Kerala Assembly Elections : High Court Expresses Satisfaction With EC's Measures To Preserve Postal Ballots

Appearing for the EC, Standing Counsel Deepu Lal Mohan submitted that boxes containing the postal ballots polled would be sealed in the presence of the candidates and videographed to prevent tampering.

After receiving a statement from the EC today, the Court orally voiced its satisfaction with the measures in place to prevent vote tampering.

"Material on record discloses that the polled postal ballots would be secured by the Returning Officer in appropriate strong roomsprovided for the purpose in accordance with the directions of the Chief Electoral Officer and at the time of depositing the polled postal ballots the candidates or their authorised representatives are informed and they are entitled to witness the said event as of right, and in accordance with law," the Court's judgment records.

Underscoring that the safety of the polled postal ballots would have to be suitably secured without any chance of tampering, the Court in its judgment directing the Chief Electoral Officer to "take adequate steps to ensure that the polled postal ballots are stored with adequate safety and security and without any chance for tampering or corrupting the votes already cast by the beneficiary electors".

The three politicians, contesting from the constituencies ofNemom, Vamanapuram and Vypeen respectively, sought direction that the postal ballotsshould be kept in same place where the VVPAT (voter verifiable paper audittrail) machines are kept, with the same level of security.

Citing instances from their constituencies, the three petitioners claimed that the postal ballots could be manipulated and tampered with since the officials deputed to assist the EC owed allegiance to the government in power.

The upcoming election has seen an extension of the 'postal ballot' facility to persons aged above 80 years, persons with disabilities, persons suspected of Covid-19-positivity and persons positive for Covid-19. Earlier, the facility to vote via postal ballot was available only to government employees and persons in government service whose work required them to move out of their constituencies for work.

Despite a clear directive in the EC's Guidelines requiring the officers or authorized representatives of candidates to watch the process of collecting votes, neither they, their officials or representatives received word about this, the petitioners averred in their petition.

It is the petitioners' case that polling officials who should have been provided with adequate number of postal ballot papers, envelopes, pen, inkpad, and glue to seal the envelopes did not carry the same when visiting residences pf absentee voters. Neither were canvass bags to carry polled ballots, counter foils and other essential stationaries carried in many cases, it is stated. In their petition, they also stated "some of the lady polling officers are collecting it in their vanity bag instead of the canvass bag as provided in clause 5.14 (of the Standard Operating procedure for Collection of Postal Ballots)".

Some of their representatives who travelled with Returning Officers informed them that the polled ballot papers are kept "without any safety method or strong room facility and they are at the disposal of the Returning Officers, whose integrity cannot be accepted unconditionally", the petitioners said.

In Court today, Senior Advocate George Poonthottam reiterated the examples cited in the writ petition and declared "They (the postal ballots) are at the mercy of the Returning Officer!"

Arguing that most officers on election duty had political leanings, he asserted that when making his submission, he was not attempting to make personal allegations against the Returning Officers.

"Today is the last day for collection of postal ballots.", the Senior Advocate informed the Court.

"Though it is called 'postal ballot', it is a direct form of voting," he said.

Stating that till date, the petitioners had not been invited to watch the process, the Senior Advocate urged the Court that the ballots polled through the postal ballot system would prove crucial since in many constituencies, votes polled by candidates differed by 7000-8000 votes. 7000-8000 votes were earmarked for postal ballots, out of which 3000-4000 had applied to vote via postal ballots.

"Many did not opt because there is no confidence", Senior Advocate George Poonthottam informed the Court.

Expressing concern, Chief Justice Manikumar asked Standing Counsel for the Election Commission Deepu Lal Mohan, "Are the postal ballots carried in canvass bags?"

He responded, "that is only for day to day carrying…they are later stored…"

Chief Justice then queried, "why can't it be stored in a box with a lock?"

Explaining that the postal ballots were in fact stored in a strong box that was sealed, he presented his statement to the court.

Reading from the Statement, Standing Counsel for EC Deepu Lal Mohan explained that the Conduct of Election Rules, 1961 allowed for the issuance of postal ballots, the manner in which eligible persons could apply for the same, and the mode of collection.

By an amendment, namely Rule 27A(AA) read with Section 60 of the Representation of the People Act, a new class of persons was added to the existing classes allowed to vote via postal ballot.

The Rules required a Returning Officer to keep the ballots so polled in safe custody after collecting the same from those eligible.

When Senior Advocate George Poonthottam raised objection stating that the ballots were not safe while in custody of the Returning Officer, Standing Counsel Mohan rebutted this stating that sufficient safeguards were present.

He averred that the votes polled would be stored in a strong room, properly sealed.

"Clause 5 of the Guidelines (on voting via postal ballot) states candidates should be informed (of vote collection)! None of the petitioners have been informed!" , the Senior Advocate stated.

Perusing the statement, the Court queried why the petition was presented on the last day of the polling, though the collection of postal ballots began at the end of February.

The Court pointed out that even VVPAT machines were kept with the Returning Officer.

The machines are secured and protected in a strongroom, the Senior Advocate replied.

"They have said the votes polled will be stored in a strongroom", the Chief Justice told the Senior Advocate.

After Standing Counsel Mohan submitted that the boxes with postal ballots would be sealed in the presence of the candidates and videographed to prevent tampering, the Court orally expressed satisfaction with the measures in place.

Though, the Court initially declared that the matter would be taken up some time later, it subsequently decided to dispose of the petition by issuing an order.

Exhorting the Election Commission to scrupulously follow the rules, the matter was disposed.

Click here to download the judgment