Writ Petition Summary (K. Sathyan)

Background and Issue

The Representation of the People Act, 1951 provides the mandate for how elections are conducted at the national and state level. The petitioner, K. Sathyan, a political activist, filed a writ petition under Article 32 of the Constitution of India, 1950 challenging the constitutionality of Section 60(c) of the Representation of the People Act, 1951, and the application of Section 20 of the Representation of the People Act, 1950.

 

In his petition he argued that the language of both provisions impeded the electoral process of the country by only allowing certain classes of people to vote remotely. The petition highlighted glaring omissions in these classes of people: those stationed outside their constituency without the financial and practical means to return and vote, specifically referring to domestic migrant workers, employees stationed outside their constituency, students and NRI’s.

 

Thus, the petitioner argues, that Sections 60 (c) and 20 are violative of the fundamental right to freedom and expression under Article 19(1)(a) and 19(1)(d) and violates Article 14 by discriminating those stationed outside their constituency.

 

What does the Petitioner Seek?

The Petitioner prayed for the court to –

1. Strike down Section 60(c) of the Representation of the People Act, 1951 as unjust, illegal, arbitrary and unconstitutional.
2. Direct the respondents to ensure access to voting for all registered voters outside their constituencies.
3. Direct the respondents to ensure the conduct of a free and fair election by utilising more modern technology to prevent election malpractice.

 

Grounds for the Petition

Freedom of Speech and Expression

Section 19 of the 1950 Act specifies the conditions that must be satisfied for an individual to vote. One of these conditions is that the individual of at least 18 years should be an “ordinarily resident” in a constituency. In Section 20 this term is defined further and the petitioner argues that the language restricts the class the of people who can vote to those who “usually and continuously reside in a particular locality”. The only exception to this rule is contained in Section 60(c) of the 1951 Act which allows for certain classes of people to vote via postal ballot following a notification from the election commission.

 

According to the petition, by only allowing certain classes of people to participate freely in the election process remotely, voters are being excluded and deprived of their fundamental freedom to vote. Invoking PUCL v Union of India (2013), the petitioner argued this would in turn violate Article 19(1)(a). The failure of the Election Commission to explore technological possibilities has undeniable ramifications on voter’s rights. The allegedly archaic practices only enhance the problems of access and further curtail the freedom to vote. The petitioner relied on and annexed multiple sources statistically detailing the extent to which migrant workers have been excluded from the electoral process.

 

The petitioner further argues that the current mode of conduct of elections that demands physical presence is violative of Article 19(1)(d) (the freedom to move freely throughout the country) and Article 19(1)(g) (the right to practice any business or profession). This physical presence, he argues, is also the primary catalyst for a plethora of electoral malpractices.

Discrimination, Livelihood and the Basic Structure of the Constitution

Denying voters, the ability to post their ballot and a lack of E-voting mechanisms violates Article 14 as it discriminative against the classes of people who cannot return to their constituency. The financial burdens by denying remote access are also argued to be indirect discrimination to further draw equality violation under Article 14.

 

Further, there is a possibility of the loss of livelihood especially in sectors where job security is negligible such as in the case of migrant workers. This would then be violative of Article 21 according to the petition, as the workers would be compelled to risk their livelihoods in order to return to their constituencies.

 

Elections are also a part of the basic structure of the Constitution and the petitioner refers to a multitude of cases affirming this and specifically quotes Kihoto Hollohon v Zachillhu and Ors (1992) where it is held that “…democracy is a part of the basic structure of our Constitution….and free and fair elections are basic features of our democracy.”

 

The petitioner then refers to cases such as S.R. Bommai v Union of India (1992) and Mardia Chemicals v Union of India (2004) to contend that this unjust compelling of voters to return to their constituencies breaches the basic structure of the constitution and is therefore arbitrary and manifestly unreasonable.

 

Changing the Language of the Representation of the People Act

The primary contention of the petitioner, in order to begin to fix the inequalities present in the current electoral process, is a fundamental change in the way the court reads the phrases “ordinarily resident” and “not in any other manner”.

 

The term “ordinarily resident” and the way it has been understood to mean that an individual cannot vote if they are away from their constituency is meaningless, according to the petitioner. The legislative intent behind the section no longer serves its purpose, and its definition violates Article 19(1)(a) by denying voting access to anyone not physically present in their constituency. The petitioner argues that the reading of this section needs a more pragmatic understanding.

 

The phrase “not in any other manner” in Section 60(c) must be struck down according to the petitioner as the language doesn’t allow for the adoption of any advanced voting methods in its present form. However, the petitioner does state that the phrase can be read down by the court such that it doesn’t stand in the way of adopting remote voting methods.

Electoral Process Needs to be Reformed

• Availability of postal ballot facilities and Electronically Transmitted Postal Ballot System (which is currently only available to service members) for all registered voters, especially those stationed outside their constituency.
• Provision of a double database system with a central and local database for EVM’s to reduce the likelihood of data manipulation along with the introduction of a unique identification number and bar code to curb the problem of multiple-voting.
• Evolving an OTP system that doesn’t infringe on privacy.
• CCTV installation in polling booths to ensure fidelity of the vote.
• Tightening of the rules surrounding assisted voting for the blind and physically infirm in order to curb the possibility of voters being misled at the polling place.