IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 16..09..2008 C O R A M The Honourable Mr. A.K. Ganguly, Chief Justice and The Honourable Mr. Justice F.M. Ibrahim Kalifulla Writ Petition No.22681 of 2008 P.K. Sekar Babu .. Petitioner versus 1. The State Election Commissioner, Tamil Nadu Election Commission, Revathy Street, Vadapalani, Chennai-26. 2. The Chief Secretary, State of Tamil Nadu, Fort St. George, Chennai-9. 3. The Commissioner of Police, Egmore, Chennai-8. 4. The Commissioner, Corporation of Chennai, Ripon Buildings, Chennai-3. .. Respondents - - - - - Prayer : Petition filed under Article 226 of the Constitution of India for a writ of mandamus directing the respondents to conduct free and fair election by taking videographs for the polling booths in respect of Ward Nos.18 and 44 of the Chennai Corporation and prevent the outsiders unconnected with the respective Corporation Wards from entering into the polling booths on the date of election, i.e. on 18.9.2008 or on any other subsequent date notified by the first respondent as well as to the consequent counting date by providing sufficient and necessary police protection by Central Reserve Police Force (CRPF) on the basis of the petitioner's representations dated 9.9.2008 and 13.9.2008 and also appoint an Independent Observer to the election wards. - - - - - https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr. P.H. Manoj Pandiyan For Respondents-1 to 3 : Mr. J. Raja Kalifulla, Govt. Pleader for R1 to R3 For Respondent-4 : Mr. A. Mohammed Ghouse for R4 - - - - - O R D E R ( Delivered by The Honourable the Chief Justice ) Heard the learned counsel for the parties. This writ petition has been filed, in public interest, by one Mr. P.K. Sekar Babu, who claims to be a Member of the Tamil Nadu Legislative Assembly representing the Radhakrishnan Nagar Assembly Constituency. He has filed this petition in order to ensure free and fair elections to two wards of the Corporation of Chennai, viz. Ward Nos.18 and 44, in which elections are to be held on 18.9.2008. 2. It appears that in Ward No.18, there are about 10,424 voters and there are about 12 polling booths. In Ward No.44, there are 8,872 voters and there are about 9 polling booths. Out of the 10,424 voters in Ward No.18, there are 5,195 men voters and 5,229 women voters. Out of the 8,872 voters in Ward No.44, there are 4,548 men voters and 4,324 women voters. Out of the polling booths which have been set up in these two wards, there are some polling booths which are meant solely for women and there are some solely for men and there are some in which both men and women can cast their votes. In all, it is going to be an election in which only there 19,296 voters divided into 21 booths. Therefore, the arrangement is for about 900 voters per booth. Admittedly, the elections will be conducted using the Electronic Voting Machines. 3. Learned counsel for the writ petitioner submits that he apprehends that the elections will not be conducted in a free and fair manner. According to him, large number of antisocial elements, who are outsiders, are being allowed to enter the two wards in question and they will threaten and intimidate the genuine voters and will invade the rights of the voters to exercise their franchise. It is submitted that apprehending such eventualities, the petitioner has made a detailed representation to the State Election Commissioner and also to the Chief Secretary of the State Government on 9.9.2008. It is also submitted that in the last elections which took place to the Corporation of Chennai, several irregularities were committed and https://hcservices.ecourts.gov.in/hcservices/ after the elections were held, a writ petition challenging the said elections was filed before this Court and this Court, by a majority opinion by two learned Judges, as against one was pleased to hold that the elections were not conducted in a free and fair manner and consequently, the election in several wards was set aside. Learned counsel for the petitioner submits that the same thing may be repeated this year too. 4. Learned Government Pleader appearing on behalf of the respondents, on the other hand, submits that for this year, in order to ensure free and fair elections, two senior I.A.S. Officers have been appointed Election Observers. For Ward No.18, one Shri. P.M. Basheer Ahmed, I.A.S. has been appointed an Observer. He has given his first report about changing of some arrangements in certain booths falling within Ward No.18. The other Observer who has been appointed in respect of Ward No.44 is one Shri. Kosalaraman. He has also given his report in order to ensure free and fair elections. Learned Government Pleader further submits that the entire election process will be videographed and the Chennai City Police has come out with a Bundobast Scheme for holding such elections. He has handed over to us a booklet containing such scheme with various guidelines. Learned Government Pleader also submitted that the phone numbers of these two Observers have been already announced in newspapers and in case of any attempt to fudge the election process by anybody, these Observers can be immediately contacted and a complaint can be lodged. Learned Government Pleader submitted that all steps have been taken to ensure free and fair elections. 5. Learned counsel for the petitioner submitted that in the past also, similar assurance was given to the Court, which has been recorded in the order of a Division Bench of this Court dated 11.10.2006 passed in Writ Petition No.38702 of 2006. The said assurance is to the following effect :- "Learned Government Pleader appearing for the State Election Commission has brought to our notice that as per the Polling Officers Guide issued by the State Election Commission, and also the Model Code of Conduct issued by him, only authorized persons can enter the polling booth, and states that the provisions of the Code shall be strictly implemented. He also states that the Guidelines relating to Circular dated 26.9.2006 and the Minutes of the Meeting of the Election Commission with the top police officials dated 13.9.2006 shall also be strictly implemented." https://hcservices.ecourts.gov.in/hcservices/ Learned counsel for the petitioner submitted, despite the said assurance which was recorded by this Court, the elections were not conducted in a free and fair manner and this could be seen from the majority judgment of the Division Bench of this Court. 6. The importance of holding a free and fair election in a democracy can hardly be over-emphasized. The Apex Court has held that a voter's right to cast his vote amounts to his freedom of choice and freedom of expression in favour of a candidate whom he wants to elect. Therefore, it partakes of a nature of a Fundamental Right under Article 19(1)(a) of our Constitution and it is the duty of the State to protect the said right. This Court is of the opinion that if there is any attempt at any quarter for infringement of the said right, a citizen can come to this Court praying for holding of a free and fair election. It has been held by the Supreme Court that when there is a threat to a person's fundamental right, he can approach the Court at the stage when the threat is there and he need not wait till that threat is translated into actual practice – vide D.A.V. College, Bhatinda vs. State of Punjab, A.I.R. 1971 S.C. 1731. 7. The importance of protecting a citizen's right to vote has been emphasized by the Supreme Court time and again and it has been very poignantly stated by a Constitution Bench of the Supreme Court in the case of Mohinder Singh Gill vs. The Chief Election Commissioner, New Delhi reported in A.I.R. 1978 S.C. 851. Justice V.R. Krishna Iyer, speaking for the majority of the judges in the Bench, held that the election must be conducted according to a fair procedure and in order to highlight the importance of a person's right to cast his vote, the learned Judge quoted an eloquent passage from Sir Winston Churchill. We should do well to remind ourselves of the message emanating from those words : "At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper – no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point." 8. Considering all these well laid principles, we cannot dismiss the writ petition at this stage just because of the reason that the petition has been filed on the basis of an apprehension. 9. However, we find that in the petition, the particulars are sadly lacking. We have repeatedly asked the learned counsel for the https://hcservices.ecourts.gov.in/hcservices/ petitioner to point out any particulars from which it will appear that any attempt is made from any interested quarter for vitiating the election atmosphere. The learned counsel only could refer to his representation. We find that the representation of the petitioner has been answered by the Secretary, Tamil Nadu State Election Commission by his communication sent to the petitioner dated 15.9.2008. In the said communication, the Secretary, Tamil Nadu State Election Commission, has assured the petitioner that all arrangements have been made to ensure free and fair elections. We, therefore, direct that the assurance which has been given to the petitioner in writing in answer to the petitioner's representation must be strictly followed by the State Election Commission. 10. The petitioner's apprehension is that there is entry of outsiders with antisocial record in the wards which are going to polls on 18.9.2008. This Court directs the third respondent to step up its vigil in respect of the territorial limits of the wards in question from today in order to ensure that persons with questionable criminal record or background are not allowed free entry in those areas. It is well known that on the eve of election, the police is entitled to effect preventive arrests for the purpose of maintenance of law and order. The third respondent is, therefore, directed to take all possible steps to ensure that no person with criminal antecedents is given a free hand on the date of the election and that no such person should be allowed to overpower or intimidate voters. 11. This Court has been informed that the voters' list itself is a printed one and it contains the photographs of all the valid voters printed on it. In that view of the matter, this Court directs that the voters should be allowed to cast their votes on the basis of their voter identity cards or some other identifying documents and that no person who is not a genuine voter and who is not carrying a valid voter identity card or an identifying document should be allowed to go within 200 meters of the polling booth. This is, of course, subject to the condition that the candidates contesting the elections or their accredited polling agents and other polling officials or police personnel could be allowed to go within 200 meters from the polling booth, but others should not be permitted inside the said area. This has to be ensured by the police. This Court also makes it clear that no vehicle other than the vehicles belonging to the Officials should be allowed within 200 meters of the polling booth. This also should be ensured by the police. 12. We have been assured by the learned Government Pleader that the polling booths will be videographed both from inside and outside. https://hcservices.ecourts.gov.in/hcservices/ This Court has been repeatedly assured by the learned Government Pleader that whatever might have happened in the past, it will not be repeated this time and the State Government is committed to ensure free and fair elections. We hope and expect that the said assurance would be honoured. 13. This Court also makes it clear that the aforesaid directions which have been given by this Court to the respondents also apply in the case of the petitioner and it is made very clear that the petitioner is also bound by these directions. 14. Recording the undertaking of the learned Government Pleader and issuing the aforesaid directions, this writ petition is disposed of. There shall be no order as to costs. Consequently, M.P. No.1 of 2008 is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ab To 1. The State Election Commissioner, Tamil Nadu Election Commission, Revathy Street, Vadapalani, Chennai-26. 2. The Chief Secretary, State of Tamil Nadu, Fort St. George, Chennai-9. 3. The Commissioner of Police, Egmore, Chennai-8. https://hcservices.ecourts.gov.in/hcservices/ 4. The Commissioner, Corporation of Chennai, Ripon Buildings, Chennai-3. + 2 CC To Mr.P.H.Manoj Pandian, Advocate SR NO.52457 + 1 CC To Mr.A.Mohamed Gouse, Advocate SR NO.52592 + 1 CC to the Government Pleader SR NO.52481 Writ Petition No.22681 of 2008 SCD {CO} TP/17.9.08 https://hcservices.ecourts.gov.in/hcservices/