Chennai (Tamil Nadu) [India], May 13 : The Supreme Court on Wednesday stayed the Madras High Court's interim order to restrain TVK MLA R Srinivasa Sethupati from participating in the Assembly proceedings in Tamil Nadu over a postal ballot mix-up.
The High Court's interim order had come on a plea moved by the DMK candidate who lost to TVK's Sethupati in the Tirupattur constituency by one vote. DMK had alleged that one vote (a postal ballot) was wrongly counted in another constituency.
Observing that the High Court's decision to entertain the DMK candidate's plea as atrocious, a bench of Justices Vikram Nath, Sandeep Mehta and Vijay Bishnoi have also asked DMK's KR Periakaruppan to file their counter affidavit in two weeks' time. TVK's Sethupati, the petitioners in the matter, have been asked to file a rejoinder (response to counter) within two weeks' time.
"In the meantime, the effect and operation of the impugned order shall remain stayed, and further proceedings before the High Court in the pending writ petition shall also remain stayed", the apex court noted in its order today.
The apex court verbally stated that the Madras High Court entertained the plea filed by the DMK candidate under its writ jurisdiction (Article 226) despite noting that such a remedy only lies under an election petition. "It's atrocious", Justice Sandeep Mehta remarked.
TVK MLA Sethupati had approached the apex court seeking ex parte ad interim relief by staying the High Court order. In its plea, the TVK party had challenged the maintainability of DMK candidates' plea before the Madras High Court.
TVK's Sethupathi, in his plea before the Supreme Court, argues that Article 329(b) of the Constitution creates a complete bar on High Courts exercising writ jurisdiction under Article 226 in election matters. According to Sethupathi, disputes relating to elections must only be raised through an election petition under Section 80 of the Representation of the People Act, 1951 (RPA). The plea states that constitutional bench judgments, including N.P. Ponnuswami, Durga Shankar Mehta, and Mohinder Singh Gill have consistently held that courts cannot interfere in the election process through writ proceedings once the election process has begun and until results are declared.
Sethupathi submits that challenges relating to improper acceptance or rejection of votes are specifically covered under Section 100(1)(d)(iii) of the RPA and must therefore be decided only in an election petition. He argues that the Madras High Court erred in holding that the alleged rejection of a postal ballot fell outside the legislative scheme. The plea further states that even if a grievance is not expressly covered under Section 100(1), it would still fall within the residuary provision under Section 100(1)(d)(iv), which covers non-compliance with the Constitution, the RPA, or election rules.
Sethupathi contends that the fact that the election margin was one vote does not create an exceptional circumstance permitting writ jurisdiction. He argues that Section 100 itself contemplates situations where improper acceptance or rejection of votes materially affects the election result.
The plea also challenges the interim directions passed by the High Court restraining Sethupathi from functioning as an MLA. It argues that while the writ petition was presented as one seeking preservation of evidence, the interim relief effectively suspended his election, which can only be done in an election petition under the RPA.
Sethupathi further states that the case involves disputed questions of fact, especially since the Election Commission has disputed the factual allegations in its affidavit. According to the plea, such factual disputes require evidence and a trial, which can only take place in an election petition.
The plea also argues that the Returning Officer had already disposed of the earlier representations and became functus officio after the declaration of results and issuance of the election certificate.
Sethupathi challenged the High Court's observations regarding the impact of his participation in a floor test on the balance of power in the Assembly. The plea states that such political considerations are irrelevant to deciding election disputes or preserving evidence and amount to unjustified judicial interference in the political domain.
During the hearing today, Senior Advocate Abhishek Manu Singhvi, appearing for TVK's Sethupati, sought a stay of the Madras High Court order.
Senior Advocate Mukul Rohatgi, representing the respondent DMK candidate, on the other hand, argued that owing to a postal ballot mix-up, the results in the said constituency where TVK emerged victorious over his client, the DMK candidate, have been affected. Had the postal ballot counting of one vote been done correctly, the results would be a draw.
"A vote meant for one constituency went to another constituency. Had it come to the correct postal address, there would have been a draw. The law says there had to be a toss," the senior lawyer ok behalf of DMK candidate.
Rohatgi sought to file a counter-response to the TVK MLA's plea and argue the matter. The Court granted two weeks time for the DMK candidate to file his response to the TVK MLA's plea.
Meanwhile, it stayed the Madras HC order to restrain TVK MLA from participating in assembly proceedings.
Along with Senior Advocate Abhishek Manu Singhvi, the TVK MLA Sethupati was represented by Advocates Dixita Gohil, Pranjal Agrawal, Rupali Samuel and Yash S. Vijay.
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