Padmanabhan P. And Ors vs District Police Chief And Ors

These writ petitions have been filed by Candidates/election agents raising apprehensions of threats and violence by the rival party workers on the

days leading to the election to the Local Self Government Institutions in the State of Kerala. In these Writ Petitions filed on the eleventh hour, the

petitioners bemoan that they are facing grave threats to life on their person. They assert that they would not be permitted to canvas for votes due to

the incessant threats raised against them. In all these cases, the petitioners assert that their opponents, who owe allegiance to the party in power,

would get support from the executive machinery of the State and neither them nor their party workers will be permitted to approach the voters and

convince them in a free manner. They contend that there would be violence on polling day and there is a reasonable possibility of their booth agents as

well as the voters being threatened and obstructed. According to them, if the atmosphere in and around the polling booth is not peaceful, it would

prevent voters from venturing out and casting their vote. In some of the writ petitions, the petitioners contend that their constituency is politically very

sensitive and there have been incidents of poll violence during the last elections. According to them, technology has progressed to such an extent that

it is perfectly possible for the Election Commission to set up cameras in and around the polling booth and carry out webcasting which would dissuade

the troublemakers from interfering with the election process. In some of the writ petitions, directions are sought to be issued to the Election

Commission to ensure that impersonation of voters and casting of bogus votes are avoided. They also request that enough contingent of law

enforcement officers be deployed to maintain peace and calm in and around the polling stations so that the voters can exercise their franchise and

elect their person of choice.

In some of the writ petitions, the Election Commission has not been arrayed as a respondent as the prayer is only for police protection. In the cases

wherein, the Election Commission has been arrayed as a respondent, statements have been filed narrating the steps taken by the Election Commission

to ensure a transparent, fair and trouble free election. Since some of the candidates asserted that the booths are hypersensitive, the Election

Commission was directed to file the list of booths that they have categorised as sensitive and hypersensitive. In the statement, which has been filed, it

has been stated inter alia as follows:

“2. There are 2,76,20493 voters in Kerala for the Local Self Government Institutions election. There are 21900 constituencies in Kerala with 34710

polling booths.

Maintenance of law and order even during the period of election is a sovereign function, which belongs to the exclusive realm of the State.

State Election Commission has taken all steps for the conduct of a free and fair election. Meetings were held with the Chief Secretary of the State,

State Police Chief and other top police officials, District Collectors and other senior officers of the State. The State Election Commission has been

informed that all steps are being taken by the police to ensure a free and fair election.

Senior officials of the Government have been nominated as Observers in consultation with the Government for overseeing/observing the election in

terms of Section 40A of the Kerala Panchayat Raj Act and Section 96A of the Kerala Municipality Act. The Observers have been given instructions

to keep close watch of sensitive areas including polling stations and other areas which they deem fit.

To ensure free and fair election, the Polling Stations/locations which are vulnerable to law and order have to be identified by the police. After the

vulnerability mapping, measures to maintain law and order has to be taken by the police. The situation will be reviewed day by day.

Deployment of additional police force, videography, web casting etc. will be undertaken as situations warrant. District election officers (District

Collectors) will take steps for videography of polling booths on the basis of vulnerability assessment of the Polling Stations/locations by police and on

being notified by the police.

Sufficient police forces will be deployed in sensitive areas to meet law and order problems. Special care and attention will be taken by the Police in

sensitive areas to provide adequate security measures to the electorate and the polling officials for the smooth conduct of election in a peaceful

atmosphere.

Strict instructions have been given to the police officials to take stringent and instantaneous action in accordance with law to prevent bogus voting,

impersonation, booth capturing and other electoral offences. Any attempt to traverse the tranquility in order to take advantage from countermanding

election or any attempt to interfere with the smooth process of election will be dealt with seriously by the police. Appropriate and immediate remedial

action will be taken in accordance with law to defeat such despicable situations.

Thus every step is being taken by the State Election Commission with the assistance of the State machinery and police to ensure a free and fair

election. The police have been instructed to provide adequate protection to voters, polling agents of all political parties and candidates and to assist the

election machinery to ensure, safe, fair and free poll. The arrangements will be reviewed each day with the assistance of the police.â€​

Sri. Murali Purushothaman, the learned standing counsel submitted that out of total number of 34710 polling booths, 1800 polling booths have been

identified as hypersensitive. In those polling booths, webcasting facilities have been arranged and the proceedings are webcasted live to the offices of

the Election Commission, District Electoral Officer as well as the police authorities. The remaining 1100 polling booths have been identified as

sensitive and in those booths, videography will be provided. In other polling booths which have not been identified as sensitive or hypersensitive, the

Election Commission has made arrangements to provide accredited videographers whose services can be availed by the candidates or their election

agent at the expense of the person who makes a request to the District Collector. It is further submitted that the Election Commission have issued

directions to the State to deploy enough police personnel to ensure that no obstruction is caused to the voter or the candidate by any antisocial element.

The Commission has been informed by the State that enough police personnel would be deployed to ensure a free and fair election. He would further

state that the District Election Officers are the District Collectors themselves and they will be monitoring every stage of the election and if situation so

warrants, additional police force, videography, webcasting etc. will be undertaken. The evaluation will be done on the basis of the vulnerability

assessment and on the basis of the opinion of the election observers appointed in terms of Section 40A of the Kerala Panchayat Raj Act and 96A of

the Municipality Act. He would further point out that as the voters will be permitted to vote only on the basis of the Election ID and as their name and

photograph will be there in the voters slip issued by the Election Commission and hence, the chance of impersonation and bogus voting would be

practically nonexistent.

Sri. Bimal K. Nath and Sri. K.P.Harish, the learned Senior Government Pleaders, submitted that though the election is being held under the

supervision of the Election Commission, all support as required by the Commission has been extended by the State. The District Election Officers as

well as the observers and other high level officers of the State are closely monitoring the election and as and when fresh inputs are received, the

concerned officers shall initiate action and ensure that no person or group of persons interfere with the free and fair conduct of the election. In the

event of any deficiency or irregularity being pointed out by the Election Commission, the same would be corrected and no effort shall be spared. It is

further submitted that if any of the candidates or their election agent faces any threat while canvassing the votes, it is for them to bring the fact to the

notice of the Superintendent of Police concerned and the said officer shall look into the issue and if the threats are found genuine, they shall ensure

that the lives of the candidates and their agent are protected. In those petitions where complaints have been lodged before the local police or the

superior officers, the complaints shall be looked into and if the threat is found genuine, enough protection shall be granted upto the date of election so

that they can canvas votes and reach the voters in a threat free manner.

I have carefully considered the submissions advanced and have meticulously gone through the statement as well as the records made available.

The 73rd and 74th Constitutional Amendments were passed by Parliament in December, 1992 and it was through these amendments that two new

parts were added to the Constitution. The 73rd Amendment added Part IX titled “The Panchayats†and 74th Amendment added Part IXA titled

“The Municipalitiesâ€. The Local bodiesâ€"‘Panchayats’ and ‘Municipalities’ came under Part IX and IXA of the Constitution after

43 years of India becoming a republic. The Panchayats and Municipalities are “institutions of self-governments†and their seats are filled up in a

democratic manner by direct elections.

From the records made available it appears that there are about 1200 local governments in Kerala, which includes 941 Grama Panchayats, 152

Block Panchayats, 14 District Panchayats, 77 Taluks, 87 Municipalities and 6 Municipal Corporations. The local bodies are responsible for

implementation of various Centrally-sponsored, State-funded, and Externally-aided schemes for poverty alleviation, employment generation, sanitation,

capacity building, women’s social and economic empowerment apart from provision of basic amenities and services. In other words, under the

Constitutional scheme, for a more effective development at the grassroot level, vast powers are granted to the local self government institutions. It is

because of the effective involvement of well meaning people in the grassroot level that the Public Affairs Index published a few months back indexing

the entire States in the country revealed that Kerala is the best-governed State. It needs no reiteration that it is in the interest of the citizenry that

elections to the local body are conducted in a free and fair manner and well meaning candidates, who are honest and competent, with integrity and

good conscience, get elected to the local bodies. It is in order to effectuate the said purpose that an independent Election Commission has been

constituted in each of the States in the Country for superintendence, direction and control of the electoral rolls. The duty cast upon the Election

Commission to conduct and manage the election with the aid of the State Government machinery is onerous.

From the statement filed by the Election Commission, I am satisfied that the Election Commission, being fully aware of its responsibilities, have

taken all measures possible to conduct the election in a free and fair manner. It is the duty of the officers of the State with particular emphasis to the

police officers to aid the Election Commission to carry out its onerous responsibilities and to act with great alacrity and diligence. If both these

stakeholders do their duty without fear and favour and in an unbiased manner, the citizenry will have continued faith in the democratic process and

they shall make their way to the polling booth on election day and cast their votes so that the democracy in this country may thrive.

Police protection to the candidates and their election agents.

In the writ petitions, the petitioners seek for assistance of the police to do canvassing without any threat or violence. The learned Government

Pleaders have submitted that the entire might of the police in the State have been deployed to ensure that elections are held freely and fairly. From the

statistics it appears that about 1.68 lakhs persons have submitted nominations. It would not be possible for the police to extend protection to each and

every candidate. However, in those petitions, wherein the candidates or their election agent have submitted complaints complaining of threat before

the police, the Superintendent of Police of the area shall take note of the threat perceptions and grant protection to the candidates and their agents. I

have already recorded the submission of the standing counsel appearing for the Election Commission as well as the learned Senior Government

Pleaders that no effort shall be spared to ensure a state of peace and calm in and around the polling booths on election day so that the voters can

exercise their franchise in a free and fair manner.

Facility for webcasting and video recording of election proceedings

In most of the writ petitions, the petitioners have sought for videography of the election proceedings. The learned standing counsel has filed an

additional statement wherein it is stated that 1800 polling stations have been identified as hypersensitive and in all those polling stations, webcasting

facilities are being undertaken. 1100 polling stations are identified as sensitive and in all those polling stations, the Election Commission has already

arranged for videography. Since the Election Commission has taken the decision to identify the polling booths on the threat perceptions and intelligence

reports given by the police, this Court will not be justified in interfering with the discretion of the Election Commission and the high level officers of the

State in that regard. Though ideally, videography ought to have been provided in all booths due to the resource limitations it would not be possible to

undertake such an activity. However, the Election Commission has identified accredited videographers and the candidates will be at liberty to

approach the District Electoral Officer and on payment of necessary fees by the person as authorised by the candidate or his election agent, the

Commission shall permit videography to be carried out. I also record the submission of the learned standing counsel appearing for the Election

Commission that the categorisation of polling booths as sensitive or hypersensitive at this point of time is not final and inputs are taken every day upto

the date of polling and if new threat perceptions or incidence of violence or any election malpractice is detected, those polling booths may be

categorised as sensitive or hypersensitive. I am of the view that the undertaking given by the Election Commission before this Court would serve the

purpose and no further directions are warranted.

Maintaining peace and tranquility on election day

In some of the writ petitions, the petitioners have sought for deployment of enough police personnel in and around the polling stations so that an

atmosphere of calm is maintained there. They also say that on previous instances there have been incidents of violence. The learned standing counsel

appearing for the Election Commission has emphatically stated before this Court that as per their directions, enough number of law enforcement

officers specially trained for this purpose have been posted and they are satisfied with the arrangements made by the State. The learned Government

Pleader has assured this Court that no efforts shall be spared to secure a state of calm in and around the polling stations so that the voters exercise

their franchise with apprehension or fear. At the same time, it cannot be forgotten that even the Election Commission have categorised as many as

2900 polling stations as sensitive out of which 1800 stations are hypersensitive. In such polling stations, the administration shall take a zero tolerance

stand on election malpractices and violence and enough police personnel shall be posted to ensure that not a single voter is deprived of his rights to

exercise his/her franchise. Even in polling stations which have not been categorised as sensitive and in those cases wherein the candidates or the

election agents are before this Court in these writ petitions, enough number of police personnel shall be posted to rule out any incidents of violence or

election malpractice.

Prevent electoral malpractices such as impersonation and bogus voting

The grievance regarding impersonation and bogus voting though raised by the petitioners, such a possibility would be non existent as the issuance

of valid voter IDs and the availability of the photograph of the voter in the voters slip and the provisions of the Act with regard to identification of

voters would obliterate such issues. I also record the submission of the learned standing counsel appearing for the Election Commission that all

measures have been taken to avoid bogus voting and impersonation and the provisions and other guidelines shall strictly be enforced. The videography

and webcasting would also dissuade such impersonators from committing election malpractices.

Before parting I would like to reiterate the observations of their Lordships of the Division Bench of this Court in Reghunath K.M. v. Inspector

General of Police and Ors. [2011 (3) KHC 614], when it said that peaceful polling and free and fair elections cannot merely be left to the Election

Commission or the police. It is for the members of the polity to realize the importance of exercise of franchise and to act with the sense of

responsibility. This would include the political parties, their leaders and workers.

The petitioners are directed to produce a copy of the judgment before the District Police Chief concerned in those cases wherein they have sought

for police protection for their lives. If their grievance is found genuine, the officer shall provide them effective protection from any threat or

harassment as apprehended.

These writ petitions are accordingly disposed of recording the submissions of the learned standing counsel appearing for the Election Commission and

the learned Government Pleaders and with additional directions which have been issued by this Court. This Court expects that the undertaking given

before this Court shall be adhered to strictly so that elections to the LSG Institutions can be held in a free and fair manner.