LAWS(MAD)-2006-9-277

M AJMAL KHAN Vs. ELECTION COMMISSION OF INDIA

Decided On September 07, 2006
M. AJMAL KHAN Appellant
V/S
ELECTION COMMISSION OF INDIA Respondents

JUDGEMENT

(1.) THE Election Commission of India with a view to improving the fidelity of the electoral rolls and to evolve methods to check impersonation and eradicate bogus voting decided to undertake the project of putting the photographs in the electoral roll itself so as to achieve the purpose of proper identification of the electors at the polling stations. Accordingly, the Commission during the year 2003 undertook pilot projects in two Assembly Constituencies in Kerala and two Assembly Constituencies in Harayana. In view of the encouraging results, the Commission issued a direction vide its communication dated 18.12.2003 to the Chief Electoral Officers of all the States and Union Territories. Pursuant to the directions issued from time to time in this regard the work had begun in various States for preparing electoral rolls with photographs. So far as the State of Kerala and the Union Territory of Pondicherry are concerned, the preparation of electoral rolls with photographs has been fully completed and also used in the General Elections held in May 2006. In so far as the State of West Bengal is concerned, in 46 Assembly Constituencies the work was completed and the photo rolls were used in the General Elections held in May 2006. In so far as the State of Tamil Nadu is concerned, the Election Commission has directed to prepare and revise the electoral rolls with photographs of voters keeping 1.1.2006 as qualifying date for Madurai Central Assembly Constituency and in respect of the other 233 Assembly Constituencies, the qualifying date is 1.1.2007. Bye-election has to be conducted before 19.11.2006 for Madurai Central Assembly Constituency in view of the sudden demise of its representative immediately after the General Elections in May 2006. In respect of 143- Madurai Assembly Constituency photo electoral roll has been prepared and the draft photo electoral roll was published on 11.8.2006 and the final photo electoral roll is ready to be published.

(2.) THE constitutional validity of the aforesaid direction is put in issue in this writ petition under Article 226 of the Constitution of India. THE petitioner-M. Ajmal Khan is seeking for issuance of writ of mandamus forbearing the Election Commission from in any way publishing or releasing the photographs of the women particularly the Muslim Gosha women in the eligible voter's list in respect of all the Constituencies in the State of Tamil Nadu particularly for the ensuring bye-election to Madurai Central Assembly Constituency. THE contention of the petitioner is that though the requirement of photo identity cards to be kept by eligible voters for the purpose of voting cannot be disputed or the same cannot be found illegal as it is in the welfare of the General Election and towards the fairness, but the usage of such photographs in the final electoral rolls, which is easily accessible to any one including the representatives of political parties on payment of necessary charges, cannot be said to be necessary and mandatory for ensuring fair election. THE usage of photographs in the electoral rolls of eligible voters and in particular the photographs of Muslim Gosha Women will easily find its way into the hands of those persons whose identity is not known, which is opposed to religious beliefs, tenets of Koran and it will cause irreparable loss, damage, mental agony to the entire muslim community at large. It is contended that wearing of purdah by Muslim women is one of the principles laid down in Holy Koran and it has to be strictly followed by Muslim women. From the time immemorial the Muslim women are adhering to these principles in their life. THErefore, any interference with such religious practice would amount to interfering with the fundamental right of the Muslim women, which is guaranteed under Article 25 of the Constitution of India.

(3.) IN Masud Alam v. Commissioner of Police, AIR 1956 Cal.9, the Commissioner of Police refused his permission to the use of an electrical loudspeaker five times a day for calling the Azan (call for prayer) as several residents of the locality complained against the practice. It was argued for the Mutawalli of the mosque that had introduced the loudspeaker that the liberty allowed under Art.25 of the Constitution has been curtailed by the suppression of the use of loudspeakers to propagate the Azan in a very crowded and noisy locality where the Azan cannot be heard, unless magnified by some such device as a loudspeaker. Sinha,J. rejecting the argument observed thus: -