Imtiyaz Khan Yakub Khan Pathan vs State Election Commission, ...
2021 Latest Caselaw 5196 Guj

       C/WPPIL/14/2021                                   CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/WRIT PETITION (PIL) NO. 14 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH

and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
==========================================================

1 Whether Reporters of Local Papers may be allowed No to see the judgment ?

2    To be referred to the Reporter or not ?                           No

3    Whether their Lordships wish to see the fair copy                 No
     of the judgment ?

4    Whether this case involves a substantial question                 No

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== IMTIYAZ KHAN YAKUB KHAN PATHAN Versus STATE ELECTION COMMISSION, GUJARAT STATE ========================================================== Appearance:

MR KR KOSHTI for the Applicant No.1 For the Opponent No.3 MS MANISHA LAVKUMAR, GOVERNMENT PLEADER WITH MS

MR MIHIR JOSHI, SENIOR ADVOCATE WITH MS ROOPAL R PATEL for the Opponent No.1 ==========================================================

CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 22/04/2021 CAV JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH)

1. We have heard Shri K.R.Koshti, learned counsel for the

petitioner, Shri Mihir Joshi, learned Senior Advocate assisted by

Ms.Roopal Patel, learned counsel for respondent No.1 - State

Election Commission and Ms.Manisha Lavkumar, learned

Government Pleader assisted by Ms.Aishwarya Gupta, learned

Assistant Government Pleader for the State respondent Nos.2 and 3.

2. By means of this petition under Article 226 of the Constitution

framed as a Public Interest Litigation, the petitioner who alleges

himself to be a practicing Advocate at Ahmedabad and also being a

Social Activist has prayed for the following reliefs :

"(a) Your Lordships may be pleased to allow the present writ petition (PIL);

(b) Your Lordships may be pleased to issue a rate of mandamus or any other appropriate writ / direction / order to hold the action or inaction on the part of the respondent No.1 herein in not declaring or making announcement that the due election of the local bodes in the State of Gujarat will be conducted through ballot paper instead of Electronic Voting Machine since they don't have VVPAT;

(c) Your Lordships may be pleased to pass appropriate writ, order or direction to quash and set aside the action of the respondent No.1 herein in not declaring or making announcement that due election of the local bodies in the

State of Gujarat will be conducted through ballot paper instead of Electronic Voting Machines in absence of VVPAT machines with the State Election Commission;

(d) Your Lordships may be pleased to pass appropriate writ, order or direction directing Respondent No.1 to conduct the due elections of the local bodies of Gujarat State through ballot paper instead of Electronic Voting Machine in absence of the respondent No.1 doe not have VVPAT machines;

(e) Your Lordships may be pleased to pass suitable order/writ/direction and direct the respondent No.1 to submit the status report with regard to the representation filed by

petitioner dated 1st January, 2021 in the interest of justice;

(f) Any other order in the interest of justice and equity;"

3. The petition is dated 12.01.2021, which was registered on

21.01.2021 and circulated before the Court on 27.01.2021 when the

first order was passed. The said order reads as follows :

"We have heard Mr.K.R.Koshti, learned counsel for the petitioner and Ms.Manisha Lavkumar, learned Government Pleader assisted by Ms.Aishvarya Gupta, learned Assistant Government Pleader appearing on advanced copy on behalf of respondent Nos.2 and 3.

2. Issue Notice returnable on 10.02.2021. Ms.Gupta waives service of notice on behalf of respondent Nos.2 and 3.

3. In the meantime, learned Government Pleader to obtain instructions from the State respondent and file affidavit, if required.

List in the top ten cases.

Direct service is permitted."

4. Thereafter, the matter was taken up on 10.02.2021 when the

following order was passed :

"1. Today, Ms. Roopal R. Patel, learned advocate, has appeared on behalf of the State Election Commission, State of Gujarat (respondent No.1). She has prayed for at least a week's time to file reply on behalf of the Commission. This request has been strongly opposed by Shri K.R. Koshti, learned counsel for the petitioner, on the ground the polling is scheduled for 21.2.2021, some date may be fixed much before that, so that the matter can be heard, otherwise it would be rendered infructuous.

2. Considering the nature of the request made, let this matter be listed on 15.02.2021. In the meantime, Ms. Patel may make an effort to file affidavit.

3. Mrs. Manisha Shah, learned Government Pleader assisted by Ms. Aishwarya Gupta, learned Assistant Government Pleader, are present for the State respondent Nos.2 and 3. She states that the State- respondent Nos.2 and 3 do not propose to file any affidavit-in-reply."

5. Thereafter, on 18.02.2021, the learned counsels for the

respective parties were heard and orders were reserved.

6. We may record here that Shri K.R.Koshti, learned counsel for

the petitioner had requested that the matter may be decided at the

earliest before 21.02.2021 which was a date for polling for the

elections of the local bodies in the State in the Municipal Corporations

and thereafter the date for polling in District Panchayat and

Nagarpalikas was fixed for 28.02.2021.

7. On the other hand, Shri Mihir Joshi, learned Senior Counsel

raised preliminary objections regarding the relief claimed being

impossible to be implemented at this eleventh hour; maintainability of

the petition and also for the reason that it did not lay any foundation as

to why the polling system using Electronic Voting Machines (EVMs)

was not reliable and thirdly that entertaining such a petition at this late

stage would be interfering with the election process and as such would

be barred under law. Mr. Joshi also submitted that there is a safety

protocol followed before using EVMs. All the parties and their

representatives satisfaction is recorded. There was a challenge to use

of EVM in 2012. A Division Bench of this Court called for the EVMs

and after verifying and being satisfied with the security and safety

features dismissed the petition with costs. Copy of the judgment of the

Division Bench is a part of the record. Further, our attention has also

been drawn to an order dated 09.12.2020 passed by the Supreme

Court wherein the State of Gujarat is under obligation to hold the local

bodies election in the State by the month of February, 2021.

8. For the State of Gujarat, learned Government Pleader Ms.

Manisha Lavkumar in addition submitted that the State Election

Commissions all over the country have been deliberating upon the

introduction of VVPAT equipped EVMs. She has referred to the

affidavit in reply of the State Election Commission and has relied upon

the same with regard to the various deliberations taken in the All India

Conferences of State Election Commission. According to Ms. Manisha

Lavkumar the judgment of the Supreme Court is not binding on the

State Government or the State Election Commission. According to her

as and when decision is taken necessary arrangement would be

made.

9 The basis for filing this petition is the judgment of the

Supreme Court in the case of Subramanian Swamy vs. Election

Commission of India, reported in 2013 (10) SCC 500. The said

judgment is dated 08.10.2013. Thereafter, reference has also been

made to the contempt proceedings initiated before the Supreme Court

and various orders passed therein regarding compliance of the

aforesaid judgment in the case of Subramanian Swamy (supra).

10. From a perusal of the pleadings and the reliefs claimed what is

to be noticed is that for the first time on 01.01.2021, the petitioner

made a representation to the State Election Commission referring to

the judgment in the case of Subramanian Swami (supra) and further

stating that as the State Election Commission does not have VVPAT

(Voter Verifiable Paper Audit Trail) machines, it should declare that the

election of local bodies be conducted by using ballot papers instead of

Electronic Voting Machines for maintaining transparency and fair

elections. It is also one of the reliefs claimed by the petitioner that the

State Election Commission be directed to submit the status report with

regard to his representation dated 01.01.2021.

11. In the case of Subramanian Swami (supra) before the

Supreme Court after due deliberations, the Election Commission of

India after carrying out various meetings with Expert Committees and

after using VVPAT machines with EVMs on trial basis in an election in

Meghalaya, had decided to use VVPAT machines along with EVMs

after acquiring the same within a reasonable period. From orders of

the Supreme Court on record, it appears that it took almost five years

for the Election Commission of India to acquire sufficient number of

VVPAT machines. The reasons for using VVPAT machines are stated

in the order of the Supreme Court in paragraph-26, 27, 28 and 29

thereof, which are reproduced below :

"26) After various hearings, when the matter was heard on 4.10.2013, an affidavit dated 01.10.2013 filed on behalf of the ECI was placed before this Court. The said affidavit was filed to place on record the performance/result of the introduction of the VVPAT system in the bye- election from 51-Noksen (ST) Assembly Constituency of Nagaland for which the poll was conducted on

04.09.2013 indicating the future course of action to be decided by the ECI on the basis of said performance. By this affidavit, it was brought to our notice that since VVPAT system was being used for the first time, the ECI has decided that intensive training shall be given to the polling officers. Members of the Technical Experts Committee of the ECI also went to supervise training and the actual use of VVPAT in the bye-election. It is further stated that the ECI also wrote letters to all the recognized political parties and other persons, including the appellant herein, engaged with the ECI on this subject inviting them to witness the use of VVPAT.

It is also brought to our notice that VVPAT was successfully used in all the 21 polling stations of 51-Noksen (ST) Assembly Constituency of Nagaland. It was also stated that as per the Rules, the paper slips of VVPAT shall not be counted normally except in case the Returning Officer decides to count them on an application submitted by any of the candidates. However, since VVPAT system was being used for the first time in any election, the ECI decided on its own to count paper slips of VVPAT in respect of all polling stations. According to the ECI, no discrepancy was found between the electronic and paper count.

27) In the said affidavit, it is finally stated that the ECI has decided to increase the use of VVPAT units in a phased manner and for this purpose the ECI has already written to the Government of India, Ministry of Law and Justice to issue administrative and financial sanction for procurement of 20,000 units of VVPAT (10,000 each from M/s BEL and M/s ECIL) costing about Rs. 38.01 crore.

28) Though initially the ECI was little reluctant in introducing "paper trail" by use of VVPAT, taking note of the advantage in the system as demonstrated by Dr. Subramanian Swamy, we issued

several directions to the ECI . Pursuant to the same, the ECI contacted several expert bodies, technical advisers, etc. They also had various meetings with National and State level political parties, demonstrations were conducted at various places and finally after a thorough examination and full discussion, VVPAT was used successfully in all the 21 polling stations of 51-Noksen (ST) Assembly Constituency of Nagaland. The information furnished by the ECI, through the affidavit dated 01.10.2013, clearly shows that VVPAT system is a successful one. We have already highlighted that VVPAT is a system of printing paper trail when the voter casts his vote, in addition to the electronic record of the ballot, for the purpose of verification of his choice of candidate and also for manual counting of votes in case of dispute.

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."

12. It may be that there could be more transparency and fairness or

lesser chances of any manipulation or tampering if only EVMs were

used but then at the same time use of VVPAT not only entails huge

amount of expenditure but also other infrastructural and logistic

support entailing huge expenses. It may also increase the time taken

for casting one vote. The State Election Commission and the State

Government will have to take a policy decision to include the use of

VVPAT machines. We cannot enter into the realm of policy making,

under Article 226 of the Constitution nor any such relief has been

claimed in this petition.

13. The details are mentioned in the affidavit-in-reply filed by the

State Election Commission.

14. In the counter affidavit, it is also stated that Annual Conference

of the State Election Commissions is being continuously held. The

details of which are mentioned therein and till date the State Election

Commissions have not decided as a matter of policy to use VVPAT

machines along with EVMs for the election of the municipalities and

Panchayats. It is also stated in the counter affidavit that the State

Election Commissions are autonomous bodies created under the

constitutional provisions under Articles 243(K) and 243(ZA) of the

Constitution of India. From the figures stated on record regarding the

purchase of VVPAT machines by the Election Commission of India

running into thousands of crores, the State Election Commissions and

the State Governments would be justified in giving it a serious thought

as to whether it would be essential or not. We are not going into the

said issue as the same is not raised before us.

15. The relief claimed by the petitioner is that as the State Election

Commission does not possess the VVPAT machines, it may hold the

elections by using ballot papers. Claiming such a relief just before the

elections is highly improper, irresponsible and mischievous. The

petition has been filed without any logic and justification. No

foundation has been laid as to why EVMs be not used. The election of

entire State of the local bodies which is already decided as per law to

be held by EVMs for the last 20 years since 2001 cannot suddenly be

converted into a manual mode by using ballot papers. The enormity of

the said mode apparently is not even contemplated by the petitioner. It

is a reckless act on the part of the petitioner to have filed this petition.

The effort on the part of the petitioner appears to be some how or

other inter-meddle with the election process of the local bodies in the

State which is already notified.

16. The petition thus in our considered opinion is not a genuine

Public Interest Litigation but an attempt to gain some propaganda or

popularity in the media. Such Public Interest Litigation needs to be not

only discouraged but condemned. The petitioner is a lawyer. He has

further engaged a lawyer to file this petition. We would request both

the lawyers to be more responsible and careful in filing such petitions.

Without taking the matter any further we proceed to dismiss this

petition with costs of Rs.5,000/- (Rupees Five Thousand only) to be

deposited within 15 days with the Registry whereupon the Registrar

General shall transfer it to the account of the Gujarat High Court

Advocates Association, to be used for the benefit of the welfare of the

lawyers / clerks suffering during the pandemic of COVID-19.

(VIKRAM NATH, CJ)

(ASHUTOSH J. SHASTRI, J) GAURAV/P.SUBRAHMANYAM/PB TALREJA