Madhya Pradesh High Court
Madhya Pradesh Congress Committee vs Election Commission Of India on 9 June, 2016
WP-9540-2016
(MADHYA PRADESH CONGRESS COMMITTEE Vs ELECTION COMMISSION OF INDIA)
09-06-2016
Shri Rajendra Tiwari and Shri Anil Khare, learned Senior Advocates
assisted by Shri Shashank Shekhar, Thaman Khadka and Shri Jasnit
Singh Hora.
Shri Siddharth Singh, learned counsel for the respondents No.1 to
4. Shri Ravish Agrawal, Learned Advocate General assisted by Shri Aditya Khandekar, counsel for the respondent No.5. Shri Prashant Singh, learned counsel with Shri Manas Verma, counsel for the Intervenor-Vinod.
Heard on I.A. No.7372/2016, an application for hearing the petition during Summer Vacation.
Looking to the urgency of the case, the application is allowed. Heard on admission.
Issue notice.
Since the respective parties are represented through counsel hence, no process fee is required.
Heard on I.A. No.7638/2016, an application for intervention. The same is allowed.
Also heard on the question of grant of interim relief (I.A. No.7373/2016).
Petitioner has challenged (Annexure-P-2) and (Annexure-P-3). Annexure-P-2, is a communication dated 2.6.2016 to the Chief Election Officer, Madhya Pradesh Bhopal and Annexure-P-3 dated 3.6.2016 is the communication by the Joint Chief Election Officer, M.P. Bhopal to the respondent No.5 Principal Secretary, M.P. State Legislative Assembly, Bhopal.
Learned Senior Counsel appearing on behalf of the petitioner has contended that the petitioner is an affected person because by the aforesaid communications, the request of permission to issue postal ballot has been refused and by the opinion an ailing MLA who is not attending the State Assembly has been denied the facility of postal ballot. It is contended by the Senior counsel that by the aforesaid act, the statutory right of MLA who is a member of Indian National Congress and Leader of Opposition has been adversely affected.
Learned Advocate General appearing on behalf of State/respondent No.5 has argued extensively and submitted that no request for issuance of postal ballot was made by Mr. Satyadev Katare within time i.e. upto the date of withdrawal of candidature i.e. 3.6.2016. It is further submitted by the Senior counsel that the petitioner has no locus-standi to file the writ petition because no right of the petitioner has been infringed and Mr. Katare has not filed any petition. Petition is not maintainable when election process is underway The same arguments have been repeated by the learned counsel for the Intervenor and learned counsel for the Election Commission.
Learned counsel for the Election Commission has submitted that at present there is no application submitted by Mr. Katare before the Election Commission and the Election Commission forwarded its opinion on the basis of letter received from Returning Officer of Rajya Sabha Election 2016.
The Returning Officer for the Election of Rajya Sabha 2016 by a letter dated 02.06.2016 (Annexure-P-2) submitted a letter to the Secretary, Election Commission of India and sought advise to the effect that whether if a electoral is suffering from ailment and he was admitted in a hospital out side of the State and he is not able to come to the place of voting then what would be the procedure for voting in regard to aforesaid person. The Election Commission of India on the same day i.e. on 02.6.2016 informed the Returning Officer that âyour request for issuance of postal ballot paper to the said MLA ( Mr. Satyadev Katare) on health ground has not been acceded to under the existing provisions of Conduct of Election Rules 1961â. It means that Election Commission of India was of the opinion that such request could not be acceded under the existing Rules of 1961.
Rule 18 of the Conduct of Election Rules 1961 prescribes assembly members to vote by post. In the present case, the relevant applicable provision is Rule 18 (c) of Election Rules 1961 which reads as under:-
â [c] at an election by a assembly members-
(i) electors subjected to preventive detention ; and
(ii) All electors if directed by the Election Commission in this behalf under clause (a) of rule 68.
Clause 18 (c) of Rule 18 prescribes specifically which is applicable in an election by Assembly members that all electors if directed by Election Commission in this behalf under Clause 8 of rule 68 entitled to vote by post.
Rule 68 of the Rules of 1961 prescribes notification as to postal ballot. The relevant rule is as under:-
âRule 68. Notification as to postal ballot.- The Election Commission may, by notification published in the official Gazette at any time before the last date for the withdrawal of candidatures at an election, direct that the method of voting by postal ballot shall be followed:-
(a) at that election, if it is an election by assembly members; or
(b) in the whole or any specified parts of the constituency, if it is an election in a council constituency. â Conjoint reading of both the rules, it is clear that there is a provision of postal ballot in the event of election by assembly members. The question is that whether the postal ballot be made available in favour of an legislative member, if he is suffering from serious ailment and he is not able to attend the place of election/voting due to incapacity.
Section 62 of the Representation of the People Act, 1951 gives right to vote. The relevant Section reads as under:-
â62. Right to vote:.(1) No person who is not, and except to expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency.
(2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in such Section 16 of the Representation of the People Act, 1950 (43 of 1950). (3) No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void. (4) No such shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for the constituency more than once and if he does so vote, all his voes in that constituency shall be void. (5) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police:
Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force.
[Provided further that by reason of the prohibited to vote under this sub-section, a person whose name has been entered in the electoral roll shall not cease to be an elector] (6) Nothing contained in sub-Sections (3) and (4) shall apply to a person who has been authorized to vote as proxy for an elector under this Act in so far as he votes as a proxy for such elector.
Section prohibits the right to cast vote to a person who is confined in prison. However, the rule 17 (c) (1) gives such legal right to a person subjected to preventive detention. Prime facie in my opinion, the opinion forwarded by the Election Commission of India that Legislative Member who is suffering from serious ailment and admitted to hospital outside of the State cannot be permitted to cast his vote by postal ballot is not proper because rule 18 (c) (ii) of the Conduct of Elections Rules 1961, gives power to the Election Commission to issue a notification in the official Gazette in regard to postal ballot in the event of election, if a request is made. This rule be read with Section 62 of the Representation of the People Act 1950, prima facie in my opinion the person who is suffering from serious ailment and he could not attend the place of voting he has a right to cast his vote by post.
Learned Senior counsel have raised many legal questions which have to be answered at the time of final decision. If the request be not acceded and Mr. Katare be not given permission to exercise the right of vote by postal ballot, then his right would be adversely affected. Apart from this, if a person is not permitted to cast his vote within the framework of statutory provisions, then certainly it cannot be said that representative who is elected as a proper representative because election by majority of votes is sole of democracy.
In this view of the matter, in my opinion, it would be just and proper if a interim direction be issued to the respondent No.3 Chief Election Officer Bhopal to issue a postal ballot so Mr. Katare can exercise his right to vote. However, it is hereby clarified that said right which may be exercised by Mr. Katare on the basis of this interim order, shall be subjected to final decision of this petition. Case be listed on 15.06.2016 for final adjudication. Certified copy as per rules.
(S.K. GANGELE) JUDGE