[Postal Ballots] Madras High Court dismisses DMK's challenge, paves way for four 'absentee voter' classes to vote via postal ballot

The Madras High Court on Wednesday dismissed the plea moved by the Dravida Munnetra Kazhagam (DMK) challenging the validity of Section 60(c) of the Representation of People Act, 1951, which allows the Election Commission of India (ECI), in consultation with the government, to prescribe classes of voters who may vote through postal ballots (Dravida Munnetara Kazhagam v. Union of India and ors)..Through amendments and notifications introduced in 2019 and 2020, the voting by postal ballot was allowed for persons who are employed in "essential services", senior citizens, persons with disability and persons affected by or suspected to have COVID-19. .While dismissing contentions that these changes were arbitrary, that they amounted to excessive delegation and that postal ballots would affect the purity of elections, the Bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy opined, ."It must be acknowledged 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.…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 Court further remarked that there is no credible suggestion that Section 60(c) of the Act of 1951 violates any constitutional provision or principle or a statute that 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 Court added. .As far as the ground of excessive delegation of power is concerned, the Court pointed out that the case here concerns the high constitutional authority of the Election Commission, which has been conferred a venerable position in Article 324 of the Constitution. .This provision must be viewed in the widest amplitude and the fullest latitude has to be given to the Election Commission to aid its function of conducting the elections, the Court said. ."The authority 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," the Court observed..The Court also noted that Section 60(c) of the Act allows the Election Commission to choose any class of absentee voter and permit them to vote by postal ballot as long as the Commission's choice is preceded by consultation with the Central government and followed by a notification. This had been done in this case, the Court found. Further, it was observed that the State government's views were also sought by the Election Commission, although it gave not response. ."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. At any rate, such a choice cannot be seen to be arbitrary as the logistics may not permit the full complement of the class to be immediately accommodated," the Court went on to observe. .The choice of the four classes of absentee voters, in this case, was also found not to be arbitrary, with the Bench pointing out that these were persons who may not be able to physically attend a polling booth to cast their vote. ."If such is the consideration, there is no arbitrariness in the classes of persons enumerated by the amendments of 2019 and 2020, particularly, as the object appears to be to afford such classes of persons their basic right to participate in the democratic process," the Bench said. .Dismissing an argument made on this count, the Court has also opined that the words "postal ballot" does not imply that the votes must be cast through the Department of Posts. .On this aspect, the Court accepted the Central government's stance that "postal ballots", since the same has not been defined, can be cast through personal service of the postal ballot paper as well. .Before parting with the matter, the Court took note that certain classes of "essential services providers" are yet to be allowed voting through postal ballot. .The Bench has recommended that "it may do well for the Election Commission to include the larger section of personnel involved in essential services to allow them the right to vote when they are away from their constituencies in discharge of their duties as part of the essential services.".Senior Advocate P Wilson appeared for the DMK. Additional Solicitor General R Sankaranarayanan appeared for the Central government, whereas Senior Advocate G Rajagopalan appeared for the Election Commission of India and the State's Electoral Officer. .[Read Order]