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2019 Supreme(Guj) 341
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ANANT S. DAVE, BIREN VAISHNAV, JJ.
Khemchand Rajaram Koshti - Appellant
Versus
Election Commission of India & Ors. - Respondents
Writ Petition (Pil) No. 36 of 2019
Decided On : 19-03-2019
K.R. Koshti, Adv.
Point of Law
Returning Officer and Assistant Returning Officer, as the case may be shall personally supervise the counting of VVPAT paper slips at this booth. The General Observer concerned shall ensure close and careful observation of the entire exercise and ensure strict compliance of the Commission's instructions.
Headnote:
Constitution of India, Articles 14, 19 and 21 – Public Interest Litigation – direction declaring and/or striking down the Rule 56(D)(2) as ultra vires Articles 14, 19 and 21 of the Constitution insofar as it vests discretion in the Returning Officer to reject an application made under Rule 56(D)(2) for counting of the printed paper slips in the dropbox of the Printer - Respondent No 1 to mandatorily count the printed paper slips in the dropbox of the Printer in respect of any polling station or polling stations in all future Legislative Assembly elections and/or Parliamentary elections were paper trail has been introduced - Respondent No. 1 to use appropriate technology by which the paper used in the Voter Verifiable Paper Audit Trails can be preserved for at least a period of 2 years from the date of election – Held, Provisions of law reproduced hereinabove and the guidelines laid down by the Election Commission of India specifically ensure demonstration of transparency in the conduct of elections. In fact the provisions of Rule 56D(2) allows the Returning Officer to address cases of genuine complaints and there is no reason why the prayers prayed for by the petitioner should be granted. The communication dated 10.01.2019 address by the Election Commission of India to the petitioner and the conviction of the Election Commission, a constitutional authority more an autonomous body, assures of the fact that the discretion so vested in the Returning Officer will be exercised with due care and in accordance with law. Reading of the provisions of Section 100(d)(iv) of the Representation Of People Act, 1951 indicates that in the event such an application is rejected, the aggrieved candidate or the elector has a remedy which is inbuilt to file an Election Petition. On these counts, therefore, we see no reason to entertain the Public Interest Petition and grant the prayers therein – Petition dismissed. (Paras 17,18 and 19
Facts of the Case:
Election Commission of India is an autonomous body carrying out elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies in India and the offices of the President and Vice President of the country. Reliance is placed on a circular dated 19.09.2017 by which the Election Commission of India directed all the State Commissions to ensure that Voter Verifiable Paper Audit Trails (hereinafter referred to as 'VVPATS') shall be used with the Electronic Voting Machines (hereinafter referred to as 'EVMs') in all polling stations during the general and the bye elections to the State Legislative Assemblies and the Lok Sabha. According to the petitioner, suitable amendments have been made in The Conduct Of Election Rules, 1961 (hereinafter referred to as 'the Rules') which were notified in the Gazette of India.
Finding of the Court:
Provisions of law reproduced hereinabove and the guidelines laid down by the Election Commission of India specifically ensure demonstration of transparency in the conduct of elections. In fact the provisions of Rule 56D(2) allows the Returning Officer to address cases of genuine complaints and there is no reason why the prayers prayed for by the petitioner should be granted. The communication dated 10.01.2019 address by the Election Commission of India to the petitioner and the conviction of the Election Commission, a constitutional authority more an autonomous body, assures of the fact that the discretion so vested in the Returning Officer will be exercised with due care and in accordance with law. Reading of the provisions of Section 100(d)(iv) of the Representation Of People Act, 1951 indicates that in the event such an application is rejected, the aggrieved candidate or the elector has a remedy which is inbuilt to file an Election Petition. On these counts, therefore, we see no reason to entertain the Public Interest Petition and grant the prayers therein.
Result: Petition dismissed
BIREN VAISHNAV, J.
1. This Public Interest Litigation is filed by the petitioner - a practicing advocate of this Court who has come forward with the following prayers:
"12. In the facts and circumstances of the above case, the petitioner prays that:-
(a) Your Lordships may be pleased to allow the present writ petition (P.I.L.);
(b) pass appropriate Writ, Order or direction declaring and/or striking down the Rule 56(D)(2) as ultra vires Articles 14, 19 and 21 of the Constitution insofar as it vests discretion in the Returning Officer to reject an application made under Rule 56(D)(2) for counting of the printed paper slips in the dropbox of the Printer;
(c) pass appropriate Writ, Order or direction directing the Respondent No 1 to mandatorily count the printed paper slips in the dropbox of the Printer in respect of any polling station or polling stations in all future Legislative Assembly elections and/or Parliamentary elections were paper trail has been introduced;
(d) pass appropriate Writ, Order or direction directing Respondent No. 1 to use appropriate technology by which the paper used in the Voter Verifiable Paper Audit Trails ("VVPAT/paper trail") can be preserved for at least a period of 2 years from the date of election;
(e) pass suitable order/writ/direction and direct the respondent No. 1 to procure the adequate quantities of EVMs with VVPAT machines which are compatible with each other since respondent no. 1 is unable to procure the adequate quantity of VVPAT machines as per their reply to the RTI application and as per statement made by respondent no. 1 in Contempt Petition (Civil) No. 303/2016 before the Hon'ble Supreme Court; ..."
2. The introductory facts, as narrated in the present petition, are as under:
2.1 The Election Commission of India is an autonomous body carrying out elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies in India and the offices of the President and Vice President of the country. Reliance is placed on a circular dated 19.09.2017 by which the Election Commission of India directed all the State Commissions to ensure that Voter Verifiable Paper Audit Trails (hereinafter referred to as 'VVPATS') shall be used with the Electronic Voting Machines (hereinafter referred to as 'EVMs') in all polling stations during the general and the bye elections to the State Legislative Assemblies and the Lok Sabha. According to the petitioner, suitable amendments have been made in The Conduct Of Election Rules, 1961 (hereinafter referred to as 'the Rules') which were notified in the Gazette of India on 14.08.2013.
2.2 According to the petitioner, in an all party meeting on 04.10.2017, there was a broad consensus amongst all political parties for the continued use of EVMs. It was also suggested in the meeting that there should be a possibility of incorporating VVPAT in this system. The Election Commission of India, acting on the suggestion, referred the matter to the Technical Expert Committee to examine the possibility of paper trail. The Bharat Electronics Limited, Bengaluru and the Electronics Corporation of India Ltd., Hyderabad were requested to develop a prototype of the VVPAT system. The prototype was created and was tested in the field in extreme environmental conditions in order to get an effective assessment. According to the petitioner, the trial was to take place in real election like conditions. The field trials were conducted as averred in paragraph no. 4.4 of the petition in Thiruvananthapuram, Delhi, Jaisalmer, Cherapunji and Leh in the presence and participation of all stake holders including general voters, National and State political parties, Civil Society Organizations and the media. Improvements were suggested in the VVPAT system and after such necessary changes as suggested were carried out, a second trial was conducted.
2.3 According to the petitioner, the Election
