High Court Kerala High Court

C.Sathyan vs State Of Kerala on 22 October, 2010

Kerala High Court
C.Sathyan vs State Of Kerala on 22 October, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 32362 of 2010(U)


1. C.SATHYAN, S/O.KRISHNAN NAIR,
                      ...  Petitioner
2. P.K.BALARAM, S/O.KRISHNAN NAMBIAR,
3. E.K.SHAJI, S/O.GOVINDAN,
4. C.MANOHARAN, S/O.KRISHNAN,
5. K.CHANDRAN, S/O.NARAYANAN,
6. P.P.NARAYANAN, S.N.PURAM, P.O.CHALA,
7. K.V.CHANDRAN, S/O.GOVINDAN,

                        Vs



1. STATE OF KERALA, REPRESENTED BY ITS
                       ...       Respondent

2. THE SUPERINTENDENT OF POLICE,

3. THE SUB INSPECTOR OF POLICE,

4. THE DISTRICT COLLECTOR,

5. THE KERALA STATE ELECTION COMMISSION,

                For Petitioner  :SMT.SHAMEENA SALAHUDHEEN

                For Respondent  : No Appearance

The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MRS. Justice M.C.HARI RANI

 Dated :22/10/2010

 O R D E R
              K.M.JOSEPH & M.C.HARI RANI, JJ.
        ------------------------------------------------------
          W.P.(C) Nos.32362/2010, 32364/2010
                  32467/2010, 32435/2010
                           32047/2010
            ----------------------------------------------
           Dated, this the 22nd day of October, 2010

                         J U D G M E N T

K.M.Joseph, J.

Since these Writ Petitions raise common issue,

they are disposed of by this common Judgment.

Petitioners have approached this Court in the

context of the forthcoming election to the local bodies. The

basic apprehension is that the election will not be conducted in

a free and fair manner. Petitioners are Convenors, Chairman

of Election Committee, Secretaries of different ward

committee of the UDF. In one of the writ petitions there is a

private party. The prayer is to provide police protection for the

conduct of polling. Notice has been served in the matter.

2. 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

WPC No.32362/2010 & con.cases -2-

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

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

WPC No.32362/2010 & con.cases     -3-


         Name of District           Number of           Number
                                      polling              of
                                     stations            polling
                                   identified as         stations
                                     sensitive          identified
                                                           as
                                                        vulnerab
                                                            le

      Alappuzha                              233

      Kottayam                                52

      Idukki
                                   Nil

      Ernakulam                              442

      Thrissur                                31

      Palakkad                                80                42

      Malappuram                              58

      Kozhikode                              396

      Kannur                               1345                 84

      Wayanad                                 49

      Kasaragod                              265


126 polling stations are identified as vulnerable.

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

WPC No.32362/2010 & con.cases -4-

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

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

WPC No.32362/2010 & con.cases -5-

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

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

WPC No.32362/2010 & con.cases -6-

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.

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

WPC No.32362/2010 & con.cases -7-

Kerala.”

3. We heard the learned counsel for the

petitioners, learned Government Pleader and also the learned

standing counsel appearing on behalf of the Election

Commission. There is no appearance as such for the party

respondent. Learned counsel for the petitioners reiterate the

apprehension of the petitioners. There is a case for them that

some of the polling stations should have been treated as

sensitive and they have not been done. 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.

4. Per contra, learned standing counsel for the

Commission would submit that there are elaborate process

involved. He reiterates that there are 21612 constituencies

WPC No.32362/2010 & con.cases -8-

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

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.

WPC No.32362/2010 & con.cases -9-

(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.”

5. 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. According

to the learned standing counsel for the Commission, the

decision to categorise the polling stations as sensitive and

vulnerable is based on intelligence inputs by the Police

Officers.

6. Learned Government Pleader would submit as

WPC No.32362/2010 & con.cases -10-

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.

7. 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

almost similar contentions. Learned standing counsel would

WPC No.32362/2010 & con.cases -11-

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.

8. 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.

9. 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

representatives of these bodies. Therefore , the importance

WPC No.32362/2010 & con.cases -12-

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.

10. 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 whose cause is

exposed by the petitioners in the Writ petitions, have been

WPC No.32362/2010 & con.cases -13-

brought 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. It is open to the

petitioners if they are so inclined to apply to the District

Collector to take videography and without delay. If such

applications are received it is for the District Collector to pass

orders thereon in accordance with law and necessarily if it is

WPC No.32362/2010 & con.cases -14-

allowed the expenses must be borne by the petitioners. We

make it clear that videography need not be permitted in the

voting compartment. The request for videography if at all

made before the District Collector need be considered by him

only in respect of the polling stations of the candidates whose

cause is expoused by the petitioners in the writ petitions. In

case applications are received, the District Collector shall

bear-in-mind the decision of the Apex Court in Janak Singh v.

Ram Das Rai & Others (2005 (2) SCC 1).

11. The Writ Petitions are disposed of recording

the submissions on behalf of the Election Commission and also

the learned Government Pleader and with the directions which

we have given in this Judgment.

K.M.JOSEPH,
JUDGE.

M.C.HARI RANI,
JUDGE.

MS