Imtiyaz Khan Yakub Khan Pathan vs State Election Commission, Gujarat State

Vikram Nath, CJ

We have heard Shri K.R.Koshti, learned counsel for the petitioner, Shri Mihir Joshi, learned Senior Advocate assisted by Ms.Roopal Patel, learned

counsel for respondent No.1 â€" State Election Commission and Ms.Manisha Lavkumar, learned Government Pleader assisted by Ms.Aishwarya

Gupta, learned Assistant Government Pleader for the State respondent Nos.2 and 3.

By means of this petition under Article 226 of the Constitution framed as a Public Interest Litigation, the petitioner who alleges himself to be a

practicing Advocate at Ahmedabad and also being a Social Activist has prayed for the following reliefs :

“(a) Your Lordships may be pleased to allow the present writ petition (PIL);

(b) Your Lordships may be pleased to issue a rate of mandamus or any other appropriate writ / direction / order to hold the action or inaction on the

part of the respondent No.1 herein in not declaring or making announcement that the due election of the local bodes in the State of Gujarat will be

conducted through ballot paper instead of Electronic Voting Machine since they don’t have VVPAT;

(c) Your Lordships may be pleased to pass appropriate writ, order or direction to quash and set aside the action of the respondent No.1 herein in not

declaring or making announcement that due election of the local bodies in the State of Gujarat will be conducted through ballot paper instead of

Electronic Voting Machines in absence of VVPAT machines with the State Election Commission;

(d) Your Lordships may be pleased to pass appropriate writ, order or direction directing Respondent No.1 to conduct the due elections of the local

bodies of Gujarat State through ballot paper instead of Electronic Voting Machine in absence of the respondent No.1 doe not have VVPAT machines;

(e) Your Lordships may be pleased to pass suitable order/writ/direction and direct the respondent No.1 to submit the status report with regard to the

representation filed by petitioner dated 1st January, 2021 in the interest of justice;

(f) Any other order in the interest of justice and equity;â€​

The petition is dated 12.01.2021, which was registered on 21.01.2021 and circulated before the Court on 27.01.2021 when the first order was

passed. The said order reads as follows :

“We have heard Mr.K.R.Koshti, learned counsel for the petitioner and Ms.Manisha Lavkumar, learned Government Pleader assisted by

Ms.Aishvarya Gupta, learned Assistant Government Pleader appearing on advanced copy on behalf of respondent Nos.2 and 3.

Issue Notice returnable on 10.02.2021. Ms.Gupta waives service of notice on behalf of respondent Nos.2 and 3.

In the meantime, learned Government Pleader to obtain instructions from the State respondent and file affidavit, if required.

List in the top ten cases.

Direct service is permitted.â€​

Thereafter, the matter was taken up on 10.02.2021 when the following order was passed :

“1. Today, Ms. Roopal R. Patel, learned advocate, has appeared on behalf of the State Election Commission, State of Gujarat (respondent No.1).

She has prayed for at least a week's time to file reply on behalf of the Commission. This request has been strongly opposed by Shri K.R. Koshti,

learned counsel for the petitioner, on the ground the polling is scheduled for 21.2.2021, some date may be fixed much before that, so that the matter

can be heard, otherwise it would be rendered infructuous.

Considering the nature of the request made, let this matter be listed on 15.02.2021. In the meantime, Ms. Patel may make an effort to file affidavit.

Mrs. Manisha Shah, learned Government Pleader assisted by Ms. Aishwarya Gupta, learned Assistant Government Pleader, are present for the

State respondent Nos.2 and 3. She states that the State- respondent Nos.2 and 3 do not propose to file any affidavit-in-reply.â€​

Thereafter, on 18.02.2021, the learned counsels for the respective parties were heard and orders were reserved.

We may record here that Shri K.R.Koshti, learned counsel for the petitioner had requested that the matter may be decided at the earliest before

21.02.2021 which was a date for polling for the elections of the local bodies in the State in the Municipal Corporations and thereafter the date for

polling in District Panchayat and Nagarpalikas was fixed for 28.02.2021.

On the other hand, Shri Mihir Joshi, learned Senior Counsel raised preliminary objections regarding the relief claimed being impossible to be

implemented at this eleventh hour; maintainability of the petition and also for the reason that it did not lay any foundation as to why the polling system

using Electronic Voting Machines (EVMs) was not reliable and thirdly that entertaining such a petition at this late stage would be interfering with the

election process and as such would be barred under law. Mr. Joshi also submitted that there is a safety protocol followed before using EVMs. All the

parties and their representatives satisfaction is recorded. There was a challenge to use of EVM in 2012. A Division Bench of this Court called for the

EVMs and after verifying and being satisfied with the security and safety features dismissed the petition with costs. Copy of the judgment of the

Division Bench is a part of the record. Further, our attention has also been drawn to an order dated 09.12.2020 passed by the Supreme Court wherein

the State of Gujarat is under obligation to hold the local bodies election in the State by the month of February, 2021.

For the State of Gujarat, learned Government Pleader Ms. Manisha Lavkumar in addition submitted that the State Election Commissions all over the

country have been deliberating upon the introduction of VVPAT equipped EVMs. She has referred to the affidavit in reply of the State Election

Commission and has relied upon the same with regard to the various deliberations taken in the All India Conferences of State Election Commission.

According to Ms. Manisha Lavkumar the judgment of the Supreme Court is not binding on the State Government or the State Election Commission.

According to her as and when decision is taken necessary arrangement would be made.

9 The basis for filing this petition is the judgment of the Supreme Court in the case of Subramanian Swamy vs. Election Commission of India, reported

in 2013 (10) SCC 500. The said judgment is dated 08.10.2013. Thereafter, reference has also been made to the contempt proceedings initiated before

the Supreme Court and various orders passed therein regarding compliance of the aforesaid judgment in the case of Subramanian Swamy (supra).

From a perusal of the pleadings and the reliefs claimed what is to be noticed is that for the first time on 01.01.2021, the petitioner made a

representation to the State Election Commission referring to the judgment in the case of Subramanian Swami (supra) and further stating that as the

State Election Commission does not have VVPAT (Voter Verifiable Paper Audit Trail) machines, it should declare that the election of local bodies be

conducted by using ballot papers instead of Electronic Voting Machines for maintaining transparency and fair elections. It is also one of the reliefs

claimed by the petitioner that the State Election Commission be directed to submit the status report with regard to his representation dated 01.01.2021.

In the case of Subramanian Swami (supra) before the Supreme Court after due deliberations, the Election Commission of India after carrying out

various meetings with Expert Committees and after using VVPAT machines with EVMs on trial basis in an election in Meghalaya, had decided to use

VVPAT machines along with EVMs after acquiring the same within a reasonable period. From orders of the Supreme Court on record, it appears

that it took almost five years for the Election Commission of India to acquire sufficient number of VVPAT machines. The reasons for using VVPAT

machines are stated in the order of the Supreme Court in paragraph-26, 27, 28 and 29 thereof, which are reproduced below :

“26) After various hearings, when the matter was heard on 4.10.2013, an affidavit dated 01.10.2013 filed on behalf of the ECI was placed before

this Court. The said affidavit was filed to place on record the performance/result of the introduction of the VVPAT system in the bye- election from

51-Noksen (ST) Assembly Constituency of Nagaland for which the poll was conducted on 04.09.2013 indicating the future course of action to be

decided by the ECI on the basis of said performance. By this affidavit, it was brought to our notice that since VVPAT system was being used for the

first time, the ECI has decided that intensive training shall be given to the polling officers. Members of the Technical Experts Committee of the ECI

also went to supervise training and the actual use of VVPAT in the bye-election. It is further stated that the ECI also wrote letters to all the

recognized political parties and other persons, including the appellant herein, engaged with the ECI on this subject inviting them to witness the use of

VVPAT. It is also brought to our notice that VVPAT was successfully used in all the 21 polling stations of 51-Noksen (ST) Assembly Constituency

of Nagaland. It was also stated that as per the Rules, the paper slips of VVPAT shall not be counted normally except in case the Returning Officer

decides to count them on an application submitted by any of the candidates. However, since VVPAT system was being used for the first time in any

election, the ECI decided on its own to count paper slips of VVPAT in respect of all polling stations. According to the ECI, no discrepancy was found

between the electronic and paper count.

27) In the said affidavit, it is finally stated that the ECI has decided to increase the use of VVPAT units in a phased manner and for this purpose the

ECI has already written to the Government of India, Ministry of Law and Justice to issue administrative and financial sanction for procurement of

20,000 units of VVPAT (10,000 each from M/s BEL and M/s ECIL) costing about Rs. 38.01 crore.

28) Though initially the ECI was little reluctant in introducing “paper trail†by use of VVPAT, taking note of the advantage in the system as

demonstrated by Dr. Subramanian Swamy, we issued several directions to the ECI . Pursuant to the same, the ECI contacted several expert bodies,

technical advisers, etc. They also had various meetings with National and State level political parties, demonstrations were conducted at various places

and finally after a thorough examination and full discussion, VVPAT was used successfully in all the 21 polling stations of 51-Noksen (ST) Assembly

Constituency of Nagaland. The information furnished by the ECI, through the affidavit dated 01.10.2013, clearly shows that VVPAT system is a

successful one. 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.

29) From the materials placed by both the sides, we are satisfied that the “paper trail†is an indispensable requirement of free and fair elections.

The confidence of the voters in the EVMs can be achieved only with the introduction of the “paper trailâ€. EVMs with VVPAT system ensure the

accuracy of the voting system. With an intent to have fullest transparency in the system and to restore the confidence of the voters, it is necessary to

set up EVMs with VVPAT system because vote is nothing but an act of expression which has immense importance in democratic system.â€​

It may be that there could be more transparency and fairness or lesser chances of any manipulation or tampering if only EVMs were used but

then at the same time use of VVPAT not only entails huge amount of expenditure but also other infrastructural and logistic support entailing huge

expenses. It may also increase the time taken for casting one vote. The State Election Commission and the State Government will have to take a

policy decision to include the use of VVPAT machines. We cannot enter into the realm of policy making, under Article 226 of the Constitution nor any

such relief has been claimed in this petition.

The details are mentioned in the affidavit-in-reply filed by the State Election Commission.

In the counter affidavit, it is also stated that Annual Conference of the State Election Commissions is being continuously held. The details of which

are mentioned therein and till date the State Election Commissions have not decided as a matter of policy to use VVPAT machines along with EVMs

for the election of the municipalities and Panchayats. It is also stated in the counter affidavit that the State Election Commissions are autonomous

bodies created under the constitutional provisions under Articles 243(K) and 243(ZA) of the Constitution of India. From the figures stated on record

regarding the purchase of VVPAT machines by the Election Commission of India running into thousands of crores, the State Election Commissions

and the State Governments would be justified in giving it a serious thought as to whether it would be essential or not. We are not going into the said

issue as the same is not raised before us.

The relief claimed by the petitioner is that as the State Election Commission does not possess the VVPAT machines, it may hold the elections by

using ballot papers. Claiming such a relief just before the elections is highly improper, irresponsible and mischievous. The petition has been filed

without any logic and justification. No foundation has been laid as to why EVMs be not used. The election of entire State of the local bodies which is

already decided as per law to be held by EVMs for the last 20 years since 2001 cannot suddenly be converted into a manual mode by using ballot

papers. The enormity of the said mode apparently is not even contemplated by the petitioner. It is a reckless act on the part of the petitioner to have

filed this petition. The effort on the part of the petitioner appears to be some how or other inter-meddle with the election process of the local bodies in

the State which is already notified.

The petition thus in our considered opinion is not a genuine Public Interest Litigation but an attempt to gain some propaganda or popularity in the

media. Such Public Interest Litigation needs to be not only discouraged but condemned. The petitioner is a lawyer. He has further engaged a lawyer

to file this petition. We would request both the lawyers to be more responsible and careful in filing such petitions. Without taking the matter any further

we proceed to dismiss this petition with costs of Rs.5,000/- (Rupees Five Thousand only) to be deposited within 15 days with the Registry whereupon

the Registrar General shall transfer it to the account of the Gujarat High Court Advocates Association, to be used for the benefit of the welfare of the

lawyers / clerks suffering during the pandemic of COVID-19.