Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Mad) 301

IN THE HIGH COURT OF JUDICATURE AT MADRAS
SANJIB BANERJEE, SENTHILKUMAR RAMAMOORTHY, JJ.
Dravida Munnetara Kazhagam, Rep. by its Organising Secretary R.S. Bharathi – Appellant
Versus
The Election Commission of India, Rep. by its Chief Election Commissioner, Office of the Election Commission of India, New Delhi & Others – Respondent
W.P. No. 7698 of 2021
Decided On : 31-03-2021

Appearing Advocates:
For the Petitioner:P. Wilson, S.C. for P. Wilson Associates, Advocates.
For the Respondents:Niranjan Rajagopalan, Advocate.

POINT OF LAW: CONDUCT OF ELECTION - Lack of guarding of the EVMs at the pre-poll stage - Granted permission not to circulate the details pertaining to the vulnerable or critical booths for the districts other than the two referred to earlier. At the end of the day, the elections must not only have been conducted in a fair and transparent manner, but it also must be seen to have been so done

Headnote:
Conduct of Election Rules, 1961 – Rule 66A – Constitution of India, 1950 – Article 226 – EVMs Manufacturing – To Direct the respondents herein (a) to use the EVMs manufactured recently and not to use any machine which are beyond the expiry period of 15 years, (b) to provide CCTV live coverage / live web stream during voting in all polling booths and voting centers of Election Commission, (c) to install jammers at the strong rooms where EVMs are stored including before and after voting, and at the counting centres during counting, and (d) to direct the Returning Officer to count at least 50% of VVPATs simultaneously in the upcoming elections to the Legislative Assembly of Tamil Nadu to be held –
Finding of the Court: As to the petitioner’s request for jammers, the Election Commission says that the EVMs cannot be tampered by any wi-fi or radio device. – Election Commission says that it is also its practice to cut off supply inside the strong-rooms where the EVMs are stored, both at the pre-poll and at the post-poll stages, not because the machines are affected by any electrical activity, but to ensure that there is no cause for fire by any short-circuit of the lines. – Election Commission points out that the several guidelines in its Manual and Handbook pertaining to prohibition of electronic devices in counting rooms and storage areas or nearby, are by way of abundant caution and not in acknowledgment of electronic devices being capable of interfering with the EVMs in any manner or form. – Several aspects that have been alluded to on behalf of the petitioner appear to have been satisfactorily addressed on behalf of the Election Commission. – It was necessary to record the areas of apprehension in great detail and the manner in which the Election Commission has gone about addressing the same to instill confidence of the people in the system that is in place and to allay the apprehension and the misgivings harboured in certain quarters. – In the light of work done by the Election Commission, it is granted permission not to circulate the details pertaining to the vulnerable or critical booths for the districts other than the two referred to earlier. – At the end of the day, the elections must not only have been conducted in a fair and transparent manner, but it also must be seen to have been so done. –
Result: W.P. Disposed of.

JUDGMENT :-

(Prayer: Petition under Article 226 of the Constitution of India praying for a writ of Mandamus directing the respondents to consider and pass orders on the representation of the petitioner dated 10.03.2021 and consequently direct the respondents herein (a) to use the EVMs manufactured recently and not to use any machine which are beyond the expiry period of 15 years, (b) to provide CCTV live coverage / live web stream during voting in all polling booths and voting centers of Election Commission, (c) to install jammers at the strong rooms where EVMs are stored including before and after voting, and at the counting centres during counting, and (d) to direct the Returning Officer to count at least 50% of VVPATs simultaneously in the upcoming elections to the Legislative Assembly of Tamil Nadu to be held on 06.04.2021.)

Sanjib Banerjee, CJ.

1. The petitioner political party seeks divers directions to ensure a fair and proper conduct of the forthcoming elections to the State Assembly.

2. On this present petition, a somewhat detailed order was passed on March 24, 2021. The several areas of concern expressed by the petitioner were individually addressed in the order and other directions were issued to the Election Commission of India to ensure a particular course of action in some areas or the Election Commission was required to consider the matter relating to certain other aspects and report to Court. The principal point canvassed on behalf of the petitioner on March 24, 2021 was the CCTV coverage of critical events. Certain directions were issued and the Election Commission was requested to obtain inputs from the major political parties in such regard. The second contention of the petitioner pertained to electronic voting machines and the petitioner suggested that EVMs older than 15 years may not be used. The third aspect emphasised by the petitioner was that not only should there be foolproof guarding of the EVMs after the poll had been conducted, but there should be pre-poll guarding of the machines as well, including CCTV coverage. The two incidental requests by the petitioner were for jammers to be installed outside the strong-rooms where the EVMs were stored and for Rule 66A of the Conduct of Election Rules, 1961 to be followed in the matter pertaining to counting of VVPATs.

3. The directions issued by this Court on March 24, 2021 covered all such aspects referred to by the petitioner. The Election Commission was requested to obtain the views of the recognised political parties as to which would be the critical polling booths and which areas may be labelled as vulnerable, since political parties invariably have a better feel for such matters than an apolitical agency. As far as jammers were concerned, the Election Commission was requested to consider the matter. The Court also stressed that the pre-poll guarding of the EVMs was equally important. On the matter of paper trail, the Election Commission’s submission was recorded and the Election Commission was directed to take appropriate measures.

4. In accordance with the relevant direction contained in the order of March 24, 2021, a meeting of at least 12 political parties was convened on March 26, 2021 to obtain their views, including as to which of the booths would be critical and which of the areas vulnerable. A letter appears to have been issued on March 26, 2021 by the Chief Electoral Officer of the State to all the Returning Officers referring to the order dated March 24, 2021 and requiring the process of consultation to be undertaken with political parties to identify the critical booths and the vulnerable areas. Even that part of the order, which required the Election Commission to inform the political parties as to which booths would be regarded as critical and which areas vulnerable, was directed to be complied with by all the Returning Officers.

5. A counter-affidavit has been filed by the Election Commission. The counter-affidavit details all the measures tak

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