The Supreme Court, on May 13, stayed the Madras High Court’s interim order restraining Tamilaga Vettri Kazhagam (TVK) MLA R Seenivasa Sethupathi from voting in the Tamil Nadu Assembly floor test. The apex court also stayed further proceedings in the writ petition filed by DMK candidate KR Periakaruppan challenging Sethupathi’s election victory.
The controversy stems from the Tirupattur Assembly constituency election in Sivaganga district, where Sethupathi defeated DMK leader KR Periakaruppan by a margin of one vote.
A bench of Justice Vikram Nath, Justice Sandeep Mehta and Justice Vijay Bishnoi heard the plea filed by Sethupathi against the Madras High Court’s order barring him from participating in the trust vote scheduled in the Assembly on May 13.
Senior Advocate Abhishek Manu Singhvi, appearing for the TVK MLA, argued that the High Court’s order was “so erroneous that some strictures should be passed”. Singhvi also expressed surprise that the writ petition, filed on a Saturday evening, was urgently heard on Sunday.
Questioning the maintainability of the writ petition, the Supreme Court bench asked Senior Advocate Mukul Rohatgi, appearing for Periakaruppan, how a petition under Article 226 could be entertained against an election result when the appropriate remedy was an election petition.
“This is atrocious. The High Court says remedy is election petition and still entertains the writ petition,” Justice Sandeep Mehta observed, according to LiveLaw.
Rohatgi defended the High Court’s exercise of extraordinary jurisdiction, contending that the case involved unprecedented facts. He submitted that Periakaruppan had contested from constituency number 185, Tirupattur, in Sivaganga district, while another constituency with the same name existed in Tirupattur district.
According to Rohatgi, a postal ballot cast in favour of the DMK candidate was mistakenly delivered to the wrong constituency during counting. Had the ballot been counted correctly, the result would have been a tie, requiring determination through draw of lots under election rules.
The Supreme Court, while granting Rohatgi time to file a counter affidavit, stayed the High Court’s interim order and the proceedings pending before it.
The matter was mentioned for urgent listing by Singhvi on May 12 before Chief Justice of India Surya Kant, citing the imminent floor test in the Tamil Nadu Assembly. The CJI agreed to list the matter urgently on May 13.
The Madras High Court had restrained Sethupathi from participating in any floor test or trust vote while hearing Periakaruppan’s plea alleging a postal ballot mix-up during the counting process.
Justices L Victoria Gowri and N Senthilkumar passed the interim order after Periakaruppan claimed that a postal ballot cast in his favour was mistakenly sent to another Tirupattur constituency in Tirupattur district instead of Tirupattur constituency in Sivaganga district.
Senior counsels Mukul Rohatgi and NR Elango argued before the High Court that if the misplaced postal ballot had been counted properly, the election would have ended in a tie.
The petitioner relied on an affidavit by S Rajendran, counting agent for DMK candidate A Nallathambi in Tirupattur district, who allegedly stated that one postal ballot cast in favour of Periakaruppan was kept aside during counting as it belonged to another constituency.
Before the High Court, Singhvi had argued that the plea was “a clever camouflage of an election petition into a writ petition” and submitted that the Returning Officer had become “functus officio” after declaration of the election results. This means the officer’s legal role in the election process had ended once the results were officially announced, and therefore the officer could not reopen or alter the counting process afterward.
Questioning the Election Commission’s stand, the High Court had observed: “How can the ECI say it has become functus officio when the primary issue is one ballot paper went to one constituency from another?”
The High Court had also sought details regarding action taken by election authorities on representations submitted by Periakaruppan after declaration of the results.
