No Fundamental Right To Elect Or Be Elected: Kerala High Court

Justice C. S. Sudha observed:

“Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore subject to statutory limitations. An election petition is not an action in common law, nor an equity,”

The bench added that in the trial of election disputes, the court is put in a straitjacket and it cannot rules of Common Law or the principles of equity. "Thus, the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Act, different stages of the process being dealt with by different provisions of the Act." 

The development comes in an election petition was filed by K. P. Mohammed Mustafa, the candidate fielded by Left Democratic Front (LDF) in Perinthalmanna constituency in 2021 Kerala Legislative Assembly Election. He came second to Najeeb Kanthapuram, the United Democratic Front (UDF) candidate by 38 votes. His allegation is that 348 postal ballots of the Absentee Voters Senior Citizens (AVSC), Absentee Voters Physically Disabled (AVPD), and Absentee Voters Covid Suspected and Affected Persons (AVCO) were improperly rejected. He argued that if they were counted, he would have won the election.

From the 348 postal ballots rejected, 21 were rejected as there was no declaration, 11 were rejected as the declaration was not duly signed and attested, 79 were rejected as there was no serial number of the postal ballot in Form 13A declaration or Form 13B cover, 1 was rejected as the signature of voter was absent, 140 votes were rejected as serial number of ballot paper entered in Form 13A differed from the one entered in Form 13B cover, 16 votes were rejected as page 2 of Form 13A was filled and 16 were rejected as Form 13B cover had not been sealed.

The Election Commission had issued 'Guidelines For Voting Through Postal Ballot By Absentee Voters In The Category Of Senior Citizens, PWDs And Covid-19 Suspect Or Affected Persons'. This was the guidelines issued by commission regarding the casting of vote by absentee voters. As per this, for absentee voters in AVSC, AVPD and AVCO category, the polling officers have to go to the residence of the voter concerned, get the necessary forms filled up and attest the same.

Clause 5.11 of this guideline state that the polling official shall explain to the voters about making the declaration in From 13A and getting it attested by the poll officer, entering the serial number of postal ballot paper both on Form 13A and on the envelope Form 13B, manner of marking the vote, folding and placing the marked ballot in Form 13B envelope and closing the envelope, placing Form 13A, envelope 13B into a larger envelope Form 13C and handing over Form 13C envelope to the poll officer.

During the proceedings, the returning officer deposed that she had instructed the polling officers to fill up 13A form, enter serial number in the 13A form, 13B envelope, enclosed 13A form and 13B envelope in Form 13C cover and sealed it. The polling officers had deposed that most of the voters were illiterate, infirm or laid up and therefore, they had to fill the form.

Arguments on behalf of the Petitioner

The petitioner argued that his counting agents were unable to notice any defects in the ballots. They were not allowed to verify Form 13A or Form 13B covers of the ballots that were set aside. The returning officer and assistant returning officer were in a haste and without disclosing the reasons, put these ballots in a separate box. The counting agents were assured that their request would be considered after counting all other votes. A request was also submitted to the Returning Officer. He also argued that the claim that the rejection was re-verified in the presence of counting agents is false.

The petitioner then argued that the election is liable to be declared void under Section 100(1) (d) (iii) and (iv) of The Representation of People Act. The provisions say that an election can be declared void if the High Court is of the opinion that the result of the election is materially affected by the improper refusal or rejection of any vote or by non-compliance of any rules or order made under this Act. The petitioner argued that the results were altered by the rejection of the 348 ballot votes. Further, the polling officer went against the guidelines by filling up the forms themselves. Even if the voters required any assistance, the polling officer ought to have sought the assistance of a 3^rd person. They violated the guidelines laid down by the Election Commission.

Lastly, he argued that even if there is any defect it has occurred on the behest of the polling officers. They filled the forms instead of the voters. The voters cannot be held responsible for the fault or omission of the polling officer.

Argument on behalf of the 1^st respondent

M. L. A. Najeeb Kanthapuram argued that the petitioner raised objections with regard to rejection of the 348 votes only once they realized that they lost the majority by just 38 votes. When the ballots were initially recognised as invalid, the agents gave their approval. No ballot votes were kept aside for a decision to be taken at a later point of time.

The petitioner further argued that the election cannot be declared invalid because they did not follow the procedure detailed in the guidelines. He submitted that the guideline issued by Election Commission can be considered as an order or rule. It is just an executive order and does not have the force of a statute or order. Therefore, the election cannot be declared void under this ground.

Observations of the Court

The Court noted that the Election Commission for conducting national and state elections has power under Article 324 to issue orders where the existing legislation is silent. The court noted that nobody had argued that the guidelines were against any existing legislations or the Commission had exceeded its jurisdiction. The court held that the guidelines is an order under Section 100(1)(d) (iv).

However, the Court observed that the election cannot be declared invalid as there has been no infringement of the procedure. The guidelines do not prohibit the polling officers from filling up the form. The parties haven't raised a contention that the officers had filled the forms against the wish of the voter or prevented any voter from carrying out the tasks or there has been any violation of voter privacy.

The Court after hearing the submissions from both sides decided that the votes were declared invalid under Rule 54A of the Conduct of Election Rules, 1961. Rule 54A (4) says that a ballot can be rejected if the Form 13A declaration is not found, or has not been duly signed and attested or is defective or if serial number entered in it differs from the serial number entered on the cover in Form 13B.

The Court observed that the Returning Officer has no discretion and has to mandatorily reject the ballot paper, if it falls under any of the categories mentioned in Rule 54A(4). Further, there is nothing in the provision that differentiate between mistake made by the poll officers and mistake made by the voter. The court then went on to say that right to vote is just a statutory right. Therefore, when a statute decrees a vote as invalid, court cannot import principles of common law or equity to give effect to the intention of the voters.

The Court said that among the 348 votes, it was submitted that only 284 votes were of AVSC. AVPD and AVCO category. Out of the rest 284, 16 votes were rejected for filling page 2 of Form 13A and 16 votes were rejected as Form 13B envelope was not sealed. These are not reasons mentioned under Rule 54A to reject the ballot. The court noted that even if these 32 votes were in the favour of the petitioner, the result would still be the same and Kanthapuram would still win by 6 votes.

The petition was thus dismissed.

Case No: El. Pet 4/ 2021

Case Title: K. P. Mohammed Mustafa v Najeeb Kanthapuram and Others

Citation: 2024 LiveLaw (Ker) 526