Gopal Seth vs Election Commission Of India And ...
2021 Latest Caselaw 1340 Cal

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February 11,
2021


                 In the High Court at Calcutta
                  Constitutional Writ Jurisdiction
                      (Via Video Conference)

                         W.P.A. No. 2607 of 2021

                            Gopal Seth
                              Versus
                   Election Commission of India and others


                    Mr. Biswaroop Bhattacharya,
                    Mr. Lal Mohan Basu,
                    Mr. Sanjib Dutta.
                                      ...for the petitioner.

                    Mr. Dipayan Choudhury,
                    Mr. Suvradal Choudhury,
                    Ms. Priyanka Chowdhury,
                    Mr. R. Chakraborty.
                             ...for the respondent nos.1 and 2.

Ms. Sonal Sinha.

...for the respondent no.3.

The petitioner, in his capacity as a citizen of

India and a voter in the elections, has preferred the

instant writ petition seeking certain reforms to the

present system of conduct of election. The petitioner

gave a representation in that regard to the Chief

Election Commissioner of India on November 15,

2020, as annexed at page 19 of the writ petition.

The suggestions were that after the process

of casting of each individual poll, the Electronic

Voting Machine would memorize it and one dummy

printed ballot paper bearing the 'actual marked

(casted) symbol by the particular voter' will be issued

to the voter as a 'receipt', which will then be verified

and if the voter is satisfied that his vote has been cast

in the machine to his chosen candidate rightly, then

the dummy ballot (receipt) would be dropped by him

into the Ballot box; if the dummy ballot is erroneous,

the voter might raise complaint against the machine

and such machine, then, would have to be declared

as 'out of service' and the polling process to be

cancelled since beginning.

While counting votes, the petitioner moots a

proposal that the result provided by each EVM should

also be matched with such dummy ballots, which

have to be counted manually. If there is a mismatch

between the two, a resolution of the dispute has to

follow.

Learned counsel submits that the procedure

suggested by the petitioner goes beyond the judicial

pronouncements governing the field and will lend

additional transparency to the system of conduct of

elections, which would be to the benefit of the Indian

populace as a whole.

Learned counsel cites the judgment of Dr.

Subramanian Swamy Vs. Election Commission of India

reported at (2013) 10 SCC 500, inter alia, to indicate

the reform introduced by the Supreme Court

regarding the system of maintaining paper trails for

votes cast on EVMs.

Learned counsel further cites N.

Chandrababu Naidu and others Vs. Union of India and

another reported at 2019 15 SCC 377, wherein the

Supreme Court, while considering guideline 16.6 of

the Manual Electronic Voting Machine and VVPAT,

arrived at the conclusion that the number of EVMs in

respect of which VVPAT paper slips were to be

subjected to physical scrutiny be increased from 1 to

5. Learned counsel submits that the present writ

petition goes one step further and suggests that all

the EVMs of each Assembly constituency should be

physically scrutinized to ensure fairness in the

election process.

Learned counsel cites Rule 49 MA of the

Conduct of Election Rules, 1961 in such regard.

Learned counsel for the petitioner also places

on record, by way of a supplementary affidavit filed

with the leave of Court, the reply of the Election

Commission of India to the petitioner's

representation, which refused to relent to the

suggestions of the petitioner on the grounds as given

therein. Learned counsel argues that the reasons

given therein are arbitrary and not in consonance

with law and natural justice. It is argued that under

Article 226 of the Constitution of India this Court has

ample power to pass necessary direction to ensure

fairness in conduct of election.

Learned counsel for the respondents

controverts such submission and relies on the reply

given by the Election Commission of India to the

petitioner's representation.

A perusal of the report of Dr. Subramanian

Swamy (supra) indicates that the same pertains to the

concept of 'paper trail' being introduced in respect of

electronic voting machines for elections, to ensure

further transparency in the system.

In N. Chandrababu (supra), the Supreme

Court went one step further and brought about a

modification in Rule 16.6 of the Manual on Electronic

Voting Machine and VVPAT by increasing the number

of paper slips, for being subjected to random physical

scrutiny, to five from one.

However, in N. Chandrababu (supra), the

Supreme Court took into consideration that such an

increase to five paper slips per Assembly

Constituency or Assembly Segment in a

Parliamentary Constituency, would not required

additional manpower which would be difficult for the

Election Commission to provide, nor would the

declaration of the result be substantially delayed by

such increment.

The Supreme Court, in exercise of its

Constitutional powers, deemed it fit to increase the

said number, which the present petitioner says ought

to be extended to all the polling booths within an

Assembly Constituency. However, the increase

contemplated by the Supreme Court was specifically

based on relevant factors, being the ensuing

inconvenience in conduct of elections which would

result from a further increase, relating to providing

additional manpower and delay in declaration of

results.

Sufficient grounds have not been made out

by the petitioner for further increasing such number,

keeping in mind the factors which were considered by

the Supreme Court as well as the consequent

difficulties of logistics and unnecessary expenditure

which would necessarily be involved in case of such

increase.

That apart, Rule 49 MA of the Conduct of

Election Rules, 1961 provide a sufficient safety net for

taking care of inaccuracies and errors which might

crop up in electronic voting machines. Rather akin to

the suggestion of the petitioner, it is specifically

provided in Sub-Rule 1 thereof that if an elector

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 and

make a second entry related to that elector in Form

17A as well as permit the elector to record a test vote

in the voting machine in his presence and in the

presence of the candidates/polling agents, attend the

poling station at the relevant juncture and observe

the paper slip generated by the printer. Sub-Rule 3

provides that if the voter's allegation is found to be

proved, the presiding officer would immediately report

to the returning officer and stop further recording of

votes in such defective voting machine and proceed as

per direction that may be given by the returning

officer.

Not stopping there, Sub-Rule 4 further

provides that if the allegation is found to be false and

the paper slip was generated correctly in the test vote,

the presiding officer is empowered to take necessary

steps as stipulated therein.

Such provisions, read with stipulations in

Rule 16.6 of the Manual on Electronic Voting

Machine, provide ample protection to alleviate any

apprehension in the mind of the voters and the

candidates regarding foul play in the election process.

Since the Election Commission of India,

which is the statutory authority to decide such

disputes, has taken a reasoned decision on the basis

of the apprehension expressed by the petitioner and

the suggestions made by him, there is no scope for

interference in the matter.

It appears that the reply of the Election

Commission to the petitioner's representation, as

annexed at page 4 of the supplementary affidavit of

the petitioner, amply illustrates why the existing

voting system provides an adequate mechanism to

allay the apprehension of foul play.

The Commission clearly detailed the voting

process, indicating that when a vote is cast, a slip is

printed on the VVPAT printer containing the details of

the candidates which remains exposed in a

transparent window for about seven seconds, which

is sufficient for the human eye to catch a meaningful

glimpse.

The printed slip thereafter gets cut off and

falls in a slip drop box of the VVPAT, which is not

much different from the first suggestion made by the

petitioner. Since the voters also have a right to lodge

complaints regarding erroneous printing by VVPAT,

the apprehensions of the petitioners are amply

covered by the extant laws and rules, as modified by

the judgments of the Supreme Court governing the

field, as demonstrated in the reply of the Election

Commission.

In such view of the matter, there is no scope

of interference in the present writ petition.

Accordingly, WPA 2607 of 2021 is dismissed

on contest without any order as to costs.

Since affidavits have not been invited, it is

deemed that the respondents do not admit any of the

allegations made in the writ petition.

Urgent website certified copies of this order,

if applied for, be given to the parties upon compliance

of all formalities.

(Sabyasachi Bhattacharyya, J.)