Ashok Singh vs Vivek Narayan Shejwalkar

By this order, IA No. 4418/2019 filed by intervenor-Election Commission of India under Section 151 of CPC seeking intervention for releasing the

Electronic Voting Machines (EVMs) and VVPATs involved in the election, is being decided.

Election Commission has filed the aforesaid application under Section 151 of CPC seeking intervention for releasing the Electronic Voting Machines

(EVMs) and VVPATs involved in the election.

The intervenor has submitted that the Election Commission had conducted elections to the Member of the House of People (Lok Sabha) in April-

May 2019 and the polling of the Constituency (PC) No.3, Gwalior was held on 12.5.2019 and the result was declared on 26.5.2019. The election was

held using Electronic Voting Machines (EVMs) and VVPATs in accordance with Conduct of Election Rules, 1961 and the provisions contained in the

Representation of Peoples Act, 1951. It is further submitted that total 19 election petitions have been filed before this Court and as per Section 199(1)

and Section 101 of the Representation of Peoples Act, 1951, the limitation prescribed is 45 days to file election petition before the Court, hence there is

no possibility of any further election petition being filed. It is further submitted that the EVMs and VVPATs in question are required for the general

elections. Therefore, it has been prayed by learned counsel for the Election Commission that either EVMs and VVPATs be released or as per the

judgment passed in N. Chandrababu Naidu and others vs. Union of India and others, reported in (2019) 15 SCC 377, withholding five randomly

selected EVMs and VVPATs, which were tallied, remaining EVMs and VVPATs be directed to be released. In paragraph 8 of the said application,

the intervenor has given the details of the EVMs and VVPATs involved in the aforesaid election. The application is supported with affidavit.

Learned senior counsel appearing for the election petition has filed reply to the aforesaid application, vide document No. 1957/2020, and has

opposed the intervention application by submitting that it is not maintainable as it shows malafide on the part of the Election Commission. It is further

submitted that the supporting documents filed with the application are guidelines only which cannot be relied upon. The application is filed specifically

on the grounds pleaded in its paras 12, 13, 14, 15 and 16 and if EVMs and VVPATs are being returned to the Election Commission then the present

election petition shall render infructuous. Under the facts and circumstances of the present case, the judgment in N. Chandrababu Naidu (supra) cited

by the Election Commission is not applicable. It is further submitted that the application deserves to be dismissed also on the ground that the Election

Commission has not submitted Form No. 17-C of EVM and apart from it, this is not the stand of the Election Commission that the Commission cannot

manage EVMs other than the aforementioned machines used in election of MP 2019. Under these circumstances, learned senior counsel for the

election petitioner prays for dismissal of the application filed by Election Commission. The reply is also supported with affidavit.

Perused the election petition as well as the application filed under Section 151 of CPC filed by the intervenor-Election Commission.

In the election petition the petitioner has raised objections with regard to data saved in EVMs and VVPATs (in documentary form). In his

pleadings, the election petitioner has disputed the seized EVMs as well as VVPATs on the legal provision that the voting in all the Parliamentary

Constituencies in the country was held by Electronic Voting Machines. It is submitted that Rule 49-A of the Conduct of Election Rules 1961

(hereinafter referred to as ""the Rules""), reads as under :-

49-A. Design of electronic voting machines.- Every electronic voting machine (hereinafter referred to as the voting machine) shall have a control unit

and a balloting unit and shall be of such designs as may be approved by the Election Commission: Provided that a printer with a drop box of such design, as may be

approved by the Election Commission, may also be attached to a voting machine for printing a paper trail of the vote, in such constituency or constituenciesÂ

or parts thereof as the Election Commission may direct.

Petitioner has also pleaded that in the judgment in Civil Appeal No.9093/2013[Dr.Subramanian Swamy vs. Election Commission of India] with Writ

Petition (Civil) No.406/2012, [Rajendra Satyanarayan Gilda vs. Union of India], the Hon'ble Apex Court has directed for introducing a system for

Voter Verifiable Paper Audit Trail (VVPAT) together with the existing system of Electronic Voting Machine. The Hon'ble Apex Court while

adjudicating the aforesaid case noted and observed as regards necessity of the use of system of VVPAT in the elections as follows:

.....It is the categorical stand of the appellant that the above said system will bring more accuracy in the present system and if a particular election is

challenged on the ground that some particular identified voter's votes or the votes of a group of voters have been suppressed/have not been correctly

assigned by the EVMs, the accepted current procedure is for a re-run of the same EVMs for a recount, however, under the new procedure, a re-

count will be of the receipts in the ballot box containing the printouts the EVMs had issued to the voter thereby ensuring more transparency in the process.

In the aforesaid case, the Hon'ble Apex Court has further held as follows:-

.....We have already highlighted that VVPAT is a system of printing paper trail when the voter casts his vote, in addition to the electronic record of the ballot, for the

purpose of verification of his choice of candidate and also for manual counting of votes in case of dispute.

It is further pleaded that the aforesaid direction of the Hon'ble Supreme Court goes to show that the intention behind introduction of the system of

VVPAT is that recounting or testing of total votes recorded in Controlling Unit must match with the printed paper trails in VVPAT.

It has also been submitted that Rule 56-D of the Rules was introduced by way of an amendment w.e.f. 14. 08.2013, which is pursuant to

introduction of the system of VVPAT, and the same reads as follows:

56-D. Scrutiny of paper trail. -

(1) Where printer for paper trail is used, after the entries made in the result sheet are announced, any candidate, or in his absence, his election agent or any of his

counting agents may apply in writing to the returning officer to count the printed paper slips in the drop box of the printer in respect of any polling station or polling

stations.

(2) On such application being made, the returning officer shall, subject to such general or special guidelines, as may be issued by the Election Commission, decide the

matter and may allow the application in whole or in part or may reject in whole, if it appears to him to be frivolous or unreasonable.

(3) Every decision of the returning officer under sub-rule (2) shall be in writing and shall contain the reasons therefor.

(4) If the returning officer decides under sub-rule (2) to allow counting of the paper slips either wholly or in part or parts, he shall-

(a) do the counting in the manner as may be directed by the Election Commission;

(b) if there is discrepancy between the votes displayed on the control unit and the counting of the paper slips,amend the result sheet in the Form 20 as per the paper

slips count;

(c) announce the amendments so made by him; and

(d) complete and sign the result sheet.

It is further submitted that the Commission had issued instruction/order dated 13.10.2017 for verification of VVPAT paper slips-Pilot Testing.

Such instructions required mandatory verification of VVPAT paper slips randomly selected 01 (one) polling station per Assembly Constituency on a

'pilot' basis. This mandatory verification of VVPAT of 01 (one) polling station (randomly selected) will be in addition to the provision of Rule 56-D of

the Rules. The relevant portion of such instruction/order dated 13.10.2017 is quoted hereunder:

For this 'pilot' verification of VVPAT paper slips of randomly selected 01 (one) polling station per Assembly Constituency, the following procedure shall be

followed:

The verification of VVPAT paper slips of randomly selected 01 (one) polling station for each Assembly Constituency shall be taken after the completion of the last

round of counting of votes recorded in the EVMs.

The random selection of 01 (one) polling station per Assembly Constituency shall be done by Draw of lots, by the Returning Officer concerned, in the presence of

candidates/their agents and the General Observer appointed by the Commission for that Assembly Constituency.

The draw of lots must be conducted immediately after the completion of the last round counting of votes recorded in the EVMs (Control Units) in the designated

Counting Hall for the particular Assembly Constituency.

A written intimation regarding the conduct of draw of lots for the random selection of 01 (one) polling station for verification of VVPAT Slips shall be given by the

Returning Officer to the Candidates/their election agents well in advance.

The following procedure shall be followed for the conduct of draw of lots.

a. White colour paper cards of postcard size shall be used for conducting the draw of lots.

b. Total number of such paper cards should be equal to total number of polling stations in the Assembly Constituency.

c. The paper cards shall have pre-printed Assembly Constituency number, AC name and date of polling on the top, and the polling station number in the centre. Each

digit of the polling station number shall be atleast 1"" X 1"" (1 inch by 1 inch) size and printed in black ink.

d. The paper cards to be used for draw of lots should be four-folded in such a way that polling station number is not visible.

e. Each paper card shall be shown to the candidates/their agents before folding and dropping in the container.

f. The paper cards shall be kept in the big container and must be shaken before picking up 01 (one) slip by the Returning Officer.

On perusal of Election Petition, it is apparent that the petitioner of the Election Petition has disputed EVMs as well as the VVPATs and its data

under the aforementioned legal provisions. Therefore, the EVMs as well as VVPATs involved in this case are directly subject matter of evidence in

the present case. The Election Commission has not established that there is General Election in near future and if the seized machines are not released

then the process of future elections would be affected.

Therefore, on the basis of above discussion, the application (IA No. 4418/2019) is hereby dismissed.

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