NE LEGAL BUREAU
NEW DELHI, JUNE 18
The Supreme Court on Thursday agreed to hear a petition filed by a Congress leader who has sought quashing of the Election Commission of India (ECI’s) notification allowing postal ballot in the biennial elections to the Rajya Sabha, which is scheduled tomorrow.
A bench headed by Chief Justice S A Bobde directed petitioner Paresh Dhanani, who is the Leader of Opposition in Gujarat, to “forthwith” serve the copy of his petition to the EC and said the poll panel may file its reply to it.
Senior advocate Abhishek Manu Singhvi mentioned the matter before the bench, also comprising Justices Dinesh Maheshwari and A S Bopanna.
“Taken on Board. List the matter after the ensuing summer vacation, 2020. The petitioner is directed to serve a copy of this petition upon the respondent (EC) forthwith. The respondent may file reply affidavit, if any, in the meantime,” the bench said in its order.
Dhanani, in his plea filed through advocate Varun K Chopra, has also sought a direction to the EC to ensure that each polling is video-graphed by a neutral agency from an appropriate distance so as to preserve the secrecy of voter.
The plea has said that in the alternative, the EC should be directed to ensure that polling is done without any coercion or duress to the electors.
It has claimed that the EC has “completely overlooked the prevalent rules, regulations, and spirit of electoral laws” by issuing the June 17 notification allowing the use of postal ballot for conducting polling in the biennial elections to the Rajya Sabha.
“The impugned actions on the part of the respondent (EC) by issuing the notification dated June 17, 2020, need to be corrected to ensure parity and compliance with the letter and spirit of our various laws passed to ensure the integrity of our electoral process,” it said.
The plea said that by notification dated February 25, 2020, the EC had announced a schedule for poll and counting of votes for biennial Rajya Sabha elections.
It said the election was scheduled to be held on March 26 in several states, including Gujarat.
It said that later on March 24, the EC had deferred the Rajya Sabha elections on 55 seats due to the COVID-19 pandemic.
The plea said that on June 1, the EC announced the schedule for poll and counting of votes for Rajya Sabha elections for 55 seats from 17 states and it is slated to be held on June 19.
It said the EC issued a notification on June 17 granting facility of the postal ballot paper for electors who are hospitalized on account of COVID-19.
“The impugned notification by prescribing postal ballots for certain electors will increase the possibility of deliberate admission of electors to hospitals and thereby bypass the rigours of disqualification by cross-voting when the provisions qua verification of votes by party’s authorized agents do not apply,” the plea said.
It said the EC did not take any political party into consideration for issuing such “untimely and illegal directions”.
The plea alleged that “in the prevailing circumstances the effectiveness and consequences of ”whip” of political parties as intended in the 10th Schedule of the Constitution of India cannot be ensured when the process of verification of ballot papers has been virtually neutered by the impugned notification.”
“It is pertinent to state that the respondent commission in its Handbook for returning officers for Rajya Sabha Elections, 2016 Edition has categorically directed that in rare circumstances polling can be done by postal ballots subject to the condition that a notification under Rule 68 of 1961 rules (Conduct of Election Rules 1961) is made before the last date of withdrawal of nominations,” the plea said.
“However, in the present case such notification under Rule 68 was not issued by the commission before the impugned notification,” the plea claimed, adding that issuance of such notification by the EC around a day before the poll has “completely violated principles of equity and fair play”.
It alleged that the commission, in various litigations before the high courts, has “repeatedly submitted that provisions for the postal ballot on health grounds are not prescribed under the law”.
“The impugned notification completely nullifies the practice of verifying the vote cast by an elector of a political party by an authorized agent of the party as prescribed in the proviso to Rule 42 of the 1961 Rules,” the plea said.
