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By: V Sundaram, IAS, Retd.
February 26, 2007
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I have had the privilege of reading the full text of the historic judgment
of Justice Ibrahim Kalifulla setting aside the Corporation elections in 99
wards out of a total of 155 wards in the Chennai Corporation area. He has
expressed his anguish over the manner in which the Corporation elections
were conducted by the State Election Commission (SEC) under its
Commissioner Chandrasekaran. He has also indicted the Director General of
Police, the Commissioner of Police and the Additional Commissioner of
Police for their gross dereliction of duty relating to the maintenance of
absolute Law and Order, public peace and tranquility, on the day of
elections on 13 October, 2006. After reading his judgment, only the
following poignant observations of Justice Felix Frankfurter in Watts vs
Indiana, (338, US Supreme Court 49, 52-1949) come to my mind: "There is
torture of mind as well as body; the will is as much affected by fear as
by force. And there comes a point where this court should not be ignorant
as Judges of what we know as men." I have no doubt whatsoever that these
great observations are totally meaningful and relevant to the present
case.
I am paraphrasing below the main points that weighed with the Court in
setting aside the election in 99 wards:
a) In a democracy elections must be conducted honestly, decently and
independently without any fear or favor. Then only all the eligible voters
will be able to cast their votes without being governed by fear. The State
Election Commission is a statutory authority which has been created only
for this purpose - the conduct of free and fair elections to the local
bodies in Tamilnadu. The Supreme Court has already declared that whenever
and wherever countless members of the public are subjected to a phenomenon
or process of planned injustice, no court of law can remain aloof without
endeavoring to intervene in the matter to render appropriate justice. In
extraordinary situations calling for extraordinary remedies, it becomes
necessary even to by-pass established procedures and to examine the case
under article 226 of the Constitution to render instantaneous justice.
b) Almost all the English and language (vernacular) newspapers have
published detailed accounts of the lawlessness, chaos and confusion that
prevailed in all the Election Booths in the 99 wards in question, apart
from providing graphic photographs to show how the ballot papers were
misused and how they lay scattered on the ground in the election booths
like smithereens after a terrorist bomb attack. Keeping in view the
lawless incidents on the day of election and also keeping in view the
directions given in the past by the Supreme Court taking note of the
detailed coverage in the Press, it will be quite in order for this Court
as well to take note of the coverage of elections in the Press.
c) Though it was disputed that DMK men alone were responsible for all the
incidents of lawlessness leading to the misuse of ballot papers, yet what
has to be noted is that the SEC, the DGP, the Commissioner of Police and
the Additional Commissioner of Police have not disputed the patently
obvious fact that thousands of ballot papers lay scattered on the ground
in most of the election booths on the day of election.
d) The State Election Commission has not been able to give detailed
account of the ballot papers that were forcibly snatched from the hands of
election staff on the day of election. Nor has the Election Commission
been in a position to dispute the fact that thousands of ballot papers lay
strewn on the ground on election day. The SEC has not furnished any
explanation as to how the ballot papers, which should have been under the
control of election staff in the election booths, found their way in to
the hands of individual members of the public in bunches and how and why
they lay scattered on many public roads near the polling booths.
e) In the only sketchy explanation furnished by the Commissioner of
Chennai Corporation relating to the missing ballot papers, there is no
indication whatsoever regarding the exact or even approximate number of
ballot papers that were snatched and misused on election day.
f) Either through the State Election Commission or directly, more than 90
complaints were received by the City Police Commissioner and the
Additional Police Commissioner. There were mainly three kinds of
complaints. One related to the fact of violence in the election booths;
the second related to the snatching of ballot papers through intimidation
and violence; and the third related to the casting of bogus votes. In the
reply furnished to the Court by the Commissioner of Police, no details
were available relating to the maintainability or otherwise of the
complaints. The Commissioner of Police has also failed to furnish details
relating to the number of captured booths, the number of bogus votes cast
and other details. There is lot of substance in the arguments of the
petitioners who are seeking the countermanding of elections that these
acts of violence, intimidation, booth capture, snatching of ballot papers
and casting of bogus votes were not isolated incidents in far removed
areas and that they all formed part of a pre-planned, organized and
streamlined game plan to rig the local body elections in Chennai.
g) Untrue and contradictory statements have been made by the Commissioner
of Police in her affidavits dated 15 October, 2006 and 9 November, 2006.
In her statement dated 15 October, 2006 the Commissioner of Police had
stated that in respect of 3295 booths no complaints of snatching of ballot
papers. Only in respect of 17 booths, allegations regarding some
irregularities were made and consequently re-poll was ordered in those 17
booths. She has also stated that the reports in the press were unfounded
and exaggerated. Whereas in her affidavit dated 9 November, 2006 the
Commissioner of Police has stated that eight complaints were received
regarding forceful entry of anti-social elements into the polling booths.
Only in one ward 19 polling booths were captured and bogus votes were
cast. These contradictory statements lend substance to the strong
complaint of the petitioners that the Commissioner of police and the
Additional Commissioner of Police remained neutral between the
fire-brigade and the fire on the day of election.
h) Instead of carefully assessing the situation in the light of the known
facts and taking immediate action in the manner and measure required to
maintain absolute law and order in order to ensure a free and fair poll,
it is not clear as to why the Commissioner of Police and the Additional
Commissioner of Police chose the path of masterly inactivity. If in actual
fact there were not so many complaints, then the question that becomes
relevant is as to why the Commissioner of Police did not deploy the
required number of police personnel to ensure the smooth conduct of
elections?
i) The reports furnished to the Court by the SEC, the Police Commissioner
and the Additional Police Commissioner do not endeavor to explain the true
situation relating to the status on ground in the affected election booths
on election day.
j) The State Election Commission and its Commissioner have failed in the
due discharge of their allotted duties to ensure a free and fair election
and thus they are accountable under the law for the lapse. It is also
inexplicable as to how he could say that he ordered re-poll in 27 booths
as directed by the Court, when no such orders were issued by the Court.
Probably for the SEC, only its own opinions and pre-conceived notions are
more important than known and acceptable facts.
k) The Director General of Police also failed to provide the right type of
leadership to the Police Force on the day of election.
The helpless myriad millions of Chennai would like to pay their grateful
tribute to the great Judge, the Justice Ibrahim Kalifullah in the words of
New York Times felicitating Justice Felix Frankfurter (1882-1965):
"History will find greatness in him as a Justice, not because of the
results he reached but because of his attitude towards the process of
decision. His guiding lights were detachment, rigorous integrity in
dealing with the facts of a case, refusal to resort to unworthy means, no
matter how noble the end, and dedication to the Court as an Institution.
He taught us the lesson that there is importance in the process".
V Sundaram, IAS, Retd.
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