Kerala HC suggests Photographs to be a factor in identifying Fake/Multiple Vote entries in Elections

The current petition was filed by Ramesh Chennithala, the MLA, Thiruvananthapuram against the Election Commission of India and the Chief Electoral Officer. It sought the following reliefs:

  1. Issuing a writ of Mandamus or any other appropriate writ directing the respondents to take immediate action to rectify the electoral roll published for the Kerala Legislative Assembly, scheduled to be held on 6th April 2021, by deleting or freezing fake/multiple votes proved from the list furnished by the petitioner by way of producing CDs, and also to ensure that those voters are not permitted to vote in the election in any polling booths. 
  2. To initiate appropriate criminal actions against those who are responsible for, aided, and abetted in breach of official duty in connection with the preparation of electoral rolls. 

Background:

The petitioner, an MLA, was representing the Harippad Assembly Constituency and the Leader of Opposition in the Kerala Legislative Assembly. Being a responsible public functionary he was highly aggravated by the gross lethargy and inaction of the respondents in rectifying the large double/bogus votes in the electoral roll. 

He submitted that the Chief Electoral officer admitted that the serious allegations of fake/multiple votes, illegally enrolled in the electoral rolls, as alleged by the petitioner, were true and genuine. It was also evident from the newspaper reports. The respondents had also not shown courtesy to send a reply to the issue raised by the petitioner in his letters.

Further, a scruitney of the CD would also prove more than 4,34,042 fake/multiple entry votes spreading over 131 Assembly constituencies had already been detected. Unless those were restrained from participating in the poll, and criminal action was launched against them, far reaching consequences would be caused to the electoral system. 

On March 29, 2021, when the matter came up for hearing, the court was presented with the IDs of few voters where it was seen that while the photographs of the voter being the same, names were different. Booth numbers and serial numbers also differed. The court thus directed the election commission to ensure there would be no double voting by any voter. It was to also ensure that sufficient State / Central force is posted at all voting places, to ensure fair and democratic election. 

Submissions in the Court:

An affidavit was filed by the Chief electoral Officer stating that there were two formidable coalition fronts, namely, United Democratic Front (UDF) led by Indian National Congress (I) and Left Democratic Front (LDF) led by Communist Party of India (Marxist) and that since 1982, the voting difference between two coalition fronts is very negligible and hence manipulated votes would have significant impact in the election results.

The Petitioner had solemnly affirmed that the result of litigation shall not lead to any gain to him or to anyone associated to him; raises serious doubt as to whether the above Writ Petition styled as a PIL is essentially a Political Interest Litigation and hence the above Writ Petition is liable to be dismissed on this short ground. 

Further, the votes cannot be deleted or freezed as that would go against Section 23 (3) of the Representation of the People Act, 1950 and thus such relief couldn’t be granted. It was also stated that the election process has reached an advanced stage. Various precedents were also submitted. 

A reply affidavit was filed by the petitioner, negating the above conditions mentioned by the Electoral Officer and also reiterated that the petitioners had not denied the allegations made by the petitioner. 

Actions taken in respect of every set of voters and systems that were tried to put in place by the respondents were also analysed. Then on, the contention that the votes could not be frozen or deleted as against the Act was also analysed.

Decision of the Court:

The two-judge bench consisting of Hon’ble Chief Justice S. Manikumar and Hon’ble Judge Shaji P. Chaly directed that the contention about the Act was indeed correct, and the votes could not just be deleted or frozen as it would go against the provisions of the Act. As far as the maintainability of the writ, the same was allowed as free, fair and pure election was at stake. 

The Court also looked at relevant constitutional and statutory provisions. The court observed, “Though several factors such as name, relation, date of birth etc. have been considered for verification of Demographically Similar Entries (DSE) and Electoral Photo Identity Cards (EPIC), presumably photographs of the voters are not included, as one of the factors in such verification. At this juncture we only observe that the Election Commission of India can explore the possibility of including the photographs of the voters in the software, as an additional factor for identification of DSEs and EPICs to identify multiple entries and take action for removal, before the final list is published.” 

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Even though the petitioner tried to submit that the respondents had not taken any action, perusal of statements showed that they had taken steps in identifying DSE/EPIC. Further, as long as all DSEs have not furnished their details, no reports could be made. Thus, the reliefs asked by the petitioner could not be granted. 

However, the court directed the respondents again to take full action to make sure no wrongful voting will be done. 

Story by Sai Kulkarni – Intern

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