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The Madras High Court, on September 3, dismissed a writ petition filed by Dravida Munnetra Kazhagam (DMK) president and former Tamil Nadu Chief Minister MK Stalin challenging the post-result checking and verification of Electronic Voting Machines (EVMs) and Voter Verifiable Paper Audit Trail (VVPAT) units used in the Kolathur Assembly constituency.
The court held that the petition was not maintainable in view of the constitutional bar under Article 329(b) (which bars courts from interfering with elections except through an election petition) and the statutory remedy available under the Representation of the People Act, 1951.
A division bench comprising Chief Justice Sushrut Arvind Dharmadhikari and Justice G Arul Murugan held that the petition, despite being structured around alleged irregularities in the post-result verification exercise, in substance sought to invalidate the election of Tamilaga Vettri Kazhagam (TVK) candidate VS Babu and have Stalin declared the elected candidate from Kolathur Assembly constituency.
The court said such reliefs go to the very root of the election result and therefore cannot be sought through a writ petition under Article 226 of the Constitution.
The court observed that Stalin’s plea could not be confined to a challenge against the verification process because the ultimate reliefs sought questioned the validity of the returned candidate’s election.
The court stated: “The petitioner does not merely seek a fresh or more thorough verification, he seeks a declaration that the election of the fourth respondent, the returned candidate, is void, and a further declaration that he himself be declared the duly elected candidate for No.13, Kolathur Assembly constituency.”
The bench further held that these were “reliefs that go to the very root of the election and its result” and that, irrespective of how the pleadings were framed, such a prayer was “nothing but a challenge to the correctness of the election and squarely attracts the bar under Article 329(b) of the Constitution of India.”
Stalin had contested the 2026 Tamil Nadu Legislative Assembly election from Kolathur as the official DMK candidate. The election was notified on March 30, 2026, polling took place on April 23 and counting was held on May 4. On the day of counting, VS Babu, the TVK candidate, was declared elected, while Stalin secured the second-highest number of votes.
The judgment records that Stalin subsequently invoked the post-result verification mechanism arising from the Supreme Court’s decision in Association for Democratic Reforms v Election Commission of India.
Under that mechanism, candidates finishing second or third behind the winning candidate can seek checking and verification of the burnt memory/microcontroller of the Control Unit, Ballot Unit and VVPAT in 5% of the machines used in the constituency, for possible tampering or modification.
The Election Commission of India (ECI) subsequently issued an Administrative and Technical Standard Operating Procedure, the latest consolidated version of which was dated June 17, 2025.
On May 7, Stalin applied for checking and verification of 14 polling stations, representing 5% of the 286 polling stations in the Kolathur constituency, and deposited the prescribed fee. However, according to the judgment, the verification process commenced only on July 29, nearly three months after his application, and continued until August 5.
On that date, the District Election Officer issued a communication enclosing certified copies from the Bharat Electronics Limited engineer and stated that the checking and verification process had been “successfully completed in accordance with the prescribed procedures.”
Stalin’s authorised representative raised several objections during the verification exercise. These included alleged malfunction of VVPAT units at polling stations 28 and 75 during the confirmatory mock poll; alleged irregularities in address tags and seals on the EVM carrying cases at polling station 157; discrepancies between two ballot units and the recorded address tags at polling station 79; and the alleged failure of the control unit at polling station 208 to detect a ballot unit said to bear Stalin’s name.
The petitioner also alleged that 18 technical clarifications sought from the Bharat Electronics Limited engineer remained unanswered and that a request for video recording of the proceedings was not provided. Stalin further complained that no signed technical failure report was furnished in respect of the alleged incidents.
On this basis, Stalin sought several reliefs from the High Court. Apart from seeking to quash the August 5 order, he sought 100% counting of VVPAT slips in the Kolathur constituency, checking and verification of all 286 machines used there, preservation of CCTV footage, custody registers, address tags and other connected material, and ultimately a declaration that Babu’s election was void and that Stalin be declared the duly elected candidate.
ECI’s preliminary objection
The ECI raised a preliminary objection to the very maintainability of the writ petition.
The ECI relied on Article 329(b) of the Constitution and Section 80 of the Representation of the People Act, 1951, arguing that the petition, in substance and effect, called into question the election of the returned candidate. According to the Commission, such a challenge could only be brought through an election petition.
The Commission further argued that the prayer for 100% VVPAT counting amounted, in substance, to a request for a recount and could not be considered in writ jurisdiction without the foundational facts that would ordinarily have to be established before an Election Tribunal.
The ECI also argued that Stalin ought to have filed an election petition within the statutory period of 45 days and could not invoke Article 226 merely because that period had elapsed while the administrative verification process was underway.
The Commission warned that entertaining such writ petitions would open a “Pandora’s box” and allow defeated candidates finishing second or third to bypass the statutory mechanism for challenging elections.
Senior counsel Dama Seshadri Naidu, appearing for the ECI, submitted that the petition was an exercise in “artful drafting” designed to circumvent Article 329(b). He pointed to Stalin’s own pleadings, including the assertion that the writ petition did not “call in question” the election but only challenged the verification process.
The court found force in that submission. It held that a petitioner’s description of his own case could not determine the true nature of the proceeding. Instead, the court said, the nature of the proceeding had to be determined from the reliefs actually sought, read as a whole.
The bench explained that the word “election” in Article 329(b) is used in a wide sense and encompasses the entire electoral process beginning with notification and ending with declaration of the result.
According to the judgment, where the relief sought would interrupt, obstruct or prolong election proceedings, or where it seeks directly or indirectly to adjudicate upon the validity of a declared election result, Article 226 cannot be invoked.
The grievance, however genuine it may be, has to await an election petition, which is the remedy contemplated by the Constitution and the Representation of the People Act.
The court said Stalin’s petition was not limited to the post-result verification exercise because the ultimate relief sought was the removal of the returned candidate and substitution of Stalin in his place.
The bench observed that the statutory scheme also contained safeguards for situations where a candidate other than the returned candidate seeks to be declared elected.
It referred to section 97 of the Representation of the People Act, which deals with recrimination by the returned candidate or another party when such a declaration is sought.
The court noted that Stalin had arrayed 33 other contesting candidates as respondents. According to the bench, this itself demonstrated the nature of the relief sought because a claim to declare a candidate other than the returned candidate necessarily involves the interests of other candidates and may require notice, recrimination and a full adjudicatory process.
The bench held that such an exercise, involving notice, recrimination and a trial based on oral and documentary evidence, could not be undertaken in a writ petition.
EVM and VVPAT allegations have to be tested in an election petition
The court also accepted the ECI’s reliance on Section 100 of the Representation of the People Act.
The bench observed that the grounds raised by Stalin, including alleged VVPAT malfunction during mock polling, alleged violation of Rule 49-T concerning address tags and seals, and the failure of the Control Unit to detect a Ballot Unit, fell within the statutory grounds for challenging an election.
The court said section 100(1)(d)(iii) and (iv) cover, among other matters, improper reception, refusal or rejection of votes and non-compliance with the Constitution, the Representation of the People Act or the rules where such non-compliance materially affects the result of the election.
According to the Bench, the irregularities alleged by Stalin would have to be examined in the context of whether they materially affected the election result insofar as the returned candidate was concerned.
The court emphasised that such a determination would require a full-fledged trial, potentially including expert evidence regarding the technical functioning of EVM and VVPAT units.
“Such an inquiry that calls for a full-fledged trial, including expert evidence on the technical functioning of the EVM and VVPAT units, cannot be undertaken on affidavits in writ jurisdiction,” the Bench held.
The same reasoning applied to Stalin’s demand for 100% counting of VVPAT slips and verification of all 286 machines. The court said that even assuming such a course could be warranted in an appropriate case, it could only be ordered by an Election Tribunal after the petitioner established a prima facie case through evidence.
Supreme Court’s EVM-VVPAT judgment and the 5% verification mechanism
The dispute before the Madras High Court arose against the backdrop of the Supreme Court’s April 2024 judgment in Association for Democratic Reforms v Election Commission of India, in which the top court considered pleas seeking, among other things, 100% verification of EVM data with VVPAT slips.
The Supreme Court on April 26, 2024 rejected the plea for 100% counting of VVPAT slips and declined to return to the paper-ballot system. At the same time, the court introduced additional safeguards, including a mechanism permitting candidates who finished second or third to seek verification of the burnt memory/microcontroller of 5% of EVMs after the declaration of results.
The Supreme Court directed that the burnt memory/microcontroller of the Control Unit, Ballot Unit and VVPAT in 5% of EVMs in an Assembly constituency, or an Assembly segment of a Parliamentary constituency, could be checked and verified by engineers from the EVM manufacturers for possible tampering or modification. The request had to be made in writing by the candidate placed second or third behind the highest-polling candidate and within seven days of declaration of the result.
The Supreme Court also directed that the candidate or representative seeking verification would identify the machines by polling station or serial number and that candidates and their representatives would have the option to remain present during the verification. The cost was to be borne by the candidate making the request, with reimbursement if the EVM was found to have been tampered with.
The Supreme Court additionally directed that, following completion of the symbol-loading process in VVPATs, the Symbol Loading Units should be sealed and secured and kept in strong rooms along with the EVMs for at least 45 days after declaration of results.
The April 2024 judgment also dealt with demands for 100% VVPAT counting. The Supreme Court did not accept the contention that voters have a fundamental right to have all VVPAT slips physically counted. The judgment instead treated the existing verification framework as part of the safeguards surrounding the electoral process.
The Madras High Court’s judgment specifically examined the significance of that Supreme Court ruling in the context of Stalin’s plea.
The High Court rejected Stalin’s reliance on the Supreme Court’s decision to contend that the post-result verification process constituted a separate legal route through which its outcome could be challenged under Article 226.
The Madras High Court held that nothing in the Supreme Court’s judgment indicated that an order passed under the resultant Standard Operating Procedure was intended to become challengeable under Article 226 in derogation of the statutory election-petition remedy.
The bench stated: “The verification mechanism was engrafted as an additional safeguard and not in substitution of the remedy of an election petition.” It further held that any material gathered during verification would strengthen the evidentiary foundation of an election petition rather than create an independent cause of action in writ jurisdiction.
The court therefore concluded that Stalin’s reliance on the Supreme Court’s decision did not advance his case on maintainability.
Court invokes ‘Pandora’s box’ argument
The bench also considered the ECI’s argument that allowing writ petitions of this nature would open a “Pandora’s box”.
The court found substance in the apprehension, observing that if every alleged anomaly in a post-result verification exercise could become the basis for a writ petition seeking to remove the returned candidate and declare the runner-up elected, the statutory election-petition mechanism would effectively become meaningless.
“If every such anomaly, as pleaded in this writ petition, is made a basis for filing the writ petition seeking to unseat the returned candidate and to declare the runner-up elected, the statutory scheme of election petitions, hedged as it is with limitation, verified pleadings, security for costs and recrimination, would be rendered wholly illusory,” the bench held.
The court added that every defeated candidate finishing second or third would then have an alternative to an election petition, undermining the finality that Article 329(b) seeks to secure for the constitution of legislative bodies.
Stalin’s argument on the 45-day limitation
A Union government argument advanced on Stalin’s behalf was that he had acted promptly after the election result, but the EVM verification itself was delayed by the authorities.
Senior Advocate Kapil Sibal argued that Stalin had applied for verification on May 7, within the seven-day period prescribed under the Supreme Court’s mechanism, but the actual verification began only on July 29 and concluded on August 5.
By then, the 45-day period for filing an election petition had expired.
Sibal argued that Stalin could not be left without a remedy because the very verification process that generated the alleged irregularities had taken place after the statutory period had run out. The judgment records his submission that the petitioner had applied within the prescribed time but that the machines were opened only after the 45-day period.
Stalin’s counsel also maintained that the verification mechanism was a distinct post-result process arising from the Supreme Court judgment and was not part of the ordinary election-dispute mechanism under the Representation of the People Act.
The High Court, however, rejected the contention that the expiry of the 45-day period could enlarge its jurisdiction under Article 226.
The bench said that whether the delay caused by the verification process had an effect on the computation of limitation, and whether any relief was available to Stalin in that regard, were matters to be considered by the Election Tribunal if an election petition was presented.
The court expressly declined to decide whether Stalin would ultimately be entitled to any relief concerning limitation.
“Suffice it to observe that a difficulty of this kind, even where genuine, is not a ground on which the constitutional bar under Article 329(b) of the Constitution of India can be circumvented,” the Bench said.
Court leaves EVM allegations open
Importantly, the High Court did not adjudicate the truth or otherwise of the allegations raised by Stalin regarding the EVM and VVPAT verification.
The bench made it clear that its decision was based on maintainability and that it was therefore unnecessary to examine the merits of the alleged irregularities or the correctness of the August 5 order.
“All contentions on merits, including those relating to the alleged breach of Rule 49-T of the Rules, the malfunction of the VVPAT units, and the non-detection of the ballot unit at Polling Station No.208, are left open to be urged before the appropriate forum,” the court said.
Thus, the ruling does not amount to a judicial finding that the alleged EVM or VVPAT irregularities did not occur. Instead, the court held that the High Court, exercising writ jurisdiction, was not the appropriate forum to determine those allegations when the relief sought effectively challenged the election result.
The court held that Stalin’s remedy, if any, lies in an election petition before the appropriate forum, where the allegations concerning the verification process can be raised, subject to establishing that the alleged non-compliance materially affected the election result.
