IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32007 of 2010(A)
1. SATHEESAN, AGED 46 YEARS, S/O. GOPALAN,
... Petitioner
2. PUSHPANGATHAN, AGED 62 YEARS, S/O.
Vs
1. THE STATE ELECTION COMMISSION,
... Respondent
2. THE SUPERINTENDENT OF POLICE,
3. THE CIRCLE INSPECTOR OF POLICE,
4. THE RETURNING OFFICER,
5. R.S.BIJU, S/O. RAGHAVAN,
6. RENJANAN, S/O. PURUSHOTHAMAN,
7. PREETHAN, S/O. GOPINATHAN,
8. ASHOKAN, S/O. PUSHPANGADAN,
For Petitioner :SRI.K.V.ANIL KUMAR
For Respondent :SRI. K.SIJU
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :21/10/2010
O R D E R
K.M. JOSEPH &
M. C. HARI RANI, JJ.
-----------------------------------------
W.P.(C) Nos.32007/2010, 32022/2010,
32028/2010, 32026/2010,32262/2010,
32267/2010, 32271/2010, 32266/2010,
32268/2010, 32269/2010, 32270/2010,
32298/2010, 32218/2010, 32234/2010,
32235/2010, 32255/2010, 32273/2010,
32279/2010, 32281/2010, 32299/2010,
32306/2010, 32327/2010, 31476/2010,
31843/2010, 31845/2010, 31809/2010,
31785/2010, 31824/2010, 31728/2010,
31717/2010, 31803/2010, 31782/2010,
31779/2010, 31811/2010, 31792/2010,
31794/2010, 31793/2010, 31781/2010,
31786/2010, 31791/2010, 31889/2010,
31892/2010, 31937/2010, 31899/2010,
31985/2010, 31877/2010, 31992/2010,
31965/2010, 31968/2010, 31938/2010,
31939/2010, 31935/2010, 31975/2010,
31761/2010, 32253/2010 &
32339/2010
------------------------------------------
Dated this the 21st October, 2010.
JUDGMENT
K.M. Joseph, J.
This batch of Writ Petitions raise essentially common
questions.
2. One of the petitioners is the Chairman of the Election
Committee. In most of the cases, the petitioners are candidates in the
WP(C).NO.32007/10 & CONN.CASES 2
forthcoming election to the Local Bodies scheduled to be held on
23.10.2010 and 25.10.2010. In a few cases, the petitioners are
agents of the candidates. 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 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
WP(C).NO.32007/10 & CONN.CASES 3
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 of
polling stations polling
identified as stations
sensitive identified as
vulnerable
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
WP(C).NO.32007/10 & CONN.CASES 4
Name of District Number of Number of
polling stations polling
identified as stations
sensitive identified as
vulnerable
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 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
WP(C).NO.32007/10 & CONN.CASES 5
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 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
WP(C).NO.32007/10 & CONN.CASES 6
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.
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
WP(C).NO.32007/10 & CONN.CASES 7
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. According
to them, several polling stations which ought to have been classified as
sensitive and vulnerable, have not been so done and the Norms on the
basis of which the polling stations have been classified 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
WP(C).NO.32007/10 & CONN.CASES 8
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 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.”
WP(C).NO.32007/10 & CONN.CASES 9
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, 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
WP(C).NO.32007/10 & CONN.CASES 10
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 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
WP(C).NO.32007/10 & CONN.CASES 11
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 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.
WP(C).NO.32007/10 & CONN.CASES 12
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 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
WP(C).NO.32007/10 & CONN.CASES 13
letter and spirit. If threat to the lives of the candidates or their agents
have been 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. 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, 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
WP(C).NO.32007/10 & CONN.CASES 14
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 to take a decision on
the same in accordance with law.
14. It is brought to our notice by the learned standing counsel
for the Election commission that even if videography is to be
permitted, it should not be allowed to be done in the Voting
Compartment. We make it clear that if the District Collector permits
videography to be done on the request of the petitioners, he need not
WP(C).NO.32007/10 & CONN.CASES 15
allow videography in respect of the place where the Voting
Compartment is located.
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
kbk.
WP(C).NO.32007/10 & CONN.CASES 16