Madras High Court
S.Vetrivel vs Tamil Nadu Advocates Association on 21 March, 2011
Author: V. Ramasubramanian
Bench: V. Ramasubramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21-3-2011
CORAM:
THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN
A.No.1600 and 1628 of 2011
in
C.S.No.7 of 2011
S.Vetrivel,
President,
Bar Association,
Nagercoil ......... Applicant in A.No.1600 of 2011/
Impleaded Defendant
P.Paulpillai,
S/o Ponnumuthu,
President,
Padmanabhapuram Bar Association,
Thuckalay,
Kanyakumari District .......... Applicant in A.No.1628 of 2011/ Impleaded Defendant
vs
1.Tamil Nadu Advocates Association
Represented by its Secretary .......... Respondent/Plaintiff
2.The Bar Council of Tamil Nadu
and Pondicherry,
Represented by its Secretary
3.The Bar Council of India
Represented by its Secretary .......... Respondents/Defendants 1 and 2
4. Elephant G.Rajendran ........... Impleaded Defendant-3
5. R.K.Chnadramohan .......... Impleaded Defendant-4
For Applicants : Mr.V.Selvaraj and
Mr.S.Muthuraman
For Respondent-1 : Mr.S.Prabhakaran
For Respondent-2 : Mr.S.Y.Masood
For Respondent-2 : Mr.K.Venkatakrishnan
COMMON ORDER
On a memo filed by the learned Judge-Commissioner, after the conclusion of the elections to the State Bar council on 4-3 2011, I passed an order on 8-3-2011, invalidating all the votes polled in the District Court campus at Nagercoil and at Padmanabhapuram. Aggrieved by the said order, the Presidents of the Nagercoil and Padmanabhapuram Bar Associations have come up with the above applications seeking to recall the said order.
2. I have heard Mr.V.Selvaraj, learned Counsel appearing for the applicant in A.No.1600 of 2011, Mr.S.Muthuraman, learned Counsel appearing for the applicant in A.No.1628 of 2011, Mr.S.Prabhakaran, learned counsel for the first respondent-plaintiff, Mr.S.Y.Masood, learned counsel for the Bar Council of Tamilnadu, Mr.K.Venkatakrishnan, learned counsel for the Bar Council of India and Mr.Elephant G.Rajendran, the fourth defendant appearing in person.
3. To recapitulate, the last election to the Bar Council of Tamil Nadu was held on 20.9.2005 and the Council was constituted on 12.10.2005. The term of office of the State Bar Council expired on 11.10.2010, in terms of the provisions of Section 8 of the Advocates Act, 1961. By virtue of a resolution bearing Resolution No. 77/2010, passed by the Bar Council of India, in its meetings held on 22nd and 23rd August 2010, the term of office of the Bar Council of Tamil Nadu was extended for a period of 6 months with effect from 12.10.2010, in terms of the Proviso to Section 8.
4. On the strength of the said extension, the State Bar Council convened a meeting on 23.12.2010 and passed 4 resolutions, bearing Resolution Nos.373, 374, 375 and 376. By the first resolution, an election schedule was finalised and the Secretary of the State Bar Council was appointed as the Returning Officer.
5. By the second resolution, a Special Committee comprising of 5 Senior Advocates of this Court were appointed to scrutinise and monitor the conduct of the ensuing election with power to issue suitable instructions to the Returning Officer for the conduct of a free and fair election and the power to nominate any number of Advocates to assist them in the conduct of the election.
6. By the third resolution, 3 Advocates of this Court were appointed as the Election Tribunal, as contemplated by the rules.
7. By the fourth resolution, the Bar Council of Tamil Nadu resolved to hand over the administration of the Bar Council to the Advocate General with power to sign the cheques and operate the bank accounts, jointly with the Secretary.
8. In pursuance of the above resolutions, an Election Notification was issued by the Secretary to the Bar Council of Tamil Nadu on 27.12.2010 and the same was published in the Tamil Nadu Government Gazette Part VI-Section 1, No.51-A. The Notification was also published in the newspapers on the following day and a Press Release was issued by the Advocate General on 30.12.2010, confirming the election schedule and the appointment of the Secretary to the Bar Council of Tamil Nadu as the Returning Officer.
9. Challenging the Press Release issued by the Advocate General on 30.12.2010 and the election process so initiated, the Tamil Nadu Advocates Association, registered as a Society under the Tamilnadu Societies Registration Act, filed the above suit against the Bar Council of Tamil Nadu and the Bar Council of India, praying for the following reliefs:-
"(i) Declaring that the press release dated 30.12.2010 (R.O.C.No. 1733 of 2010) issued by the first defendant, announcing election to the Bar Council of Tamil Nadu on 4.3.2011, is null and void;
(ii) Declaring that the electoral rolls, published by the first defendant, in preparation for the election of members to the Bar Council of Tamil Nadu, to be held on 4.3.2011, are null and void;
(iii) For appointment of a retired Hon'ble Judge of this Hon'ble Court to conduct the election of members to the Bar Council of Tamil Nadu, right from the preparation of the electoral rolls upto the announcement of the successful candidates, within a time limit fixed by this Hon'ble Court;
(iv) For an order of permanent injunction restraining the defendant from proceeding with the electoral process in pursuance of its press release dated 30.12.2010 (R.O.C.No.1733 of 2010)."
10. Pending disposal of the suit, the plaintiff sought two interim reliefs in O.A.No.18 of 2011 and A.No.78 of 2011 respectively for (i) an interim injunction restraining the first respondent/defendant from proceeding with the electoral process and (ii) the appointment of a retired Judge of this Court to conduct the election of Members to the Bar Council of Tamil Nadu right from the preparation of electoral rolls upto the announcement of the successful candidates within the time limits.
11. Upon finding in the course of arguments that the previous elections to the State Bar council were marred by serious allegations of large scale rigging and corrupt practices and after taking painful note of the fact that the Bar Council has been in the limelight, in the recent past, for wrong reasons, I made a few suggestions, in the course of hearing of the applications, on 11.1.2011, to ensure the conduct of free and fair elections, so that persons of integrity and commitment are persuaded to inter the fray and also have a chance to get elected. Fortunately, the learned counsel for the plaintiff and the learned counsel for the State and Indian Bar Councils agreed to all the suggestions and consented to an order being passed on those lines.
12. Therefore, the following order was passed on 12-1-2011 in the applications O.A.No.18 of 2011 and A.No.78 of 2011, by consent of parties:-
(i) Mr.Justice K.P.Sivasubramaniam (Retd.) is appointed as a Commissioner to oversee and monitor the ensuing elections to the State Bar Council. He shall take over charge of the election process forthwith and shall be in charge of supervising and monitoring the entire process, till the declaration of results.
(ii) The election schedule as contained in the Election Notification published in the Tamil Nadu Government Gazette dated 29.12.2010, shall remain as such. However, in view of the fact that the names of thousands of members are not found in the draft voters list, on account of non-payment of subscription as well as other causes, the Secretary of the Bar Council of Tamil Nadu shall send a circular, in consultation with the Commissioner (KPSJ) to all the Bar Associations/Advocates Associations, informing them that the date for payment of arrears of subscription stands extended to 24.1.2011. The circulars shall be despatched by tomorrow (13.1.2011) and all the Bar Associations/Advocates Associations shall display the same in their Notice Boards, to enable the members whose names are not found in the electoral rolls, to take necessary steps. The final revised electoral roll shall be published on or before 31.1.2011. The filing of nominations may take place from 31.1.2011 to 4.2.2011 (both days inclusive), as indicated in the Election Notification. The last date for receipt of nomination, the last date for withdrawal of nomination, the publication of the list of candidates, the date of election and the date of counting shall remain as per the Election Notification.
(iii) The Secretary of the Bar Council of Tamil Nadu, who has been appointed as the Returning Officer, shall report to the Commissioner, take instructions from him and act accordingly.
(iv) The ballot papers shall be printed in a Security Press, as per the directions of the Commissioner. The ballot papers shall be sent in sealed covers/cartons/boxes (as the case may be) to the Presiding Officers of the Courts in which the 172 polling booths are located. If a polling booth is located in a Court Complex, where two or more Courts are located, the ballot papers shall be sent to the Presiding Officer of that Court which is the highest in hierarchy. In so far as Polling Booth No.53 which relates to Madurai High Court Bench and Polling Booth No.166 which relates to Chennai are concerned, the ballot papers shall be sent to the Registrar (Judicial) of the Madurai High Court Bench and the Registrar (Vigilance) of the Principal Bench.
(v) In respect of all Polling Booths, except Booth Nos.53 and 166, the Presiding Officers of the Courts to which the ballot papers are sent, shall keep them in safe custody. On the morning of the polling date, the Presiding Officers shall hand over the ballot papers to the Polling Officer. After the polling is completed in the evening, the Presiding Officers shall collect all the ballot papers, both polled and unused and put them in covers/cartons/boxes and seal them and send them directly to the Commissioner. The expenses incurred for carrying this task shall be charged to the State Bar Council. In respect of Polling Booth No.53, the Registrar (Judicial) of the Madurai High Court Bench shall carry out this task. Similarly, in respect of Polling Booth No.166, the Registrar (Vigilance) of the Principal Bench shall carry out this task.
(vi) The Presiding Officers of the Courts to whom the task of receiving the ballot papers and sending them back are entrusted, shall each nominate one Senior and respectable member of the local Bar, in which the Polling Booth is located, to be a Poll Observer. He must be a person known for his integrity and standing at the bar. He must not be either a contestant in the election or the Polling Officer of the booth. In so far as Polling Booth Nos.53 (Madurai Bench of the High Court) and 166 (Principal Bench) are concerned, the Commissioner himself may make the nomination of independent poll observers for the Madurai Bench and Principal Bench, from among the Senior members of the bar practising in Madurai Bench and Principal Bench respectively. The name of one Advocate so nominated, along with his residential address, enrolment number and the phone numbers (both mobile and landline) shall be sent by each of the Presiding Officers of the Courts, to the Commissioner in advance, for his approval. By this process, there would be 172 independent Poll Observers (at the rate of one Observer per Booth) nominated by the Judicial Officers.
(vii) The Poll Observers of all the Booths may directly communicate with the Court appointed Commissioner and get his guidance /advice from time to time and they shall act accordingly.
(viii) Ballot papers will be issued to the voters, only upon production of photo identity cards. While issuing ballot paper to a voter, an indelible ink mark shall be put on the left hand index finger of the voter. This information shall be displayed in the Notice Boards of the Bar/ Advocate Associations, so that the eligible voters take steps to ensure that their photo identity cards are available with them.
(ix) The candidates contesting the election shall ensure that festoons, flex boards, posters, banners and hand bills are not displayed/distributed in the Court campus. Any violation of the same would put their candidature/election in peril.
(x) The Commissioner shall be allotted an Office Room in the building of the Bar Council of Tamil Nadu and Pondicherry with phone facility. His mobile phone will be charged by the Bar Council and all his expenses will be met by the Bar Council.
(xi) Within 2 days of the conclusion of the poll, every independent Poll Observer shall send a report about the conduct of the election in his Booth directly to the Commissioner.
(xii) All the Polling Officers of all the 172 Polling Booths shall take the advice/orders of the Commissioner from time to time, to ensure the conduct of the elections in a free and fair manner. These Polling Officers shall abide by the advice/orders of the Commissioner.
(xiii) The Commissioner as well as the Judicial Officers in control of the Courts in which the Polling Booths are located, are at liberty to seek appropriate police protection. Since the learned Advocate General of this Court is also the Ex-officio member of the Bar Council and also since the Bar Council itself has passed a resolution, handing over the administration to him, the learned Advocate General shall ensure that adequate police protection is provided in all Polling Booths, on the date of the poll, as per the request of the Commissioner as well as the Judicial Officers concerned.
(xiv) The Commissioner shall be paid an initial remuneration of Rs.1,00,000/- by the State Bar Council, within a week.
(xv) Advocates who have migrated to different towns/cities, from the place indicated in the list/Register maintained by the Bar Council, shall make a request in writing, to the Commissioner, for permitting them to vote in a station other than the one in which their names find a place in the electoral roll. Such requests are to be made within one week of publication of the final electoral roll. It will be open to the Commissioner to scrutinise such requests and grant or refuse the same. Once permission is granted by the Commissioner, such persons shall be permitted to cast their votes in those places.
(xvi) It will be open to the Commissioner, if he considers it necessary, to take the assistance of one or more Senior Advocates to assist him in carrying out the above tasks. It will also be open to the Commissioner to fix their remuneration, depending upon the nature of the duties assigned to them. The remuneration so fixed shall be paid by the Bar Council.
(xvii) It was contended by the learned counsel for the petitioner that a confusion is created when two or more persons with the same name and initial contest the elections and that therefore, the ballot papers should also contain the photographs of the persons contesting the elections, alongside their names. Though it was pointed by the learned Senior Counsel for the first respondent that there is no scope for confusion in view of the addresses being given, I find from the report filed by the Committee of Senior Advocates, in respect of the previous elections, that about 1,054 ballot papers were invalidated, on account of the fact that they contained roman numerals or tick mark or cross mark. Under the heading Suggestion II, the Committee of Senior Advocates had indicated in their report in respect of the previous elections that "it was unfortunate that educated voters like lawyers do not read instructions printed on the ballot papers" and "that most of the voters did not understand the concept of single transferable vote". Therefore, the Commissioner is given liberty to examine the possibility of incorporating the photographs of the respective candidates, alongside their names in the ballot papers, subject to security and financial constraints.
(xviii) It will be open to the Commissioner to seek any directions/ clarifications from this Court, whenever considered necessary by him.
(xix) This Court will monitor the progress of the entire election process, till the results are announced.
(xx) The Commissioner is requested to file a report after the conclusion of the poll.
(xxi) It is made clear that the Commissioner is appointed only for the purpose of conducting, overseeing and monitoring the entire election process. Therefore, all other functions of the Bar Council, such as enrolments, signing of cheques etc., may be carried out by the learned Advocate General as per the resolution passed by the Bar Council.
(xxii) The Registrar-General is directed to communicate a copy of this order to the Judicial Officers to whom the tasks of nominating an independent Observer, receiving the ballot papers and sending them back are entrusted. The Secretary of the State Bar Council shall also communicate a copy of this order to the Bar Associations/Advocates Associations, so that all the members are put on notice of the directions issued hereunder.
13.Thereafter two modifications were ordered to the said order on the same day at the request of the parties. One was that in paragraph 16(viii) of the order dated 12-1-2011, instead of the words "left hand index finger", the words "right hand index finger" shall be substituted. The other was that in paragraph 16(ix), the words "hand bills" shall stand deleted. However, it was made clear that it shall be the responsibility of the contesting candidates to clear the campus of the hand bills printed and distributed in their names, one day prior to the date of polling.
14. Subsequently, a news item appeared in the Times of India, in its Chennai edition reporting that some of the Bar Associations have sold out their votes en bloc. Taking clue from the said news item, Mr.Elephant Rajendran, an Advocate came up with A.No.450 of 2011, seeking to implead himself as a party and praying for the issue of certain further directions, so that the order dated 12.1.2011 can be fine tuned.
15. The further directions sought for by him, in his own language, were as follows:-
(i) On the date of Election, the ballot paper sould be signed and stamped by the Presiding Judge.
(ii) One of the Subordinate Judicial Officers may be present during the time of voting. The ballot paper should be put in the ballot box only by the concerned Advocate in the presence of the Presiding Judge.
(iii) The ballot box should be brought to one particular place under the direct supervision of the Presiding Judge.
(iv) All the ballot boxes to be collected and be brought to Madras High Court by Senior Staff of the District Court with police protection.
(v) The ballot boxes shall be kept in any one of the rooms in the High Court or City Civil Court under strict police protection.
(vi) Before counting of the votes, 4 or 5 Districts ballot boxes to be opened and mixed in a big box in order to prevent voting particulars of each Bar.
(vii) In case of any corruption or any other consideration either in the form of money or other means that particular Bar Association votes shall be treated as invalid and shall not be considered of the Bar Council Election.
(viii) If any contesting member is found to be involved in corrupt practices, his name shall not be considered for Election.
(ix) The counting of votes may be video graphed.
16. On the suggestions and requests made by him, I heard the learned counsel for the parties and passed an order on 2-2-2011 which reads as follows:-
5. At the outset, I must point out that it is not possible to ensure that all types of mal-practices are totally curtailed. If a member of the profession which is supposed to belong to the learned and the noble, deliberately and consciously decides to sell his vote, there is very little that a Court can do. Keeping in mind this limitation, let me examine how far the suggestions now made could be accepted.
6. The first 3 suggestions, relate to the involvement of the local Judicial Officers in the polling process. There are two difficulties in accepting these suggestions. They are:-
(i) There are 172 polling booths. The date of the election viz., 4.3.2011, falls on a working day. Therefore, it is not possible or feasible to involve 172 Judicial Officers, by making all of them forego a working day. Judicial work of 172 officers cannot be suspended even for a day. Though Mr.Elephant Rajendran contended that several working days were already lost in several Courts, due to unnecessary boycotts and that therefore, there is no harm in involving Judicial Officers in the election process for just one day, I do not think that it will be in the right perspective. The fact that many working days were already lost for unjustifiable reasons, is no ground to loose one more working day for 172 Officers.
(ii) Moreover, every election process always leads to some controversies, raised by the unsuccessful against the successful candidates. If Judicial Officers are involved, it is possible that they are also dragged unnecessarily into such controversies. To the extent possible it is better to keep them out of controversies.
7. In so far as suggestion Nos.(iv) and (v) are concerned, further directions can be given.
8. Suggestion No.(vi) is made under peculiar circumstances. The voting in the elections to the Bar Council is no doubt by secret ballot. But a few Bar Associations, located in Courts where some of the polling booths will come up, have a membership of less than 100 or 50 Advocates. If the allegation that some of the Bar Associations have resolved to cast their votes in a particular manner for extraneous considerations is true, there will be a reluctance even on the part of a few conscientious voters to defy the resolutions passed by the Associations of which they are members. This reluctance may arise either out of lack of commitment to a greater cause or out of lack of courage. If counting takes place polling booth wise, it is possible for every one to know how many voters acted in obedience to the resolutions passed by their Associations and how many voted in defiance. In a small place where the number of voters is the less than 100 or 50, there is a possibility to identify, after the poll, persons who could have voted in defiance to the resolution. This may actually dissuade even those who have independent thinking, to vote according to their conscience. But if the ballot papers are shuffled before counting, it would be impossible for each of those Bar Associations to find out whether all their members voted according to their conscience or according to the resolution. The counting of votes after shuffling, may even dissuade the candidates contesting the elections, from indulging in corrupt practices, since they would not have the guarantee that all the members of the respective Associations would honour the resolutions in spirit. Therefore this suggestion can be accepted, especially in view of the allegation that huge donations have been given by prospective candidates to various Bar Associations, either to air condition the Associations or to provide certain infrastructural facilities.
9. I enquired with the first respondent as to whether it is feasible to shuffle the ballot papers before counting. The Secretary to the Bar Council of Tamil Nadu and Pondicherry, who was present in Court, submitted that it is feasible. The learned counsel appearing on both sides also submitted that they see no disadvantage or difficulty in adopting this course.
10. Suggestion Nos.(vii) and (viii) will be taken care of by the learned Judge appointed to oversee the elections.
11. On the question of video graphing the counting of votes, it is stated by the first respondent that video graphing of counting is always done.
12. Therefore, in view of the above, the following directions are issued, in addition to those issued on 12.1.2011:-
(i) On the date of the election, the Judicial Officers to whom the ballot papers are sent, shall open the seal of the covers/boxes in the presence of the Polling Officer and the Poll Observer and the representatives of the candidates, empty the boxes and again lock and seal the boxes and hand over the ballot papers to the Polling Officer, before the poll begins. After the polling is over, the Judicial Officers shall collect the ballot boxes, check up that the lock and the seal are intact.
(ii) After the polling, the ballot boxes shall be handed over by the Judicial Officers to the Deputy Superintendent of Police within whose jurisdiction the polling booth is located. The learned Advocate General, who is now in charge of the entire administration of the Bar Council and who is also the Chief Law Officer of the State, shall make arrangements through the Director General of Police, to have the ballot boxes collected in police vehicles and brought to the nearest District Headquarters. From the District Headquarters, they shall be transported in police vans to the High Court at Chennai. The logistics as to how the number of vehicles and number of trips could be minimised, shall be worked out by the learned Advocate General.
(iii) All the ballot boxes received from all the 172 police stations, through the police vans, shall be received by the Registrar-Management of this Court and shall be kept in safe custody under lock and key and seal, in the Hall in the V Floor of the Additional Law Chamber Buildings, where the counting took place in 2005. The lock and key shall thereafter be handed over by the Registrar-Management to Justice K.P.Sivasubramaniam. The Hall shall be opened every day morning in the presence of the learned Commissioner appointed by this Court and shall be locked and sealed in the evening after the counting is over, in the presence of the Commissioner. It is open to the Commissioner to seek appropriate police protection outside the Hall, throughout the period during which counting is to take place.
(iv) The ballot papers received from the polling booths located in one or two Districts, shall be shuffled with the ballot papers received from the polling booths located in one or two Districts, before the actual counting takes place. But before shuffling, it may be ensured that the number of ballot papers issued to each polling booth tally with the ballot papers received from that polling booth.
(v) The voters and the Bar Associations may be informed that the candidates who have, in the recent past, paid hefty donations to various Bar Associations, may be disqualified from contesting.
(vi) The Poll Observers nominated by the Judicial Officers may bring to the notice of the learned Commissioner any malpractices adopted by the candidates, including the donations offered by candidates. The Commissioner may enquire into such allegations and file a report thereafter.
17. Subsequently, by another order dated 7-2-2011, it was also clarified that the Identity Cards to be produced by the voters shall be the photo Identity Cards issued by the Bar Council of Tamil Nadu and Puducherry or the photo Identity Card issued by the respective Bar Associations or the Bar Council Enrolment Certificate.
18. Thereafter, Mr.Elephant G.Rajendran came up with a few more applications in A.Nos. 1205 of 2011 and 1244 to 1246 of 2011 seeking various directions, one of which pertained to the acceptance of the nomination of the former Chairman of the Bar Council of Tamilnadu. Arguments were heard in those applications on 2-3-2011, but orders could not be passed for paucity of time.
19. However, the elections were held on 4-3-2011 throughout the State, in accordance with the directions issued as above. Apart from the Polling Officers nominated under the statutory rules, by the Returning Officer (Secretary to the Bar Council) to each of the 172 booths, the Presiding Officers of the respective courts also nominated one senior and respectable member of each of the local Bar as independent Poll Observers in each of the 172 booths. Apart from these regular Polling Officers (172) and the independent Poll Observers (172), the learned Judge Commissioner also sent about 40 Special Observers to certain places which were considered as sensitive, by virtue of past experience.
20. After the conclusion of the polls, the learned Judge Commissioner filed a Memo on 7-3-2011, highlighting the manner in which the polls went on, in the District Court campus at Nagercoil and Padmanabhapuram. He also enclosed copies of the reports of the Special Observers sent to these places.
21. In their report, Messers.L.Chandrakumar and V.Parthiban, Advocates sent as Special Observers to Nagercoil, had stated the following:-
"At the beginning itself, the local observer, the polling officer, volunteer and the other Advocates who gathered at the polling arena have unequivocally informed the undersigned special poll observers that the bar had unanimously taken a decision to vote for only one candidate. Sri Padmanaban whose name was shown at Serial No.90 in the Ballot paper in view of his assurance of significant financial assistance for the welfare of all the members of the bar.
When the polling commenced at 10.00 a.m., the polling officer, who was expected to discharge his duties impartially and without partisan approach, started issuing ballot papers to the voters after marking first preference vote to one candidate. Sri Padmanaban at Serial 90. The polling officer merely obtained the signatures from the respective voters in the ballot papers and the so called volunteers immediately took custody of the ballot papers and shoved the same into the ballot box. The voters were not given any chance to even look at the ballot paper. Voters also (barring a few) appeared to be in tandem with such sham exercise. The marking of vote by polling officer himself was objected to by the undersigned and as immediate response to the objection, the polling officer instructed the voters themselves to mark this first preference vote for Sri Padmanaban and not to vote for any one else. He made and ensured voters to cast his or her vote only for the said candidate. However, this approach of the polling officer was only for some time and he conveniently returned to his earlier method of marking the vote himself. In any event, whether marking of vote by polling officer himself or by the voters themselves, it did not make any difference, as the singular agenda set for the day was to obtain first preference vote to Sri Padmanaban from all voters under all circumstances. The agenda appeared to be fulfilled as the curtains were drawn on the election at 5.00 p.m. The videography arranged for the election was simply an eye wash. The videographers, the undersigned learnt were asked to remain in one position and in one spot at the entry far away from the polling area. Videographers were merely covering the activity wherein the voters were given these tokens to enable them to receive the ballot papers at the polling area. The volunteers who were in charge of issue of tokens to the voters never properly checked the identity of the voters as per the election specifications. Tokens were given for the asking. The videography had been deliberately kept out of the polling area, as otherwise, the farcical exercise of voting which took place would have got exposed in no uncertain terms.
Out of 921 votes polled, there were only handful of voters (not more than half a dozen) who exercised their franchise independently. Even these voters came under severe pressure from the volunteers more particularly, the so called local observer that they should vote for Sri Padmanaban. In fact, the said local observer who was supposed to oversee fair conduct of the election was loudly chiding one of the voters for inadvertently marking his vote invalidly at serial No.90 by saying that he should have been more responsible having consented to taking payment from the candidate concerned.
Around 2.00 p.m., almost all the voters who stood in the queue had polled and there were only few voters waiting to cast their votes. At that time, approximately, around 550 votes had been polled. Around 2.45 p.m., onwards, there were no voters waiting, but polling continued unabatedly and uninterruptedly with help of the volunteers and few other proactive advocates, proactive polling officer and the local observer. On behalf of the voters who remained absent, the volunteers took turns in affixing their signatures against the names of the absentee voters and were polling their votes. The undersigned could see that some of the advocates including few woman advocates repeatedly casting their votes every now and then with impunity. This mockery went on till the close of the election at 5.00 p.m. At least from 3.00 p.m., to 5.00 p.m., the undersigned did not find any new voter coming to cast his or her vote. Out of total 948 votes, 921 votes came to be polled in the fashion (except of course few votes) as indicated above.
The entire election process from the issue of tokens, till the casting of votes has been vitiated by illegitimate method collectively adopted by the local Bar. It appears that the advocates who are supposed to uphold the values of democratic exercise have reduced the same into a sad and sordid state travesty."
22. The report of the Special Observers extracted above, showed that the Nagercoil Bar adopted a defiant attitude, not only towards the provisions of the Statutory Rules, but also to the orders of this Court and the general instructions issued by the learned Judge-Commissioner. It was not the first time that they were doing so. Even in the elections held in September 2005, the members of the Nagercoil Bar had resorted to the same practice. The elections held in September 2005 were supervised and monitored by a Committee of 4 Senior Advocates, who submitted a final report on 17.10.2005, after the declaration of results. One paragraph in the said report would show what happened on the last occasion. Para 12 of the said report, reads as follows:-
"12. The report received from Mr.K.Chandru, Observer at Nagercoil polling booth, makes a sad reading. The polling Officer refused to use the indelible ink. The report says that there would have been 500 false votes. He saw may persons voting 7 or 8 times. He had stated that lawyers from Thackalay and Kuzhithurai came to the polling booth and cast votes. He had noticed one particular woman lawyer voted 3 times. He had recommended for repoll. At the time of counting, it was noticed that out of 1120 votes, 837 voters had cast their votes and all the votes went in favour of a particular local candidate."
23. Apart from the report of the Special Observers of the present elections (2011) and the report of the Special Observer of the previous elections(2005), the Judge Commissioner had also received a complaint before the date of the poll, from one member of the local Bar about the intentions of the Naercoil Bar Association. When the Commissioner sent a copy of the complaint to the President of the Nagercoil Bar, he gave a reply denying the allegations. Therefore, in his report filed on 7-3-2011, the learned Commissioner pointed out the following, in paras 3 and 5 :-
"3. The report relating to Nagercoil is very dismal and depressing and I may be permitted to refrain from referring to the details which I request, may be perused to avoid repetition. I wish to say nothing about the shocking nature of the misconduct of the very polling officer appointed by the Bar Council and the Polling Observer appointed by the Presiding Judicial Officer, except to say that all the members of the legal profession should be ashamed about how their fraternity can stoop to behave. Such behaviour will not happen even in general elections dominated by illiterate persons.
5. I leave it to the Hon'ble Court to issue appropriate directions for the said context. At this juncture, I wish to point out that amidst rumours and even reports in newspapers about buying of bar associations and bribing of voters, I had issued specific instructions on 18.1.2011 and 11.2.2011 to the candidates and voters (annexed herewith) making it very clear that any malpractice, rigging or any act which would materially affect the polling in a booth will result in invalidating the entire polling in that booth and votes polled in that booth shall not be counted. In spite of the said warning, the enlightened voters at Nagercoil and Padmanabapuram appear to have thought that they are above law."
24. Similarly, the situation in the booth at Padmanabapuram, highlighted by the Special Observers, presented a picture which was no different from that in Nagercoil. The report dated 7.3.2011 submitted by Mr.K.Krishnamoorthy and R.Gokulraj, Special Poll Observers to Padmanabhapuram, reads as follows:-
"3. When we requested the I.D. Cards to be shown the polling officer, observer and agent said, it is not required as they are local members known to them. And no body showed I.D.Cards to us and our objection in this regard was rejected by polling officer. Indelible ink also was not put to nearly about 30% of the voters.
4. We were sent as Special Observers to ensure fairness in electoral process integral to which is the ensuring of identity of the voters failing which even non lawyers can vote. When we raised this issue, it was vociferously rejected.
5. There has also been dual voting by subsequently showing the identity card.
Therefore, in view of the fact Padmanabapuram did not have the discipline to comply with the requirement of fair electoral process, we recommend that entire ballot from Padmanabapuram be rejected.
The reasons for the same are:-
a. Voters did not show their Identity Cards, therefore identity of voters could not be ascertained.
b. There has been unascertainable number of dual voting.
The total number of voters : 292 The total number of votes polled: 218"
25. Therefore, taking into account (i) the report of the Special Observers sent to Nagercoil (ii) the report of the Special Observers sent to Padmanabhapuram (iii) the report of the Special Observer sent to Nagercoil in the 2005 elections and (iv) the complaint received by the commissioner before the elections and forwarded to the Nagercoil Bar in advance, I passed an order on 8-3-2011, the operative portion of which reads as follows:-
39. Rules 20 and 25(2) of The Bar Council of Tamil Nadu Election Rules read as follows:-
"20. PROCEDURE FOR PERSONS VOTING IN PERSON:
A voter who has received a voting paper under Rule 19 shall retire to a place screened from outside view and mark his preference in the manner prescribed. The voter shall then put it in a sealed box kept for the purpose."
"25. VOTING PAPERS WHEN INVALID:
(1) .. .. .. .. ..
(2) Whenever the Returning Officer is satisfied that the Ballot Boxes have not been delivered as expeditiously as possible and there was unreasonable delay in delivering the Ballot Boxes or if the Returning Officer is satisfied that there was tampering of the Ballot Box or boxes all the ballot papers in the Ballot Box or boxes shall be invalidated."
40. It is clear from the reports of the Special Poll Observers that all the voters in the booth at the District Court campus of Nagercoil and the booth at Padmanabapuram violated Rule 20 extracted above and the directions issued by this Court not only to produce photo identity cards, but also to get indelible ink marked on their right hand index finger. Such an action on the part of the voters in these two places, would clearly amount to tampering of the entire ballot box/boxes, within the meaning of the second portion of Rule 25 (2). The dictionary meaning of the term "tampering" is "to prearrange the out come of a contest unlawfully". The second part of Rule 25 (2) makes it clear that if the Returning Officer is satisfied that there was tampering of the ballot box or boxes, all the ballot papers in the ballot box or boxes shall be invalidated. The expression "Returning Officer" is defined under Rule 2(xiv) of the Bar Council of Tamil Nadu Election Rules to mean the person appointed by the Bar Council to conduct the election. In this case, it is the Secretary to the Bar Council of Tamil Nadu and Pondicherry. But in view of the fact that a retired Judge of this Court has been appointed as a Commissioner to oversee and monitor the elections, I have specifically made the Secretary reportable to the learned Judge. The Secretary is obliged to take instructions from the learned Judge and hence the satisfaction arrived at by the learned Judge in this case, on an objective basis, is the satisfaction contemplated by Rule 25(2).
41. It is unfortunate that the independent Poll Observer nominated by the District Judge has been a party to this unlawful episode. In the earliest order passed on 12.1.2011, I had indicated that the Presiding Officers of the Courts shall nominate one senior and respectable member of the Bar. If the person so nominated by the District Judge at Nagercoil himself had taken active part in such wholesale rigging of the polls, I do not think that there is any alternative other than to take an extreme step. As a matter of fact the Poll Observer nominated by the District Judge is guilty of contempt of court, on account of his active participation, connivance and collusion in the whole process.
42. In circumstances of this nature, there are 2 options available namely (i) to countermand the poll in these 2 booths and order re-poll or (ii) to declare the votes polled in these 2 booths as invalid. In normal circumstances, the first option should be taken. But the situation on hand is of extraordinary and grave nature. We have seen ---
(i) that the Nagercoil Bar has repeated what they did with impunity in the previous elections
(ii) that they deliberately violated the code of conduct prescribed both by the rules and by this court
(iii) that they consciously violated the instructions issued by the Commissioner for ensuring a free and fair poll
(iv) that despite a complaint having already been lodged against them, (forwarded to them by the Commissioner), they proceeded to tamper with the entire election process and
(v) that they made a mockery of the whole democratic process, not out of ignorance but out of a wilful and defiant attitude.
Therefore, I have no alternative than to take the second option. I know that it is a very hard option. But I am in the position of a Surgeon today. When a patient had consistently and deliberately violated all prescriptions and warnings given at a time when the earliest symptoms showed up, leading to the disease reaching an advanced stage, the Doctor has no option except to resort to surgery. Since it is in the interest of the patient himself, it is unavoidable.
43. I am conscious of the consequences of invalidating the votes polled at two booths, by invoking Rule 25(2), especially when the election is by means of a single transferable vote. But in S.Raghbir Singh Gill vs. S.Gurcharan Singh Tohra {1980 Supp. SCC 53}, the Supreme Court went to the extent of holding in para 43 that once tampering is held proved, in the circumstances permit and evidence of unquestionable character is available, it would be perfectly legitimate for the Court even to ascertain the person in whose favour the vote was cast before it was tampered with. Thus the power of the Court even to go beyond, is well recognised.
44. In any case, the Bar Council of Tamil Nadu Election Rules does not speak of any alternative other than invalidating the tampered ballot boxes under Rule 25(2). Therefore, it is hereby ordered that all the votes polled in the District Court campus at Nagercoil and at Padmanabapuram shall be treated as invalid. They need not be counted. The learned Judge may proceed to count the votes from all other booths from 9.3.2011 onwards and file a report.
26. After the aforesaid order was passed, the Nagercoil Bar went on a boycott, purportedly against the report of the Special Observers. Simultaneously they also came up with applications for impleading and for recalling the order dated 8-3 2011. But on my refusal to hear the applications without a withdrawal of the boycott, the applicant filed an affidavit to the effect that the Association has passed a resolution on 12.3.2011 withdrawing the boycott with immediate effect. In paragraph 6 of the affidavit, it was also stated by the applicant that the members of the Bar did not pass any resolution in respect of the hearing of the case by Hon'ble High Court and that if such an impression has been created, the applicant was sincerely regretting for the same. In view of the said affidavit, the application for impleading was allowed and I took up the application for recalling the order dated 8-3-2011 for hearing.
27. In the meantime, the President of the Padmanabhapuram Bar also filed applications for impleading and for recalling the order dated 8-3-2011. Their application for impleading was allowed and the application A.No.1628 of 2011 for recalling the order was also taken up along with the application of the Nagercoil Bar.
A.No.1600 of 2011 (Nagercoil)
28. Mr.V.Selvaraj, learned counsel appearing for the President of the Nagercoil Bar Association, submitted (i) that the plaintiff has no locus standi to maintain the above suit in view of the provisions of Section 20 of the Tamil Nadu Societies Registration Act, 1975; (ii) that since the suit was filed after the issue of the election notification, it was not maintainable; (iii) that since the suit was not instituted as a representative suit under Order I, Rule 8, CPC, any decision rendered in the suit may not bind persons other than those who are parties; (iv) that the question as to whether there was tampering or not, is a matter to be decided only after conclusion of trial; (v) that the votes cast by members of the Bar who unanimously resolved to elect a local candidate so as to voice their grievances, cannot be said to amount to tampering and (vi) that in any case, at least a re-polling ought to have been ordered.
29. At the outset, the first contention that a Society cannot file a suit, is wholly unsustainable. A Society of professionals, established for exposing the cause of its members, can always file a suit for ventilating the grievances of its members. All the members of the plaintiff-Association are also members of the Bar Council of Tamil Nadu. Therefore, all the members of the plaintiff-Association have a common cause, which they need not seek to ventilate individually.
30. Section 20 of the Tamil Nadu Societies Registration Act, 1975, does not prohibit a Society from instituting any civil proceeding for the redressal of the grievances of its members. Sub Section (1) of Section 20 stipulates that the Committee or any Officer of the registered Society authorised in this behalf by its bye-laws may bring or defend or cause to be brought or defended any action or other legal proceeding touching or concerning any property, right or claim of the registered society and may sue or be sued in respect of any such property, right or claim. It does not mean that the right of a registered Society to institute a suit is confined only to any property, right or claim of the registered society and not to any property, right or claim of the members of the society. The right or claim of the members of a registered Society, if found to exist in a common platform, can always be agitated by the Society on behalf of its members.
31. In Illachi Devi vs. Jain Society, Protection of Orphans India {2003 (8) SCC 413}, the Supreme Court pointed out that the mere fact of registration of a society under the Societies Registration Act, will not make the said society distinct from an Association of persons. A Society is not a body corporate as is the case in respect of a company registered under the Companies Act, 1956. While a company enjoys an identity distinct from its original shareholders, a Society is indistinguishable in some aspects, from its own members. In the same decision, the Supreme Court pointed out in paragraph 54 as follows:-
"54. Societies registered under the Societies Registration Act, in the changed scenario play an important role in society. They discharge various functions which are beneficial to society. They run educational and other institutions. They sometimes work in public interest and act in aid of State functions. They have their own accountability. They sometimes incur liabilities. Public interest litigations filed by societies are galore."
Therefore, the contention that the suit is not maintainable at the instance of a society, is unsustainable.
32. It is contended by Mr.V.Selvaraj, learned counsel for the applicant that the above suit is not a public interest litigation, but a civil suit and that therefore, the course of a litigation before a civil court, is confined by the boundaries established by statutes such as the Code of Civil Procedure and the Specific Relief Act. But I do not agree. It is a misconception to think that public interest litigations are the exclusive prerogative of constitutional Courts. Public interest litigations have their origin to Order I, Rule 8, CPC. Section 91 CPC is also an important tool for remedying the grievances of a large number of individuals who cannot file independent suits. Therefore, the first contention is rejected.
33. The second contention that a suit challenging a process of election is not maintainable after the issue of the election notification, cannot also be accepted. It is true that the election notification was issued on 29.12.2010 in the Tamil Nadu Government Gazette. The suit was instituted on 3.1.2011. But the prayer in the suit was not exactly confined to the election process alone. The plaintiff had come up with the above suit, seeking larger reliefs. The first challenge in the suit was to the very resolution passed by the Bar Council of Tamil Nadu and Pondicherry, handing over the administration to the learned Advocate General and to the very continuance of the Council whose term had expired on 11.10.2010. Moreover, what was sought by the plaintiff in the suit, was not really to stall the election process, but to regulate it. Therefore, the general rule that a Court shall not interfere with the election process after the issue of election notification, cannot apply to the present case. Such a stand is also fortified by the fact that the First Bench of this Court has issued certain directions in its order dated 9-3-2011 in W.P.Nos.5790 of 2011 regulating the conduct of the forthcoming elections to the Tamil Nadu Legislative Assembly, so as to ensure that the children writing public examinations are not affected by the assembly elections scheduled to be held in April 2011. Therefore, the suit cannot be looked at as one initiated for stalling the election process, but to be looked at as one seeking to regulate the whole process.
34. The next contention raised on the basis of the provisions of Order I, Rule 8, CPC, is also unsustainable. As a matter of fact, a similar contention was raised when an application was taken out by Elephant G.Rajendran seeking the disqualification of Mr.R.K.Chandramohan, former Chairman of the Bar Council. But the same was rejected by me on the ground that though the provisions of Order I, Rule 8, CPC had not been followed, the suit was nevertheless one of a representative character. It is pertinent to point out here that by the order passed on 12.1.2011 in O.A.No.18 of 2011 and A.No.78 of 2011, I appointed Mr.Justice K.P. Sivasubramaniam (Retd.), as a Commissioner to oversee and monitor the ensuing elections. In the said order dated 12.1.2011, I issued a spate of directions. One of the directions was to the Presiding Officers of the Courts in which the 172 election booths were spread over, to nominate a Senior and respectable member of the local Bar to be an independent Poll Observer. To enable them to do so, the Registrar-General of this Court was directed by me to communicate the copies of the order passed on 12.1.2011 to all the Courts where the booths were located. I also directed the copy of the order passed on 12.1.2011 to be communicated to the President of all the local Bar Associations. These directions have been complied with and the Presiding Officers of the Courts in which the 172 booths are located, have nominated members of the local Bar to be independent Poll Observers. Even the Presiding Officers of Nagercoil and Padmanabapuram Courts have nominated members of the local Bar as independent Observers. There is no dispute about the fact that an independent Poll Observer was nominated by the District Court, Nagercoil and an independent Poll Observer was nominated at Padmanabapuram. These nominees were actually present on the date of the poll, in pursuance of their nominations. Therefore, it is clear that even by the third week of January, 2011, all the Bar Associations functioning in various Courts where 172 polling booths are located, have been put on notice (i) of the above suit (ii) of the interim orders passed and (iii) of the fact that this Court would be monitoring the elections. Therefore, the requirements of Order I, Rule 8, CPC, have otherwise been complied with, in spirit, if not in letter, in a formal way. In other words, there was poetic compliance of the principles underlying Order I, Rule 8, CPC, though there was no cosmetic compliance of the letter of the law. Hence the third contention is rejected.
35. The next contention is that the allegations made in the report of the Special Observers cannot be accepted in total, without any evidence being let in. According to the petitioner, the question as to whether there was wholesale rigging or tampering could be decided only after trial and that therefore a final order disqualifying about 1,200 voters, cannot be passed without any evidence, at a pre-trial stage.
36. But the said contention overlooks the fact that the order passed by me on 8-3-2011, was not in an election petition. In an election petition, no final order could be passed on allegations of large scale rigging and tampering, without any evidence being recorded. But I am not concerned here with an election petition. Even in elections conducted to Assemblies and Parliament, the right of the Returning Officer to declare certain votes as invalid, without any trial, cannot be questioned. If the Returning Officer declares certain votes to be invalid, it is for the aggrieved party to take up the matter by way of an election petition after the declaration of results and not before. It is only at that stage that the question of evidence would arise.
37. Today what had happened in this case is that the Special Observers appointed by the learned Judge Commissioner found that the voting in two places were just a farce. Therefore, the learned Judge Commissioner, reported that the votes polled in these two places have to be invalidated. There is no necessity for a Returning Officer or the Election Commissioner to conduct an enquiry, take evidence and thereafter pass an order declaring the votes polled in an area to be invalid.
38. In any case, I do not think that elaborate evidence is required in this case to come to the conclusion that I did on 8.3.2011. This is due to the following reasons:-
(i) The report of the Special Observers show that out of 921 votes polled, only a handful of voters, not more than half a dozen could exercise their franchise independently. A major portion of the report of the Special Observers has been extracted by me in the order dated 8.3.2011. Unfortunately, in the affidavit filed in support of the above application, the President of the Nagercoil Bar has not chosen either to make a general denial or to make a specific denial, of the contents of the report of the Special Observers. The applicant may not be in possession of a copy of the report of the Special Observers. But there was no prohibition for the applicant at least to seek a copy of the report and then file an affidavit containing a denial. In any event, a major portion of the report of the Special Observers adverse to the applicant and his brother members, has been extracted by me in the order dated 8.3.2011. It is only with reference to the said order that the above application has been filed. Therefore, the applicant ought to have at least made an averment that the report of the Special Observers is false. But the applicant did not choose to do so.
(ii) Moreover, the Commissioner had issued instructions to all the independent Poll Observers of all the 172 booths, to send their reports along with the video recording, immediately after the polls are over. The polls were held on 4.3.2011. Even till date the Polling Officer as well as the independent Poll Observer from Nagercoil had not sent their reports. The CD of the videograph taken at the time of the polling had also not been received till 15.3.2011. From all the other booths, the reports of the Poll Observers as well as the CDs on videographs have been received. Therefore, apart from the fact that the applicant has not chosen to deny the allegations contained in the report of the Special Observers, there is also no evidence which contradicts the averments contained in the report of the Special Observers. If at least, there is a report of the independent Poll Observer which stands in conflict with the report of the Special Observers, it can possibly be contended that evidence is required to see which of the two reports is correct. That contingency has also not arisen today in view of the fact that the reports of the Polling Officer and the independent Poll Observer as well as the CD of the videograph have not been received till date.
(iii) In the affidavit in support of the above application, no issue is raised about the fairness, independence or impartiality of the Special Observers. No allegations of mala fides are made against the Special Observers. As a matter of fact, the learned Judge-Commissioner himself identified 40 booths and chose a few Advocates who were willing to do pro bono service as Special Observers and sent them to those places. The Special Observers had no vested interest either against the Nagercoil and Padmanabapuram Bar or in favour of any other candidate. In an election in which 25 persons are to be elected by means of a single transferable vote, no Special Observer can ever contemplate in advance, as to who would stand to benefit, if all the votes from a particular Bar is invalidated.
39.Therefore (i) in the absence of a general or specific denial of the contents of the report of the Special Observers (ii) in the absence of the reports from the Polling Officer and local Poll Observer nominated by the District Judge and the CD of the videograph and (iii) in the absence of an allegation of mala fides against the Special Observers, it is futile on the part of the applicant to contend that a final order invalidating all the votes in a booth cannot be passed before trial.
40. Moreover, there is one important aspect, which the applicant has omitted to deal with, in his affidavit. I have pointed out in my order dated 8.3.2011 that in the elections held in September 2005, the same kind of malpractices took place in Nagercoil. The Special Observer sent to Nagercoil at that time was Mr.K. Chandru, who was then a Senior Advocate of this Court and who is now a sitting Judge. His report filed in 2005, which I have extracted in the order dated 8.3.2011, also shows that this is not the first time that such things had happened at Nagercoil. Therefore, I do not know what more is required by way of a roving enquiry or trial, for the Returning Officer or this Court to invoke Rule 25 (2).
41. The next contention of the applicant is that the Nagercoil Bar always stood for certain cherished values and that they always had the habit of electing a local candidate, so as to have a representation for the District in the Bar Council. It is their contention that if a Bar Association decides unanimously to vote for their own candidate and if they do not obstruct individuals from casting their votes in a different manner, the same cannot be faulted with.
42. I have no difficulty in accepting the position that all the members of the Bar in a particular locality are entitled to and may even decide unanimously to vote for a candidate of their choice. But such an unanimous decision cannot be brought forth either by way of undue influence and coercion or by way of corrupt practices. In my previous orders, I had pointed out that a news item appeared in the Times of India to the effect that the contestants bought out Associations, by making or promising huge donations. There were actually reports to the effect some Bar Associations unanimously resolved to cast their votes to the candidate who offered the highest amount of donation. In order to curtail such corrupt practices, I passed orders to the effect that candidates who gave or promised to give donations to the Bar Associations in the recent past, would be disqualified. But unfortunately, no reports have come so far, from any place, pointing out the actual receipt or a promise of any donation. Therefore, until any such report is received, I have no alternative but to presume that the adoption of corrupt practices have not come to the fore.
43. As stated earlier, the unanimous resolutions of Bar Associations, to vote for a particular candidate, would fall under three categories viz.:-
(i) Cases where Bar Associations were bought out.
(ii) Cases where undue influence and coercion played a part and
(iii) Cases of genuine nature in which the Associations rally behind a candidate, either on account of his stature or on account of a cause for the espousal of which, the members want to vote a particular person to power.
44. The orders passed on the earlier occasion were aimed at torpedoing the resolutions which fell under categories 1 and 2. To put it differently, the orders passed by me on earlier occasions and the instructions issued by the Judge-Commissioner so far, were aimed at (i) reducing money power and (ii) reducing muscle power.
45. Since no reports about the deployment of money power have so far come to the foreground, I have to presume for the present that there was a reduction of money power to some extent in the present election. Since money power is invisible and also since there is collusion between the giver and the taker in such cases, no complaints have so far been received, to enable me to take any action.
46. In all the booths, including the booths in which money power might have played a part, the polling had been very peaceful. As per the reports submitted by the Special Observers, the voters stood in the queue, took indelible ink impression on their right hand index finger, showed the identity card, received the ballot paper, went to the enclosure and cast their votes in secrecy. So long as this has happened and so long as there are no reports about the payment and receipt of money in those booths, it has to be presumed that the election was free and fair in those booths.
47. But in so far as the booth at the District Court Campus at Nagercoil is concerned, it is stated by the Special Observers that the voters were never allowed to exercise their franchise freely. They were not even given the ballot papers. Therefore, there was no free and fair poll, though there was total transparency. This has made the case fall under the second category.
48. Interestingly, Mr.V.Selvaraj, learned counsel contended in the course of arguments that one of the contestents by name Mr.Isaac Mohanlal himself came and voted at the District Court campus at Nagercoil and that this showed that no one was prevented from voting freely. But alas, he was not aware of the fact that Mr.Issac Mohanlal, had already sent a complaint dated 4-3-2011 to the learned Judge-Commissioner about the denial of the freedom of choice for the voters at the District Court Campus at Nagercoil. The letter reads as follows:-
"I wish to bring the following facts for your kind consideration and suitable action:
The Bar Council Election held at the Nagercoil Booth of Kanyakumari District today witnessed an ugly situation where the entire booth was captured by the Tellers themselves and the votes were manipulated.
After the commencement of polling at about 10.00 A.M., in less than half an hour, the rigging and manipulation started. These were done by none other than the Tellers themselves. The voters were not allowed to cast their votes. They were simply asked to sign the papers. They were not supplied with the ballots. The ballots were marked by the Tellers themselves in favour of a particular candidate Mr.T. Padmanabhan bearing Ballot Serial No.90 and put into the Ballot Box. Some of the voters who insisted upon for the ballots were given the ballots only after making the above marking (1) in favour of the said candidate.
After some time, one and the same persons repeatedly went into the booth and signed the papers and left the ballots with the Tellers to cast the votes in the same fashion as above. Every voter who came out of the polling booth shared this sad story with pain.
At once, I reported the matter to the Observers M/s.L.Chandrakumar and V.Parthiban over phone at about 11.30 A.M., and they assured of appropriate action. Also, I reported the same to the Principal District Judge Shri Saravanan around 12 Noon. But, the things never changed. The same situation continued till the end.
Out of 948 votes, about 920 votes are reportedly polled. But, 920 voters never turned up for voting. The video recording may reveal the same.
With a heavy heart I submit that more than 90% of the polling in the Nagercoil Booth is fake and manipulated. The present poll does not manifest the wish of the voters. On the other hand, it only manifests the contrary.
In the above circumstances, I humbly request your goodself to take appropriate action in regard to the present poll at the Nagercoil Booth and to ensure the conduct of a fresh poll which is fair and democratic."
49. While passing the earlier order dated 8-3-2011, I did not place reliance on the said letter, since there was a possibility for others to assail the same as emanating from a contesting candidate, who has a vested interest in the outcome of the election. But the report of the Special Observers who have no vested interest in the outcome of the election, confirmed the contents of the letter of Mr.Issac Mohanlal. Therefore, it is clear that there was virtually booth capturing in advance at the District Court Campus at Nagercoil. In such circumstances, the contention that there was an unanimous decision is totally unbelievable. If the voters and the candidate from Nagercoil were so confident about the unanimity of the decision taken, they should have put it to test by allowing all the voters to exercise their right to vote freely in secrecy. The unanimity of decision should be achieved by consensus and not by compulsion.
50. It is relevant to point out that by the order dated 2-2-2011, I directed that the votes from 3, 4 Districts shall shuffled before counting, so that the individual Bar Associations do not come to know as to how many of their members acted in unison and how many of their members acted freely according to their conscience. Such a direction was issued in the wake of allegations that a few Bar Associations have decided to vote en bloc for a candidate for extraneous consideration. It was felt at that time that if counting was to take place booth wise and the voting pattern is also to be made known booth wise, individual members may feel reluctant to defy any resolutions passed by their Associations to vote for a particular candidate for extraneous considerations. Therefore, to ensure absolute secrecy to the voters and to encourage them to vote only according to their conscience and not according to the dictates of their Associations, the order was passed directing the votes from 3, 4 Districts to be shuffled before counting. The fight against corrupt practices could go only to that extent.
51. But unfortunately, what had happened in the District Court Campus at Nagercoil, defeated the said objective. The contention that the same was done with noble intentions, is akin to saying that a benevolent dictatorship is preferred over a bad democracy. Therefore, the theory of unanimous decision cannot be accepted.
52. The last contention of Mr.V.Selvaraj is that in any case, the Court ought to have at least ordered re-poll rather than invalidating about 921 votes in Nagercoil and more than 200 votes in Padmanabapuram. Yes, it could have been done, but for a few statutory hiccups.
53. Section 15(2)(a) of the Advocates Act, 1961, empowers the Bar Council to make rules, providing for the election of members by secret ballot. The rules may prescribe conditions subject to which persons can exercise the right to vote by postal ballot, the preparation and revision of electoral rolls and the manner in which the results of election shall be published. By virtue of Clause (d) of sub section (2) of Section 15, the rules may also provide for the manner in which and the authority by which doubts and disputes as to the validity of an election to the Bar Council or to the office of Chairman/Vice Chairman shall be finally decided.
54. By virtue of sub section (3) of Section 15, the rules made by the State Bar Councils under Section 15 (2), shall have effect only if they are approved by the Bar Council of India. Therefore, the contention that a re-poll ought to have been ordered, has to be tested only in the light of the rules framed by the State Bar Council of Tamil Nadu under Section 15 (2) and approved by the Bar Council of India.
55. In exercise of the powers conferred by Section 15(2)(a), the Bar Council of Tamil Nadu framed a set of rules on 14.12.1975 and the same were approved by the Bar Council of India on 10/11.1.1976. These rules are called the Bar Council of Tamil Nadu Election Rules.
56. Rule 18 of the said Rules prescribes that voting shall be in person at the polling booth and not by proxy. Rule 19 deals with the mode of supply of voting papers. Rule 20 makes it mandatory for a voter, who receives a voting paper, to retire to a place screened from outside view and to mark his preference in the manner prescribed and then to put it in a sealed box kept for the purpose. The Rule is mandatory and not obligatory. No Bar association can pass any resolution, which would have the effect of making a mockery of this rule.
57. Rule 21 makes it clear that once a voting paper has been handed over to a voter, a second voting paper shall not be issued to him unless he satisfies the Returning Officer or the Polling Officer that the voting paper already issued to him had been spoiled or mutilated or lost or destroyed or has not been received.
58. Rule 22 (1) indicates the method of voting. Sub rule (2) of Rule 22 prescribes that a voting paper shall not be signed or erased or obliterated or altered. If so done, it shall be defaced. Sub rule (3) makes it clear that the decision of the Returning Officer, whether a voting paper has or has not been defaced, shall be final.
59. Rule 23 prescribes the procedure for sealing of ballot boxes after close of poll and the transmission of the ballot boxes to the Returning Officer. Rule 24 stipulates as to who may be present at the time of scrutiny and counting of votes.
60. Rule 25(1) indicates the circumstances in which the voting paper shall be invalid. Sub Rule (2) of Rule 25, which is what I have invoked in my order dated 8.3.2011, empowers the Returning Officer to invalidate all the ballot papers in the ballot box or boxes, under two contingencies viz., (i) if he is satisfied that the ballot boxes were not delivered as expeditiously as possible and there was unreasonable delay or (ii) if he is satisfied that there was tampering of the ballot box or boxes.
61. While Rules 26 to 31 deal with the procedure for counting, ascertainment of quota, filling up of last vacancies etc., Rule 32 deals with co-option. Rule 34 deals with determination of results and publication thereof. Rule 35 deals with election disputes and Rules 36 to 38 deal with the Constitution and Powers of an Election Tribunal. Rule 40 deals with appeals against the orders of the Election Tribunal, to the Bar Council of India.
62. Interestingly, there is no provision in the entire Rules, enabling the Returning Officer to order re-poll. Even the Election Tribunal constituted under Rule 36(1) is not empowered to order re-poll, though it has a power to order recount. Therefore, it is clear that the Returning Officer is not conferred with the power to order re-poll, though he is conferred with the power (i) to declare a voting paper as defaced under Rule 22(2) or (ii) to invalidate the ballot box or boxes, in terms of Rule 25(2) if in his opinion, they are tampered. There is no provision for the Returning Officer to order re-poll.
63. The power to order fresh polls (or re-polling, as is known in common parlance) in the case of elections to Houses of Parliament and Houses of the Legislatures of States, is traceable to Section 58A of The Representation of The People Act, 1951, which was inserted by the Amendment Act 1 of 1989. As a matter of fact, (1) the power to declare the poll at a particular polling station as void and to order re-poll, traceable to Section 58A (2)(a) and (2) the power to countermand elections in any particular constituency traceable to Section 58A (2)(b), are conferred by the said Act only upon the Election Commission. The power is exercisable only by the Election Commission upon receipt of a report from the Returning Officer under Section 58A(1). Similarly, under Section 64A of the Representation of the People Act, 1951, the Election Commission has the power, on the basis of a report of the Returning Officer to declare the poll at a Polling Station to be void and to order fresh poll.
64. A power similar to the one available to the Election Commission under Section 58A(2)(a) or 64A (2)(a) of The Representation of The People Act, 1951, is not available under the Bar Council of Tamil Nadu Election Rules. The logic behind this is simple. In respect of elections to the Houses of Parliament and Legislatures, there is an Election Commission and the power to order fresh poll is exercised not by the Returning Officer, but by the Election Commission. But in respect of elections to Bar Councils, we do not have an Election Commission. Therefore, the Rules do not and cannot confer a power upon the Returning Officer to order fresh polls. Hence, however much I wish to give another opportunity to the Advocates of Nagercoil and Padmanabapuram, I cannot do so in the absence of a provision in the Rules.
65. In view of the above, all the contentions raised by the applicant fail and consequently, the application for recalling the order passed on 8.3.2011 also fails. Therefore, A.No.1600 of 2011 is dismissed.
A.No.1628 of 2011 (Padmanabhapuram Bar)
66. Now let me come to the application A.No.1628 of 2011 filed by the President of the Padmanabapuram Bar Association. As seen from the order dated 8.3.2011, all the votes polled in Padmanabapuram were also invalidated in terms of Rules 20 and 25 (2). In paragraph 5 of the affidavit filed in support of the application, the President of the Padmanabapuram Bar has admitted that some of the Advocates did not bring their Identity Cards, as they were under the impression that there will not be any problem about their identity. It is further stated in para 5 that the members who did not bring Identity Cards were identified by the Senior Advocate Mr.Alwin Vethamony.
67. Thus in essence, the applicant has admitted that a few persons were able to cast their votes, without showing any kind of Identity Cards. But it was made clear in para 16 (viii) of the orders passed on 12-1-2011 and clarified on 7-2-2011 that voters will not be permitted to cast their votes, if they failed to show either a photo Identity Card issued by the Bar Council of Tamil Nadu and Pondicherry or the photo Identity Card issued by the local Bar Association or the Bar council enrolment certificate. These orders have also been communicated to all the Bar Associations. The learned Judge-Commissioner has also issued "Further General Instructions to the candidates and Voters" in his R.O.C.No.132 of 2011 dated 11-2-2011, to the effect that the voters will be permitted to vote only upon production of one of the above 3 identification material. The last paragraph of the "Further General Instructions to the candidates and Voters" issued by the Judge Commissioner in his R.O.C.No.132 of 2011 dated 11-2-2011, reads as follows:-
GENERAL:
At the risk of repetition, the voters and candidates are requested to bear in mind that any malpractice or rigging or a single voter polling more than one vote etc., or acting in any manner as would materially affect the polling in a booth and as irregular, which may come to the knowledge of the commissioner either directly or through the Polling Officer or Poll Observer of that booth will result in invalidating th entire polling in that booth and the votes polled in that booth shall not be counted.
Despite the above instructions issued by the Election Commissioner and despite the court orders, if the Polling Officer/Poll Observer had permitted some persons to vote without showing any kind of identity, it would clearly amount to a violation of the prescriptions.
68. Another interesting contention raised by the Padmanabapuram Bar Association is that they have a membership of about 298 voters and that only 218 voters cast their votes. Therefore, the applicant has contended that there could not have been any possibility of dual voting.
69. But unfortunately, the applicant has omitted to take note of one important aspect. The independent Poll Observer nominated by the local Judicial Officer for overseeing the poll in Padmanabhapuram booth was Mr.Alwin Vethamony. The Secretary of the local Bar Association had already been nominated as the Polling Officer by the Returning Officer (Secretary of Bar Council), in terms of Rule 16 of the Bar Council of Tamil Nadu Election Rules. The appointment of the independent Poll Observer was in addition to the Polling Officer nominated by the Returning Officer. If a person so nominated by the Judicial Officer, to be an independent Poll Observer, has himself violated Court orders and the instructions issued by the Election Commissioner by identifying several members of the Bar and permitting them to vote without any kind of identity, the same cannot be condoned.
70. Though the applicant has chosen to deny in his affidavit, the contents of the report of the Special Observers, the denial is very vague and general. The primary issue raised by the Special Observers to the effect that many persons were permitted to vote without producing photo Identity Cards, is virtually admitted in the affidavit of the applicant. The second observation of the Special Observers that there was dual voting by many, is sought to be questioned by the applicant as illogical. But there is no assertion that there was no dual voting.
71. As in the case of the booth at District Court Campus, Nagercoil, the independent Poll Observer of Padmanabapuram Mr.S.Alwin Vethamony also did not send his report, immediately after the elections. The above application was filed on 15.3.2011 and arguments were heard and orders reserved on the same date. Till orders were reserved on 15.3.2011, the report of Mr.S.Alwin Vethamony, the Poll Observer from Padmanabapuram booth, had not been received by the learned Judge-Commissioner. The CD of the videograph had also not arrived.
72. But after orders were reserved on 15.3.2011, the Commissioner received a report from Mr.S.Alwin Vethamony, the Poll Observer of Padmanabapuram. Though the report is dated 14.3.2011, it had been posted on 15.3.2011 and was received on 16.3.2011. Interestingly, the Poll Observer has not mentioned in his report, the fact that he permitted several persons to vote without insisting on production of Identity Cards, though the affidavit in support of this application states so. On the other hand, Mr.S.Alwin Vethamony has stated that the poll was conducted totally in a free and fair manner strictly in adherence to the rules and regulations and the directions of the Commissioner. This is directly in conflict with what is stated in the affidavit of the applicant. Therefore, this report lacks credibility. In such circumstances, I have no credible material on record to reject the report of the Special Observers about the wholesale violation of the rules and regulations by the Padmanabapuram Bar.
73. In other words (i) in the light of the very admission made in the affidavit about several persons being permitted to vote without the production of photo Identity Cards (ii) in the light of the failure of the independent Poll Observer to send a report until 15.3.2011 and (iii) in the light of the very participation of the independent Poll Observer himself in identifying voters without photo Identity Cards and also filing a report (received on 16.3.2011) conflicting with the stand taken by the applicant, I have no alternative except to accept the report of the Special Observers and confirm the order earlier passed on 8.3.2011. Therefore, A.No.1628 of 2011 is also dismissed.
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