IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09..03..2011 CORAM THE HON’BLE Mr.M.Y.EQBAL, CHIEF JUSTICE and THE HON’BLE Mr.JUSTICE T.S.SIVAGNANAM W.P.Nos.5790, 5826 and 5930 of 2011 and M.P.Nos. 1+1 of 2011 W.P.No.5790 of 2011 Makkal Sakthi Katchi, (a registered political party with the Election Commission of India), Represented by its State Steering Committee Member Mr.Siva Elango, No.41, Bazaar Lane, Anna Salai, Chennai – 600 015. ..Petitioner. Vs. 1. The Election Commission of India, rep. by Chief Election Commissioner, Nirvachan Sadan, Ashoka Road, New Delhi – 110 001. 2. The Chief Electoral Officer, Tamil Nadu & Puducherry, Fort St.George, Chennai – 600 009. 3. State of Tamil Nadu, rep. by Chief Secretary, Fort St.George, Chennai – 600 009. 4. The Chief Electoral Officer, Puducherry. (Union Territory of Puducherry) 5. Union Territory of Puducherry, rep. by its Chief Secretary, Puducherry. ..Respondents. https://hcservices.ecourts.gov.in/hcservices/ PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Declaration or any other Writ declaring the General Election Notification issued by the 1st respondent in No.ECI/PN/17/2011 dated 01.03.2011 as null and void in so far as it relates to Tamil Nadu and Puducherry Legislative Assemblies are concerned, consequently direct the 1st respondent to hold the General Elections in the month of May, 2011 and pass such further or other orders. For Petitioner :: Mr.V.Babu For Respondent –1 :: Mr.G.Rajagopal, Senior Counsel for m/s.G.R.Associates For Respondent s – 4&5 :: Mr.D.Sreenivasan, GP, Pondicherry For Respondents – 2&3 :: Mr.G.Sankaran, Spl.G.P. Assisted by Ms.M.Sneha, G.A. W.P.No.5826 of 2011 Mr.Guru Appasamy, S/o.Mr.Gurusamy, Door No.43, Kalaivanar Street, Periya Thachur Village and Post, Dindivanam Taluk, Villupuram District. ..Petitioner Vs. 1. The Election Commission of India, rep. by the Chief Election Commissioner, Nirvachan Sadan, Ashoka Road, New Delhi – 110 001. 2. The Union of India, rep. by its Secretary to Government, Public (Elections) Department, New Delhi – 110 001. 3. The Chief Secretary, Government of Tamil Nadu, Secretariat, Chennai – 600 009. 4. The Chief Electoral Officer, Election Department, Secretariat, Fort St.George, Chennai – 600 009. ..Respondents. https://hcservices.ecourts.gov.in/hcservices/ PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ of mandamus directing the 1st respondent to re-schedule the General Elections to the Legislative Assembly of Tamil Nadu from 13.04.2011 to some other day taking into consideration, more particularly, the welfare of the students and pass such further or other orders. For Petitioner :: Mr.N.G.R.Prasad For Mr.Abdul Saleem For Respondent – 1 :: Mr.G.Rajagopal, Senior Counsel for m/s.G.R.Associates For Respondent – 2 :: Mr.J.Ravindran, Addl. Solicitor General For Respondents 3 & 4 :: Mr.G.Sankaran, Spl. G.P. Assisted by Ms.M.Sneha, G.A. W.P.No.5930 of 2011 K.Rajenthren, Advocate 2E, Cutchery Road, Mayiladuthurai – 609 001, Nagapattinam District. ..Petitioner. Vs. 1. The Chief Election Commissioner, The Election Commission of India, New Delhi. 2. The Chief Secretary to Government of Tamil Nadu, Fort St.George, Chennai – 600 009. ..Respondents. PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of a writ of mandamus directing the first respondent to postpone the Tamil Nadu State General Election for Assembly to any other date during the month of May, 2011 by considering the representation of the petitioner dated 03.03.2011 to the first respondent and pass any appropriate Writ or Order as the Court may deem fit and proper. For Petitioner :: Mr.P.Chandrasekaran For Respondent –1 :: Mr.G.Rajagopal, Senior Counsel for m/s.G.R.Associates For Respondent – 2 :: Mr.G.Sankaran, Spl.G.P. Assisted by Ms.M.Sneha, G.A. https://hcservices.ecourts.gov.in/hcservices/ O R D E R The Hon’ble The Chief Justice Since, in these writ petitions common relief had been sought for, they have been heard and disposed of by this common order. 2. The common relief sought for in these writ petitions is for issuance of a direction to the first respondent – Election Commission of India to re-schedule the General Election to the State Legislative Assembly of Tamil Nadu from 13.04.2011 to some other day taking into consideration, more particularly, the welfare of the students, whose annual examinations are scheduled during that period. 3. It appears that the Election Commission of India by notification dated 1.3.2011 announced the date for the General Election to the Legislative Assembly of the Tamil Nadu and the date for the General Election had been fixed on 13.04.2011. It is stated that the Government of Tamil Nadu has already scheduled the Higher Secondary Examinations (XII Standard) – 2011 from 02.03.2011 to 25.03.2011, and thereafter, scheduled the SSLC Examination (X Standard) – 2011 from 28.03.2011 till 11.04.2011. It is stated that more than 8 lakhs students will be taking up their Higher Secondary Examination and more than 9 lakhs students will be taking up their SSLC examination, and since, these two examinations are the most crucial exams for the student community, they require calm and peaceful atmosphere for their preparation, more particularly, without any noise pollution. It is further stated that apart from school examinations, many Universities have scheduled their practical and theory examinations in the months of March and April, 2011, and therefore, peaceful atmosphere for the entire student community during those months is a must. The petitioners have contended that since schools will be pre-occupied for public examinations and the entire teaching community will be busy in the conduct of public examinations, it will be difficult for getting the school campuses for the use as polling booths, and the services of the teachers also may not be available for the conduct of the poll. The petitioners further contended that since Tamil New Year’s Day falls on 14th April of every year, and the festivities will start from the first week of April itself, the General Election on 13th of April, 2011 will cause inconvenience to the general public, as they will be going to their native places in connection with the aforesaid festival. The Election Commission of India, without considering the above stated facts announced the General Election on 13th April 2011 and therefore, rescheduling of the election is necessary to protect the interest of the students, teachers and the general public in Tamil Nadu. 4. The petitioners further contended that the Election Commission of India without considering the genuine grievance of the students, teachers and the general public issued the Election Notification for conduct of General Elections to the Legislative Assembly of Tamil Nadu on 13.04.2011. There is no compelling urgency for the Election Commission to conduct elections in a hasty manner on https://hcservices.ecourts.gov.in/hcservices/ 13.04.2011. Since, the election campaigning would stretch throughout the examination period, it would certainly affect the student community in the preparation of their exams, and also the teachers and the staff could not effectively discharge their election duties. 5. It is further stated that in case the respondents proceed with the conduct of General Election as scheduled on 13.04.2011, then severe hardship, inconvenience and irreparable injury would be caused to the student community and it will amount to interference in their right to education, which is a constitutional right. Therefore, the conduct of such election, violating Articles 14 and 21 of the Constitution of India, should be stopped forthwith. 6. Mr.G.Rajagopal, learned Senior Counsel appearing on behalf of the Election Commission of India produced before us a copy of the letter dated 7th March, 2011 from the Secretary, Election Commission of India, and submitted that the following instructions had been received for taking a stand in the writ petitions. “Along with the General Election to the Legislative Assembly of Tamil Nadu, the Commission has also announced the schedule for general elections to constitute new Legislative Assemblies in the State of Assam, Kerala, West Bengal and in the UT of Puducherry, where the term of the existing House is expiring in May/June, 2011. While drawing the schedule for General Elections in the abovementioned States, the Commission has taken into account various factors such as weather conditions, festivals, agricultural activities, examination schedules and availability of Central Police Forces for deployment on election duties, not only in Tamil Nadu but in the other three States and UT of Puducherry as well. The Commission has the constitutional responsibility to hold the elections in time so that the new Legislative Assembly is constituted by the time the term of the existing House expires. The opinion given by the Hon’ble Supreme Court in Special Reference No.1 of 2002, in the which the Apex Court held that the Commission is under constitutional duty to conduct the election at the earliest on completion of the term of the Legislative Assembly. The Hon’ble Supreme Court has also held in that case that fixing of election schedule for any election is within the exclusive domain of the Election Commission. The teachers who would be deputed for duties as polling staff would be required to attend training classes only on 3 days before the poll day which in any case is after the exams are over. These training classes will be fixed only on holidays and not on any working day. For the duties on the polling day, the services of the teachers would be required on 13.04.2011 by which time the school examinations would be already completed. Therefore, there https://hcservices.ecourts.gov.in/hcservices/ would be no dislocation of duties of the teachers in connection with the election. As regards the university examinations referred to in the petition, it needs to be noted that university as well as School/Board Examinations would be on in other States also. The elections cannot be postponed on this ground. The elections are required to be completed under the Constitution in time so that the new House is in a position to start before the expiry of the term of the existing House. The Commission has fixed the schedule of elections in the five States/UT after taking into account all aspects including the examination schedules, religious festivals, weather conditions, etc. Any Change in the schedule in any State is bound to affect the entire election schedule including in the other States considering the availability of central police forces and essentiality of their deployment is an important aspect to be taken into account in the conduct of elections.” 7. Mr.N.G.R.Prasad, learned counsel for the petitioner in W.P.No.5826 of 2011 mainly contended that although it is the mandatory duty and obligation of the Election Commission of India to conduct free and fair election, but at the same time the Commission has to consider the realities of the situation before deciding the question of expediency or possibility of holding election. Learned counsel reiterated the ground taken in the writ petition and submitted that there is no compelling urgency for the Election Commission to conduct the election in a hasty manner on 13.04.2011, which is peak hour when the students will be engrossed in preparing for their examinations. It is contended that education should be given the first importance because the career of the students depend on the result of the examination. In this connection the learned counsel drawn our attention to the decisions of the Supreme Court in Election Commission of India Vs. St.Mary’s School, (2008) 2 SCC 390, Digvijay Mote Vs. Union of India, (1993) 4 SCC 175; and Election Commission of India Vs. Ashok Kumar, (2000) 8 SCC 216. 8. Before we decide the issue, we would like to discuss the ratio decided by the Supreme Court in the decisions referred to above. 9. In the case of Election Commission of India Vs. St.Mary’s School reported in (2008) 2 SCC 390 the respondent being an unaided school filed a writ petition in public interest questioning the action of the Election Commission and the State as regards utilizing the services of the teachers of the government schools for various purposes during school timings, as a result whereof the students studying in those schools were deprived of obtaining instructions from their teachers during such period. It was pointed out that the absence of teachers due to their deployment for non-educational purposes viz., polling duties to General Election and for other non- educational purposes, is not justifiable. Their Lordship’s after https://hcservices.ecourts.gov.in/hcservices/ discussing various provisions of the Representation of the People Act, 1950 and 1951, and Right to Education as a constitutional right finally directed that all teaching staff shall be put on the duties of electoral roll revision and election works on holidays, non- teaching days and within non-teaching hours. Non-teaching staff, however, may be put on such duties on any day or at any time, if permissible in law. For better appreciation paragraph – 33 of the judgment is quoted herein below:- (page – 403) “33. We would, however, notice that the Election Commission before us also categorically stated that as far as possible teachers would be put on electoral roll revision works on holidays, non-teaching days and non- teaching hours; whereas non-teaching staff be put on duty any time. We, therefore, direct that all teaching staff shall be put on the duties of roll revisions and election works on holidays and non-teaching days. Teachers should not ordinarily be put on duty on teaching days and within teaching hours. Non-teaching staff, however, may be put on such duties on any day or at any time, if permissible in law.” 10. In the case of Digvijay Mote Vs. Union of India reported in (1993) 4 SCC 175, their Lordships were considering the power of judicial review in a situation where election was notified in a State, which is a disturbed State. In that case, the writ petition was filed before the Supreme Court by way of PIL for the enforcement of fundamental rights, political rights and fundamental duties of the people and electorate. According to the petitioner, when the Parliament elections were held in the country in December, 1984, the State of Assam which elects 14 Representatives to the Lok Sabha was delinked on the ground that the electoral rolls were not updated. This was in violation of Articles 14 and 19. The States of Assam and Punjab became the worst victims of terrorist activities. During the entire term of the Ninth Lok Sabha, Assam did not have its representation. Tenth Lok Sabha was constituted including the representatives from Assam and Punjab States, but Jammu & Kashmir State had been deleted. Thus, according to the petitioner therein, all the consequential proceedings, were illegal. In that case their Lordship’s held that the conduct of election is in the hands of the Election Commission which has the power of superintendence, direction and control of elections vested in it as per Article 324 of the Constitution. Consequently, if the Election Commission is of the opinion that having regard to the disturbed conditions of a State or a part thereof, free and fair elections cannot be held it may postpone the same. 11. Again in the case of Election Commission of India Vs. Ashok Kumar reported in (2000) 8 SCC 216 their Lordships considered the jurisdiction of the High Court to entertain petitions under Article 226 of the Constitution of India to issue interim direction after commencement of electoral process. After taking into consideration of the decisions of the Constitution Bench in N.P.Ponnuswami vs. https://hcservices.ecourts.gov.in/hcservices/ Returning Officer, Namkkal Constituency, AIR 1952 SC 64 and Mohinder Singh Gill v. Chief Election Commissioner, 1978 (1) SCC 405, the Supreme Court held as hereunder: - “32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove: (1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. (2) Any decision sought and rendered will not amount to “calling in question an election” if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. (3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. (4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court. https://hcservices.ecourts.gov.in/hcservices/ (5) The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329 (b) but brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court’s indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.” Further, their Lordships, considering the facts of the case in Election Commission of India vs. Ashok Kumar (supra), wherein the ground alleged was malafide exercise of power, held as follows: - (para 34, page 233) “…….Such a dispute could have been raised before and decided by the High Court if the dual test was satisfied: (i) the order sought from the Court did not have the effect of retarding, interrupting, protracting or stalling the counting of votes and the declaration of the results as only that much part of the election proceedings had remained to be completed at that stage, (ii) a clear case of mala fides on the part of Election Commission inviting intervention of the Court was made out, that being the only ground taken in the petition. If the first of the above two test is applied to the facts of the present case, it has to be necessarily held that there is no scope of interference by this Court in these writ petitions as, if the relief sought for is granted it has the effect of protracting the election schedule already notified. As there are no allegations of malafide, the question of applying the second test does not arise. Further the prayer sought for in these writ petitions “calls in question” the election scheduled on 13.4.2011, and therefore the bar of Article 329 (b) of the Constitution is attracted. 12. In view of the above, the decisions relied on by the learned counsel for the petitioners does not lend any support to their case. Further, as pointed out by the learned senior counsel appearing for https://hcservices.ecourts.gov.in/hcservices/ the Election Commission, as held by their Lordships of the Supreme Court in Special Reference No.1 of 2002 reported in AIR 2003 page 87, the fixing of the election schedule either for House of People or Legislative Assembly is in the exclusive domain of the Election Commission. 13. As noticed above, the Election in the State of Tamil Nadu has been notified which is scheduled to be held on 13.04.2011. The Higher Secondary Examinations will commence on 02.03.2011 and will end on 25.03.2011. Similarly all other SSLC, Matriculation and OSSLC examinations will come to an end on 11.04.2011. Admittedly, therefore, election will not be held during the period of examinations. The respondents have categorically stated that the teachers who would be deputed for duties as polling staff would be required to attend training classes only on 3 days before the poll day, which will be after the completion of the examinations. Moreover, these training classes will be fixed only on holidays and not on any working day. It is further stated that the Election Commission has fixed the schedule of elections in 5 States/Union Territory after taking into account all aspects including the examination schedules, religious festivals, weather conditions, etc. Any change in the schedule in any State is bound to affect the entire election schedule, including in the other States, considering the availability of central police forces and essentiality of their deployment, which is an important aspect to be taken into account in the conduct of elections. 14. After giving our anxious consideration in the matter, we are of the view that since election will be held in the State of Tamil Nadu and the Union Territory of Puducherry after all the examinations, including the Higher Secondary Examinations are over, we do not think it just and proper to issue direction to the Election Commission of India to postpone the election. However, we feel that we must impose the following conditions, which shall strictly be followed by the Election Commission of India and the Chief Electoral Officer, Tamil Nadu :- (i) No teachers of the school, where examinations are held shall be deployed or called for training before the completion of the above mentioned examinations. (ii) No school buses and other vehicles owned by the educational institutions shall be requisitioned or seized before 11.04.2011 for the purpose of election. (iii)The respondents shall take special care, before requisitioning the State Transport Vehicles in the State, for the convenience of the students, who use the same for reaching their examination centers. (iv) There shall be no campaigning or election canvassing by any political party, its followers or sympathizers within 200 meters of any school which have been designated as examination centres. https://hcservices.ecourts.gov.in/hcservices/ 15. With the aforesaid directions, these writ petitions are disposed of. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Sm/pv To 1.The Chief Election Commissioner, Election Commission of India Nirvachan Sadan, Ashoka Road, New Delhi – 110 001. 2. The Chief Electoral Officer, Tamil Nadu & Puducherry, Fort St.George, Chennai – 600 009. 3. The Chief Secretary, Government of Tamil Nadu, Fort St.George, Chennai – 600 009. 4. The Chief Electoral Officer, Puducherry. 5.The Chief Secretary, Union Territory of Puducherry, Puducherry. 6.The Secretary to Government, Union of India, Public (Elections) Department, New Delhi – 110 001. https://hcservices.ecourts.gov.in/hcservices/ 7. The Chief Electoral Officer, Election Department, Secretariat, Fort St.George, Chennai – 600 009. 3 cc To Mr.G.R.Associates, Advocate, SR.16780, 16781, , 16782 5 cc To The Government Pleader, SR.17084,17087, 17082, 17081, 17085 1 cc To The Sr.Government Pleader cum Sr.Public Prosecutor for Pondicherry, SR.17037 1 cc To Mr.K.P.Chandrasekaran, Advocate, SR.16986 1 cc To Mr.J.Ravindran, Advocate, SR.16828 W.P.No.5790 of 2011 & Others. jsv(co) pmk.9.3.2011 https://hcservices.ecourts.gov.in/hcservices/