K.Surendran Vs. Election Commission of India - Court Judgment

Excerpt:
in the high court of kerala at ernakulam present: the honourable mr. justice alexander thomas tuesday, the8h day of april201418th chaithra, 1936 wp(c).no. 10503 of 2014 (k) ---------------------------- petitioner(s): -------------------------- k.surendran aged62years s/o.kanaran, residing at suriya, chalad p.o. kannur district. by advs.sri.k.ramakumar (sr.) sri.s.m.prasanth sri.m.manojkumar (chelakkadan) smt.asha babu smt.ammu charles respondent(s): ---------------------------- 1. election commission of india nirvachan sadan, new delhi-110 001.2. the chief electoral officer kerala, thiruvananthapuram-695 001. r1 & 2 by adv. sri.murali purushothaman, sc,ele.commn. this writ petition (civil) having been finally heard on0804-2014, the court on37.2014 delivered the following: wp(c).no......

Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS TUESDAY, THE8H DAY OF APRIL201418TH CHAITHRA, 1936 WP(C).No. 10503 of 2014 (K) ---------------------------- PETITIONER(S): -------------------------- K.SURENDRAN AGED62YEARS S/O.KANARAN, RESIDING AT SURIYA, CHALAD P.O. KANNUR DISTRICT. BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SRI.M.MANOJKUMAR (CHELAKKADAN) SMT.ASHA BABU SMT.AMMU CHARLES RESPONDENT(S): ---------------------------- 1. ELECTION COMMISSION OF INDIA NIRVACHAN SADAN, NEW DELHI-110 001.

2. THE CHIEF ELECTORAL OFFICER KERALA, THIRUVANANTHAPURAM-695 001. R1 & 2 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,ELE.COMMN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON0804-2014, THE COURT ON37.2014 DELIVERED THE FOLLOWING: WP(C).No. 10503 of 2014 (K) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P1.TRUE COPY OF THE CIRCULAR DATED283/2014 ISSUED BY THE CHIEF ELECTORAL OFFICER EXT.P2.TRUE COPY OF THE REPRESENTATION DATED24/2014 SUBMITTED BY THE HONOURABALE CHIEF MINISTER EXT.P3.TRUE COPY OF THE REPRESENTATION DATED24/2014 SUBMITTED BY THE PRESIDENT OF KPCC. RESPONDENT(S)' EXHIBITS --------------------------------------- ANNEXURE A. COPY OF THE

ORDER

DTD.2.4.14 BY R1. B. COPY OF THE PROCEEDINGS DTD.2.4.2014 OF R1 ELECTION COMMISSION OF INDIA. C. COPY OF THE LETTER DTD.21.3.2014 ISSUED BY R1 ELECTION COMMISSION OF INDIA. D. COPY OF THE

ORDER

DTD.6.5.2014 OF THIS COURT IN W.P.(C) NO..13590O/2014. sdk+ ///True copy/// P.S. to Judge ALEXANDER THOMAS, J.

================== W.P.(C).No. 10503 of 2014 ================== Dated this the 3rd day of July, 2014

JUDGMENT

The facts necessary for the disposal of this matter are as follows: The petitioner claims to be the chief election agent of the candidate sponsored by a political party, viz., the Indian National Congress (I), to contest the Kannur Parliamentary constituency in the elections to Lok Sabha which was scheduled in April 2014. The petitioner avers that as per Rule 35 of the Conduct of Election Rules, 1961, it is stipulated that where the polling station is situated in a constituency, electors of which have been supplied with identity cards under the provisions of the Registration of Electors Rules, 1960, the elector shall produce his identity card before the presiding officer or the polling officer authorised by him in this behalf and that the Kannur Parliamentary constituency is one such area where the identity cards have bene issued under Rule 35(3) of the Conduct of Election Rules, 1961. It is his case as if the identity cards referred to in the above said Rule 35 (3) include the identity card issued by the Election Commission of India, a passport, a PAN (Permanent Account Number) card, Adhar card or such other identity cards issued under the authority of a w.p.c.10503/14 - :

2. :- Statute and that it cannot be substituted with anythingelse. He contends that in spite of this, the impugned Ext.P1 circular has been issued by the 1st respondent-Election Commission of India authorising the Booth Level Officers (BLOs) to issue the impugned authenticated photo voter slips to the voters and the voters are required to produce them at the time of polling avoiding production of identity cards and that the said impugned Ext.P1 circular is totally beyond the jurisdiction of the Election Commission as the said circular is contrary to the statutory prescription made in Rule 35(3) of the Conduct of Election Rules, 1961. That the identity card is the personal property of a voter and that the photo voter slip issued by the Booth Level Officers in terms of Ext.P1 is not permanent and it is an extract from the voters' list and cannot be called an identity card and that yet, photo voter slips in terms of Ext.P1 have been issued in the Kannur parliamentary constituency and that the same is completely contrary to the scheme of election law and in violation of the Conduct of Election Rules framed under the Representative of the People Act, 1951. It is also alleged by the petitioner that in Kannur district there are large scale electoral malpractices and that w.p.c.10503/14 - :

3. :- the polling agents are attacked and that the polling agents belonging to parties other than the Communist Party of India (Marxist) are attacked and violence is unleashed on the agents of other parties and that in such a place, which is notorious for crimes in connection with elections, if the identity slips as per Ext.P1 are issued by the Booth Level Officers and are permitted in the place of the identity cards issued as per Rule 35(3), then the entire election would be reduced to mere farce and will lead to large scale organized impersonation. It is also averred that Ext.P1 letter dated 2.4.2014 has been issued by the Chief Minister of the State addressed to the Election Commission of India and that Ext.P3 letter dated 2.4.2014 has also been issued by the President of the State Unit of the political party, to which the petitioner belongs, requesting the 1st respondent-Election Commission not to proceed with the issuance of photo identity slips in terms of the impugned Ext.P1. In the conspectus of the above said facts, it is urged by the petitioner that the impugned Ext.P1 circular pertaining to the authenticated photo voter slip is contrary to the above said statutory rule contained in Rule 35(3) of the Conduct of Election Rules, 1961 w.p.c.10503/14 - :

4. :- and that the impugned Ext.P1 circular is beyond the competence of the Election Commission under Article 324 of the Constitution of India and that even under that Article, the Election Commission cannot act contrary to the statutory rules and vary it by issuance of a circular like Ext.P1 and that the impugned Ext.P1 circular is liable to be declared altogether as void, inoperative and unenforceable and issued beyond the jurisdiction of the respondents. In this background that the petitioner seeks certiorari to quash the impugned Ext.P1 circular and for issue of a mandamus forbearing the respondents from implementing Ext.P1 circular during the time of polling in the Kannur constituency and instead insist that voters should bring the identity cards either in the form of photo identity cards issued by the Election Commission of India or such other manner permitted by the Election Commission.

2. The 1st respondent-Election Commission of India has resisted the pleas and contentions of the petitioner by submitting the pleadings in the form of a Statement dated 7.4.2014. The 1st respondent would primarily contend that one of the golden rules of the election jurisprudence as laid down by the Constitution Bench of w.p.c.10503/14 - :

5. :- the Apex Court as in the case in N.P.Ponnuswami v. the Returning Officer, Namakkal Constituency reported in AIR1952SC64and in a long line of case laws rendered thereafter as in the cases as in Shyamdeo Pd. Singh v. Nawal Kishore Yadav reported in (2000) 8 SCC46and other rulings that the underlying the plenary bar on judicial proceedings in election matters created by Article 329(b) of the Constitution of India is pre-emptory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between its commencement and the conclusion. It is further submitted that Ext.P1 circular dated 28.3.2014 issued by the 2nd respondent-Chief Electoral Officer, Kerala, is only based on Annexure A order dated 2.4.2014 issued by the 1st respondent- Election Commission of India. Annexure B is the letter dated 2.4.2014 issued by the 1st respondent Election Commission of India addressed to the Chief Electoral Officers of all States and Union territories and Annexure C is the letter issued by the 1st respondent-Election Commission of India addressed to the Chief Electoral Officers of all States and Union Territories dealing with the w.p.c.10503/14 - :

6. :- manner and methods of distribution of photo voters' slips to the electors by the Both Level Officers (BLOs) etc. It is submitted by the respondents that the right to be included in the electoral roll, unless disqualified, is a constitutional right conferred by Article 326 of the Constitution of India and that the right of a citizen whose name is included in the electoral roll, to vote is also a statutory right, subject to prescribed restrictions and that Section 62 of the Representation of the People Act, 1951, provides that every person whose name is entered in the electoral roll of any constituency shall be entitled to vote in that constituency, subject to the provisions of sub section 2 (5) thereof. It is further pointed out by the respondents that Rule 37 (2)(b) of the Conduct of Election Rules, 1961, provides that if any elector fails or refuses to produce his identity card, he shall not be supplied with any valid paper or allowed to vote and that the said Rule 37(2)(b) is only a reasonable limitation intended to regulate the elector's right to vote so as to protect his own right to ensure that his right is not defeated by some unscrupulous elements through impersonation. That, at present all the States and Union Territories have Photo Electoral Rolls (PERs) and making the database of the w.p.c.10503/14 - :

7. :- computerised electoral rolls and the database of the Electoral Photo Identity Card (EPIC), the electoral roll of all the constituencies in all the States have been generated with the photographs of the voters. That in spite of being issued with EPIC, there might raise situations where the voters are unable to produce their EPIC for unavoidable reasons such as EPIC being lost or not being able to trace out on the date of the polling etc. or where the identity of the voter cannot be established through EPIC, for reasons such as photo being not clear, mismatch of photo etc. In all these situations, the statutory right of the voter to vote at the election cannot be permitted to be defeated for no fault of the elector or for justifiable reasons. The fundamental objective is that no genuine elector is denied his/her right to vote, which is a statutory right as per Section 62 of the Representation of the People Act, 1951. It is in view of these aspects that the Election Commission has in exercise of plenary powers under Article 324 of the Constitution of India issued Annexure A order dated 2.4.2014 directing that, for the general elections to the House of People 2014 and the State Legislative Assemblies of Andhra Pradesh, Arunachal Pradesh, Odisha and Sikkim and bye-elections from 27 assembly w.p.c.10503/14 - :

8. :- constituencies being held simultaneously, that all the electors who have been issued EPIC shall produce EPIC for their identification at the polling station before casting their votes and also that those electors who are not able to produce EPIC, shall produce one of the following documents for establishing their identity, namely: (i) Passport (ii) Driving License (iii) Service Identity Cards with photograph issued to employee by Central/State Govt. PSU's/Public Limited Companies; (iv) Passbooks with photographs issued by Bank/Post Office; (v) PAN card. (vi) Aadhar Card (vii) Smart Card issued by RGI under NPR; (viii) MNREGA Job Card; (ix) Health Insurance Smart Card issued under the scheme of Ministry of Labour. (x) Pension document with photograph and (xi) Authenticated Photo Voter Slip issued by the election machinery. w.p.c.10503/14 - :

9. :- Thereafter, as per Anx. B proceedings dated 2.4.2014, the 1st respondent Election Commission of India duly forwarded Annexure A order dated 2.4.2014 to the Chief Electoral Officers of all the States and Union Territories for compliance of the directions in Annexure A. Further, as regards the distribution of photo voter slips to the electors, the 1st respondent-Election Commission of India issued Annexure-C letter dated 21.3.2014 to the Chief Electoral Officers of all the States and Union Territories, detailing out the elaborate procedure to be followed for the distribution of photo voter slips. That in pursuance of the receipt of Annexure-C communication dated 21.3.2014, the 2nd respondent-Chief Electoral Officer has issued Ext.P1 communication dated 28.3.2014 to all the District Election Officers and Electoral Registration Officers in the State of Kerala detailing out the same in the local vernacular about the elaborate procedure to be followed for the distribution of photo voter slips as earlier ordered in Annexure A.

3. It is also pointed by the respondents that the EPIC referred to earlier is the identity card as envisaged in Rule 28 of the Registration of Electors Rules, 1960 and Rule 35(3) of the Conduct w.p.c.10503/14 - :

10. :- of Election Rules, 1961. Accordingly, it is contended by the respondents that the prayers of the petitioner are mutually contradictory. In this regard it is submitted by the respondents that the challenge mounted by the petitioner against Ext.P1 circular is on the premise that the same is contrary to the statutory prescription in the above said Rule 35(3) of the Conduct of Election Rules, 1961 read with Rule 28 of the Registration of Electors Rules, 1960 and the said contention proceeds on the premise that the only statutory permission is in terms of the above said Rule 35(3) read with Rule 28 and that the permission granted in Ext.P1 circular for the impugned authenticated photo voter slip would be contrary to the statutory prescription in Rule 35(3) and hence ultra vires and unlawful. Even prior to the 2014 elections, the 1st respondent-Election Commission of India had permitted many of the alternative documents among item Nos.(i) to (x) of Annexure A in the previous general elections in 2004 and also to some of the elections held in 2003 and even prior to that. This was done by virtue of the plenary powers conferred on the Election Commission as per Article 324 of the Constitution of w.p.c.10503/14 - :

11. :- India, so as to effectuate the right to vote of the elector. However, the petitioner challenges only the provision made for permitting authenticated photo voter slips issued by the election authorities referred to in Item (xi) of Annexure-A and no challenge is made by the petitioner as against the permission granted for use of other alternative identity documents like items (i) to (x) of Annexure-A. If the argument of the petitioner that the impugned photo voter slip is ultra vires Rule 35(3) is accepted, then the same would also result in making the use of items (i) to (x) of Annexure-A also equally unlawful and ultra vires, it is contended by the respondents. It is also pointed that the petitioner specifically pleads in paragraph 3 of the Writ Petition that identity cards include card is used by the Election Commission of India a passport, a PAN card and Aadhar card or such other identity cards issued under the authority of the State. It is contended by the respondents that EPIC is the only identity card issued directly under the authority of the Election Commission of India as per Rule 35(3) and therefore, on the one hand, the petitioner contends that authenticated photo voter slip issued by the Election authorities is ultra vires Rule 35(3) and on w.p.c.10503/14 - :

12. :- the other hand, the petitioner contends that alternative identity documents like passport, PAN Card, Aadhar card or such other identity cards issued under the authority of the statute is also permissible. Therefore, the plea is that the contentions of the petitioner based on the alleged violation of the statutory provision of Rule 35(3) are self-contradictory. It is also pointed out by the respondents that the first prayer of the petitioner challenging Ext.P1, though confined to the photo voter slip, will also deleteriously affect the other alternative identity documents, to which the petitioner has no objection. More importantly it is contended that the second prayer of the petitioner is essentially for a mandamus to direct the respondents not only to forbear them from implementing Ext.P1 circular during the time of the polling in Kannur constituency, but also to insist that voters bring the identity cards either in the form of photo identity cards issued by the Election Commission or such other manner permitted by the Election Commission. Accordingly, it is contended by the respondents that this specific prayer of the petitioner is for a mandamus to insist that the voters bring the identity cards either in w.p.c.10503/14 - :

13. :- the form of EPICs issued by the Election Commission under Rule 35 (3) or any such other manner permitted by the Election Commission. Since this is the specific prayer of the petitioner, Annexure-A is such permission granted by the 1st respondent-Election Commission permitting item Nos.(i) to (xi) mentioned therein as alternative documents other than EPICs issued as per the above said Rule 35(3) read with Rule 28. Therefore, in essence, the petitioner also cannot seek any relief interfering with the permission granted by the 1st respondent-Election Commission of India to use item Nos.(i) to (xi) of Annexure-A, including item No.(xi) thereof, which is the authenticated photo voter slip, issued by the election machinery, as alternative identity documents in the place of EPIC. Certain detailed aspects regarding the manner and method for permitting the above said alternative photo identity documents including authenticated photo voter slips have been dealt with in the pleadings of the respondents and also as to the details of the safeguards taken for the distribution of the authenticated photo voter slips as laid down in Annexures C and B, where also the details in that regard are dealt with. It is submitted by the respondents that the electoral roll w.p.c.10503/14 - :

14. :- of all the constituencies have been generated with photographs of electors by making the data base of the computerised electoral rolls and the data base of the EPIC. It is pointed out that the photo voter slips are prepared only from such computerised data base of Electoral Photo Identity Cards (EPICs) maintained by the Election Commission authorities. The respondents have also stated that almost a similar challenge in respect of certain other alternate identity documents was made during the general election of 2004 in W.P.(C).No. 13590/2004 and that this Court refused to interfere with the similar impugned orders of the 1st respondent-Election Commission of India as evident from Annexure-D. Similar challenge was also made in 2003 by filing W.P.(C).No.29853/2003, in which, this Court refused to interfere in the matter. Certain other decisions of the Division Bench of the Madras High Court and that of the Supreme Court interfering with the orders granted by the Allahabad High Court were also relied on and adverted to by the respondents.

4. It is also pointed out that as per the detailed order dated 6.5.2004, this Court in W.P.(C).No.13590/2004 rejected the plea for stay of the order of the Election Commission impugned therein and later the said Writ Petition was dismissed as infructuous as per the w.p.c.10503/14 - :

15. :- judgment dated 2.11.2005. In W.P.(C).No. 29853/2003 also this Court by order dated 22.9.2003 rejected the plea of the stay of the impugned order of the Election Commission and later by the judgment dated 5.4.2004, the said Writ Petition was dismissed as infructuous. In Annexure D produced in the statement filed by the 1st respondent, reference is made to the Division Bench judgment of the Madras High Court in P.Gajapathi v. Election Commission of India, reported in AIR2001Madras 446, wherein it has been held that since the Government could not issue EPIC to all voters, such voters have to satisfy their identity by production of alternate documents specified and insisted by the Election Commission. That in the case Manoj Dubey v. Election Commission of India reported in AIR2002Allahabad 167, the Allahabad High Court interfered with the order of the Election Commission prescribing alternate mode of identification of electors other than EPIC and that the Supreme Court in SLP (Civil) No.3820-3821 of 2002 in the case Election Commission of India v. Manoj Dubey and others stayed the above said judgment of the Allahabad High Court by order dated 4.3.2002 and observed that EPIC and other alternate identity w.p.c.10503/14 - :

16. :- documents as notified by the Election Commission would come into operation and could be given effect to in the election. It is also pointed out that in Ram Deo Bhandari and others v. Election Commission of India in Writ Petition (Civil) No.2/1995, the issue regarding insistence of EPIC came up for consideration before the Apex Court and in that case, the Election Commission of India submitted that in places where the exercise of issuance of photo identity cards is not complete, the Election Commission of India proposes to continue the practice of prescribing alternate documents for identification of voters at the time of polling and based on the affidavit filed by the Election Commission of India, the above said Writ Petition (Civil) No.2/1995 was closed by the Supreme Court as per the order dated 17.8.2000. It is pointed out by the respondents that the impugned action to permit the alternative photo identity documents including the impugned authenticated photo voter slip has been issued in exercise of the plenary powers of the Election Commission of India conferred under Article 324 of the Constitution of India and that it is done essentially to effectuate the right to vote conferred as per Section 62 of the w.p.c.10503/14 - :

17. :- Representation of People Act, 1951 in respect of the citizens who have been granted right and entitlement to be registered as a voter at the election as conferred by Article 326 of the Constitution of India. This has been done by the respondent Election Commission by balancing the right to vote conferred as per Section 62 vis-a-vis the provisions in the Rules like Rule 37(2)(b) of the Conduct of Election Rules, 1961, which deal with the steps against impersonation. It is also submitted that such reservoir of plenary powers are conferred on the Election Commission as per Article 324 of the Constitution. It is specifically stated in para 14 of the Statement filed by the respondents in this case that though as per Annexure-A, the Election Commission has permitted those electors, who are not able to produce the EPIC, to produce any of the 11 alternative documents mentioned therein, for establishing the identity of electors, prior to use of such alternative document, the Election Commission would insist upon the elector concerned to give written declaration stating the reason for non-production of the EPIC. It is submitted that there are sufficient safeguards that are insisted by the Election Commission so as to ensure that there is no w.p.c.10503/14 - :

18. :- misuse in the provision for such alternative identity documents.

5. Heard Sri.K.Ramakumar, the learned Senior Counsel for the petitioner and Sri.Murali Purushothaman, learned Standing Counsel for the Election Commission of India appearing for the respondents, who have reiterated their above said submissions.

6. The main case projected by the petitioner is that identification of electors is dealt with in Rule 35, more particularly, Rule 35(3) of the Conduct of Election Rules, 1961 read with Rule 28 of the Registration of Electors Rules, 1960 and that preparation and supply of identity cards are dealt with in this statutory provision and that the only permissible method, in which the respondent Election Commission can permit identity cards is solely on the basis of the prescription in the above said Rule 35(3) read with the above said Rule 28 and that any action taken by the Election Commission of India should be strictly within the confines of the above said statutory prescription. It is the case of the petitioner that the authenticated photo voter slips envisaged in item No.(xi) of Annexure A is not one permitted as per the above said Rules and that the same is ultra vires. But the plea of the petitioner as per w.p.c.10503/14 - :

19. :- paragraph 3 of the Writ Petition specifically proceeds on the premise that the identity cards, which are statutorily permissible include the card issued by the Election Commission of India, passport, PAN card, Aadhar card or other such identity cards issued under the authority of the statute. The Electoral Photo Identity Card (EPIC) mentioned herein above is the identity card prepared in terms of Rule 28 of the Registration of Electors Rules, 1960 and therefore the EPIC is the only identity card envisaged in Rule 35(3) of the Conduct of Election Rules, 1961. Earlier, the Election Commission has been permitting items as in Nos.(i) to (x) of Annexure A as alternative identity documents in the place of EPICs. Therefore, if the plea regarding the vires of the impugned authenticated photo voter slip is accepted, it would also amount to affecting the vires of the other permitted alternative documents like passport, PAN card, Aadhar card etc. Moreover, the specific prayer of the petitioner is not only for mandamus to forbear the respondents from implementing Ext.P1 circular during the time of polling in Kannur constituency, but also for a mandamus to insist that voters bring the identity cards either in the form of identity cards issued by the Election w.p.c.10503/14 - :

20. :- Commission India or such other manner permitted by the Election Commission of India. Alternative documents like items Nos.(i) to (xi) including the authenticated photo voter slip as ordered in the impugned Ext.P1 and Annexure A is a specific permission granted and ordered by the Election Commission of India to use such identity documents as alternate documents to EPICs. Therefore, going by the prayer of the petitioner, the permission granted in Ext.P1 and Annexure A, is also on the basis of the permission ordered by the Election Commission and therefore, is in consonance with the specific plea and prayer of the petitioner. In the light of these contentions and prayers of the petitioner, this Court is of the considered opinion that this is not a fit case to invoke discretionary jurisdiction conferred under Article 226 of the Constitution of India. Accordingly, the Writ Petition (Civil) stands dismissed. There will be no order as to costs. Sd/- ANTONY DOMINIC, JUDGE Sd/- sdk+ ALEXANDER THOMAS , JUDGE ///True copy/// P.S. to Judge w.p.c.10503/14 - :

21. :- 6. The Registry had noted an objection regarding the maintainability of this matter, which is essentially challenging the decision of the Election Commission, as the said challenge is made after commencement of the election process and this objection is mainly on the basis of the ruling of the Apex Court in Election Commission of India v. Ashok Kumar and others reported in (2000) 8 SCC216 The learned Standing Counsel for the Election w.p.c.10503/14 - :

22. :- Commission also raised objection on the maintainability of the prayers, especially the prayer for interim stay, as said prayer is made after commencement of the election process and in view of the plenary bar under Article 329(b) of the Constitution of India, interference is not called for. The respondents have relied on a long line of rulings of the Apex Court as in N.P.Ponnuswami v. The Returning Officer, Namakkal Constitutency, reported in AIR1952SC64 Mohinder Singh Gill v. Chief Election Commissioner and Others reported in AIR1978SC851 Anugrah Narain Singh v. State of UP reported in (1996) 6 SCC303 Election Commission of India v. Ashok Kumar and Others reported in (2000) 8 SCC216 Manda Jaganath v. K.S.Rathanam reported in (2004) 7 SCC492and Shyamdeo Pd. Singh v. Nawal Kishore Yadav reported in (2000) 8 SCC46 etc.

7. During the course of the hearing of this matter on 8.4.2014, Sri.K.Ramakumar, learned Senior Counsel for the petitioner contended that the objections as regards the maintainability of the Writ Petition are untenable and that the Writ Petition under Article 226 would be maintainable in this case. w.p.c.10503/14 - :

23. :- He primarily contended that though the general approach is that the plenary bar under Article 329(b) would operate against entertaining of applications of judicial review initiated after the commencement of the election process and upto the conclusion of the election process, the Supreme Court in Ashok Kumar's case (supra) and Mohinder Singh Gill's case (supra) has held that there is a vestige of discretionary jurisdiction that can be exercised by superior constitutional courts on certain areas as delineated in those rulings. In this regard, the learned Senior Counsel has placed reliance on para 20 of Ashok Kumar's case reported in 2000 (8) SCC216 wherein after relying on the principles laid down in para 29 of Mohinder Singh Gill's case reported in 1978 (1) SCC405 the Apex Court has made a distinction between proceedings interfering with the progress of the election and those which accelerate the completion of the election that acts in furtherance of an election. Sri.K.Ramakumar, learned Senior Counsel, in his inimitable style of persuasion, has thus urged that in view of those principles, the bar of Article 329(b) will not be attracted in this case, etc.

8. Per contra, Sri.Murali Purushothaman, the learned w.p.c.10503/14 - :

24. :- Standing Counsel for the Election Commission of India very firmly made his submissions regarding plenary bar under Article 329 of the Constitution and that, at any rate, in view of the rulings of the Apex Court urged by him (supra), stay may not be granted as the election process has already commenced. The details of these rival contentions will be dealt with subsequently in this judgment.

9. It has been held by the Apex Court in the case Manda Jaganath v. K.S.Rathanam reported in (2004) 7 SCC492 in paragraph 14 thereof, that the word, 'election' has been judicially defined by various rulings of the Apex Court to mean, any and every action taken by the competent authority after publication of the election notification. It has been held by the Apex Court in N.P.Ponnuswami's case (supra) that the word, 'election' used in Article 329 as well as in other provisions of Part XV of the Constitution is in the wide sense so as to connote the entire procedure to be gone through to return a candidate to the Legislature. As held by the Apex Court in Mohinder Singh Gill's case reported in 1978 (1) SCC405= AIR1978SC851 para 13, one of the principles underlying the plenary bar on judicial proceedings in w.p.c.10503/14 - :

25. :- election matters created by Article 329(b) is the pre-emptory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion. Relying on the same, the Apex Court has held in Shyamdeo Pd. Singh v. Nawal Kishore Yadav reported in (2000) 8 SCC46 para 24, that the same principle underlines leads to the position that the last date for making nomination for election in a constituency and the date of declaration of the election results are the 'terminus a quo' and 'terminus ad quem' between which even electoral rolls must remain untouched and that even amendments to such electoral rolls which include inclusion, transposition or deletion of entries in the electoral rolls are taboos in this interregnum. Therefore, viewed in the light of these principles, the last date for making nomination for elections in a constituency and the date of declaration of election results are the 'terminus a quo' and 'terminus ad quem' between which the election process should remain untouched. The long catena of decisions of the Apex Court as in N.P.Ponnuswami' case reported in AIR1952SC64 Mohinder w.p.c.10503/14 - :

26. :- Singh Gill's case reported in AIR1978SC851 Anugrah Narain Singh's case reported in (1996) 6 SCC303 Ashok Kumar's case reported in (2000) 8 SCC216 Manda Jaganath's case reported in (2004) 7 SCC492 etc. are also on the above lines. In a similar situation, wherein alternate photo identity documents other than the EPIC were permitted, this Court by a detailed order dated 6.5.2004 in W.P.(C).No.13590/2004 (produced as Annexure-D) had rejected the prayer of interim stay of the impugned proceedings issued by the Election Commission of India. So also, in broadly similar circumstances raised in 2003, this Court in W.P.(C).No. 29853/2003 by order dated 22.9.2003 had rejected the prayer for stay of similar proceedings of the Election Commission, impugned therein. This Court is in perfect agreement with the view taken in the aforementioned orders dated 6.5.2004 in W.P.(C).No. 13590/2004 and order dated 22.9.2003 in W.P.(C).No. 29853/2003 and that stay of the impugned proceedings of the Election Commission is not warranted. In Annexure-D produced in the statement filed by the respondents, the respondents have also stated that the Division Bench of the Madras High Court in P.Gajapathi v. Election w.p.c.10503/14 - :

27. :- Commission of India, reported in AIR2001Madras 446, has held that since the Government could not issue EPIC to all voters, such voters have to satisfy their identity by production of alternate documents specified and insisted by the Election Commission. That in the case Manoj Dubey v. Election Commission of India reported in AIR2002Allahabad 167, the Allahabad High Court interfered with the order of the Election Commission prescribing alternate mode of identification of electors other than EPIC and that the Supreme Court in SLP (Civil) No.3820-3821 of 2002 in the case Election Commission of India v. Manoj Dubey and others stayed the above said judgment of the Allahabad High Court by order dated 4.3.2002 and observed that EPIC and other alternate identity documents as notified by the Election Commission would come into operation and would be given effect to in the election. It is also pointed out that in Ram Deo Bhandari and others v. Election Commission of India in Writ Petition (Civil) No.2/95, the issue regarding insistence of EPIC came up for consideration before the Apex Court and in the said case, the Election Commission of India submitted that in places where exercise of issuance of photo w.p.c.10503/14 - :

28. :- identity cards is not complete, the Election Commission of India proposes to continue the practice of prescribing alternate documents for identification of voters at the time of polling and based on the affidavit filed by the Election Commission of India, the above Writ Petition (Civil) No.2/95 was closed by the Supreme Court as per the order dated 17.8.2000. Even going by the prayer of the petitioner, the petitioner also seeks a mandamus to insist that voters should bring identity cards either in the form of photo identity cards issued by the Election Commission or such other manner permitted by the Election Commission as per Annexure A appears to be permissible. The grievance of the petitioner projected in the Writ Petition is primarily that confined to the Kannur Lok Sabha constituency and the prayer for mandamus to forbear the respondents from implementing the impugned Ext.P1 circular is also confined to the polling in Kannur constituency. Since the proceedings, which resulted in Ext.P1 have got all India ramifications as the elections are those in respect of all the 543 Lok Sabha constituencies in India and to the State Legislative Assemblies of Andhra Pradesh, Arunachal Pradesh, Odisha and Sikkim and bye-elections from 27 assembly constituencies and in view of the legal principles settled by w.p.c.10503/14 - :

29. :- the aforementioned rulings, this Court during the time of hearing of the matter, found that this was not a fit case for grant of interim stay and accordingly the plea for stay was not granted.

10. As stated earlier, the learned Senior Counsel for the petitioner placed heavy reliance on paragraphs 20, 32(2) and 32(3) etc. to contend that there are still certain areas connected with election aspects vesting the court sufficient discretion to interfere under Article 226 of the Constitution between the commencement and conclusion of the election process. In Ashok Kumar's case reported in (2000) 8 SCC216 the Supreme Court in para 30 thereof, noted that two Constitution Benches have held that the Representation of People Act, 1951, provides for only one remedy, that remedy being an election petition to be presented after the election is over and that there is no remedy in the middle stage and that paragraph 25 of Mohinder Singh Gill's case (supra) leads to the position that non obstante clause in Article 329 pushes out Article 226 where the dispute takes the form of calling in question an election and that the provisions of the Constitution and Act read together do not exclude the right of a citizen to approach the court so as to have the wrong done remedied by invoking the judicial w.p.c.10503/14 - :

30. :- forum; nevertheless the lesson is that the election rights and remedies are statutory, ignore the trifles even if there are irregularities or illegalities and knock the doors of the courts when the election proceedings in question are over. That two-pronged attack on anything done during the election proceedings is to be avoided - one during the course of the proceedings and the other at its termination, for such two-pronged attack, if allowed, would unduly protract or obstruct the functioning of democracy. The Apex Court further went on to hold in Ashok Kumar's case (supra) in paragraphs 31 and 32 thereof, as follows: "31. The founding fathers of the Constitution have consciously employed use of the words "no election shall be called in question" in the body of Section 329(b) and these words provide the determinative test for attracting applicability of Article 329(b). If the petition presented to the Court "calls in question an election" the bar of Article 329(b) is attracted. Else it is not.

32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove: (1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. (2) Any decision sought and rendered will not amount w.p.c.10503/14 - :

31. :- to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. (3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. (4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court. (5) The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material." While laying down this proposition, it is also stated in para 33 of the Ashok Kumar's case (supra) that the above conclusions, however, should not be construed as a summary of the judgment and that those have to be read along with the earlier part of the judgment, w.p.c.10503/14 - :

32. :- wherein the conclusions have been elaborately stated with reasons. In paragraph 15 of Ashok Kumar's case (supra) noted that the constitutional status of the High Courts and the nature of the jurisdiction exercised by them came up for consideration of the Apex Court in M.V.Elisabeth v. Harwan Investment and Trading (P) Ltd. reported in 1999 Supp. (2) SCC433 wherein it was held that the High Courts in India are superior courts of record and they have original and appellate jurisdiction and have inherent and supplementary powers. Unless expressly or impliedly barred and subject to the appellate or discretionary jurisdiction of Supreme Court, the High Courts have unlimited jurisdiction including the jurisdiction to determine their own powers and in this regard, Their Lordships of the Supreme Court placed reliance on the following statement of law from Halsbury's Laws of England (4th Edn. Vl.10, para 713), which reads as follows: "Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognisance of the particular court." In paragraph 16 of the Ashok Kumar's case (supra), the Supreme Court further held that the jurisdiction of courts is carved out of the w.p.c.10503/14 - :

33. :- sovereign power of the State and the people of free India are sovereign and exercise of judicial power is articulated in the provisions of the Constitution to be exercised by courts under the Constitution and the laws thereunder and it cannot confined to the provisions of imperial statutes of a bygone age. Access to court which is an important right vested in every citizen implies the existence of the power of the Court to render justice according to law, and that where statute is silent and judicial intervention is required, courts strive to redress grievances according to what is perceived to the principles of justice, equity and good conscience. It is further held in paragraph 17 thereof that the concept that power of judicial review is part of the basic structure of the Constitution is one which is no longer in issue. Thereafter, the Apex Court went on to hold in paragraph 18 Ashok Kumar's case (supra) as follows: "18. Is there any conflict between the jurisdiction conferred on the High Courts by Article 226 of the Constitution and the embargoes created by Article 329 and if so how would they coexist came up for the consideration of a Constitution Bench of this Court in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency. The law enunciated in Ponnuswami2 was extensively dealt with, also amplified, by another Constitution Bench in Mohinder Singh Gill v. Chief Election Commr.3 The plenary power of Article 329 has been stated by the Constitution Bench to be founded on two principles: (1) the peremptory urgency of prompt engineering of the whole election process without intermediate interruptions by w.p.c.10503/14 - :

34. :- way of legal proceedings challenging the steps and stages in between the commencement and the conclusion; (2) the provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other form, the right and remedy being creatures of statutes and controlled by the Constitution. On these principles the conclusions arrived at in Ponnuswami case2 were so stated in Mohinder Singh Gill case3: (SCC p. 426, para 26) "(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted. (2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the `election'; and, if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the `election' and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress." In the light of the aforementioned aspects, the contentions raised by the petitioner based on paragraph 20 of Ashok Kumar's case (supra) are to be examined. It is to be noted that in paragraph 20 of Ashok Kumar's case (supra), the Apex Court referred to paragraph 29 of Mohinder Singh's case reported in 1978 (1) SCC405 wherein the Constitution Bench in its two types of decisions and two w.p.c.10503/14 - :

35. :- types of challenges viz., first relating to proceedings to interfere with the progress of the election and second, which accelerates completion of an election and acts in furtherance of an election. The Apex Court has held as follows in paragraph 20 of Ashok Kumar's case (supra) as follows: "20. ..... A reading of Mohinder Singh Gill case [(1978) 1 SCC405 points out that there may be a few controversies which may not attract the wrath of Article 329(b). To wit: (i) power vested in a functionary like the Election Commission is a trust and in view of the same having been vested in high functionary can be expected to be discharged reasonably, with objectivity and independence and in accordance with law. The possibility however cannot be ruled out where the repository of power may act in breach of law or arbitrarily or mala fide. (ii) A dispute raised may not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election. The Election Commission may pass an order which far from accomplishing and completing the process of election may thwart the course of the election and such a step may be wholly unwarranted by the Constitution and wholly unsustainable under the law. In Mohinder Singh Gill case [(1978) 1 SCC405 this Court gives an example (vide para 34). Say after the President notifies the nation on the holding of elections under Section 15 and the Commissioner publishes the calendar for the poll under Section 30 in the latter orders returning officers to accept only one nomination or only those which come from one party as distinguished from other parties or independents, which order would have the effect of preventing an election and not promoting it, the Court's intervention in such a case will facilitate the flow and not stop the election stream." To explain further the types of cases, wherein the judicial review intervention could be justified, the Apex Court further illustrates one such scenario in paragraph 21of Ashok Kumar's case (supra) as w.p.c.10503/14 - :

36. :- follows: "21. A third category is not far to visualise. Under Section 81 of the Representation of the People Act, 1951 an election petition cannot be filed before the date of election, i.e., the date on which the returned candidate is declared elected. During the process of election something may have happened which would provide a good ground for the election being set aside. Purity of election process has to be preserved. One of the means for achieving this end is to deprive a returned candidate of the success secured by him by resorting to means and methods falling foul of the law of elections. But by the time the election petition may be filed and judicial assistance secured, material evidence may be lost. Before the result of the election is declared, assistance of Court may be urgently and immediately needed to preserve the evidence without in any manner intermeddling with or thwarting the progress of election. So also there may be cases where the relief sought for may not interfere or intermeddle with the process of the election but the jurisdiction of the Court is sought to be invoked for correcting the process of election taking care of such aberrations as can be taken care of only at that moment failing which the flowing stream of election process may either stop or break its bounds and spill over. The relief sought for is to let the election process proceed in conformity with law and the facts and circumstances be such that the wrong done shall not be undone after the result of the election has been announced subject to overriding consideration that the Court's intervention shall not interrupt, delay or postpone the ongoing election proceedings. ....." Applying the above test, the Apex Court in Ashok Kumar's case (supra) found that the impugned interference made by the High Court in that case was not called for and after deciding the matter on merits, allowed the appeals and set aside the order of the High Court impugned therein. The Apex Court in para 28 of the Ashok Kumar's case (supra) observed that the election disputes are not just private civil disputes between two parties, though there is an individual or a few individuals arrayed as parties before the court, w.p.c.10503/14 - :

37. :- but fate of the constituency as a whole are on trial for whichever way lis terminates it affects the fate of the constituency and the citizens generally and a conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. The Apex Court clearly held therein that neither the court should turn a blind eye to the controversies which have arisen nor should assume a role of overenthusiastic activist would do and that the two extremes have to be avoided in dealing with election disputes.

11. As held by the Apex Court in paragraph 20(ii) of Ashok Kumar's case (supra), a dispute raised may not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election and where the Election Commission may pass an order which far from accomplishing and completing the process of election may thwart the course of the election and such a step may be wholly unwarranted by the Constitution and wholly unsustainable under the law. So, in order to establish the necessity for interference of judicial review in the facts and circumstances of this case, the petitioner has to necessarily w.p.c.10503/14 - :

38. :- establish that the impugned Ext.P1 circular/Annexure-A order is passed by the 1st respondent Election Commission of India is one which far from accomplishing and establishing the process of election, which may thwart the course of the election and that such a step is wholly unwarranted by the Constitution and wholly unsustainable under law. It is in the light of these aspects, that this Court has posed the question as a primary one to be decided in this case, as mentioned in the beginning of this judgment. For the sake of clarity the question posed is reiterated as follows: "Is the impugned Ext.P1 circular/Annexure-A order issued by the 1st respondent-Election Commission of India permitting alternate photo identity documents for establishing the identity of voter in the election, is one which far from accomplishing and completing the process of election, but will thwart the course of election and whether such a step could be wholly unwarranted by the Constitution and wholly unsustainable under law, so as to warrant interference of this Court under Article 226 of the Constitution of India ?" 12. The scheme of Electors Photo Identity Cards (EPICs) was initiated with the objective to prevent impersonation of electors and facilitate their identification at the time of poll and eliminate bogus and fictitious entries from the electoral roll. The provisions of w.p.c.10503/14 - :

39. :- Representation of People Act and Rules like the Registration of Electors Rules, 1960, the Conduct of Election Rules, 1961 and the orders issued by the Election Commission of India in exercise of its plenary powers under Article 324 of the Constitution of India to regulate the use of EPICs. It would be profitable to make reference to some of the provisions in this regard. Section 61(v) of the Representation of People Act, 1951, provides that the ==== Rules 28(1) of the Registration of Electors Rules, 1960, reads as follows: (1) impersonation of electors and facilitating their identificationtoat the time of The Election "Sec.

28. Identity cards formay,electors in notified constituencies.- Commission with a view preventing poll, by notification in the Official Gazette of the State, direct that the provision of this rule shall apply to any such constituency or part thereof as may be specified in the notification." Rule 35(3) of the Conduct of Election Rules, 1961 provides as follows: "Sec.35. Identification of electors.-(1) ... xxx xxx xxx (3) Where the polling station is situated in a constituency, electors of which have been supplied with identity cards under the provisions of the Registration of electors Rules, 1960, the elector shall produce his identity card before the presiding officer or the w.p.c.10503/14 - :

40. :- polling officer authorised by him in this behalf." Rule 37(2)(b) of the Conduct of Election Rules, 1961 provides that if any elector fails or refuses to provide his identity card as required by the sub rule (3) of Rule 35, he shall not be supplied with any ballot paper or allowed to vote. It may be noted that EPIC prepared under Rule 28 of the Registration of Electors Rules, 1961 is a one that is envisaged in Rule 35(3) of the Conduct of Election Rules, 1961.

13. Article 326 of the Constitution of India reads as follows: "Art.326. Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage.- The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election." This Article mandates that the election to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage, that is to say, that every citizen whose age is not less than 18 years, provided is not other disqualified, shall be entitled to be registered as a voter at such election. This right or entitlement to be registered as a voter at any such election in the w.p.c.10503/14 - :

41. :- manner provided in the said Article is conferred by the Constitution of India.

14. Section 62 of the Representation of the People Act, 1951 reads as follows: "Sec.62. Right to vote.- (1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency. (2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in section 16 of the Representation of the People Act, 1950 (43 of 1950). (3) No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void. (4) No person shall at any rate election vote in the same constituency more than once, notwithstanding that his name may have been registered in their electoral roll for the constituency more than once, and if he does so vote, all his votes in that constituency shall be void. prison, (5) No person shall vote at any election if he is confined in a whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police; Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force. (6) Nothing contained in sub-sections (3) and (4) shall apply to a person who has been authorised to vote as proxy for an elector under this Act in so far as he votes as a proxy for such elector." 15. The 1st respondent Election Commission found that in spite of issuance of EPICs, as envisaged in Rule 35(3), there arises a situation where electors are unable to produce their EPICs, for w.p.c.10503/14 - :

42. :- unavoidable reasons, such as being lost or not being able to trace it out on the date of poll etc. or where the identity of the elector cannot be established through EPICs (for reasons such as photo being not clear, mismatch of the photo etc.). It is the specific case of the respondent Election Commission that it was the considered opinion that even in such situations, the statutory right of the elector to vote at the election cannot be permitted to be defeated for no fault of the elector. The aforementioned Rule 37(2)(b) of the Conduct of Election Rules, 1961 is essentially a reasonable regulation to regulate the elector's right to vote only to protect his own right to ensure that his right is not defeated by impersonation. The fundamental objective, as rightly submitted by the respondent Election Commission of India, is that no genuine elector is denied his or her right to franchise. In order to effectuate the right to vote conferred under Section 62 of the Representation of the People Act, to the citizens who are conferred with entitlement or right to be registered as a voter at any election, as envisaged in Article 326 of the Constitution, the respondent Election Commission considered it necessary that all the electors who have been issued EPICs shall w.p.c.10503/14 - :

43. :- produce EPIC for their identification at the polling station before casting their vote and also that those electors are not able to produce EPICs shall produce one of the eleven items mentioned in Annexure A order. The details of such alternate identity documents have already been stated hereinabove. It is specifically stated by the 1st respondent Election Commission in paragraph 14 of the statement that though as per Annexure A the Election Commission has permitted those voters who are not able to produce the EPIC, to produce any of the alternative documents mentioned in Annexure A for establishing the identity of electors, the right to use such alternative document, the Election Commission would insist upon the elector concerned to give a written declaration stating the reason for non-production of EPIC. The respondents have also submitted at the time of argument that as already held in Annexure D, the presiding officer concerned must ensure that the elector is not able to produce the EPICs due to good reasons beyond his control and that the satisfaction of the presiding officer concerned in this regard is necessary and thereafter only, the presiding officer will permit the voter to establish his identity on the basis of w.p.c.10503/14 - :

44. :- alternative documents.

16. After consideration of the submissions of sides, this Court is of the considered opinion that the impugned Ext.P1/ Annexure A order has been issued by the respondent Election Commission of India in order to effectuate and harmonise the right to vote conferred as per Section 62 of the Representation of the People Act, 1951, to those citizens who are conferred with the entitlement or right to be registered as a voter at any election. The impugned action is one aimed at balancing the right to vote with the requirements to prevent impersonation. Even in the previous occasions as in 2004 and in other occasions, it is the undisputed case of the respondents that most of the alternative identity documents mentioned in Annexure-A, except the authenticated photo voter slip, were permitted to be used by the Election Commission by the issue of orders similar to Annexure A. This Court in W.P.(C).Nos.29853/2003 and 13590/2004 etc. on previous occasions had refused to interfere with such impugned action of the Election Commission. If the contention of the petitioner that the impugned authenticated photo voter slips permitted by Annexure A w.p.c.10503/14 - :

45. :- is ultra vires Rule 35(3), then all the other alternative identity documents mentioned in Annexure A would also be equally vitiated. This is because, EPIC is the election identity card prepared as per Rule 28 and is one envisaged as per Rule 35(3) of the Conduct of Election Rules, 1961. Even according to the case pleaded by the petitioner, as in paragraph 3 of the Writ Petition, identity cards include card issued by the election Commission of India, a passport, PAN Card, Aadhar Card or other identity card issued under the authority of a statute. The petitioner has no objection as against the use of alternative photo identity documents like passport, PAN card, Aadhar card or such other identity cards and the only objection is against the authenticated photo voter slip. As alternative identity documents like passport, PAN card, Aadhar card or such other identity cards are not prepared in terms of Rule 28 of the Conduct of Election Rules, 1961, then their inclusion in Annexure A would also be equally ultra vires Rule 35(3), if the argument of the petitioner is accepted. So, even according to the plea putforth by the petitioner, permissibility of alternative photo identity documents like passport, PAN card, Aadhar or such other cards as pleaded by w.p.c.10503/14 - :

46. :- him, could be validly permitted by the 1st respondent Election Commission of India only by taking recourse to their plenary power conferred under Article 324 of the Constitution of India, in order to effectuate and harmonise the right of the elector to vote conferred as per the aforementioned statutory provisions. Therefore, even going by the plea of the petitioner, this Court is of the prima facie view is that there is reservoir of power available with the respondent Election Commission of India conferred as per Article 324 of the Constitution of India insofar as the superintendence, direction and control in respect of the conduct of elections is vested exclusively with the constitutional entity like the Election Commission of India.

17. It has been submitted by the learned Standing Counsel for the respondent Election Commission of India during the argument that the impugned authenticated photo voter identity slip issued by the election machinery, is prepared from the computerized data base of the Electoral Photo Identity Card (EPIC). The EPIC is the identity card prepared as per Rule 28 of the Registration of Electors Rules, 1960.

18. The Apex Court in paragraph 29 of the M.S.Gill's case w.p.c.10503/14 - :

47. :- reported in 1978 (1) SCC405 relied on the following decision laid down in Ponnuswami's case (supra), as follows: The"29. relates to proceedings which interfere with the progress of the firstThus, there are two types of decisions, two types of challenges. election. The second accelerates the completion of the election and acts in furtherance of an election. So, the short question before us, in the light of the illumination derived from Ponnuswami is as to whether the order for re-poll of the Chief Election Commissioner is "anything done towards the completion of the election proceeding" and whether the proceedings before the High Court facilitated the election process or halted its progress. The question immediately arises as to whether the relief sought in the writ petition by the present appellant amounted to calling in question the election. This, in turn, revolves round the point as to whether the cancellation of the poll and the reordering of fresh poll is "part of election" and challenging it is "calling it in question". Based on this, it was held in paragraph 26 of M.S.Gill's case, as follows: "26. ..... xxx xxx xxx The rainbow of operations, covered by the compendious expression "election", thus commences from the initial notification and culminates in the declaration of the return of a candidate. The paramount policy of the Constitution-framers in declaring that no election shall be called in question except the way it is provided for in Article 329(b) and the Representation of the People Act, 1951, compels us to read, as Fazl Ali, J.

did in Ponnuswami the Constitution and the Act together as an integral scheme. The reason for postponement of election litigation to the post-election stage is that elections shall not unduly be protracted or obstructed. The speed and promptitude in getting due representation for the electors in the legislative bodies is the real reason suggested in the course of judgment. It is thereafter that the Apex Court held in paragraph 29 of the M.S.Gill's case (supra) that there are two types of decisions and two types of challenges, viz., the first relates to proceedings which w.p.c.10503/14 - :

48. :- interfere with the progress of the election and the second one, which accelerates the completion of the election and acts in furtherance of an election and held that the question to be considered while deciding whether there is plenary bar under Article 329(b) for entertaining the petitions under Article 226 of the Constitution is as to whether the impugned decision or the order of the Election Commission is "anything done towards the completion of the election proceedings, and whether the proceedings before the High Court facilitated the election process or halted its progress and that the said turn revolves around the point as to whether the impugned action of the Election Commission is 'part of the election' and challenging it is amounting to 'calling in in question' as contemplated in the plenary bar contained in Article 329(b). On this basis, it was held in paragraph 30 of the M.S.Gill's case (supra) that the plenary bar of Article 329(b) rests two principles. Article 329 of the Constitution provides as follows: "Art.329. Bar to Interference by Courts in electoral matters.- Notwithstanding anything in this Constitution (a) ... (b) no election to either House of Parliament or to the House of either House of the Legislature of a State shall be called in question except by an election-petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature." w.p.c.10503/14 - :

49. :- On the aforementioned premise, the Apex Court held in para 30 of Mohinder Singh Gill's case (supra) that the plenary bar of Article 329(b) rests on two principles: (1) The peremptory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion, (2) the provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other form, the right and remedy being creatures of statutes and controlled by the Constitution. The decision in Durga Shankar Mehta v. Thakur Raghuraj Singh reported in AIR1954SC520 was relied to hold that once the Election Tribunal has decided, the prohibition is extinguished and the the Supreme Court's overall power to interfere under Article 136 springs into action. In Hari Vishnnu Kamath's case (AIR1955SC233 upheld the rule in Ponnuswami's case (supra) excluding any proceeding, including one under Article 226, during the on-going process of election, understood in the comprehensive sense of notification down to declaration and beyond the declaration of results comes the election w.p.c.10503/14 - :

50. :- petition, but that beyond the decision of the Tribunal the ban of Article 329 does not bind etc. Thereafter, considering whether the impugned decision of the Election Commission is amenable to judicial review under Article 226, the Apex Court held in paragraph 31 of Mohinder Singh's case (supra) as follows: "31...... catch-all jurisdiction under Article 226 cannot consider the correctness, legality or otherwise of the direction for cancellation integrated with re-poll. For, the prima facie purpose of such a re-poll was to restore a detailed poll process and to complete it through the salvationary effort of a re-poll. Whether, in fact or law, the order is validly made within his powers or violative of natural justice can be examined later by the appointed instrumentality viz., the Election Tribunal.... We proceed on the footing that re-poll in one polling station or in many polling stations, for good reasons, is lawful. This shows that re-poll..... can be lawful. We are not considering whether the act was bad for other reasons. We are concerned only to say that if the regular poll, for the some reasons, has failed to reach the goal of choosing by plurality the returned candidate and to achieve this object a fresh poll (not a new election) is needed, it may still be a step in the election. The deliverance of Dunkirk is part of the strategy of counter-attack. Wise of valid, is another matter." Thereafter, it was held in paragraph 32 of the Mahendra Singh's case (supra) as follows: "32. On the assumption, but leaving the question of the validity of the direction for re-poll open for determination by the Election Tribunal, we hold that a writ petition challenging the cancellation coupled with re-poll amounts to calling in question a step in 'election' and is therefore barred by Article 329(b). If no re-poll had been directed the legal perspective would have been very different. The mere cancellation would have then thwarted the course of the election and different considerations would have come into play..." (emphasis supplied) It was held in paragraphs 34 and 35 of M.S.Gill's case (supra) that Section 100 of the Representation of the People Act, 1951 has been w.p.c.10503/14 - :

51. :- designedly drafted to embrace all conceivable infirmities which may be urged and to make the remedy fool-proof Section 100(1)(d)(iv) has been added to absolve everything left over and that Section 100 is exhaustive of all grievances regarding an election and that immunity provided under Article 329(b) is conferred only if the impugned act is done for the apparent object of furthering a free and fair election and the productive armour drops down if the impugned act challenged is either unrelated to or thwarts the election. The concurring judgment in M.S.Gill's case (supra) also held in paragraphs 120, 122, 125 and 126 etc. that even if the impugned action of the Election Commission is a wrong order, it does not cease to be an order passed by the competent authority charged with the conduct of elections with the aim and object of conducting the election and that such an order relating to election comes within the width of Article 229(b) and cannot be questioned except by an election petition under the Act. Further that, the wordings in Section 100(1)(d)(iv) of the Representation of People Act, 1951 are very wide and that if there is any illegality in the exercise of the power under Article 324 or under any provision of w.p.c.10503/14 - :

52. :- the Act, there is no reason why Section 100(1)(d)(iv) should not be attracted to it, since law demands of exercise of power by its repository, as an faithful trust, in a proper, regular, fair and reasonable manner and that bar under Art.329(b) will be attracted etc. Viewed from the above prospective, the issue is as to whether the impugned action of the 1st respondent Election Commission of India to permit alternative identity documents like authenticated photo voter slip issued by the election machinery is one which furthers and facilities the conduct of the election and whether it is one which furthers a free and fair election. Considering the materials on record, this Court is of the considered opinion that prima facie the purpose and intent of the impugned Ext.P1 circular/ Annexure A order is to facilitate and further the right to vote by registered electors conferred as per Section 62 of the Representation of People Act, 1961. Prima facie, it is an action taken by the Election Commission of India so as to balance the right to vote conferred under Section 62 of the Act vis-a-vis the requirements in Rules 35 and 37 of the Conduct of Election Rules, 1961. It is useful to refer to Section 100 of the Representation of w.p.c.10503/14 - :

53. :- People Act, which reads as follows: "Sec.100. Grounds for declaring election to be void.- (1) Subject to the provisions of sub-section (2) if the High Court is of opinion- (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963) (b) that any corrupt practice has been committed by an returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected- (i) by the improper acceptance or any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void." It may be noted that Section 80A of the Act confers jurisdiction on the High Court to try and election petition. Section 81 lays down that an election petition calling in question an election may be presented on one or more grounds specified in Section 100(1) to the High Court by another candidate of such election or any elector etc. w.p.c.10503/14 - :

54. :- 19. It is also useful to refer to paragraph 65 of the Mohinder Singh's case (supra), wherein it was observed that every Indian has a right to elect and to be elected and this is a constitutional as distinguished from a common law right and is entitled to cognizance by courts subject to statutory regulation. Article 329 plenary bar In this regard, it would be useful to refer to the observations in para 2 of Mohinder Singh's case (supra) wherein it has been observed that ".... pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless words: At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper - no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point. If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men 'dressed in little, brief authority'. For 'be you ever so high, the law is above you'." At any rate, prima facie, this Court cannot hold that the impugned action will thwart the course of election and that such a step is wholly unwarranted by the constitution and wholly unsustainable under law. Accordingly, it is held that the expression, 'election' appearing in Article 329 connotes the entire process culminating in w.p.c.10503/14 - :

55. :- a candidate being declared elected, the impugned action is a step in the election and therefore the challenge mounted in the Writ Petition amounts to calling in question a step in the election and is therefore barred by Article 329(b). Whether in fact or law, the impugned order is validly made within the powers of the 1st respondent Election Commission of India or whether the challenge can successfully attract any of the provisions in Section 100, more particularly, Section 100(1)(d)(iv) of the Representation of People Act etc. could be examined in election petitions that are instituted strictly in terms of the provisions of the said Act. Section 116A provides for appeals to Supreme Court as stated therein. The Writ Petition (Civil) stands accordingly dismissed. The learned Standing Counsel for the Election Commission of India has also submitted about the details of the safeguards provided by the Election Commission for the distribution of authenticated photo voter slip by issuing Annexure C instructions on 21.3.2014, addressed to the Chief Electoral Officers all the States and Union Territories. The details are given in clauses (a) to (r) of w.p.c.10503/14 - :

56. :- Annexure C. A brief reference of such instructions would be pertinent and clauses (a) to (d) of Annexure C read as follows: "a) The Photo Voter Slips shall be printed on the good quality paper, ensuring clear entries and photographs of voters appearing thereon. The District election Officer (DEO)/ Electoral Registration Officer (ERO) shall ensure that the Photo Voter Slips are printed by following/meeting all possible safeguards. b) Only one (1)electors Photo Voter Slips wouldConstituency,forduly set of be printed the registered authenticated by the ERO, foreach of Assembly distribution through the BLOs. c) A pre-printed register of voters shall be given to each BLO along with the Photo Voter Slips of the electors of his/her Polling Station area. The Photo Voter Slips should be issued under original signatures of the BLOs. The BLO shall give the Photo Voter Slip either to the registered voter or to an adult member of the voter's family who is himself/herself a voter. The BLO shall obtain the signature or thumb impression of the person to whom the Photo Voter Slip is delivered, as an acknowledgment of having received the Photo Voter Slip. The register shall be deposited by the BLOs to the ERO before the day of Poll. d) The marking of Absent/Shifted/Dead (ASD) Voters shall also be done on the Photo Voter Slips. These Photo Voter Slips may be stamped with a note "ASD Voters - You will have to bring additional proof of identification such as EPIC, any of the documents notified by ECI, on the day of Poll." The Presiding Officers may be directed to verify such Voters through any additional document along with the Photo Voter Slip." Clause (r) of Annexure C specifically stipulates that any unauthorised distribution/possession of photo voter slips (election material) shall be considered as violation of the relevant provisions of the Representation of People Act, 1951 and the Indian Penal Code and is punishable with imprisonment or fine or both and that instructions to that effect may be printed on the reverse of the slips w.p.c.10503/14 - :

57. :- etc. The learned Standing Counsel for the Election Commission also submitted that para 13.26 of the handbook for returning officers 2014 published by the Election Commission of India provides for identification of voters and submitted that those provisions would clearly ensure that there are effective and strict provisions made by the Election Commission to prevent abuse of identity documents like the impugned photo voter slip. He also made available a copy of the said handbook for the perusal of the court. Some of the provisions in paragraphs 13.26 dealing with the said handbook read as follows: "13.26 IDENTIFICATION OF ELECTORS1326.1 The electors are required to produce the Electoral Photo Identity Card (EPIC) or the Photo Voter Slip, handed over by the BLO to establish their identity irrespective of the fact that the constituency may be having photo electoral rolls in place. Those electors who have not been issued with the identity card, or those of them who are unable to produce the identity card for reasons beyond their control should produce one of the alternative documents of identification specifically permitted by the Commission. The Commission issues orders in this behalf at the time of every election. You must refer to the order issued by the Commission and bring it to the notice of all Presiding Officers and give a copy of the order during training and also inform the contesting candidates, political parties, etc. Wide publicity by print and electronic media may also be done for the information of electors. 13.26.2 For compulsory identification of electors through EPIC or alternative identification documents, the polling officer in- charge of identification must satisfy himself about the identity of the elector after examining the EPIC or the alternative documents, as the case may be, and in case of any doubt the elector should be directed to present himself before the w.p.c.10503/14 - :

58. :- Presiding Officer who should make a further enquiry to satisfy himself about the identity of the elector. The Presiding Officer should hand over the person to the police with a written complaint in case he is proved to be an impersonator. 13.26.3 As a measure to prevent bogus voting, the Commission has directed that the DEO shall get prepared, using BLOs and such other officials as considered necessary, separate lists of absentee voters, shifted electors with family linkage and shifted electors without family linkage. If any electors whose name also figures in such list, then his identity shall be very thoroughly verified by the Presiding Officer and after getting satisfied, the photo of such elector will be taken by camera person, if posted at that polling station. The Presiding Officer shall maintain an account of such voters separately. 13.26.4 It may also be made clear that those who have been issued EPIC will be required to produce EPIC only and no other document to establish their identities. There may be some cases, where the photo roll to be used at the polling station may not contain the photo of a particular elector. Also there may be stray cases of photo mismatch. The production of EPIC or alternate documents with photographs will in such cases help the Presiding Officer to establish the identities of the electors concerned. 13.226.5 It should be noted that for identification of the elector the Presiding Officer and his team of Polling Officers would only rely on the EPIC or the Photo Voter Slip issued to the elector or their absence, the alternative documents prescribed by the Commission for the purpose and no other document. ...." A brief reference to the provisions in Article 324 of the Constitution of India would also be pertinent. Article 324(1) of the Constitution mandates that superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State, etc. shall be vested in the Election Commission. It has been held by the Apex Court in a series of cases as in Kanhiya Lal Omar v. w.p.c.10503/14 - :

59. :- R.K.Trivedi reported in (1985) 4 SCC628 Sadiq Ali v. Election Commission of India, reported in (1972) 4 SCC644and All Party Hill Leaders' Conference v. Capt. W.A.Sangama reported in (1977) 4 SCC161 etc. that Article 324(1) of the Constitution confers plenary power on the Election Commission and that the words, 'superintendence', 'direction' and 'control' as well as 'conduct of elections' referred to that Article are in broadest terms which would include powers to make all such necessary provisions in that regard and that it operates in areas left unoccupied by the legislation. In Gujarat Assembly Election Matter re. reported in 2002 (8) SCC237 the Apex Court emphasized that the holding of periodic free and fair elections by the Election Commission is part of the basic structure of the Constitution and that fixing for schedule for election is in the exclusive domain of the Election Commission and not subject to any law of Parliament and that the Parliament may make law for the conduct of the elections, but conducting of elections is the sole responsibility of the Commission and that abuse of power by the Commission, is, however, subject to judicial review. It has been held in M.S.Gill's case (supra) that the powers of w.p.c.10503/14 - :

60. :- superintendence, direction and control conferred to the Election Commission are in the broadest terms and that there may be varied situations that may call for prompt action on the part of the Election Commission to reach the objective of free and fair elections and that law expects that the Election Commission vested with such wide powers to act fairly and legally and that discretion vested in such a high constitutional functionary may be reasonably tested to be used properly and perversely and that if it is misused, the court has power to strike down the Act. or there has been improper or illegal exercise of such powers. It has been further further held in the concurring judgment in paragraphs 113, 120 etc. of M.S.Gill's case (supra) that Article 324 (1) is couched in wide terms and that power in any democratic set- up, as is the pattern of our polity, is to be exercised in accordance with law and that is why, Articles 327 and 328 provide for making of provisions with respect to all matters relating to or in connection with elections for the Union Legislatures and for the State w.p.c.10503/14 - :

61. :- Legislatures respectively. That when appropriate laws are made under Article 327 by the Parliament as well as under Article 328 by the State Legislatures, the Election Commission has to act in conformity with those laws and other legal provisions made thereunder and even so, both Articles 327 and 328 are "subject to the provisions" of the Constitution which include Article 324 and Article 329. Since the conduct of all elections to the various legislative bodies are vested under Article 324(1) in the Election Commission, the framers of the Constitution took care to leaving scope for exercise of residuary power by the Commission, in its own right, as a creature of the Constitution, in the infinite variety of situations that may emerge from time to time in such a large democracy as ours and every contingency could not be foreseen or anticipated with precision and that is why there is no hedging in Article 324. sdk+ ALEXANDER THOMAS, JUDGE w.p.c.10503/14 - :

62. :- In the light of the aforementioned aspects, the contentions raised by the petitioner based on paragraph 20 of Ashok Kumar's case (supra) are to be examined. It is to be noted that in paragraph 2 of Ashok Kumar's case (supra), the Apex court referred to paragraph 29 of Mohinder Singh's case reported in AIR1978(1) Scc 405, wherein the Constitution Bench in its two types of decision - two types of challenges viz., the first relating to proceedings to interfere with the progress of the election and second, which accelerated completion and acts in furtherance of an election. The Apex Court has held as follows in paragraph 20 of Ashok Kumar's case (supra) w.p.c.10503/14 - :

63. :- To explain further the types of cases, wherein the judicial review intervention could be justified, the Apex Court further illustrates one such scenario in paragraph 21 of Ashok Kumar's case (supra) as follows: Applying the above test, the Apex Court in Ashok Kumar's case (supra) found that the impugned interference made by the High Court in that case was not called for and after deciding the matter on merits, allowed the appeals and set aside the order of the High Court impugned therein. The Apex Court in 28 of the Ashok Kumar's case (supra) observed that the election disputes are not just private civil disputes between two parties though there is an individual or few individuals arrayed as parties before the court, but status of the constituency as a whole are on trial for whichever way less tremendous it affects the fate of the constituency and the -- w.p.c.10503/14 - :

64. :- overruling consideration for welfare of the constituency and considering the democracy is called for. The Apex Court held therein that neither the court should turn a blind eye to the controversies which has an reason neither should assume a roll of would do and that the two extremes have to be avoided in dealing with the election disputes. As held by the Apex Court in paragraph 20(ii) of Ashok Kumar's case (supra) a dispute raised impugned amount election if it subserves the progress of the election and facilitates competition of the election and where the Election Commission may pass an order which far from accomplishing and completing the process of election may thwart the course of election and such a concept may wholly unwarranted by constitution and wholly unsustainable under law. So in order to establish the necessity for interference of judicial review in the facts and circumstances of this case, the petitioner has to necessarily establish that the impugned Ext.P1 circular/ Annexure A order is passed by the 1st respondent Election Commission of India is one which far from accomplishing and establishing the process of election, which may thwart the w.p.c.10503/14 - :

65. :- course of election and that wholly unwarranted of the Constitution and wholly unsustainable under law. It is in the light of these aspects, this Court has posted the primary question to be decided in this case, primarily one to be decided in this case is mentioned in the beginning of this judgment. For the same of clarify the question posed is reiterated as follows: The scheme of Electors Photo Identity Cards (EPICs) was initiated with the objective to present impersonation of electors and facilitate their identification at the time of poll and eliminate bogus entries from the electoral roll and the provisions of Representation of People Act and Rules like the Registration of Electors Rules, 1960, the Conduct of Election Rules, 1960 and the orders issued by the Election Commission of India in exercise of its powers under Article 324 of the Constitution of India to regulate the use of EPICs. It would be profitable to make reference to some of the provisions in w.p.c.10503/14 - :

66. :- this regard. Section 61(v) of the Representation of People Act, 1951, provides that the Rules 28(i) of the Registration of Electors Rules, 1960, reads as follows: Rule 35(3) of the Conduct of Election Rules, 1961 provides as follows: Rule 37(2) of the Conduct of Election Rules, 1961 provides that if any elector fails or refuses to provide the identity card as required by the sub rule (3) of Rule 35, he shall not be supplied with any valid paper or allowed to vote. It may be noted that EPICs prepared under Rule 28 of the Registration of Electors Rules, 1961 is the one that is envisaged in Rule 32(3) of the Conduct of Election Rules, 1961. Article 326 of the Constitution of India reads as follows: This Article mandates that the election to the House of People and w.p.c.10503/14 - :

67. :- to the Legislative Assembly of every State shall be on the basis of adult franchisee that is to say, that every citizen whose age is not less than s18 years age provided is not other disqualified shall be entitled to be registered as a voter at such election. This right or entitlement to be registered as a voter at any stage of election in the manner provided in the said Article conferred by the Constitutional Section 62 of the Representation of People Act, 1951 reads as follows: The 1st respondent Election Commission found that in respect of issuance of EPICs as envisaged in Rule 35(3), there arises a situation where electors are unable to produce their EPICs for unavoidable reasons, such as being lost or not being able to trace out on the date of poll etc. or where the identity of the elector cannot be established through EPICs (for reasons such as photo being not clear, mismatch of the photo etc.). It is the specific case of the respondent Election Commission that it was the considered opinion w.p.c.10503/14 - :

68. :- that even in such situations, the statutory right of the voter to vote at the election cannot be permitted to be defeated for no fault of the elector. The aforementioned Rule 37(2)(b) of the Conduct of Election 1961 is essentially a reasonable regulation to regulate the elector's right to vote only to protect his own right to ensure that his right is not defeated by impersonation. The fundamental objective, as rightly submitted by the respondent Election Commission of India, is that no genuine elector is denied his/her right to franchise. In order to effectuate the right to vote conferred under Section 62 of the Representation of People Act, the citizens who are conferred with entitlement or right to be registered as a voter at any election as envisaged in Article 326 of the Constitution, the respondent Election Commission considered it necessary that all the electors who have been issued EPICs shall produce EPIC for their identification at the polling station before casting their vote and also that those electors are not able to produce EPICs shall produce one of the eleven items mentioned in Annexure A order. The details of such alternate identity documents have already been stated hereinabove. It is specifically stated by the respondent Election Commission in w.p.c.10503/14 - :

69. :- paragraph 14 of the statement that the though as per Annexure A the Election Commission has permitted those voters who are not able to produce the EPICs to produce any of the alternative documents mentioned in Annexure 2A for establishing the identity of voters, the right to use such alternative documents, the Election Commission would insiste upon the voter concerned to give a written declaration stating the reasons for non-production of EPIC. The respondents have also submitted at the time of argument that the presiding officer concerned must ensure that the voter is not able to produce the EPICs due to good reasons beyond his control and that the satisfaction of the presiding officer concerned in this regard is necessary and thereafter only the presiding officer will permit the voter to establish his identity on the basis of alternative documents. After considering the submissions of sides, this Court is of the considered opinion that the impugned Ext.P1/ Annexure A order has been issued by the respondent Election Commission of India in order to effectuate and harmonise the right to vote conferred as per Section 62 of the Representation of People Act, 1951, to those w.p.c.10503/14 - :

70. :- citizens who are conferred an entitlement or right to register as a voter at any election. The impugned action is one aimed at balancing the right to vote with the requirement to prevent impersonation. Even at the previous occasions as in 2004 and in other occasions, it is undisputed case of the respondents that most of the alternative identity documents mentioned in Annexure A except the authenticated photo voter slips, were permitted to be used by the Election Commission by the issue of orders similar Annexure A. This Court in W.P.(C).Nos.29853/2003 and 13590/2004 etc. on previous occasions had refused to interfere with such impugned action of the Election Commission. If the contention of the petitioner that the authenticated photo voter slips permitted by Annexure A is ultra vires Rule 35(3), the all the other alternative identity documents mentioned in Annexure A would also be equally vitiated. This is because, EPIC is the election identity card prepared as per Rule 28 and is one envisaged as per Rule 35(3) of the Conduct of Election Rules, 1962. Even according to the case pleaded by the petitioner, as in -- of the Writ Petition, identity cards include card issued by the election Commission of India, a passport, w.p.c.10503/14 - :

71. :- Aadhar Card or other identity card issued under the authority of a statute. The petitioner has no objection as against the use of alternative photo identity documents like passport, Aadhar card or such other identity cards and only the objection is against the authenticated photo voter slip as alternative identity documents like authenticated photo voter identity card, passport, Aadhar carde or such other identity cards are not prepared in terms of Rule 28 of the Conduct of Election Rules, 1961 inclusion Annexure A would also be equally ultra vires Rule 35(3), if the argument of the petitioner is accepted. So even according to the plead putforth by the petitioner, permissibility of alternative photo identity documents like passport, Aadhar or such other cards as pleaded by him could be validly permitted by the 1st respondent Election Commission of India only by taking recourse to their plenary power conferred under Article 324 of the Constitution of India in order to effectuate and harmonise the right of the voter to vote conferrred as per the aforementioned statutory provisions. Therefore, even going by the plead of the petitioner, this Court is of the prima facie view is that there is reservoir of power available with w.p.c.10503/14 - :

72. :- the respondent Election Commission of India conferred as per Article 324 of the Constitution of India insofar as superintendence, direction and control in respect of the conduct of elections is vested exclusively with the constitutional entity like the Election Commission of India. It has been submitted by the learned Standing Counsel for the respondent Election Commission of India during the argument that the impugned authenticated photo voter identity slip issued by the election machinery is prepared from the computerised data base of the Electoral Photo Identity Card (EPIC) = is the identity card prepared as per rule 28 of the Conduct of Registration of Electors Rules, 1960. The Apex Court in paragraph 29 of the M.S.Gill's case reported in 1978 (1) SCC405 relied on the following decision laid dow