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Madras High Court: The Division Bench of Sanjib Banerjee, CJ and Senthilkumar Ramamoorthy, J., while addressing a riveting issue wherein a political party challenged Section 60 (c) of the Representation of the People Act, 1951 and the corresponding rules to facilitate postal ballots for absentee voters including senior citizens of above 80 years, persons with disabilities, COVID-19 affected/ suspected and persons employed in essential services, held that:

“…clause (c) is eminently compatible with the company that it keeps in Section 60 of the Act of 1951 without betraying any sign of incongruity.”

Amendment effected in 2003 to Representation of the People Act, 1951 || In Question

Propriety of an amendment effected in 2003 to the Representation of the People Act, 1951 had been called into question by one of the leading political parties in the State along with myriad other grievances in respect of guidelines issued by the Election Commission of India and classification of persons who may exercise their franchise otherwise than by presenting themselves at a polling booth in the forthcoming assembly elections.

Stance of Political Party

The introduction of 60 (c) of the Act, 1951 amounts to the excessive delegation as it is perceived to confer virtual legislative authority to the Election Commission.

Election Commission has the primacy in conducting assembly elections, Petitioner while agreeing the said suggested that matters as such as the classes of persons who may vote otherwise than by attending the election booth must be completely indicated in any rules that may be framed by the Central Government and Election Commission must not be left with any authority to pick and choose from such classes of persons.

The said provision does not permit Election Commission to indicate any classes of persons to permit them to vote otherwise than by attending the election booth.

Hence, in view of the above stated, the 2019 and 2020 amendments to Conduct of Election Rules, 1961 have been challenged along with the guidelines issued by the Election Commission on 17th September, 2020; 2nd February, 2021 and 27th February 2021.

Rules have been challenged and questioned on the ground of — Excessive Delegation.

Petitioner submitted that

  • Sanctity of the right to vote, which is the most fundamental right enjoyed by a citizen in a democracy, is desecrated by the mode and manner of voting as stipulated for a class of persons by the Election Commission.
  • Secrecy in casting a vote, which is the fulfilment of the right to choose by an ordinary citizen, is seriously compromised in the voting process designed by the Election Commission for absentee voters.
  • Election Commission has virtually cut off the role of political parties in the process.

Analysis, Law and Decision 

Bench in view of the facts and circumstances of the present case stated that the petitioning party must be seen to be aware of the voter, difficulties that the Election Commission may face in implementing the manner of voting through postal ballot, the endeavour of the party has to be respected as an attempt to ensure a free and fair election.

Court further expressed that the nature of the petitioner’s attack on the validity of Section 60(c) of the Act of 1951 falls way short of the exalted tests that a person questioning the propriety of a statutory provision must meet.

The discussion with respect to excessive delegation in the present matter pertains to high constitutional authority as the Election Commission and the venerable position conferred to such Commission by constitutional provisions in Part XV of the suprema lex.

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.

 Further with regard to the choice of senior citizens aged 80 years, Petitioner contended that when the lower age limit of a senior citizen has been reduced from the erstwhile 80 years to 65 years by the Central Government amending the 1961 Rules, the Election Commission has no business to go by the class of senior citizens in the pre-amended provision and extend only to them the choice of voting by postal ballot.

Fallacy in the above argument

Section 60(c) of the Act of 1951 permits 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 long as the choice is preceded by a consultation with the Central Government and followed by a notification in such regard being published.

If the statute confers the right to indicate classes of persons to the executive and the executive allows the Election Commission to choose sub-classes in consultation with the executive, no case of excessive delegation is made out.

Further, the High court noted that the only matters of substance that the petitioner has been able to urge pertain to the word “notified” used in Section 60(c) of the Act of 1951 and the perceived failure of the Election Commission in such regard together with the use of the word “postal” implying that the postal ballots would necessarily have to be sent by post and received back by post and in no other manner.

Adding to the above, Bench expressed that,

Four classes of persons included as absentee voters and entitled to choose to exercise their franchise by postal ballot – senior citizens above 80 years, persons with disabilities, Covid-affected persons and personnel engaged in specific essential services – have been duly notified upon the notifications being completed by corresponding publications being made in the Official Gazette of the State.

With respect to choosing the smaller classes over larger in some cases was upon consultation with the Central Government.

Noting and observing the above discussion, Court further proceeded to state that:

“…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.”

Elaborating more on the said subject of excessive delegation, Court held that in the backdrop of the rule-making provision in Section 169 of the Act of 1951 mandating consultation with the Election Commission, the Rules of 1961, particularly the amendments brought about in 2019 and 2020, do not amount to the excessive delegation.

Right to participate in the democratic process

Court also found no arbitrariness in the classification of the persons permitted by the Rules of 1961 to cast their vote by postal ballot, which is based on who may not be able to physically attend the polling booth.

Supreme Court decision in A.C. Jose, recognised 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.

Lastly, while concluding, High Court held that it did not find any merit in the challenge –whether to the validity of Section 60(c) of the Act of 1951 or to the impugned guidelines issued by the Election Commission or, generally, to how the Commission has gone about in its endeavour to conduct the ensuing assembly elections in this State.[Dravida Munnetara Kazhagam v. Union of India, 2021 SCC OnLine Mad 1100 , decided on 17-03-2021]


Advocates before the Court:

For the Petitioner: Mr P.Wilson, Senior Counsel for M/s. P. Wilson Associates

For the Respondents: Mr R.Sankaranarayanan Additional Solicitor-General assisted by Mr K.Srinivasamurthy Senior Panel Counsel for Central Government for 1st respondent