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Madras High Court disposes of plea seeking direction to ECI on Erode East Assembly bypoll

The Madras High Court disposed of a petition seeking a direction to the Election Commission of India and the Chief Electoral Officer & Principal Secretary to Government, Tamil Nadu to consider and act on representations given by the petitioner and for a consequential direction to them to implement necessary directions and recommendations issued to ensure free and fair conduct of by-election to be held in Erode (East) Constituency on February 27, 2023.

The petition has been filed by one C.Ve. Shanmugam. Vijay Narayan, the Senior Counsel appearing for the petitioner, submitted that the respondents have announced by-election for the vacant (98) Erode East Assembly Constituency vide press note dated 18.01.2023. As per the State Election Commission, the voters’ list for this constituency was revised and issued on 01.01.2023.

The petitioner’s party workers started carrying out a door-to-door survey to verify the voters’ list. But, the physical verification had shown unsatisfactory work done in updating the list. Several names in the list are non-existing, some persons are not even residing in the voters’ list address and there are also several addresses, which do not even exist in the constituency. The names of dead persons have also not been removed from the voters’ list and some names were entered twice. Therefore, a request was made to the respondents to take appropriate steps on the following lines: 
(a) re-verification of the voters’ list and mark the non-existent voters so that there are no votes cast against these names; 
(b) transfer of police officials and the District Collector for the period of election and depute persons of repute and independence; 
(c) ensure that CRPF are in charge of security during polls and not the State Police Department; 
(d) ensure that the booth slips are not distributed to non-existent persons; 
(e) voting be permitted only based on identity cards and not on the ground of booth slips.

The Senior Counsel further submitted that the free and fair election is also one of the hallmarks of democracy. When the Election Commission has announced by-election to the Erode East Assembly Constituency, the only grievance of the petitioner, which cannot be disputed by the respondents is to take additional safeguards to ensure free and fair election by stopping fake voters casting their votes for which  representations dated 03.02.2023, 10.02.2023 and 13.02.2023 have been given by the petitioner to implement the necessary directions and recommendations issued from time to time to ensure free and fair conduct of by-election to be held in Erode (East) Constituency on 27.02.2023.

G.Rajagopalan, the Senior Counsel appearing for the ECI, relying upon a detailed counter-affidavit, submitted that the apprehension of the petitioner is unfounded. After announcing the by-election to the Erode East Assembly Constituency on 18.01.2023, the ECI had already put in reasonable measures in place to prevent any misuse and allay the apprehensions made by the petitioner. A special list called absentee, shift and dead electors (ASD list) is prepared and additional measures are also followed in respect of the same in order to prevent impersonation at the time of polls.

With regard to ASD list voters, their names are specifically marked in red in marked copy of electoral rolls and a separate list is also prepared and provided to the Presiding Officer of each poll station. The Presiding Officers will personally verify the identification of documents and the polling agents will be   informed about the coming of the ASD elector by reading out the same loudly.

The thumb impression of such electors is taken in addition to signature and a declaration is obtained as per format. This apart, videography or photography of such voters will be done. A certificate will be given after completion of polling by the Presiding Officer as to the number of ASD electors. Therefore, neither the petitioner nor the public need to worry about this issue.

Rajagopalan further submitted that in addition to deployment of state police, five companies of CRPF with 409 personnel have been deployed in the constituency from 10.02.2023 and apart from routine security-related duties, a public parade is also being taken to build public confidence and safety in the electoral process. On the day of election, CCTV coverage, videography and web casting also have been arranged in all polling booths, 238 in number and the proceedings will also be monitored by the senior officials. In respect of 34 booths, which have been identified as vulnerable, additional measures have been put in place to prevent the possibility of any unlawful incidents. This apart, the periodic report of Model Code of Conduct violations are being submitted to the ECI to keep it aware of the ground level developments.

Senior Counsel further submitted that the present by-election is not an exception and to ensure the implementation of model code of conduct as well as prevention of illegal activities, 6 Flying Squads and 4 Static Surveillance Teams have already been deployed in the constituency from 18.01.2023 onwards and from the date of notification of election i.e. 31.01.2023, the 6 Flying Squads have been increased to 12 Flying Squad Teams and 12 Static Surveillance Teams are now functioning. The said squads are headed by Senior Executive Magistrate and comprise of one Senior Police Officer and 3 to 4 Armed Personnel apart from a videographer. In addition, 2 Video Surveillance Teams and 2 Video Viewing Teams have also been formed. That apart, 15 teams of two wheeler and four wheeler mobile patrol by State Police force have been deployed to maintain conducive environment in terms of law and order situation. The first respondent has also issued a communication dated  16.02.2023 to the District Election Officer in this regard so as to inform the Returning Officer and ensure that the Presiding Officers are properly briefed in this regard.

Coming to the observers from outside, it is also stated that 3 observers (General Observer, Expenditure Observer and Police Observer) have been appointed by the Commission from other states to monitor election-related activities. Insofar as Electronic Voting Machines are concerned, detailed protocols are also done both in terms of efficacy of procedure and security, as well as transparency.   

It is also submitted by the Senior Counsel appearing for the ECI that the High Court, by order dated 31.03.2021 passed in W.P.No.7698 of 2021, recorded the various steps that are to be followed in all the elections and since the same are being followed in all the elections, that will be followed in the present by-election also.  

Since the counter-affidavit filed by the respondents have specifically answered the representations given by the petitioner as also the fact that sufficient observers from other states to monitor the election related activities have been appointed, EVMs and VVPATs are fitted with GPS to monitor their movement, CCTV coverage, videography and web casting have also been arranged in all poll booths, viz., 238 polling booths and for 34 booths, which have been identified as vulnerable, additional measures have been taken to prevent any possibility of unlawful activities, there is no basis for the petitioner’s apprehension that the instructions given by the first respondent would not be followed. Therefore, recording the steps taken by the Election Commission to make the by-election as a free and fair election, the Division Bench of Acting Chief Justice  T. Raja and Justice  D. Bharatha Chakravarthy disposed of the petition.

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