The Leaflet

| @theleaflet_in | April 29,2019

[dropcap]A[/dropcap] three-judge bench of the Supreme Court, comprising the Chief Justice of India (CJI) Ranjan Gogoi, Justices Deepak Gupta and Sanjiv Khanna today issued notice to the Election Commission of India (ECI) on a petition seeking to decriminalise the filing of complaints against discrepancies between the Electronic Voting Machines (EVMs) and Voter Verifiable Paper Audit Trail (VVPATs).

Petitioner Sunil Ahya has challenged Rule 49MA of the Conduct of Election (Amendment) Rules, 2013 which provides for the procedure to be followed in case of a complaint about particulars printed on a VVPAT paper slip. They are:

(1) Where printer for paper trail is used, if an elector after having recorded his vote under rule 49M alleges that the paper slip generated by the printer has shown the name or symbol of a candidate other than the one he voted for, the presiding officer shall obtain a written declaration from the elector as to the allegation, after warning the elector about the consequence of making a false declaration.

(2) If the elector gives the written declaration referred to in sub-rule (1), the presiding officer shall make a second entry related to that elector in Form 17A, and permit the elector to record a test vote in the voting machine in his presence and in the presence of the candidates or polling agents who may be present in the polling station, and observe the paper slip generated by the printer.

(3) If the allegation is found true, the presiding officer shall report the facts immediately to the returning officer, stop further recording of votes in that voting machine and act as per the direction that may be given by the Returning Officer.

(4) If, however, the allegation is found to be false and the paper slip so generated under sub-rule (1) matches with the test vote recorded by the elector under sub-rule (2), then, the presiding officer shall-

(i) make a remark to that effect against the second entry relating to that elector in Form 17A mentioning the serial number and name of the candidate for whom such test votes have been recorded;

(ii) obtain the signature or thumb impression of that elector against such remarks; and

(iii) make necessary entries regarding such test vote in item 5 in Part I of Form 17C.

 

To buttress his argument against the criminalisation of reporting deviant behaviour or malfunctioning of the EVMs and VVPATs, the petitioner provided the following scenarios:

  • The possibility of an unsolicited programme, where the ballots cast for one candidate may be transferred, not sequentially, but intermittently (at pre-programmed intervals or otherwise) to another candidate; therefore, where an elector is asked to cast test vote as prescribed under Rule 49MA, he may not be able to reproduce the same result which he was complaining about;
  • The possibility of an unsolicited programme, where paper slips of candidates are printed in such a way that these are likely to face rejection under the Rule 56(2)(d) of the Conduct of Election Rules, 1961.
  • The possibility of an unsolicited programme, where the VVPAT can be stuffed (just like it used to be done in the traditional ballot boxes), by overriding the 12 second barrier of EVM.
  • Any other such deviant behaviour.

 

These illustrations, according to the petitioner, become imperative in view of the implication of the action envisaged in Rule 49MA of the Conduct of Election Rules, 1961 read with Section 177 of the Indian Penal Code, which criminalises the reporting of deviant behaviour of EVMs and VVPATs.

According to the petitioner, the law as it stands today puts the burden of proof on the elector and it would therefore  deter them from coming forth and making any complaints against EVM malfunction.

It would also create an illusion of free and fair elections, when in actual fact people were simply wary of coming forward to lodge complaints.

This, according to the petitioner, infringed upon a citizen’s right to freedom of expression – a fundamental right guaranteed under Article 19(1)(a) of the Constitution of India as held by the Supreme Court in Peoples Union for Civil Liberties & Anr. Vs. Union of India & Anr. (2013) 10 SCC 1.

 

 

Suggestions by the Petitioner

 

 

One of the possible ways, according to the petitioner, to address the issue of reporting the aforesaid discrepancy in future, would be to keep the ballot unit lamp against the blue button of EVM glowing and at the same time, to let the VVPAT printed slip remain hanging in the transparent window without it being automatically cut after seven seconds, unless and until the voter is completely satisfied and comes out of the polling booth.

Once the elector is completely satisfied and leaves the polling booth the presiding officer would then press the control unit button so as to ready the ballot unit for the next elector.

It is at this point that the glowing lamp against the ballot unit’s blue button goes off, as well as when the VVPAT printed slip is cut and deposited in the VVPAT slip collection box.

In a situation where the lamp against the blue button of the ballot unit of one particular candidate selected by the elector remains glowing, and at the same time the printed slip inside the transparent window of the VVPAT remains hanging against the name of another candidate, the elector will have the opportunity to lodge a complaint; and on a complaint being made, the presiding officer can then enter the polling booth, physically verify the claim at both the places (i.e. EVM lamp & VVPAT slip) by a visual inspection and if necessary photographically record the discrepancy.

Although, the petitioner admits,  this would compromise the secrecy of that elector’s  vote, it would have been that person’s  conscious choice  to waive their right to secrecy in the larger public interest.

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