Postal Ballot: Validity of Section 60(c) of the Representation of People Act challenged in Madras High Court

On Thursday, the High Court declined to grant an interim stay in the matter and adjourned the matter by 4 weeks, opining that has to hear the Centre and the ECI on the matter first.
Postal Ballot: Validity of Section 60(c) of the Representation of People Act challenged in Madras High Court
Election

The Constitutional validity of Section 60(c) of the Representation of People Act, 1951, which allows the government to prescribe classes of voters who may vote through postal ballots, has been challenged in the Madras High Court.

The petition filed political party, Dravida Munnetra Kazhagam (DMK) has contended that Section 60(c) empowers executive authority to add classes of persons as postal ballot voters, without any guiding principles, merely on its whims and fancies.

The challenged provisions leave open the opportunity to add classes of persons from time to time, depending on the election scheduled. There is a total lack of transparency as to who all can be part of this “class of persons", the petitioner contends.

On Thursday, the Bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy declined to grant an interim stay in the matter and adjourned the matter by 4 weeks, opining that the Centre and the Election Commission of India (ECI) would have to be heard first. Senior Advocate P Wilson argued for DMK in the matter yesterday.

The petition besides challenging Section 60(c), also assails the Rules framed under the provision i.e. Rules 27A to 27L of the Conduct of Election Rules 1961 as well as the 2019 and 2020 amendments to the Rules i.e. Conduct of Elections (Amendment) Rules ,2019 and Conduct of Elections (Amendment) Rules, 2020.

Under these Rules, the government has now defined “absentee voters” to include persons who employed in "essential services", those who are senior citizens or those persons with disability.

The DMK has raised concern that these classes of persons have not been defined concretely, which could lead to manipulations to introduce bogus voters or to influence voters, thereby affecting the purity of elections.

By allowing more voters to cast votes through postal ballots thus, the ECI is paving the path to influence the voters’ choice, states the DMK.

"The practical implications of the amendments unduly favour the parties and candidates who are n the Government to be able to affect the outcome of elections and therefore destroy the foundational stones of democracy," the petition says.

Highlights of the DMK's contentions

  • The absentee voter concept would be a platform to introduce bogus voters and a ploy to influence voters through the official machinery. It does not create a level playing field between political parties in power and the opposition. Therefore, it is not in the spirit of conducting free and fair elections.

  • It is noted that under Sections 60 (a) (b) and (d) of the 1951 Act, the Parliament identified a class of voters who would be legitimately given the privilege of postal or postal ballot option, as a valid exemption to the rule of voting in a poll booth on polling day. These would include persons of the armed forces who is serving outside the State, a person employed under the Government of India in a post outside India, persons who are subjected to preventive detention etc. As far as these persons are concerned, it is submitted that the Parliament has clearly identified a class of voters, with cogent reasons to enable them to vote through special modes and without sub-delegating the power of identification to either the ECI or to the Central Government.

  • On the other hand, Section 60 (c) is termed a “black spot and an eyesore” when compared to the other exceptions to the rule of transparent voting. Under this provision, the petitioner raises concern that executive authority is permitted to add another class of persons, without any guideline principle, merely on its whims and fancies.

  • The challenged provision confers enormous, unguided powers, which has led to an attempt to bring in an "ocean of voters" under the alleged class of “absentee voters”. This was done by the Centre without studying whether such a class was required or the ramifications of the move.

  • It is noted that in the recent Bihar elections, 15 different categories of employments were notified as "essential services." The challenged provisions leave open the opportunity to add classes of persons from time to time, depending on the election scheduled. There is a total lack of transparency as to who all can be part of this “class of persons", the petitioner contends.

  • Persons with a disability is defined as a "person with disability in the data base for electoral roll.” There is no clear cut definition of a "person with disability", and as such the same can be misused while preparing the electoral roll. Anyone with a small ailment or impairment can claim to be a “person with disability.”

  • There is no scrutiny prescribed for determining the age of the person to discern whether he is a “senior citizen. There may be false claims made with the collusion of revenue authorities to claim postal ballots. By the 2020 amendment rules, the age of a senior citizen has also been reduced to 65 years from the earlier 80 years. Since “absentee voters” already includes COVID-19 positive or suspected voters, irrespective of age, the pandemic cannot justify the reduction of age from 80 years to 65 years either, the petitioner adds. Age is no bar for being vulnerable to COVID-19, data has shown, it is asserted. The amendments were brought in to bring a large chunk of voters, about 15% of the voter population, under the category of senior citizens, it is argued. The would enable the large scale fudging of votes with the help of the party in power. If the reduced age of 65 years was set for the COVID-19 period only, there was no necessity to introduce amendments as if the pandemic is going to be permanent.

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