TVK MLA R Seenivasa Sethupathi – who won by just one vote – can vote in the trial of strength in the Tamil Nadu Legislative Assembly as the Supreme Court on Wednesday stayed the Madras High Court’s order restraining him from participating in the floor test.
“This is atrocious to say the least…the high court says that the remedy is an election petition but still entertained an Article 226 petition? This will take away the remedy of an election tribunal,” a Bench led by Justice Vikram Nath said, suspending the operation of the high court’s May 12 order.
The TVK government crossed a major hurdle on Wednesday, winning a confidence-boosting trust vote by a 144:22 margin amid a walkout by the principal opposition party DMK and a divided AIADMK whose one faction supported the C Joseph Vijay-led government.
In the 234-member House, 118 is the simple majority mark.
AIADMK MLAs backing chief Edappadi K Palaniswami voted against the government. The BJP, with its lone MLA, stayed neutral while another NDA constituent, the PMK (4), also abstained.
Acting on defeated DMK candidate and former minister KR Periakaruppa’s petition alleging irregularities in the counting process and rejection of a postal ballot that was mistakenly sent to another constituency, the high court had restrained Sethupathi from voting or participating in floor test, confidence motion, no-confidence motion, trust vote, pending further orders.
However, the Bench – which also included Justice Sandeep Mehta and Justice Vijay Bishnoi – said the high court should not have entertained Periakaruppa’s petition in view of the constitutional scheme governing election disputes.
The top court also stayed further proceedings before the high court in the matter and issued notice to Periakaruppa on Sethupathi’s petition asking the DMK leader to file his response in two weeks.
The order came after senior advocate Abhishek Manu Singhvi submitted on behalf of Sethupathi that the high court’s order was blatantly illegal. “This is one case where strictures are required,” Singhvi told the Bench which sought to know the EC’s view on the controversy.
“How did you file a writ petition under Article 226?” the Bench asked senior counsel Mukul Rohatgi, who represented Periyakaruppan.
Rohatgi explained that it was due to the fact that two constituencies shared the name Tiruppattur — one in Sivagangai district and the other in Tirupattur district, resulting in an alleged mix-up of postal ballots.
“If votes have gone elsewhere, there is no other provision and I do not have the remedy to move an election petition,” Rohatgi told the Bench.
Periakaruppan alleged that one postal ballot meant for No.185 Tiruppattur constituency was wrongly sent to No.50 Tiruppattur Assembly constituency in Tirupattur district. The ballot was rejected there instead of being forwarded to the correct returning officer for consideration, he alleged.
Due to alleged discrepancies in the electronic voting machine (EVM) count, there was an 18-vote variation between the consolidated counting abstract and figures published on the Election Commission website, he had pointed out.
In its interim order, the high court noted that a strong prima facie case had been made out for a limited protective direction even as it clarified that the order did not amount to setting aside Sethupathi’s election, nor did it confer any right on Periakaruppan to be declared elected.
The high court had directed authorities to secure and preserve all records related to the counting process in the No.185 Tiruppattur assembly constituency, video footage concerning counting, scrutiny, rejection of postal ballots and reverification proceedings, in their original electronic form along with backup copies.
