CHENNAI: The Madras High Court on Monday reserved the orders on a writ petition filed by former Chief Minister and DMK President MK Stalin seeking to nullify the victory of TVK MLA VS Babu in Kolathur Assembly constituency in the 2026 polls on the grounds of malfunctioning, mismatch and discrepancies among the three units of electronic voting machines (EVMs) during the post-counting verification.
The first bench of Chief Justice Sushrut Arvind Dharmadhikari and Justice G Arul Murugan reserved the orders after hearing the petition which seeks 100% counting of the VVPAT and checking and verification of all the 286 electronic voting machines used in the constituency within a timeframe.
Appearing for the DMK leader- who suffered a shock defeat in the polls, senior counsel Kapil Sibal said his client submitted an application for the post-counting checking and verification of the EVMs on May 7. But the Election Commission of India conducted the exercise from July 29 after a 45 days-delay.
He said the Supreme Court has mandated the ECI to hold the post-counting checking and verification of 5% of the EVMs used in a constituency.
Fourteen machines were to be checked; and 3 of four machines were not functioning; so, another four were selected, of them one was not functioning, he said.
“During checking, a VVPAT came between the ballot unit and control unit and the message was sent to the software which can easily be manipulated,” he said.
He sought the court to issue directions to the ECI to count all the EVMs.
When the bench asked whether the remedy did not lie in an election petition, Sibal replied the ECI held the check after 45 days' delay and so Stalin could not file an election petition and so the bar under Article 329 of the Constitution will not apply in this case.
“The ECI, under the law, has to verify the 5% EVMs immediately. This is the duty directed by the Supreme Court,” he said.
“Can the ECI not perform a duty which is pursuant to a Supreme Court order”, he asked, when the bench questioned why the petitioner did not approach the ECI with a reminder.
Citing malfunctioning of EVMs during the checking, he informed the court that in one polling station (No 208), the ballot unit was not detected, thereby the name of Stalin was not detected by the control unit. “This is shocking,” he said.
Sibal emphasized, “This must be investigated whether the court allows the prayer or not.”
Senior counsels G Rajagopalan and Dama Seshadri Naidu, representing the ECI, emphasized that the remedy for the petitioner lies in the election petition under section 80 the Representation of the People Act and not a writ petition under Article 226 of the Constitution.
They noted that there is a bar on such petitions as per Article 329 (B) of the Constitution and said the petitioner should have approached the ECI before the lapse of the 45 days for holding the post-counting checking.
“If the writ petition is allowed, it will open a Pandora’s Box,” they said, and noted the petition is not maintainable.
Stalin, in his petition, has also sought the court to declare the victory of Babu as invalid and consequently, declare him as elected.
Meanwhile, he withdrew another petition which challenged the standard operating procedure set by the ECI on checking of the machines and the court granted liberty to file a fresh one.