Impleading of the Election Commission of India in an election petition and its power in decoding EVMs.

1. - The petitioner has challenged the election of respondent no.1 who was declared elected from Nathdwara Legislative Assembly Constituency No. 176 in Rajasthan for which the election was held on 4.12.2008 and the result was declared on 8.12.2008. In the process of election, the Election Voting Machines (for short "EVM") were used. The petitioner alleged that respondent no.1's wife cast votes at two places in the constituency where from respondent no.1 was declared elected and, therefore, both the cast votes were liable to be rejected being void. It has been also alleged that votes of some of the genuine voters have been cast by other persons by impersonation and, therefore, it will be necessary to decode the EVM and votes which were cast by impersonation are required to be excluded after decoding EVMs and tendered ballot papers cast by the genuine voters be opened and counted.

2. In the election petition, the petitioner in addition to respondent elected candidate, impleaded Election Commission of India as party to whom notice was sent by the order of this Court. Notice was also sent to the elected candidate respondent no.1. Respondent no.2-Election Commission of India submitted preliminary reply on 25.3.2009 and raised objection that the Election Commission of India cannot be implelded as party in the election petition in view of specific provisions made under Section 82 of the Representation of People Act, 1951 (for short "the Act of 1951"). It is submitted that in view of the judgment of Hon'ble Apex Court delivered in the case of Jyoti Basu & ors v. Debi Ghosal & ors, 1982 (1) SCC 691 and in the case of B. Sundra Rami Reddy v. Election Commission & ors, 1991 Suppl. (2) SCC 624 and further in view of the decision of the Hon'ble Apex Court delivered in the case of Micheal Fernandeas v. C.K. Jaffar Sharif & ors, AIR 2002 SC 1041 , because of misjoinder of the party, the name of respondent no.2 be struck off from the array of the respondents. Respondent no.2 on the same ground of impleading Election Commission of India as party in the election petition, prayed that the election petition itself be dismissed on account of impleading Election Commission of India as party and impleading of Election Commission of India as party is violative to Section 82 and 86(1) of the Act of 1951.

3. Rejoinder has been filed by the election petitioner and it has been stated that since the petitioner has prayed for recounting of votes by excluding votes which have been cast by respondent no.'1 wife at two polling stations and by excluding the votes cast at polling station nos. 27, 61, 73, 117, 190 and 199, therefore, in case this Court will hold decoding of the votes is required, then it can be facilitated by the presence of Election Commission of India in the election petition as party respondent. It is submitted that before preferring the election petition, the petitioner sought information from the Chief Electoral Officer, Rajasthan about decoding of votes cast at a particular serial number on EVM vide letter dated 8.1.2009. The Chief Electoral Officer, Rajasthan referred the matter to the Election Commission of India and the Election Commission of India vide its communication dated 27/28.1.2009 clarified that the manufacturer of EVM namely, M/s Bharat Electonics Limited, Bangalore and M/s Electonic Corporation of India Ltd., Hyderabad have developed a device "Decoder" to detach the particulars of the votes polled on the EVM and to establish as to which voter voted for whom. The petitioner was informed that such facility cannot be obtained without the orders of the competent court. The copy of the letter of the Election Commission of India has been forwarded to the petitioner by the Joint Chief Electoral Officer, Rajasthan, Jaipur vide letter dated 19.3.2009. The petitioner placed on record these two letters.

4. On merit, it has been submitted that Section 82 of the Act of 1951 only requires impleadment of certain persons as party