Madras High Court Dismisses DMK's Plea Challenging Postal Ballots Provision In RP Act

The Madras High Court on Wednesday dismissed a writ petition filed by political party Dravida Munnetara Kazhagam (DMK) against Section 60(c) of the Representation of Peoples Act which permits issue of postal ballot to electors above the age of 80 years, electors with physical disability, electors in quarantine due to COVID-19 and electors rendering essential services. A Division Bench comprising of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy held, "all that the Election Commission has done here is to be inclusive and allow certain classes of persons who would have been excluded from exercising their franchise the right to use the postal ballot and participate in the celebration of the festival of democracy" It added, "if the process is made inclusive without compromising on either the secrecy of the ballot or the fairness in the conduct of elections, it would be a greater cause to celebrate and compliment the conducting body" The Bench rejected the contention that the Election Commission has no jurisdiction to issue guidelines in light of the "plenary authority" conferred on the Commission by Article 324 of the Constitution. In this regard it referred to the Supreme Court's observations in A.C.Jose, recognising the authority of the Election Commission to pass any orders in respect of the conduct of elections when there is no parliamentary legislation or rule made under the said legislation. Findings At the outset, the Court remarked that the nature of attack on the validity of Section 60(c) of the Act falls way short of the exalted tests that a person questioning the propriety of a statutory provision must meet. The Bench noted that DMK had failed to establish that the provision is in derogation of any constitutional provision or principle or even against the grain of the statute which has made room for it. "There is no credible suggestion that the impugned provision falls foul of Article 14 of the Constitution in any manner or form," the Bench added. No question of Excessive delegation In its plea, the party had submitted that the Government has excessively delegated power on the EC to name any one to be entitled for postal ballot. It was argued that under the guise of the impugned provision, the Government has created a "class of persons" as postal ballot voters, without any guiding principle. Rejecting this argument, the Bench observed that the authority of EC has to be seen to be plenary, in the sense that within its domain the Election Commission has primacy and the Parliament can only enact such laws as would aid in its functioning as envisaged in the Constitution. It observed, "the delegation in the present case is not as is usually found in a statute where the legislature empowers the executive or a branch of the executive to devise measures to implement the purpose of the statute. The discussion here pertains to a high constitutional authority as the Election Commission and the venerable position conferred to such Commission by the constitutional provisions in Part XV of the suprema lex." It added, "The expressions "superintendence, direction and control" as used in Article 324 of the Constitution are of the widest amplitude and the fullest latitude has to be seen to be granted thereby to the Commission in the matter of conducting such of the elections as have been entrusted to it. There is no doubt that the Election Commission has to abide by the laws made by the Parliament; but the laws made by the Parliament can only be such as may facilitate the conduct of the elections by the Election Commission in the milieu of the expansive domain carved out for the Commission in the wide words of Article 324 of the Constitution." Creation of sub-classes not excessive delegation The party had argued that the Election Commission has brought a new and surprising class of voters called "absentee voters" who are not of class themselves. It was submitted that the term persons employed in essential services is very vague and no definition is given in the Act and/or the Rules. Further, when the lower age limit of a senior citizen is 65 years, the Election Commission has no business to create a new sub-class of persons above 80 years of age. The party had also raised issues with respect to the third category of persons with disability inasmuch as the authority has not prescribed the "extent of disability". Lastly, it objected to the fourth category, i.e. persons affected/ suspected of Covid-19 as being "too vague as date of acquiring disease or affected is not said in the rules." The Court has rejected these arguments with the following observations: "The clear words of Section 60(c) of the Act of 1951 permit any person to be chosen by the Election Commission from a class of persons indicated in the Rules to be conferred the privilege of voting by postal ballot as...

Madras High Court Dismisses DMK's Plea Challenging Postal Ballots Provision In RP Act

Akshita Saxena

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