Plea Challenging Stalin's 2011 Election : Supreme Court To Consider Extent Of Proof Of Video Evidence Authenticated By S.65B Certificate

In a plea challenging election of former Deputy CM and DMK leader MK Stalin (now Tamil Nadu Chief Minister) as an MLA from Kolathur constituency in 2011, the Supreme Court is set to consider as to what extent the contents of a video evidence need to be proved after it has been duly authenticated by a certificate under Section 65B of the Indian Evidence Act.

A bench of Justices JK Maheshwari and Vijay Bishnoi is hearing the matter. The case arises out of AIADMK leader Saidai S Duraisamy's challenge to the Madras High Court order, which dismissed his election petition against Stalin's election from Kolathur in the 2011 assembly polls over alleged corrupt practices.

Senior Advocates Kapil Sibal and Amit Anand Tiwari appeared for CM MK Stalin and Senior Advocate Dama Seshadri Naidu for SS Duraisamy.

Briefly put, Duraisamy relies on video footages of certain incidents, which were transferred to CDs. These videos were challenged by Stalin for want of certification under Section 65B. Based on officials' testimonies, the High Court opined that the production/authenticity of the CDs could not be doubted. Also considering a certificate given under Section 65B(4) by one of these official witnesses, it held that the CDs were admissible as "secondary evidence".

Be that as it may, the High Court concluded that the allegation of money being distributed at the places mentioned by Duraisamy, with the consent of Stalin or his election agent, was not proved. Upon dismissal of his election petition, Duraisamy approached the Supreme Court.

During yesterday's hearing, a concern regarding capping of election expenditure was raised, with Sibal pointing out that it's for the Parliament to do something about exorbitant expenditures in elections. Today, the senior counsel asserted that contents of the videos in question were required to be proved through cross-examination, but that could not happen, as the official witnesses could only depose on production, not contents of the videos (where the video was made, etc.).

Arguments were primarily led by Naidu, who took the Court through substantive material, pointing out the allegations and the supporting evidence. He submitted that the High Court was swayed by the measure of proof beyond reasonable doubt, instead of preponderance of probabilities. The bench specifically queried him on material supporting the allegation that distribution of money among voters was with Stalin's consent. It also expressed that the issue regarding the extent to which contents of the electronic evidence need to be proved will have to be considered.

To recap, in the election petition, Duraisamy accused not only Stalin, but also his election agents and DMK party workers in Kolathur. It was alleged that the DMK, by means of 'Thirumangalam Formula', provided money to voters in a novel way of 'Community Feedings', Courier Service, Currency in Newspaper, Arathi Plate Contributions and slips to purchase consumer items etc.

It was contended that Stalin, his election agent and party functionaries illegally distributed monies ranging between Rs.500-10000 to voters from the date of nomination to the date of polling. This happened with the consent and knowledge of Stalin and even on counting day, ECI orders were violated, it said. Ultimately, Stalin was declared the returned candidate by a margin of 2739 votes.

It was also Duraisamy's contention that a truck-load of money meant for distribution amongst voters was seized by the police on the eve of polling dates and DMK party workers objected to the inspection of the truck.

He further alleged that Stalin's wife, Durga Stalin, alongwith the then Mayor of Chennai, supervised the distribution of money and gifts to voters (on behalf of Stalin). He cited the Tamil Magazine Snehidhi, to refer to one of Durga Stalin's interview, in which she apparently said that after polling was over, she asked her husband (MK Stalin) to provide "cot" and necessary financial assistance to persons she made assurances to during campaign.

Case Title: SAIDAI SA. DURAISAMY Versus STALIN M.K., C.A. No. 10259/2017