[Sunday Hearing] Madras High Court asks ECI to explain silence on DMK leader's objection on one-vote dispute

In a special sitting on Sunday, the Madras High Court asked the Election Commission of India (ECI) to file an affidavit explaining why it had not responded to the representation filed by DMK leader KR Periakaruppan over a postal ballot allegedly sent to the wrong Tiruppattur constituency. [KR Periakaruppan v. Chief Election Officer].Periakaruppan had lost to the Tamilaga Vettri Kazhagam (TVK) candidate, R Seenivasa Sethupathi, in the Tiruppattur Assembly Constituency in Sivagangai district by one vote. He had challenged Seenivasa's declaration as winner through a writ petition in the High Court. .Periakaruppan argued that the disputed postal ballot was intended for his Tiruppattur constituency but was mistakenly sent to another Tiruppattur constituency and was rejected there. He pointed out that he had addressed representations to the election officers which went unanswered.ECI argued that it was only the record-keeper and administrator, not the forum to decide who should have won. It is submitted that once results were declared, the Returning Officer became functus officio and if a factual position has to be taken, the sealed postal ballots would have to be opened and re-verified through a trial-like process..A Bench of Justices Victoria Gowri and N Senthilkumar pressed the ECI on its failure to reply and observed that if the main issue is the disputed postal ballot, the commission must answer it directly. ."He has sent mails. How can ECI say when the primary issue is on the ballot, you have become functus officio? It your duty to respond. What is the answer to the issue raised by them? They are saying one postal ballot has gone to some other constituency, what is your answer? Sum and substance of your argument is on procedure. File an affidavit saying you have not responded because it is a matter to be dealt with in election petition", the court said..Senior Advocate Mukul Rohatgi argued for Periakaruppan termed the case "unique and peculiar"..He framed it as a simple matter of a ballot going to the wrong address. "When counting in the other constituency was going on, the election officer instead of sending it to the correct constituency, rejected the ballot. He should have sent it to correct address. After result, I sent an email. We came to know on May 5. The rejection by the Returning Officer (RO) of constituency was incorrect. It should have been sent back. This is our case,“ Rohatgi argued. He vehemently emphasised that this was a postman's mistake. "If a letter is addressed to a wrong house, it should be brought back to the correct house," he stressed. .Rohatgi pointed out that the relief being sought today was for the postal ballot to be sent back to the constituency it belongs to. "It should come back here and it should then be counted. If I am right, the result of the election will change. The number of votes become equal. If votes are equal, there will have to be draw of lots. This is serious," he argued. .When the court questioned if Periakaruppan had reached out to any authorities, Rohatgi responded that none of the communications had received any responses. "It can turn this election upside down. The election officers aren't given any answer. If the email is wrong, court can throw this petition. If the email is correct, the postal vote should come back to my constituency!" he argued. .Rohatgi also stressed that if his complaint is valid, then it was an arbitrary exercise of silence on the part of the authorities. "If my complaint is valid, it is a completely arbitrary exercise of silence on the part of those who had to speak! My case is a unique situation where two constituencies bear same. The court needs to intervene. If it's a valid vote, then it's a tie. There will have to be a draw of lots. Thats why we are bothering your lordships on a Sunday", Rohatgi said..Senior advocate NR Elango appearing for Periakaruppan apprised the court that election laws did not provide for such situations which compelled him to approach the court through a writ petition and not an election petition. "2275 postal votes were case. 1969 were found found to be valid. There is a difference of number of votes which may not fall for consideration in this writ petition. Our question is in relation to just one vote," he clarified. .On behalf of the TVK candidate, senior advocate Abhishek Manu Singhvi argued that the dispute is a classic election contest and that the court should not entertain it through writ jurisdiction..“Each constituency is a bilateral dispute. That dispute can be decide only by a process known as the election petition. That can be filed within 45 days. All this is in a self code,” the senior lawyer said. He called the plea 'a direct election petition prayer couched as a writ'. "A crown cannot become a swan. Why on earth can he not file an election petition?," Singhvi said..Singhvi also argued there was no urgency to entertain such a plea through a special sitting. "Custody and securing the postal ballot are not prayers to be decided on a Sunday hearing. It is a direct stoppage of the winner's electoral rights. All three prayers require notice and my response. Urgency is only because of the swearing-in and floor test", Singhvi said. .He explained that through an election petition, the court could eventually remove a candidate if it finds the election to be defective. "Suppose he filed an election petition, election petition leads to unseating. By an order in 226 a man who is elected can't vote! The man stands elected. Once I am elected, I have the right to participate in assembly. It can only be stopped in exceptional circumstances", Singhvi argued. .Singhvi also warned that allowing this plea could create parallel choices for parties between writ and election petitions. “Clever drafting cannot be a substitute to election. What I can't do directly, I cannot do indirectly as well. Election petitions have to be heard by a Single Judge of a High Court, as per rules, I don't know about Madras!" he said. .Singhvi argued there was no material irregularity in the case warranting an intervention other than through election petition. "Ultimately, it will have to lead to recount and ultimately it will lead to him winning by one vote and me losing by one vote. Ground is only one, improper acceptance or improper rejection. If he succeeds on his first part, it has to lead to recount. The consequence is set aside the election. All these cases come under election petition," he said. .Singhvi also claimed that no objections or complaints were made to the Returning Officer (RO)."It is very unfair to make false statements and it is very unfair to blame the RO. I don't know what this drama is about. He has not raised any objection he raised in court. How can they say RO is wrong when the complaint never reached him? He is neither divine nor astrological!" Singhvi remarked. .He warned that the plea was an invitation to the writ court to lay down a wrong law. "The Court is being asked in a mischievous case to unsettle settled law. This would amount to a serious interference," Singhvi said. .Senior advocate V Raghavchari also appearing for Sethupathi argued that the plea over all ought to be an interim plea of an election petition before the election court. "A detailed order has been passed by RO. They have accepted order by RO. He says an email was dispatched on May 5, what is relevant here is that it wasn't delivered. He is aware that email has not even been received. How does a mandamus lie in this case? The interim prayers are far beyond the scope of the main writ petition. This is a dispute between two persons, court cannot issue mandamus in this," he argued. .Raghavchari also argued that once a candidate has been declared elected, he has a right to perform duties under law. "No injunction can be granted to a case where a duty is enjoined to be performed. Once he is elected, he is duty bound to be heard. They are intruding the right of public who had not voted," he argued. .When the court asked if there were two constituencies with the same name, Raghavchari answered in affirmative. However he added that the issue was a matter of evidence, which could not be heard in writ jurisdiction. "Mere fact he makes a representation saying there is a equalisation. These need to be examined in election petition. In 226, power is restricted," he argued. He argued that the writ petition itself is not maintainable without a representation. .Advocate Tarun Rao Kallakuru appearing for Election Commission of India reiterated the argument that the prayer being sought could be granted only by way of an election petition. .Rao clarified that a represented was made to the district election officer on May 8, but in fact, it had to be made to the Returning Officer (RO), as the election officer has no power to redress this. "Since the RO has declared results, he has become a functus officio. I cannot take a position stating whether such a postal ballot was received or not. Admittedly there were 338 postal ballot votes rejected. On what basis they were rejected, all have to be assessed. They are sealed and kept in locker," he said. .Rao also explained that assembly constituency numbers, name and district are always published for ease of postal form."It is impossible that the pin code will change. To say there is a fallacy in the system or that there is error in the system is unlikely," he argued. .Rao contended that the Election Commission is not the right forum for deciding this dispute at the stage Periakaruppan has chosen"It is not within the RO's power to open postal ballot slip except on the day of counting. It has to be received before the day of counting. The petitioner is projecting an incorrect scenario," he argued. .He further pointed out that as a statutory body, the ECI is record-holder and administrator, not a body that should decide who should have won this seat. "In election petitions, we are not even parties. It is a dispute between two candidates. We are only called to produce records," he said. He clarified that if the commission was to take a factual position, it will have to break open (the postal ballots) and re-verify. "It will have to be only through a trial", he concluded. .Elango clarified that emails were sent to both District Election Officer and Returning Officer (RO). "Emails that bounced were for DEO. RO has received the email", he said..Periakaruppan had contested from No185 Tiruppattur Assembly Constituency in Sivagangai district in the 17th Tamil Nadu Legislative Assembly elections held on April 23, 2026. After counting on May 4, TVK candidate Seenivasa Sethupathi was declared elected.In his writ petition, Periakaruppan has alleged serious irregularities in the counting process. He has claimed that there was an 18-vote discrepancy between the EVM vote figures recorded in the consolidated round-wise abstract and the figures published on the Election Commission of India website.He has also alleged that one postal vote meant for No.185 Tiruppattur constituency was wrongly sent to No.50 Tiruppattur constituency in Tirupattur district. According to him, the Returning Officer of No.50 Tiruppattur rejected the vote as invalid instead of forwarding it to the correct constituency.Periakaruppan has sought a direction to election authorities to secure and account for the postal vote in No185 Tiruppattur constituency. He has also sought videograph footage of the mandatory reverification process of rejected postal ballots..In an interim application, he has sought an injunction restraining Sethupathi from participating in any legislative process in the 17th Tamil Nadu Legislative Assembly pending disposal of the writ petition. The plea does not specifically seek a stay on oath-taking. It seeks a restraint on participation in legislative proceedings.