Madras HC Dismisses Stalin's Plea Challenging Kolathur Poll Results

The Madras High Court on Thursday dismissed a plea filed by former Tamil Nadu CM and DMK leader MK Stalin challenging the post-result checking and verification of EVMs and VVPATs in the Kolathur Assembly constituency polls and seeking 100% VVPAT counting and a declaration that the TVK candidate MLA VS Babu's election is void.

A Bench of Chief Justice Sushrut Arvind Dharmadhikari and Justice G. Arul Murugan reasoned that the petition, in substance and effect, called in question the election of the returned candidate and was barred by Article 329(b) of the Constitution read with Section 80 of the Representation of the People Act, 1951.

Petition a Challenge to Election Itself

The Court held that although the petition was structured around alleged infirmities in the verification process, the reliefs sought went beyond that exercise. Stalin had sought a declaration that the election of the returned candidate was void and that he himself be declared elected.“These are reliefs that go to the very root of the election and its result,” the Court said, holding that such a prayer was, in substance, a challenge to the correctness of the election and attracted the bar under Article 329(b).

The Court also rejected the argument that the petition was confined to a distinct post-result administrative process. It said the true nature of the proceeding had to be gathered from the reliefs actually claimed, read as a whole.“When a petitioner asks this court to declare a duly notified return void, and to declare himself elected in place of the returned candidate, he is doing precisely what Article 329(b) of the Constitution of India forbids him from doing outside the framework of an election petition”, it said.

Grounds Require Full-Fledged Trial

The Court further held that Stalin's prayer to be declared elected attracted Section 97 of the Representation of the People Act, which provides for recrimination by the returned candidate or other contesting candidates. Such a determination involves notice, recrimination and a trial on oral and documentary evidence and the same cannot be undertaken in a writ petition.

The Court also held that the grounds relied upon by Stalin that the alleged malfunction of VVPAT units, breach of Rule 49-T concerning address tags and seals and non-detection of a Ballot Unit by the Control Unit fell within Section 100 of the Act. If established, the alleged irregularities would have to be shown to have materially affected the election result insofar as it concerned the returned candidate. Such an inquiry, the Court said, required a full-fledged trial, including expert evidence on the technical functioning of EVM and VVPAT units, and could not be undertaken on affidavits in writ jurisdiction by the Court.

Risk of Opening 'Pandora's Box'

The Court thus declined to entertain Stalin's prayer for 100% counting of VVPAT slips and fresh checking and verification of all 286 machines in the constituency.“Assuming arguendo that such a course in a given case is warranted, it can only be ordered by the Election Tribunal upon the petitioner first establishing, through evidence, a prima facie case and not in writ jurisdiction,” the Bench said. The Court also found substance in the Election Commission's apprehension that entertaining such writ petitions would“open a Pandora's box”. If defeated candidates were permitted to seek such reliefs through writ proceedings, the statutory scheme governing election petitions - including limitation, verified pleadings, security for costs and recrimination - would be rendered“wholly illusory”, the Court said.

VVPAT Verification as a Safeguard, Not Substitute

The Court also rejected reliance on the Supreme Court's judgment in Association for Democratic Reforms, holding that the post-result EVM verification mechanism was introduced as an additional safeguard to strengthen public confidence in the integrity of EVMs.“Nothing in that judgment suggests that an order passed under the resultant Standard Operating Procedure was intended to be justiciable under Article 226 of the Constitution of India in derogation of the statutory election petition remedy,” the Court said.

It held that the verification mechanism was“engrafted as an additional safeguard and not in substitution of the remedy of an election petition”. Any material gathered during the verification could strengthen the evidentiary foundation of an election petition, rather than furnish an independent cause of action in writ jurisdiction.

Stalin's Remedy Lies in Election Petition

The Court also rejected the argument that the 45-day period for filing an election petition had elapsed because of the delay in completing the verification process. It held that such a difficulty could not enlarge the High Court's jurisdiction in the face of the express constitutional bar under Article 329(b). Whether, and to what extent, the delay occasioned by the verification process affected limitation, and whether any relief was available to Stalin, were matters to be examined by the Election Tribunal in the first instance, the Court said, leaving the issue open.

The Court held that Stalin's remedy, if any, lay in an election petition, where all the grounds urged by him, including those touching upon the checking and verification process, could be agitated, subject to establishing that the alleged non-compliance materially affected the election result. The writ petition was accordingly dismissed as not maintainable, with liberty to Stalin to pursue such remedy as may be available to him in law.

The Court made no order as to costs and closed the connected miscellaneous petitions. It expressly did not examine the merits of the allegations concerning the verification process, leaving those contentions open before the appropriate forum. Senior Advocate V. Raghavachari, along with Advocates Dixita Gohil, Pranjal Agarwal, T. Mahendhran, Yash S. Vijay, Mohan Parthasarathy and Nishvakk, appeared for the TVK candidate MLA VS Babu. Senior Advocate Kapil Sibal and Senior Advocate J. Ravindran appeared for M.K. Stalin. Senior Advocates Dama Seshadri Naidu and G. Rajagopalan appeared for the Election Commission of India. (ANI)

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