“Hands Are Tied” After Result Declaration: ECI Tells Madras High Court In DMK Leader's Plea Over Alleged Postal Ballot Mix-Up; Order Reserved

The Madras High Court has reserved orders on a plea filed by former Minister R Periakaruppan alleging that one postal vote of No. 185 Tiruppattur constituency in Sivagangai District )from where he contested as DMK candidate) in his favour had been wrongly sent to No. 50 Tiruppattur constituency of Tiruppattur District. It may be noted that Periakaruppan had lost to the candidate from Tamilaga Vettri Kazhagam (TVK) party, Seenivasa Sethupathi by just one vote.The vacation bench of Justice Victoria Gowri and Justice N Senthilkumar had yesterday held a special Sunday hearing and had asked the Election Commission of India to respond to the plea, explaining what action it had taken on an email representation made by Periakaruppan on May 5th.When the matter was taken up today, Senior Advocate G Rajagopalan, appearing for the Election Commission of India, submitted that Periakaruppan had not produced any materials to substantiate his claim. The senior advocate told the court that once the election results are declared, the ECI had no powers and any question thereafter will have to be decided by way of an election petition."Merely based on the imagination of one of the election agent he is making the claim. The moment results are declared, our hands are tied," Rajagopalan said.To this, Senior Advocate NR Elango, appearing for the former Minister argued that even in its counter affidavit, the ECI had not refuted the allegation that the postal vote was sent to the wrong constituency.It may be noted that Periakaruppan has sought directions to the Chief Election Officer, Chief Electoral Officer and Principal Secretary to Government (Elections) Department, District Election Officer cum Collector (Sivagangai District), Returning Officer (No. 185 Tiruppattur Assembly Constituency), Returning Officer (No. 50 Tiruppattur Assembly Constituency) to secure the postal ballots that were wrongly sent to No. 50 constituency instead of No. 185 constituency and to account them in No 185 constituency.Periakaruppan has also sought an interim injunction to restrain TVK's Seenivasa Sethupathi from participating in any legislative process in the 17th Tamil Nadu Legislative Assembly pending disposal of the writ petition.He has also sought direction to the Returning Officer for No 185 constituency to furnish the video footage of the mandatory reverification process in accordance with Clause 19.10.3 of the Handbook for the Returning Officer, 2023In its counter, the ECI had questioned the maintainability of the plea. It was submitted that, as per Article 329(b) of the Constitution and Section 80 of the Representation of the People Act, an election cannot be called into question by the court except by way of an election petition.The ECI submitted that the election agent of Periakaruppan had sent an email on May 5, after the election results were declared. It pointed out that the issue was not raised at the time of counting of votes, but belatedly after the declaration of results. It was further submitted that the transfer of the postal vote from one constituency to another constituency could not haven been ordered by an election officer, especially after the declaration of results."Once the results for an election are declared the election process comes to an end and no interference can be made and an aggrieved party has a remedy to challenge by way of an election petition as per the grounds provided under S. 100 of the 1951 act. The Returning Officer's powers to decide anything are only until the stage of declaration of results and cannot take any decision on any representation about re-counting, once the results have been declared," the ECI submitted.The ECI further submitted that only those postal votes, which are received by the authorities by the time specified can be counted on the particular date and there was no provision under law which permitted the transfer of postal vote wrongly sent to a constituency instead of another. The ECI also submitted that Periakaruppan's argument was highly improbable since there were sufficient procedural safeguards to prevent such a situation.During yesterday's hearing, senior advocate Mukul Rohatgi, appearing for the former Minister, argued that the bar under Article 329 of the Constitution would not apply to the present case. He had argued that the present case was an extraordinary situation where one postal vote was sent to a different constituency with the same name. He had argued that the prayer sought for could not have been granted by way of an Election petition and only the court, exercising inherent jurisdiction under Article 226 of Constitution could order the transfer of postal vote and recounting.To this, Senior Advocate Abhishek Manu Singhvi, appearing for the winning TVK candidate Seenivasa Sethupathi, submitted that the present petition was a frivolous, vexatious, non-existent case. He argued that through clever drafting, Periakaruppan was indirectly seeking a recounting, which could be ...

“Hands Are Tied” After Result Declaration: ECI Tells Madras High Court In DMK Leader's Plea Over Alleged Postal Ballot Mix-Up; Order Reserved

Upasana Sajeev

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