IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31830 of 2010(C)
1. SHALINI.M., AGED 23 YEARS,
... Petitioner
Vs
1. STATE ELECTION COMMISSION, KERALA,
... Respondent
2. THE DISTRICT COLLECTOR/DISTRICT ELECTION
3. THE SUPERINTENDENT OF POLICE,
4. THE DEPUTY SUPERINTENDENT OF POLICE,
5. THE CIRCLE INSPECTOR OF POLICE,
6. THE STATION HOUSE OFFICER,
For Petitioner :SRI.M.RAMESH CHANDER
For Respondent :SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :19/10/2010
O R D E R
K.M.JOSEPH & M.C.HARI RANI, JJ.
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W.P.(C) Nos. 31830/2010-C, 31648/2010-E
31855/2010-F, 31641/2010-E, 31646/2010-E
31667/2010-G, 31828/2010-C, 31854/2010-F
31649/2010-E, 31647/2010-E, 31853/2010-F
31457/2010-F, 31840/2010-D,
31710/2010-K, 31406/2010-A, 31637/2010-D,
31822/2010-C, 31775/2010-V & 31774/2010-
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Dated, this the 19th day of October, 2010
J U D G M E N T
K.M.Joseph, J.
This batch of Writ Petitions raise essentially
common questions. Petitioners are candidates in the
forthcoming elections to the Local Bodies scheduled to be held
on 23.10.2010 and 25.10.2010.
2. Petitioners have approached this Court
apprehending that the elections to the Local Bodies will not be
conducted in a free and fair manner. Various types of
allegations have been raised. In some of the Writ Petitions,
allegations are fairly general. In some other Writ Petitions,
allegations are more specific. The allegations in many cases
are to the effect that the polling stations are sensitive. The
reliefs which have been sought in these Writ Petitions
W.P.C.31830 & Con.cases -2-
essentially are to grant police protection to the candidates, to
their agents and also for the voters, so that the election is
held in a free and fair manner. In many of the Writ Petitions,
there is a prayer that the Election Commission Officials may
be directed to videograph the electoral process in their polling
stations.
3. A statement has been filed on behalf of the
State Election Commission. Therein it is inter alia stated as
follows:
“3. There are 21612 Local Self Government
constituencies in Kerala. There are 37233 polling booths
in the State housed in 22061 building.
4. The State Election Commission has taken all steps for
the conduct of a free and fair election. Meetings were
held with the Chief Secretary of the State, Director
General of Police and other top police officials, District
Collectors and other senior officers of the State.
5. Sensitive and troublesome areas in the State were
identified through the District Superintendents of police
and the District Collector. Senior officials of the
Government have been nominated as Observers in
consultation with the Government for
overseeing/observing the election in terms of Section 40A
of the Kerala Panchayat Raj Act and Section 96A of the
Kerala Municipality Act. The Observers have been given
W.P.C.31830 & Con.cases -3-
instructions to keep close watch of sensitive areas
including polling stations and other areas which they
deem fit. They have been provided with vehicles and
mobile phones to exercise their duties.
7. It is reported that 3218 polling stations in the State are
situated in politically sensitive areas. The district wise
number of polling stations identified as sensitive is given
below.
Name of District Number of Number polling of stations polling identified as stations sensitive identified as vulnerab le Thiruvananthapuram 118 Kollam 89 Pathanamthitta 60 Alappuzha 233 Kottayam 52 Idukki Nil Ernakulam 442 Thrissur 31 Palakkad 80 42 Malappuram 58 Kozhikode 396 Kannur 1345 84 Wayanad 49 Kasaragod 265126 polling stations are identified as vulnerable.
W.P.C.31830 & Con.cases -4-
In Idukki there is no polling station identified as sensitive. In
all other districts there are number of polling stations which
are identified as sensitive. 1345 polling stations in Kannur
District are identified as sensitive and this is the largest
number of sensitive polling stations in the State followed by
Ernakulam at 442 and Kozhikode at 3rd position with 396
polling stations.
“8. Sufficient police forces have been deployed in these
sensitive areas to meet law and order problems. Special
care and attention have already been taken by the Police
in these sensitive areas to provide adequate security
measures to the electorate and the polling officials for the
smooth conduct of election in a peaceful atmosphere.
9. All the police forces including Local Police, Armed
Battalion, District Armed Force, Crime Branch, Special
Branch, Vanitha Police etc. are being deployed throughout
the State for the election purpose. Apart from the above
police forces, Excise, Forest and Motor Vehicles
Department employees are also being deployed for the
election to maintain law and order. 15000 Special Police
are being appointed to ensure free and fair election.
Moreover, seven company of police force from Karnataka
are also being deployed in the State for election purpose.
Further, police force from Tamil Nadu is also requested for
being deployed to maintain law and order during election.
10. Polling stations are conveniently categorized into
W.P.C.31830 & Con.cases -5-
different groups according to its proximity between each
other. Mobile Group Patrol and Law and Order Patrol with
wireless sets and mobile phone facilities are also been
arranged to get in touch with each polling stations and to
evaluate the peaceful state of affairs in each polling
stations. Video cameras are also arranged in sensitive
and vulnerable booths to guarantee unruffled
environment throughout the election process.
11. Striking forces are also deployed in all Districts under
Superintendent of Police, Dy.SPs. and Circle Inspectors
with about 9 units to meet any untoward contingencies
during the election period. Hotlines are provided with the
Police head quarters-Secretariat-Intelligence
headquarters-Superintendent of Police office of all
Districts for instant communications, instructions and
directions.
12. Strict instructions have been given to the police
officials to take stringent and instantaneous action in
accordance with law to prevent bogus voting,
impersonation, booth capturing and other electoral
offences. Any attempt to traverse the tranquility in order
to take advantage from countermanding election or any
attempt to interfere with the smooth process of election
will be dealt with seriously. Appropriate and immediate
remedial action will be taken in accordance with law to
defeat such despicable situations.
13. Control Rooms and Help Lines equipped with all
arrangements are made available in all districts to control
the interaction between each of the groups and to make
W.P.C.31830 & Con.cases -6-
available their service at the spot in time whenever it
becomes necessary. The mobile phone numbers of police
officers who are in charge of maintaining law and order
are being circulated among the public by publishing in
daily newspapers.
14. Orders have been issued prohibiting and restricting
carrying of fire arms and lethal weapons till the election
process is over. Thorough checking of vehicles are
directed to be done for 3 days before the day of poll, on
poll day and till the completion of counting of votes to
ensure that no undesirable elements or arms and
ammunitions are smuggled into the constituency from
outside. Directions are also issued not to allow
cars/vehicles to move in convoys of more than 3 vehicles.
Directions have also been issued by the Commission to all
District Collectors and the Director General of Police to
prevent any corrupt practices or electoral offences being
committed at elections.
15. Thus every step is being taken by the Commission
with the assistance of the State machinery and police to
ensure a free and fair election. The police have been
instructed to provide adequate protection to voters,
polling agents of all political parties and candidates and to
assist the election machinery to ensure fair and free poll.
The senior police officials of the State have assured to the
Commission all assistance and help of the police force to
ensure a smooth, free and fair election. The
arrangements are also reviewed each day with the
assistance of the police.
W.P.C.31830 & Con.cases -7-
It is also stated in para 16 as follows:
16. The State Election Commission does not object to
any direction being issued by this Hon’ble Court to the
police to ensure a free and fair poll. However, it is
respectfully submitted that any direction that may be
issued by this Hon’ble Court at this stage with regard to
the arrangements to be made at any polling stations may
lead to total confusion in the arrangements now made by
the State Election Commission for the conduct of elections
to Local Self Government Institutions in Kerala.”
4. We heard the learned counsel for the
petitioners, learned Government Pleader and the learned
Standing counsel appearing on behalf of the Election
Commission and learned counsel for the party respondents
appearing. Learned counsel for the petitioners reiterated the
apprehensions of the petitioners. Learned counsel for the
petitioners lead by Sri. M.Ramesh Chander would contend
that there is no rational basis for the categorization of the
polling stations as sensitive and vulnerable. In other words,
according to them several polling stations which ought to have
been classified as sensitive and vulnerable had not been done
W.P.C.31830 & Con.cases -8-
so and the norms on the basis of which the polling stations
have been classified as sensitive and vulnerable are not
discernible. No materials are there on record apart from the
statement of the Commission which we have already adverted
to. It is submitted by the learned counsel appearing in the
other cases that there is genuine apprehension that the
electoral process would be sabotaged. There is also a
complaint that impersonators will be allowed to vote and
the candidates and their agents will not be allowed to carry
out their work. It is the further complaint that the voters will
not be allowed to freely exercise their franchise.
5. Per contra, the learned standing counsel for the
Commission would submit that it is not correct to say that
there is no rational basis. There are elaborate processes
involved. He reiterates that there are 21612 constituencies
in the State of Kerala in the forth coming election. There
are 37233 polling stations situated in 22061 buildings. The
Election Commission is constituted under the provisions of
Article 243 K of the Constitution. He would submit
that the Commission is appointing observers in all the
W.P.C.31830 & Con.cases -9-
districts . The observers will be senior Administrative officers
in all the districts. He would point out Rule 31 of the Kerala
Panchayat Raj (Conduct of Election ) Rules, 1995. It reads as
follows:
“31.Identification of electors:–(1) The Presiding
Officer may employ at the polling station such person as
he thinks fit to help in the identification of the electors or
to assist him otherwise in taking the poll.
(2) As each elector enters the polling station, the Presiding
Officer or the Polling Officer authorised by him in this
behalf shall check the elector’s name and other particulars
with the relevant entry in the electoral roll and then call
out the serial number, name and other particulars of the
elector.
(3). In deciding the right of a person to obtain a ballot
paper the Presiding Officer or the Polling Officer, as the
case may be, shall overlook merely clerical or printing
errors in an entry in the electoral roll, if he is satisfied that
such person is identical with the elector to whom such
entry relates.
(4). Each elector shall produce either the identity card
issued by the Central Election Commission or Revenue
Card or Ration Card or Passport or Driving Licence or Pass
Book obtained from Bank or Post Office, if demanded by
the Presiding Officer or the Polling Officer authorised by
him in this behalf.”
W.P.C.31830 & Con.cases -10-
6. He would point out that under Rule 32 it is
open to any polling agent to challenge the identify of person.
Rule 33 also deals with safeguards against personation. He
also brought to our notice a Bench decision of this Court a
public interest litigation (W.P.(C) No.1080/2010). Therein
this Court also relied on the provisions of Rule 31 and repelled
the contentions of the petitioner therein for interference by
the Court. The Court took the view that it is a matter which
should engage the attention of the legislative body.
7. Learned standing counsel also brought to our
notice Section 48A of the Kerala Panchayat Raj Act, 1994. It
reads as follows.
“48A. Returning officer, Presiding Officer etc. be
deemed to be on deputation to the Election
Commission.–The Returning officer, the Assistant
Returning Officer, the Presiding Officer, the Polling Officer,
any other Officer and any Police Officer designated for the
time being to conduct a general election or by-election
under the provisions of this Act shall be deemed to be on
deputation to the State Election Commission for the
period from the date of the notification for such election to
the date of declaration of the result of such election and
accordingly, such officer shall be subject to the control,
W.P.C.31830 & Con.cases -11-
supervision and command of the State Election
Commission during that period.”
8. According to him the decision to categorise
polling stations as sensitive or vulnerable is based on
intelligence input by police officers. He fairly contends that
those who sent reports may not by themselves be covered by
Sec.48A. He, however, pointed out that these reports are
sent by Superintendent of Police who are coming under the
purview of Sec.48A.
9. Learned Government Pleader who was asked
to get instructions in regard to the criteria and the basis of
classification of booths as sensitive or vulnerable as the case
may be are concerned, would submit before us that the
categorization is done on the basis of certain criteria. They
include prevailing law and order situation in the area,
anticipated law and order problems and issues and disputes in
a particular area. Sensitive or vulnerable areas are assessed
by the District Special Branch and State Intelligence Wing.
The Electoral Incidents reported during the past elections are
taken into consideration. Learned Government Pleader would
W.P.C.31830 & Con.cases -12-
submit further as follows: That police is deployed in scheme
for the conduct of polling based on the above criteria. That
additional police will be deployed in sensitive and vulnerable
areas. He would further submit that as stated in the
statement of the Commission 7 companies of police from the
Karnataka State have been requested and they have been
allotted to the State. Out of the 7 companies 3 have been
allotted to Kannur district, one company is allotted to
Kasargode and 3 are kept as reserve to be used on the basis
of fresh intelligence inputs. Learned Government Pleader
would further submit that there would be general law and
order patrolling in all the constituencies from the day on which
election campaign ends. It is further submitted that all
directions given by the electoral officers will be complied in
letter and spirit.
10. Learned standing counsel for the Commission
also on enquiries made by us made available certain
judgments of this Court rendered in the context of previous
election . In W.P.(C) 27324/2005 and connected cases, we
notice that a Division Bench of this Court was considering
W.P.C.31830 & Con.cases -13-
almost similar contentions. Learned standing counsel would
point out that there were almost 30 writ petitions filed during
the last election. We notice that after referring to the
submissions the Court specifically directed that if requests
come from the candidates that there is personal threat that
should be promptly attended to.
11. In W.P.C. 27285/2005 after referring to the
undertakings of the Government and the Commission the
Court directed the State to ensure that the undertakings will
be honoured so as to ensure the election process is smoothly
carried out. Taking note of the anxiety expressed by the
petitioners the Court directed that the vigilance as stated
therein should be continued at least up to the time of
declaration of the results.
12. In the Constitutional scheme, the local bodies
play a pivotal role. The elections therefore to the local bodies
must be conducted in the most free and transparent manner.
The local bodies under decentralization of power contemplated
under the Constitution are the closest to the people and there
is much devolution of the power to the chosen
W.P.C.31830 & Con.cases -14-
representatives of these bodies. Therefore , the importance
of holding election in a free and fair manner to the local
bodies cannot be over emphasised. It is the bounden duty of
the Commission and its officers to make every sincere effort
adopting a totally neutral stand and upholding the laws of the
land to conduct elections to the local bodies. It is equally the
duty of the officers of the State, in particular the police officers
that they are quick to respond to the demand in particular of
the officers of the Commission in a fair manner so that people
have continued faith in the democratic process and the voters
in large numbers are persuaded to participate in the
democratic processes. It is in the context of these dimensions
that that we must approach the issues raised in these writ
petitions.
13. Essentially the prayers in the writ petition are
for police protection. We have already extracted the
statement in its essential particulars in the judgment. The
undertakings which have been given by the Commission in
the statement shall be honored in letter and spirit. If threat to
the lives of the candidates or their agents have been brought
W.P.C.31830 & Con.cases -15-
to the notice of the respondent police officers, they shall
ensure that the lives of the candidates and their agents are
protected, if threats are found to be genuine. As far as the
question relating to the protection to voters is concerned, we
emphasise the statement made by the Commission namely
that the police have been instructed to provide adequate
protection to the voters of all political parties. We have
already extracted the submission of the learned Government
Pleader that the police will abide by the directions of the
electoral officers. Reading both these together we feel that it
becomes the duty of the police to give adequate protection to
the voters so that they may exercise their franchise in a free
and fair manner. We also record the submission of the
learned counsel for the Commission that Rules 31 to 33 do
provide for a mechanism to deal with impersonation and that
the said Rules will be strictly enforced. As far as the question
of allowing videography is concerned in some of these cases
petitioners have made request for allowing videogrpahy in
view of the apprehensions of the petitioners. In those writ
petitions relating to sensitive and vulnerable polling stations,
W.P.C.31830 & Con.cases -16-
necessarily videography shall be done in terms of what is
stated in the statement which has been filed by the
Commission. As far as polling stations which have not been
identified as sensitive or vulnerable, in view of the
apprehension of the petitioners, where requests have already
been made by the petitioners to the District Collector of the
District where specific requests have been received for
videographing the electoral process, he will look into it and
take appropriate decision on the same. When such a decision
is taken the District Collector will bear in mind also the
decision of the Apex Court in Janak Singh v. Ram Das Rai &
Others (2005 (2) SCC 1). In cases where the District
Collector finds merit and allows videography, the expenses for
doing videography shall be borne by the petitioners. It is
open to the District Collector to take decision taking into
account all the relevant inputs in the facts of each case. In
cases where requests have not been made by the petitioners
before the District Collector as such it will be open to the
petitioners to approach the District Collector without any delay
and if such a request is received it is for the District Collector
W.P.C.31830 & Con.cases -17-
to take a decision on the same in accordance with law.
The writ petitions are disposed of recording the
submissions on behalf of the Commission and also the learned
Government Pleader and with the directions which we have
given in the judgment.
(K.M.JOSEPH)
JUDGE.
(M.C.HARI RANI)
JUDGE.
MS