Chennai, Mar 22 The Madras High Court on Friday set aside the election of ruling AIADMK candidate A K Bose, who died last year, in a 2016 by-election, holding that there were violation of norms in affixing of then party chief Jayalalithaa's thumb impression on his nomination papers.
Justice P Velmurugan gave the verdict allowing the election petition filed by P Saravanan, the losing DMK candidate in Thiruparankundram constituency.
He had challenged the victory of Bose in the November 2016 assembly by-poll on the ground that the thumb impression of Jayalalithaa was not genuine.
At the time of filing of the nomination papers for the by-poll, Jayalaithaa, also chief minister of Tamil Nadu, was hospitalised for various complications. She died in December, 2016.
Quoting Supreme Court judgments and provisions of the Representation of People Act, the judge said affixing the thumb impression in Form A and B (by which a party authorises the candidature of its nominee) was generally not permissible under law.
The Election Commission which had allowed it due to the medical condition of Jayalalithaa should have specified that the thumb impression be obtained in the presence of an officer belonging to an administrative service not below the rank of sub divisional officer, he said.
Also, no medical proof was attached vouching for the illness of Jayalalithaa before the thumb impression was obtained and none of the witnesses had stated about her physical and mental status, the judge said.
He said both the Commission as well as the state Chief Electoral Officer had not taken any effective steps to ascertain the physical and mental status of Jayalalitha.
Rapping the EC, the judge said that the Commission had instead permitted attestation of the thumb impression by a medical officer, which is contrary to the election laws laid down by the Supreme Court.
He observed that the EC had acted as the mouthpiece of the ruling party and the Returning officer of the constituency too did not follow the election laws and had accepted the nomination of Bose, knowing fully well it was materially defective.
"The Election Commission, being an independent body, it is very unfortunate; it was acting as mouthpiece of ruling party.
"Even, in evidence, no one has stated that they have seen Jayalalitha and no one stated about the treatment, which had been given to her," the judge said, adding since the former chief minister had died, there was no proof that she was in a conscious state of mind at that time.
At least, if she was alive, the court could have extracted truth regarding the thumb impression, he said.
The judge also faulted Balaji who was allowed to attest the thumb impression of Jayalalithaa, saying it was not done in the presence of the Returning Officer or the Presiding Officer or such other officer specified by the Election Commission.
Also, the attestation should have been videographed and produced before the Returning Officer and also before this court.
In the absence of any documents showing that Jayalalitha was in a conscious state and in view of the non-compliance of mandatory provisions, the court was of the view that the Forms A & B are defective and materially affected, the judge said.
"This court is of the considered view that the Forms A & B are found defective as far as clause 13(c), (d) and (e) of the Election Symbols Reservation and Allotment Order, 1963," the judge held and set aside the election of Bose.
With the judge delivering the verdict in the election petition, the decks have been cleared for holding by-elections in the Thiruparankundram constituency.
The EC, while scheduling by-elections to 18 vacant assembly seats in Tamil Nadu along with the Lok Sabha polls, had withheld polls in three other segments, including Thiruparankundram, citing pendency of election petitions.
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