New Delhi, 18 March 2021: Hon’ble High Court, Madras on 17.03.2021 dismissed a petition (W.P. No. 20027 of 2020) challenging the vires of Section 60 (c) of the Representation of the People Act, 1951 and the corresponding rules to facilitate postal ballots for absentee voters including senior citizens of above 80 years, persons with disabilities, COVID-19 affected/ suspected and persons employed in essential services.

The bench headed by Hon’ble Chief Justice in their order held that:

“56. 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. Wiser minds    have seen the secrecy of the ballot and the conduct of fair elections to be complementary in the judgment in S.Raghbir Singh Gill. One may add, with humility, that 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 did not find any arbitrariness in the classification of the persons committed by the rules of 1961 to cast their vote by postal ballot. It held:

“60. Equally, there does not seem to be any arbitrariness in the classification of  the persons permitted by the Rules of 1961 to cast their vote by postal ballot .The consideration appears to have been as to who may not be able to physically   attend a polling booth to cast her 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.”

Hon’ble Court who observed that it is well within the plenary powers of the Commission to issue guidelines to facilitate the elections:

“62. Finally, the petitioner’s contention that the Election Commission has no jurisdiction to issue guidelines has to be discarded in the light of the plenary authority that may be seen to have been conferred on such Commission by Article 324 of the Constitution. Further, in A.C.Jose, the Supreme Court recognized the authority of the Election Commission to pass any orders in respect of the conduct of elections when there is no parliamentary legislation or rule made under the said legislation. Such authority was also seen when there   was no express provision made in the rules for the Commission “to supplement … the law … in the matter of superintendence, direction and control as provided     by Article 324 …” In addition, the judgment recognised the plenary powers of the Commission “to give any direction in respect of the conduct of election …”

Commission started the optional postal ballot to some of these categories since Jharkhand elections of 2019. In 2020 Bihar General Elections, postal ballot options were extended to all these categories which was exercised by more than 52,000 such electors. In the on-going elections and bye-elections, Commission has already laid down detailed guidelines to facilitate postal ballot options for such categories of electors to make elections more inclusive, in the line of its motto “No voter to be left behind”.

Spirit behind providing this facilitation has been that those voters who are above 80+ or PWD voters and have the problem of mobility and are not able to come to polling station because of debility, get the facility of voting through option of postal ballot from home. This facility has benefitted large number of such category of voters. It is also pertinent to mention that the Commission has made the polling stations totally accessible for PWD voters or senior citizens. Even the free transport facility is now provided to PWD voters or senior citizens.