Madras High Court Issues Notice On Plea Challenging Postal Ballots Provision In RP Act

The provision permits issue of postal ballot to electors above the age of 80 years, electors with physical disability and electors in quarantine due to COVID-19 -regarding.

A Bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy has issued notices to the Centre and Election Commission of India (ECI) on a petition filed by Dravida Munnetra Kazhagam (DMK).

The party has submitted that under the guise of the impugned provision, the Government issued several amendments, Rules and notifications, "class of persons" as postal ballot voters, without any guiding principle.

Senior Advocate P. Wilson appearing for the party submitted that,

"the impugned provision gives the executive the power to name any one to be entitled for postal ballot, who can skip from the polling booth and political parties audit, and therefore such unbridled uncanalised power is antithetical and arbitrary to the law, and is liable to be quashed."

He submitted that with the help of the impugned provision, the Election Commission has brought a new and surprising class of voters called "absentee voters" who are not of class themselves.

He said the new rules has brought 4 categories of absentee voters: (a) Persons employed in essential services (b) persons above age 65 years (c) persons with disability (d) persons affected or suspect of COVID 19.

Wilson submitted that these 4 categories of voters will skip polling booth and vote behind the screens. Moreover, the role of political party auditing them is zero.

Referring to the categories, he said, the term persons employed in essential services is very vague and no definition is given in the Act and/or the Rules. "The Election Commission can call any services as essential services," he remarked.

With respect to the category of persons above age 65 years, he wondered why the Election Commission had reduced the age from 80 years. "How election commission can pass notification declaring now the age as 80 years of senior citizen without any amendment of rules," he asked.

He also raised issues with respect to the third category of persons with disability inasmuch as the authority has not prescribed the "extent of disability".

Lastly, he pointed that the fourth category, i.e. persons affected/ suspected of Covid-19 is also "too vague as date of acquiring disease or affected is not said in the rules."

Wilson submitted that establishment of special electoral rolls for is against the mandate of Article 325 of the Constitution, and as a consequence these voters will lose secrecy in voting.

He insisted that secrecy in voting is guaranteed in the Representation of People's Act, and forms a fundamental foundation of free and fair elections in a Parliamentary democracy .

"Every voter has right to vote in a free and fair manner and not to disclose to any person how he has voted. This concept is enabled in a polling-booth. The right to vote derives its colour from the right to free and fair elections and the right to vote is empty without the right to free and fair elections.

The multilayer identification process and screening of voters during voting by election officials and the political party's representatives before a voter is allowed to cast his vote are the hall marks of democracy. By such sequence the high degree of popular faith and trust over the democracy is emphasised. Its trite in law that democracy is an essential feature of the constitution and is unassailable," the petition filed by DMK stated.

The Bench has issued notice, returnable by 4 weeks and has clarified that prayer for interim relief will be considered after notice on the Central Government.