IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 WP(C).No. 11477 of 2009(D) -------------------------- PETITIONER(S): --------------- K.SUDHAKARAN, S/O. RAMUNNI, ALUKKA TERRACE, PAYYAMBALAM, KANNUR -1. BY ADV. SRI.T.KRISHNANUNNI, SENIOR ADVOCATE RESPONDENT(S): --------------- 1. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM,. 2. DISTRICT SUPEINTENDENT OF POLICE, KANNUR. 3. DISTRICT COLLECTO, (RETURNING OFFICER, KANNUR PARALIAMENTRY CONSTITUENCY, KANNUR 4. ELECTION COMMISSION OF INDIA, REPRESENTED BY ITS SECRETARY, NEW DELHI. 5. CHIEF ELECTION OFFICER, STATE OF KERALA, THIRUVANANTHAPURAM. 6. MUKTHA SINHA, ELECTION OBSERVER, GOVERNMENT GUEST HOUSE, KANNUR. 7. C.P. THRIPADI, ELECTION OBSERVER, GOVERNMENT GUEST HOUSE, KANNUR. W.P.(C) No.11477 of 2009 : 2 : 8. O.P. MEENA, ELECTION OBSERVER, GOVERNMENT GUEST HOUSE, KANNUR. 9. P. SASI SECRETARY, CPI (M), CPI (M) OFFICE, KANNUR, KANNUR DISTRICT. BY GOVT. PLEADER SRI.P.A.SALIM FOR R1 AND R2 BY ADV. SRI.MURALI PURUSHOTHAMAN FOR R3 TO R8 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.11477 of 2009 EXT.P1 TRUE COPY OF THE NEWS REPORT PUBLISHED IN 'HINDU' DAILY DATED 3.4.2009. EXT.P2 TRUE COPY OF THE NEWS REPORT PUBLISHED IN 'MATHRUBHUMI' DAILY DATED 3.4.2009 EXT.P3 TRUE COPY OF THE RELEVANT PAGES OF THE HANDBOOK OF CANDIDATES ISSUED BY THE ELECTION COMMISSION. EXT.P4 TRUE COPY OF THE REPRESENTATION DATED 4.4.2009 BY THE PETITIONER TO THE RETURNING OFFICER. EXT.P5 TRUE COPY OF THE REPRESENTATION DATED 4.4.2009 BEFORE THE RETURNING OFFICER BY THE ELECTION AGENT OF THE PETITIONER. //TRUE COPY// P.A. TO JUDGE. P.R.RAMAN & P.S.GOPINATHAN, JJ. ------------------------------- W.P.(C) No. 11477 of 2009 ------------------------------- Dated this the 8th April, 2009 J U D G M E N T Raman, J. The petitioner is a candidate who is contesting the Parliamentary election from Kannur Parliamentary Constituency. He has approached this Court by filing this writ petition seeking for a writ of mandamus directing respondents 1 to 3 to afford necessary police protection and assistance for a free and fare election in the above constituency. As per the averments in the writ petition, Kannur is a District where large scale political violence occurs, and political murders, rigging, booth capturing, impersonation and bogus voting were very common in Kannur District. The main opposing candidates of the petitioner are sponsored by Left Democratic Front and Bharatheeya Janatha Party. The nineth respondent is the Secretary of CPI (M) District Committee who is controlling the campaigning and electioneering of the candidate sponsored by Left Democratic Front. It is W.P.(C) No.11477 of 2009 2 alleged that under the leadership of the 9th respondent, LDF have already made arrangements for committing all sorts of mal- practices in the election. There are various booths in the constituency wherein the agents of UDF candidates are not allowed to enter, and therefore, it is necessary to identify the sensitive booths in Kannur Constituency. It is his further case that even the election officers are subjected to influence by CPI (M) and its allies and in that regard, according to him, some hoardings displayed by the LDF Election Committee were placed in such a manner offending the code of conduct by the Additional District Magistrate or by any other Officer. Unless and until all precautionary measures are taken, free and fair election would not be possible in the Constituency, submits the counsel for the petitioner. He also places reliance on the decision of the Apex Court in Janak Singh v. Ram Das Rai and others (2005 (2) SCC 1). According to the petitioner, Chapter XIV has been included in the handbook of candidates issued by the Election Commission, pursuant to the said decision of the Apex Court which is produced as Ext.P3. Petitioner seeks for a direction to W.P.(C) No.11477 of 2009 3 strictly comply with Ext.P3 guidelines in Chapter XIV. Besides according to him, he made representations Exts.P4 & P5 before the Returning Officer which contains a list of sensitive booths identified by him, which is also annexed along with the Ext.P5 representation. In the situation as aforesaid, according to him, a free and fair election will not be possible unless voters are ensured that they could cast their votes in those booths in a free and fair manner. 2. The various grounds urged in the writ petition are that hoardings are placed in violation of the directions of Election Commission which the Officers could not remove with police assistance; the past experience of booth capturing by CPI (M), which according to him, is a common occurrence; bogus voting is also a common practice and hence voters list with photographs of voters identity card is insisted; special and adequate military force will have to be deployed in all the polling stations; deployment of Central force under the control of Central Government is highly necessary; video camera recording W.P.(C) No.11477 of 2009 4 should be strictly insisted in all the booths, and adequate police protection should also be afforded to the voters for the exercise of their right of franchise. It is also stated that polling booths identified by the Election officers as sensitive are not really sensitive. 3. The prayers made in this writ petition are for affording necessary protection to the voters in the parliamentary constituency of Kannur, so as to exercise their right of franchise in a free and fair manner; for a writ of mandamus directing respondents 3 to 8 to abide with the directions in Ext.P3 strictly in all the booths in Kannur Constituency; for a direction to respondents 1 to 8 to deploy adequate police and military force in all the polling stations in Kannur Constituency to ensure a free and fair election and also to deploy Central force, if necessary under the control of Central Government; to issue a writ of mandamus directing the 3rd respondent to allow only voters producing electoral identity cards to exercise votes in the election; for a direction to the third respondent to arrange for W.P.(C) No.11477 of 2009 5 video camera recording in all the polling booths in Kannur constituency; and also for a direction to third respondent to take immediate and effective action on Exts.P4 and P5 representations. 4. When the writ petition came up for admission on 6.4.2009, considering the urgency of the matter and paucity of time, we issued notice by special messenger to 9th respondent, the Government Pleader who is served with copy of memorandum of writ petition accepted notice on behalf of respondents 1 and 2, and Standing Counsel accepted notice on behalf of R3 to R8. It was also directed that 5th respondent will state the various steps taken for free and fair election, and the matter was posted to today. 5. A statement is filed for and on behalf of 5th respondent by the Standing Counsel appearing for respondents 3 to 8. When it was pointed out that an affidavit ought to have been filed, it was assured that in the course of the day, an affidavit supporting the statement will be filed. Based on such W.P.(C) No.11477 of 2009 6 assurance, we heard the matter, taking into record the contentions made in the above statement as one filed by 5th respondent, and by the time we pronounced the judgment, the affidavit has been filed. 6. It is firstly stated in the statement that the election process has commenced, and, therefore, the writ petition is not maintainable, in view of Article 329 (b) of the Constitution of India, and also that any interference by this Court at this stage may lead to confusion in the arrangements now made by the Election Commission for the conduct of election to Parliament. It is stated that all steps have been taken for the conduct of a free and fair election in all the Parliamentary Constituencies in Kerala including Kannur Parliamentary Constituency. Meetings have been held with the Chief Secretary of the State, Director General of Police and other senior police officials, District Collector and other senior officers of the State to ensure a free and fair poll. Vulnerable and troublesome areas in the State have been identified through the District W.P.(C) No.11477 of 2009 7 Superintendents of Police ad the District Collectors. Vulnerable booths have been identified in all Districts including Kannur District. Out of 342 polling stations, 187 stations in Kannur District have been declared vulnerable and sufficient and adequate steps have been taken in these booths to ensure free, smooth and fair poll. It is further stated that to companies of Central Para Military Force to assist the district administration have already arrived in Kannur District to maintain law and order and to ensure a free and fair election. Senior officials of the Government of India have been nominated as Observers for overseeing the election in terms of Section 20B of the Representation of People Act, 1951, and they have been given instructions to keep close watch of vulnerable areas including polling stations and others areas which they deem fit. They have also been provided with vehicles, mobile phones, video cameras and wireless sets to exercise their duties. It is also stated that sufficient police forces have been deployed in all the vulnerable areas to meet law and order problems. Besides the Election Commission has also taken special care and attention to W.P.(C) No.11477 of 2009 8 provide adequate security measures to the electorate and the polling officials for the smooth conduct of election. It is also stated that all the police forces including Local police, Armed Battalion from outside the State, District Armed Force, Crime Branch, Railway police, Vigilance etc. are being deployed throughout the State including Kannur Parliamentary Constituency. It is also stated that mobile group patrol and Law and Order Patrol with wireless sets and mobile phone facilities are also arranged to get in touch with each polling stations. Video cameras are also arranged in vulnerable areas to guarantee unruffled environment throughout the election process. Control rooms and Help Lines equipped with all arrangements are made available in all districts. The police have also been instructed to make adequate protection to voters, polling agents of all political parties and candidates, as also to assist the election machinery to ensure smooth, fair and free poll. In conclusion, it is stated that all steps have been taken by the Election Commission to prevent any electoral violation, atrocities, booth capturing etc., in all constituencies of the State including Kannur Parliamentary W.P.(C) No.11477 of 2009 9 Constituency. Further it is stated that the representations made by the petitioner and his election agent are also being taken into consideration to ensure a free and fair poll. 7. Article 329 of the Constitution of India only bars interference by the Courts in electoral matters specified under clause (a) and (b). Clause (a) provides that the validity of any law relating to the delimitation of constituencies of the allotment of seats to such constituencies, made or purporting to be made under Article 327 or 328 shall not be called in question in any Court. Clause (b) states that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. The present writ petition does not fall under clause (a) or clause (b) of Article 329 of the Constitution of India. As such, the maintainability of a writ petition based on Article 329 (a) and (b) has to be rejected. Hence, we do so. W.P.(C) No.11477 of 2009 10 8. Coming to the factual averments made, even the statement made for and on behalf of the 5th respondent admits the fact that there are locations in Kannur District which have been declared vulnerable. According to the petitioner, few more stations are also be declared sensitive as contained in his list produced along with Ext.P5 representation. As it is assured in the statement of the 5th respondent that the representations filed by the petitioner and his agent are being taken into consideration to ensure free and fair poll, a further direction as such is not called for . It is always open to the Chief Electoral Officer to consider whether any further constituencies as reported by the petitioner are also to be treated as sensitive areas to provide more attention, so as to ensure a free and fair election. By and large, arrangements are made by the Chief Electoral Officer to ensure a free and fair poll, especially considering the sensitive nature of the locations in Kannur District, we are sure that there will not be any room for the apprehension of the petitioner to come true and the constitutional authority like the 5th respondent will certainly take W.P.(C) No.11477 of 2009 11 such precautionary measures as required to be taken, for smooth conduct of election. 7. In the above facts and circumstances, we record the statement supported by the affidavit made by the 5th respondent, and we do not think, any further direction as such is called for at this stage. We trust that the Chief Electoral Officer, 5th respondent herein, will take all necessary precautionary measures, as are required to be taken, having due regard to the prevailing situation, in accordance with law. P.R.RAMAN, JUDGE P.S.GOPINATHAN, JUDGE. nj.