Punjab-Haryana High Court
Brig. Hardeep Singh Ghuman (Shaurya ... vs Union Of India And Others on 22 August, 2013
Author: Augustine George Masih
Bench: Sanjay Kishan Kaul, Augustine George Masih
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 3775 of 2009
Date of Decision : 22.8.2013
Brig. Hardeep Singh Ghuman (Shaurya Chakra) ....... Petitioner
Versus
Union of India and others ..... Respondents
CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE
HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present:- Mr. Shireesh Gupta, Advocate, for the petitioner.
Mr. M.L. Sarin, Senior Advocate, with,
Mr. Hemant Sarin, Advocate, for respondents No. 3 and 4.
Mr. Gaurav Garg Dhuriwala, Deputy Advocate General, Punjab,
for respondent No. 7.
Mr. Ajay Gupta, Additional Advocate General, Haryana,
for respondent No. 8.
AUGUSTINE GEORGE MASIH, J.
This Public Interest Litigation (PIL) has been preferred by a former officer of the defence services highlighting an alleged grievance and difficulty faced by the defence personnel and their families who are posted outside their home town and are unable to cast their votes and thus, depriving them participation in the election process of the country. The primary grievance highlighted is that the process of preparation of electoral rolls for all defence areas and cantonments are not carried out by the respondents depriving them of their valuable right to vote.
Sharma Sanjiv Kumar 2013.09.30 11:09 I attest to the accuracy and integrity of this document Chandigarh CWP No. 3775 of 2009 -2-
Petitioner states that he is a decorated retired officer of the Indian Army. The defence personnel and the dependent members of their families face a problem especially those who are posted away at far off places from their home town where they are unable to cast their votes and participate in the election process because of the enrollment drive of voters not being initiated and carried out by the respondents in the areas where the defence personnel reside i.e. the restricted areas. They are not even aware of the fact that they can be enrolled as voters at their place of posting if they so desire, nor are they educated with regard to the fact that they can cast their votes through proxy or by means of postal ballot. This is primarily because of lack of information supplied to them and inaction on the part of the Election Commission of India which has failed to initiate the process of preparation of electoral rolls within the defence areas. The option of casting vote by postal ballot due to delay of despatch of the ballot papers from the Returning Officers to the Service Voters and then the postal delays leads to the said postal ballots reaching back the Returning Officer after the declaration of the result which defeats the very purpose for which it was created rendering the whole process a farce and futile exercise. Stipulating a tenure of posting of minimum three years in the post at a peace station as the sufficient span of time for a defence officer and his family to get enrolled as a voter at the place of posting as a general voter has also been challenged by asserting that it is contrary to the provisions contained in Sections 19 and 20 of the Representation of the People Act. 1950 (hereinafter referred to as '1950 Act'). Accordingly, prayer has been made for initiation of process of preparation of electoral rolls for all defence areas and cantonments, so that the valuable right to vote is not defeated of the defence personnel and their family members Sharma Sanjiv Kumar 2013.09.30 11:09 I attest to the accuracy and integrity of this document Chandigarh CWP No. 3775 of 2009 -3- because of inaction on the part of the Election Commission as provided in Sections 15, 21 and 22 of the 1950 Act for discharging their duties. Counsel for the petitioner has put-forth his submissions on the basis of these pleadings.
A detailed reply to the writ petition has been filed wherein Sections 19, 20 and 60 have been reproduced and explanations given thereto. Rule 7 of the Registration of Electors Rules, 1960 (hereinafter mentioned as '1960 Rules') has also been referred to and each plea, as has been raised in the writ petition, has been responded to.
As per Section 19, which provides for condition for registration of a person as a voter, one of the conditions is that he should be an ordinarily resident of the constituency entitling him to be registered in the electoral roll for that constituency. Section 20 gives the meaning of the ordinarily resident and as per Sub-section (3), any person having a service qualification shall be deemed to be ordinarily resident on any date in the constituency in which, but for his having such service qualification and he would have been ordinarily resident on that date. Sub-section (4) provides that any person holding any office in India declared by the President in consultation with the Election Commission to be an office to which the provisions of sub-section apply, shall be deemed to be an ordinarily resident. As per sub-section (6), wife of any person referred to in sub-sections (3) and (4) if she is residing with such a person, shall be deemed to be ordinarily resident of the constituency. In case of any dispute, Rules made in this behalf with regard to ordinarily resident at the relevant time, will be determined with reference to the facts of the case. Section 20 thus, creates a legal fiction in favour of certain persons who may be deemed to be ordinarily residents in some other place than the place where they actually/physically reside for the time being which is a contingency due Sharma Sanjiv Kumar 2013.09.30 11:09 I attest to the accuracy and integrity of this document Chandigarh CWP No. 3775 of 2009 -4- to compulsion of office/post held by them. Referring to Section 20(8) of the 1950 Act, it has been stated that service personnel have an option to get themselves registered as Service Voters in their native places.
Rule 7 of the 1960 Rules provides that a person, when submits declaration statement in the specified form to be registered in the constituency possessing a service qualification, he can get himself registered as a voter in the constituency where he would have been ordinarily resident, except for the requirement of service/post he holds. However, if a service voter desires his name to be included in the electoral roll of the constituency in which he is physically ordinarily resident for the time being like the Military Cantonments, because of his posting under the service in which he is employed, option is given to him to get himself registered as a general voter in that constituency by filling up Form-6 as laid in the Rules 1960 alongwith a declaration that he is not registered as a service voter in the constituency of his native place of residence. However, a condition has been imposed that the service voter is posted at a peace station and staying with the family on a tenure post of at least three years. This is for the reason that the demographical character of the constituency where there may be very small electorate is not altered which may affect the local populace and upset the electoral profile.
The person having service qualification is eligible for casting his vote by postal ballot as provided in Section 60 of the 1950 Act which provides for special procedure. As per Sub-section (a), any person who possesses service qualification as referred in clauses (a) or (b) of Sub-section (8) of Section 20 of the 1950 Act can cast his vote either in person or by postal ballot or by proxy. This would cover the members of the Armed Forces of the Sharma Sanjiv Kumar 2013.09.30 11:09 I attest to the accuracy and integrity of this document Chandigarh CWP No. 3775 of 2009 -5- Union and members of the Forces, to which the provisions of Army Act, 1950, have been made applicable with or without modification. Thus, a member of the armed forces of the Union or a member of the Forces has not been deprived of his right to vote. An option has thus, been given to a service voter to exercise his right either as a service voter in his native place or to register himself in his place of posting as a general voter if he fulfils the conditions specified for the said purpose. The right of casting vote of a personnel belonging to the armed forces has been amply preserved and safeguarded under the law.
The allegations that the answering respondents have refused to initiate the process of making electoral rolls in the defence and cantonment areas have been denied. Rather, it has been asserted that the letter dated 28.12.2008 issued by the Election Commission of India had directed the Chief Electoral Officers to take special awareness campaign among the voters with a view to enhancing enrollment of the service voters while outlining the options available to them. Total number of service electors in the country during the General Elections of Lok Sabha 2009 was 1083809. This number does not include those service personnel who chose to enroll as general electors. In the States of Punjab and Haryana, a total number of 13347 and 287 defence personnel respectively were enrolled as general electors. Every effort has thus, been made by the Commission through awareness campaigns to apprise the defence personnel about their right.
Learned senior counsel for Election Commission of India and counsels for State Election Commissioners, Haryana and Punjab, have made their submissions on the basis of the above referred to pleadings. Sharma Sanjiv Kumar 2013.09.30 11:09 I attest to the accuracy and integrity of this document Chandigarh CWP No. 3775 of 2009 -6-
We have considered the submissions made by the counsels for the parties and with their assistance have gone through the records of the case.
Right to vote is not a fundamental right, but is a recognized statutory right and, therefore, the same is governed by the statute. It is a personal right and has to be exercised by the person as per his choice and the same cannot be enforced except by the individual and that too as provided under the statute. Thus, this PIL itself cannot be entertained.
However, the issue raised in this Public Interest Litigation preferred by the petitioner with regard to denying the right to vote to the members of the armed forces stands belied from the reply which has been filed by the respondents. As is apparent from the provisions as contained in Sections 19, 20 and 60 of the 1950 Act that the right of the armed forces personnel with regard to their registration as a voter and his right to vote has been amply protected and options have been provided for exercise of the same either in person or by postal ballot or even by proxy in his native place where he has been registered in the electoral roll as a service voter. Thus, there is no denial of any voting right to the armed forces personnel as was sought to be asserted by the petitioner. It may be noted here again that the right to vote is neither a fundamental right nor an absolute right, but is a statutory right and ample opportunities have been granted to exercise the said right in accordance with statute. Armed forces personnel have, therefore, not been denied or deprived of their right to vote.
The projection on the part of the petitioner that the armed forces personnel are not made aware of their right to exercise their voting rights also cannot be accepted in the light of the fact that various campaigns have been held by the Election Commission and communications addressed to the Chief Sharma Sanjiv Kumar 2013.09.30 11:09 I attest to the accuracy and integrity of this document Chandigarh CWP No. 3775 of 2009 -7- Electoral Officers directing them to carry out special awareness campaigns amongst the service voters with a purpose to educate them and enhance their knowledge while highlighting the options available to them such as appointing a proxy to vote for them, postal ballot, in person and/or to enroll as general electors in case they are posted at peace station and staying with family on a tenure posting of at least three years. The choice is, therefore, open for armed forces personnel to either exercise his right to vote in his native place or to enroll himself as a general elector in the constituency in which he resides on a tenure posting of at least three years obviously at the cost of giving up his right to vote in his native place. Thus, the option has to be volunteered by the armed forces personnel. Further, the assertion of the petitioner about the denial of the right to vote or lack of information about the said right and the manner in which it can be exercised is belied from the fact that in the General Elections of Lok Sabha 2009, total number of service voters in the country were 1083809 excluding those service personnel who chose to enroll as general electors. In the State of Punjab, defence personnel who enrolled as general electors were 13347, whereas in Haryana, their number was 287. It can thus, not be said that the armed forces personnel are unaware of their right to vote and the mode through which they can exercise the said right.
Challenge has been posed to the condition enforced by the Election Commission which mandates armed forces personnel to be enrolled as an ordinarily resident in the constituency where he is posted prescribing a minimum three years posting tenure being arbitrary and without any basis. But, this contention of the petitioner also cannot be accepted keeping in view the change of demographical character of the constituencies which have very Sharma Sanjiv Kumar 2013.09.30 11:09 I attest to the accuracy and integrity of this document Chandigarh CWP No. 3775 of 2009 -8- small electorates alteration of which may affect the local populace and upset the electoral profile. There are many parts of the country where due to security reasons and keeping in view the national interest including maintenance of security especially the border areas where large number of defence personnel (including para-military personnel) are posted, it would not be advisable nor would it be in the interest of the local populace that such a condition be not imposed. Apart from that, if such a condition is not put into place, to garner votes of the service personnel, they would be approached by the politicians, political parties as also the contesting candidates thus, exposing and involving them in active politics, which has its potential dangers and is required to be avoided in national interest. The neutrality of the armed forces need to be maintained and it is essential so that the interest of the country is not adversely affected in any manner.
As regards the ineffectiveness of the postal ballot because of the procedural and postal delay, the same has been taken care of by the respondents and detailed guidelines dated 21.10.2008 (Anenxure-R-3/1) have been issued by the Election Commission of India for smooth management of postal ballot in which the procedure has been streamlined, according to which, the District Electoral Officer as soon as the list of contesting candidates is drawn up after the period for withdrawal of candidates is over, will get the postal ballot papers printed at his level under direct supervision of responsible officer and the same will be despatched without any delay. The District Electoral Officer will coordinate with the senior officials of the postal department and shall ensure that a team of postal department officials receive covers containing the postal ballot papers and they in turn will ensure that the ballots are sent to the right address without any delay. The entire process will Sharma Sanjiv Kumar 2013.09.30 11:09 I attest to the accuracy and integrity of this document Chandigarh CWP No. 3775 of 2009 -9- be videographed. Similarly, when the Returning Officers start receiving the polled postal ballot papers from the service voters, they shall give a daily report to the Observer concerned. The Returning Officers in turn is required to follow the procedures as also the polling officials as prescribed in the guidelines. All efforts have been made by the Election Commission to ensure that the service voters receive the postal ballot papers on time and the same are received back well in time, so that the valuable statutory right of the voter is not frustrated. All due care and caution has thus, been taken by the Election Commission, which would effectively translate the statutory right of vote by postal ballot papers into an effective mode of exercising the said right.
In view of the above, we do not find any merit in the present writ petition and thus, dismiss the same. Parties are left alone to bear their own costs.
(SANJAY KISHAN KAUL) (AUGUSTINE GEORGE MASIH) CHIEF JUSTICE JUDGE 22.8.2013 sjks Sharma Sanjiv Kumar 2013.09.30 11:09 I attest to the accuracy and integrity of this document Chandigarh