointed out that as per the detailed order dated 6.5.2004, this Court in W.P.(C).No.13590/2004 rejected the plea for stay of the order of the Election Commission impugned therein and later the said Writ Petition was dismissed as infructuous as per the w.p.c.10503/14 - : 15 :- judgment dated 2.11.2005. In W.P.(C).No. 29853/2003 also this Court by order dated 22.9.2003 rejected the plea of the stay of the impugned order of the Election Commission and later by the judgment dated 5.4.2004, the said Writ Petition was dismissed as infructuous. In Annexure D produced in the statement filed by the 1[st] respondent, reference is made to the Division Bench judgment of the Madras High Court in P.Gajapathi v. Election Commission of India, reported in AIR 2001 Madras 446, wherein it has been held that since the Government could not issue EPIC to all voters, such voters have to satisfy their identity by production of alternate documents specified and insisted by the Election Commission. That in the case Manoj Dubey v. Election Commission of India reported in AIR 2002 Allahabad 167, the Allahabad High Court interfered with the order of the Election Commission prescribing alternate mode of identification of electors other than EPIC and that the Supreme Court in SLP (Civil) No.3820-3821 of 2002 in the case Election Commission of India v. Manoj Dubey and others stayed the above said judgment of the Allahabad High Court by order dated 4.3.2002 and observed that EPIC and other alternate identity w.p.c.10503/14 - : 16 :- documents as notified by the Election Commission would come into operation and could be given effect to in the election. It is also pointed out that in Ram Deo Bhandari and others v. Election Commission of India in Writ Petition (Civil) No.2/1995, the issue regarding insistence of EPIC came up for consideration before the Apex Court and in that case, the Election Commission of India submitted that in places where the exercise of issuance of photo identity cards is not complete, the Election Commission of India proposes to continue the practice of prescribing alternate documents for identification of voters at the time of polling and based on the affidavit filed by the Election Commission of India, the above said Writ Petition (Civil) No.2/1995 was closed by the Supreme Court as per the order dated 17.8.2000. It is pointed out by the respondents that the impugned action to permit the alternative photo identity documents including the impugned authenticated photo voter slip has been issued in exercise of the plenary powers of the Election Commission of India conferred under Article 324 of the Constitution of India and that it is done essentially to effectuate the right to vote conferred as per Section 62 of the w.p.c.10503/14 - : 17 :- Representation of People Act, 1951 in respect of the citizens who have been granted right and entitlement to be registered as a voter at the election as conferred by Article 326 of the Constitution of India. This has been done by the respondent Election Commission by balancing the right to vote conferred as per Section 62 vis-a-vis the provisions in the Rules like Rule 37(2)(b) of the Conduct of Election Rules, 1961, which deal with the steps against impersonation. It is also submitted that such reservoir of plenary powers are conferred on the Election Commission as per Article 324 of the Constitution. It is specifically stated in para 14 of the Statement filed by the respondents in this case that though as per Annexure-A, the Election Commission has permitted those electors, who are not able to produce the EPIC, to produce any of the 11 alternative documents mentioned therein, for establishing the identity of electors, prior to use of such alternative document, the Election Commission would insist upon the elector concerned to give written declaration stating the reason for non-production of the EPIC. It is submitted that there are sufficient safeguards that are insisted by the Election Commission so as to ensure that there is no w.p.c.10503/14 - : 18 :- misuse in the provision for such alternative identity documents. 5. Heard Sri.K.Ramakumar, the learned Senior Counsel for the petitioner and Sri.Murali Purushothaman, learned Standing Counsel for the Election Commission of India appearing for the respondents, who have reiterated their above said submissions. 6. The main case projected by the petitioner is that identification of electors is dealt with in Rule 35, more particularly, Rule 35(3) of the Conduct of Election Rules, 1961 read with Rule 28 of the Registration of Electors Rules, 1960 and that preparation and supply of identity cards are dealt with in this statutory provision and that the only permissible method, in which the respondent Election Commission can permit identity cards is solely on the basis of the prescription in the above said Rule 35(3) read with the above said Rule 28 and that any action taken by the Election Commission of India should be strictly within the confines of the above said statutory prescription. It is the case of the petitioner that the authenticated photo voter slips envisaged in item No.(xi) of Annexure A is not one permitted as per the above said Rules and that the same is ultra vires. But the plea of the petitioner as per w.p.c.10503/14 - : 19 :- paragraph 3 of the Writ Petition specifically proceeds on the premise that the identity cards, which are statutorily permissible include the card issued by the Election Commission of India, passport, PAN card, Aadhar card or other such identity cards issued under the authority of the statute. The Electoral Photo Identity Card (EPIC) mentioned herein above is the identity card prepared in terms of Rule 28 of the Registration of Electors Rules, 1960 and therefore the EPIC is the only identity card envisaged in Rule 35(3) of the Conduct of Election Rules, 1961. Earlier, the Election Commission has been permitting items as in Nos.(i) to (x) of Annexure A as alternative identity documents in the place of EPICs. Therefore, if the plea regarding the vires of the impugned authenticated photo voter slip is accepted, it would also amount to affecting the vires of the other permitted alternative documents like passport, PAN card, Aadhar card etc. Moreover, the specific prayer of the petitioner is not only for mandamus to forbear the respondents from implementing Ext.P1 circular during the time of polling in Kannur constituency, but also for a mandamus to insist that voters bring the identity cards either in the form of identity cards issued by the Election w.p.c.10503/14 - : 20 :- Commission India or such other manner permitted by the Election Commission of India. Alternative documents like items Nos.(i) to (xi) including the authenticated photo voter slip as ordered in the impugned Ext.P1 and Annexure A is a specific permission granted and ordered by the Election Commission of India to use such identity documents as alternate documents to EPICs. Therefore, going by the prayer of the petitioner, the permission granted in Ext.P1 and Annexure A, is also on the basis of the permission ordered by the Election Commission and therefore, is in consonance with the specific plea and prayer of the petitioner. In the light of these contentions and prayers of the petitioner, this Court is of the considered opinion that this is not a fit case to invoke discretionary jurisdiction conferred under Article 226 of the Constitution of India. Accordingly, the Writ Petition (Civil) stands dismissed. There will be no order as to costs. Sd/sdk+ ALEXANDER THOMAS , JUDGE ///True copy/// P.S. to Judge