Chennai: The Supreme Court on Tuesday agreed to urgently hear on May 13 a plea filed by Tamilaga Vettri Kazhagam (TVK) MLA-elect Sreenivasa Sethupathi challenging a Madras high court order that restrained him from participating in the Tamil Nadu Assembly, including the crucial floor test and confidence motion scheduled for Wednesday, over a dispute involving a postal ballot in the Tiruppattur constituency.
A bench of Justices L Victoria Gowri and N Senthil Kumar of the Madras high court had earlier in the day passed the interim order on a petition filed by DMK leader KR Periyakaruppan, who lost the Tiruppattur assembly seat by a single vote and alleged that election officials mishandled a postal ballot meant for the constituency in Sivagangai district.
Within hours of the HC order, Sethupathi moved the apex court. Senior advocate Abhishek Manu Singhvi mentioned the plea for urgent hearing before Chief Justice of India (CJI) Surya Kant, and the Supreme Court agreed to list the matter on May 13.
The high court also directed preservation of all counting records, postal ballots, rejected ballot covers, EVM records and videographic footage connected to the election.
During the previous hearing on May 11, the Election Commission of India (ECI) had argued before the Madras HC that it had no jurisdiction to act on Periyakaruppan’s complaint after the declaration of results. It also contended that the DMK candidate should have filed an election petition instead of a writ petition.
{{/usCountry}}During the previous hearing on May 11, the Election Commission of India (ECI) had argued before the Madras HC that it had no jurisdiction to act on Periyakaruppan’s complaint after the declaration of results. It also contended that the DMK candidate should have filed an election petition instead of a writ petition.
{{/usCountry}}The HC, however, said the allegations pointed to an “administrative failure by election authorities” in not returning a wrongly sent postal ballot to the correct constituency before counting concluded.
“Since election law provided no immediate mechanism to correct such an error, the case fell within a rare and exceptional constitutional situation warranting limited judicial intervention,” the court said.
The high court held that the writ petition was maintainable not to bypass the constitutional bar on judicial interference in elections under Article 329(b), but to ensure “preservation of the disputed ballot, video evidence, and other electoral records so that the petitioner’s eventual election challenge does not become meaningless because crucial evidence is lost or destroyed.”
The DMK leader had approached the HC last week claiming that election officials mishandled one postal ballot in the Tiruppattur seat, which he lost to Sethupathi by a single vote. He alleged that a postal ballot meant for the Tiruppattur constituency in Sivagangai district was mistakenly sent to another Tiruppattur constituency in Tirupattur district because both constituencies share the same name. According to him, officials there rejected the ballot instead of forwarding it to the correct constituency for counting.
Senior advocate NR Elango, appearing for the DMK leader, argued that if the ballot was valid and counted in his client’s favour, the election result would end in a tie.
The ECI opposed the petition and said Periyakaruppan had produced no evidence to substantiate his allegation. It also maintained that the poll body ceased to have any role after the declaration of results.
Senior counsel G Rajagopalan, appearing for the ECI, argued that the DMK leader’s claim rested solely on the version of an election agent and that there was no material to establish that election officials had sent a postal ballot to the wrong constituency.
The ECI also disputed the suggestion that any such error had occurred, calling it “a matter of evidence”.
The high court, however, said there existed a “strong prima facie case” for issuing interim directions restraining Sethupathi.
It clarified that Tuesday’s order should not be construed as directing a recount of votes.
“The floor test is not an ordinary legislative sitting. Participation in a floor test may determine the survival or fall of a government. If the sixth respondent (Sethupathy) participates in such proceedings and his vote becomes decisive, the consequence may travel far beyond the constituency and affect the constitutional governance of the State,” the court said.
The court also criticised election authorities for the “disturbing lapse” in handling a postal ballot that allegedly belonged to another constituency. It said “officials failed in their constitutional duty by mechanically rejecting the ballot instead of taking prompt corrective steps to send it to the competent returning officer.”