Delhi High Court
Mohd Tahir Hussain And Anr vs State Election Commission And Ors on 21 April, 2017
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3345/2017
Decided on 21st April, 2017
MOHD TAHIR HUSSAIN AND ANR ..... Petitioners
Through : Ms. Nitya Ramakrishnan,
Mr. Siddharth and Mr. Irshad, Advs.
versus
STATE ELECTION COMMISSION AND ORS ..... Respondents
Through : Mr. Sumeet Pushkarna, Adv. for R-1
with Mr. Girish Pandey, Deputy Secy.
(SEC).
Ms. Anjana Gosain, Adv. for R-2.
Mr. Sanjeev Sabharwal, Standing
Counsel for SDMC.
Mr. G. D. Mishra, Standing Counsel
for R-5.
Ms. Monika Arora, Adv. for NDMC.
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K. PATHAK, J. (ORAL)
1. During the course of hearing, learned counsel for the petitioners has
pressed prayer „c‟ only, which reads as under:-
"c. Issue a writ of mandamus or any other
appropriate writ, order or direction to the respondent
no.1 State Election Commission to conduct the 2017
MCD Elections using VVPAT enabled Generation-2
or Generation-3 EVMs only"
2. By placing reliance on Dr. Subramanian Swamy Vs. Election
Commission of India, (2013) 10 SCC 500, learned counsel for the
petitioners submits that for free and fair elections, use of EVMs with
VVPAT system is indispensable. Thus, Respondent no.1 has to use only
the EVMs with VVPAT system in the 2017 elections of Municipal
Corporation of Delhi. However, respondent no.1 is using old M-1 make
EVMs which, otherwise, are obsolete and are susceptible to tampering.
Even Supreme Court, in Dr. Subramanian Swamy (Supra), has made an
observation in this regard. It is further submitted that, by way of writ of
mandamus, respondent no.1 be directed to use the M-2 make EVMs with
VVPAT system only in the upcoming elections.
3. Respondent no.1 State Election Commission is the competent
authority to conduct the elections of Municipal Corporation of Delhi, in
view of Article 243ZA of the Constitution of India. Respondent no.1 has
filed a short affidavit, which has been perused. No affidavit has been filed
by the respondent no.2/Election Commission of India (ECI).
4. Learned counsel for the respondent no.1 has contended that present
petition is not maintainable as the same has been filed at the eleventh hour
only to stall the elections, which is not permissible in view of the settled
law, as laid down by the Constitutional Bench of the Supreme Court in N. P.
Ponnuswami Vs. Returning Officer, Namakkal Constituency and Ors., AIR
1952 SC 64 and Mohinder Singh Gill & Anr. Vs. Chief Election
Commissioner, New Delhi & Ors., (1978) 1 SCC 405. No material has been
placed on record to indicate that M-1 make EVMs, which are going to be
used by the respondent no.1 in the forthcoming MCD Elections, are
amenable to tampering. Only on the imaginary suspicions and apprehensions
of the petitioners, no mandate can be issued to use only the M-2 make
EVMs with VVPAT system. It is further submitted that respondent no.1 had
approached the respondent no.2 for providing the EVMs and was advised to
borrow the same from Rajasthan as the other State Election Commissions
had also been using the EVMs on loan basis for conducting the elections. It
is further submitted that Supreme Court has ordered for using the EVMs
with VVPAT system in a phased manner in the next general elections,
inasmuch as the Government of India has been directed to provide the
required financial assistance to respondent no. 2 for the procurement of units
of VVPAT system. Huge expenditure is required for procuring the EVMs
with VVPAT system and the matter is still pending consideration before the
Central Government. Respondent no. 2 has already procured some EVMs
with VVPAT system but the same are not sufficient. Efforts are being made
to procure more EVMs with VVPAT system and it will take some time.
The matter regarding the acquisition and use of the EVMs with VVPAT
system is still pending before the Supreme Court and is to be listed on 8th
May, 2017.
5. Learned counsel has further submitted that in terms of section 4 of the
Delhi Municipal Corporation Act, 1957, term of the earlier house is over and
a new house is to be put in place on 30th April, 2017. Elections are
scheduled to be held on 23rd April, 2017, that is, day after tomorrow. Results
have to be announced on 26th April, 2017. Therefore, it is not possible to
procure about 13,000 EVMs with VVPAT system in such a short duration
and in case, any such direction is passed, the same would amount to stalling
of the elections, which otherwise, is not permissible in view of the law laid
down in N. P. Ponnuswami and Mohinder Singh Gill (Supra).
6. In Dr. Subramanian Swamy (Supra), Supreme Court has held as
under:-
"29. From the materials placed by both the sides, we
are satisfied that the "paper trail" is an indispensable
requirement of free and fair elections. The confidence
of the voters in the EVMs can be achieved only with
the introduction of the "paper trail". EVMs with
VVPAT system ensure the accuracy of the voting
system. With an intent to have fullest transparency in
the system and to restore the confidence of the voters,
it is necessary to set up EVMs with VVPAT system
because vote is nothing but an act of expression which
has immense importance in democratic system.
30. In the light of the above discussion and taking
notice of the pragmatic and reasonable approach of
the ECI and considering the fact that in general
elections all over India, the ECI has to handle one
million (ten lakhs) polling booths, we permit the ECI
to introduce the same in gradual stages or
geographical-wise in the ensuing general elections.
The area, State or actual booth(s) are to be decided by
the ECI and the ECI is free to implement the same in
a phased manner. We appreciate the efforts and good
gesture made by the ECI in introducing the same.
31. For implementation of such a system (VVPAT) in
a phased manner, the Government of India is directed
to provide required financial assistance for
procurement of units of VVPAT."
7. In N. P. Ponnuswami (Supra), a Constitution Bench of six judges has
held as under:-
"14. It was argued that since the Representation of
the People Act was enacted subject to the provisions
of the Constitution, it cannot bar the jurisdiction of the
High Court to issue writ under article 226 of the
Constitution. This argument however is completely
shut out by reading the Act along with article 329(b).
It will be noticed that the language used in that article
and in section 80 of the Act is almost identical, with
this difference only that the article is preceded by the
words' notwithstanding anything in this Constitution."
I think that those words are quite apt to exclude the
jurisdiction of the High Court to deal with any matter
which may arise while the elections are in the
progress."
8. Elections are in progress and the election process cannot be interfered
with by the courts. Only remedy available to a candidate is to file Election
Petition after the elections are over. In my view, I need not to discuss in
detail the rival contentions of the parties, since, at the eleventh hour it will
not be justifiable, feasible and possible to mandate the use of EVMs with
VVPAT system as the same would amount to impeding the election process.
Respondent no.1 has taken on loan the EVMs from the respondent no.2 and
it will not be feasible to procure the EVMs with VVPAT system and use the
same in such a short notice, moreso when it is not known whether sufficient
number of such machines are readily available with the respondent no.2, that
too in Delhi.
9. For the foregoing reasons, petition is dismissed.
A.K. PATHAK, J.
APRIL 21, 2017/dk
