Chennai: The Madras high court has declared as null and void, the election of AIADMK candidate late A.K.Bose from the Thiruparankundram Assembly constituency.
Justice P.Velmurugan allowed the election petition filed by the defeated DMK candidate Dr.P.Saravanan, challenging the result of the bye election of A.K.Bose from Thiruparankundram assembly constituency which was held during November 2016.
In so far as the original application, which sought to declare the petitioner as duly elected, is concerned, the judge said since the election for Thiruparankundram assembly constituency is declared as null and void on the ground of defective nomination of the returned candidate, but not on the ground of corruptive practice. “This court cannot say that when more than one person is contesting in the election, if the returned candidate’s nomination is rejected, all the voters will cast their votes only to the election petitioner. Thereby, the election petitioner cannot be declared as winning/returned candidate. Hence the relief sought for in this application is dismissed”, the judge added.
Concurring with the submission of V.Arun, counsel for election petitioner, the judge said admittedly in this case, no such officer (officer in the administrative service not below the rank of a Sub Divisional Officer) had attested the thumb impression of Jayalalithaa in Forms A and B. The Election Commission of India as well as the Chief Electoral Officer, Tamil Nadu has not taken any steps to ascertain the physical and mental status of Jayalalithaa. Particularly, when the representation from AIADMK party chairman Madhusudanan was not annexed with any medical certificate issued by competent medical officer.
The CEO admittedly has not ascertained by visually, directly or through competent medical officer or through any valid medical certificate. The ECI should have advised the CEO to ascertain the medical status of Jayalalithaa. Instead the EC through a letter permitted to affix the thumb impression attesting by any medical officer, which itself was contrary to the election laws and the law laid down by the Supreme court. Further the name of Dr.P.Balaji was not specified by the Election Commission. “This court is of the considered view that the Forms A and B are found defective as far as clause 13 © (d) and (e) of the Election Symbols Reservation and Allotment Order”, the judge added.
The judge said from the evidence of the returning officer, it was clear that she did not follow the election laws, instead acted as mouth piece of the ruling party by accepting the defective nomination of the returned candidate knowing fully well the nomination of the returned candidate was materially defective. The election commission being an independent body, it was very unfortunate, it was acting as mouth piece of ruling party. Even in evidence, no one has stated that they have seen Jayalalithaa and no one stated about the treatment, which had been given to her. Admittedly, Jayalalithaa had not retrieved and there was no proof to show that before ordering or after affixing thumb impression in Forms A and B submitted by the returned candidate, Jayalalithaa was in a conscious state of mind (sound disposing state of mind). It was fortunate for the returned candidate and all the persons who aided and assisted him, that Jayalalithaa was no more. At least if she alive, this court could have extracted truth regarding the thumb impression affixed in Forms A and B.
The election Commission of India had not interpreted the election law in permitting the AIADMK party to affix thumb impression that too not in the presence of the officials. The election officials have not taken any effective steps to prove that they have followed election laws and they have acted in accordance with law, the judge added.
ECI can proceed with the conduct of election immediately: Wilson
With the Madras high court declaring as null and void, the election of AIADMK candidate late A.K.Bose from Thiruparankundram Assembly constituency and declining to entertain the application filed by the defeated DMK candidate Dr. P. Saravanan as duly elected from the constituency, the legal position is that “the seat stands vacant”.
Asked about the legal position now prevailing after the verdict of the High court, Senior Counsel and former additional advocate general P.Wilson said because the returned candidate A.K.Bose died even before the judgment, the seat stands vacated.
The consequence of the court holding that the thumb impression of former chief minister J.Jayalalithaa is not acceptable will reflect on the two other candidates who got similar authorization letter and whose nominations were accepted by the election commission and who were successful in the election. But, interestingly, one candidate Senthil Balaji from Aravakurichi assembly constituency is already disqualified. Likewise, another candidate from Thanjavur assembly constituency is disqualified by the Speaker under the anti-defection law. The Doctor who attested namely Dr.Balaji is liable for prosecution, he added.
He said since the high court has set aside the election of A.K.Bose and refused to declare the defeated candidate as duly elected, the election commission can proceed with the conduct of election immediately....