QUESTIONING OF EVM/VVPAT MALFUNCTIONING
A plea seeking Decriminalization of questioning of the Electronic Voting Machines and Voter Verified Paper Audit Trails EVMs/VVPATs malfunctioning came up for hearing on Monday, 29th April, 2019 at the Supreme Court, where it issued a Notice to Election Commission of India and the union of India. On a petition seeking decriminalising the act of reporting of deviant behaviour or malfunctioning of the Electronic Voting Machines (EVMs) and Voter Verified Paper Audit Trail on the ground that holding voters liable for pointing out any defect in the machine is against their Right of Expression.
A Bench of CJI Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna issued notices on the petition moved by Sunil Ahya. Ahya urged the court to “issue a writ/order/direction in the nature of Mandamus to the respondent, to set aside Rule 49MA of Election Rules, 1961 which when read with section 177 of the Indian Penal Code, criminalizes the reporting of deviant behaviour of EVM & VVPAT as it casts a duty upon the voter to prove his complaint or face criminal prosecution with up to six months in jail.
( 'we command') is a judicial remedy in the form of an order from a court to any government, subordinate court, corporation, or public authority, to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain from doing), and which is in the nature of public duty, and in certain cases one of a statutory duty. It cannot be issued to compel an authority to do something against statutory provision. For example, it cannot be used to force a lower court to reject or authorize applications that have been made, but if the court refuses to rule one way or the other then a mandamus can be used to order the court to rule on the applications. Mandamus may be a command to do an administrative action or not to take a particular action, and it is supplemented by legal rights. A person can be said to be aggrieved only when he or she is denied a legal right by someone who has a legal duty to do something and abstains from doing it.
177. Furnishing false information.—Whoever, being legally bound to furnish information on any subject to any public servant, as such, furnishes, as true, information on the subject which he knows or has reason to believe to be false, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both; or, if the information which he is legally bound to give respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
“The conduct of Elections Rules, 1961 was amended to insert a new rule 49MA to prescribe the procedure to be followed in case of complaint about alleged wrong particulars of a candidate and / or symbol on paper slip generated by the printer on pressing of the blue button against any candidate on the balloting unit.
Rule 49MA reads that: Where printer for paper trail is used, if an elector after having recorded his vote under rule 49M 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 as to the allegation, after warning the elector about the consequence of making a false declaration.
If a voter complains to the presiding officer, the elector will have to record a test vote in presence of the presiding officer and other agents who will observe the paper slip generated by the printer.
“Rule 49MA of the Conduct of Election Rules, 1961 read with section 177 of the Indian Penal Code, criminalizes the reporting of deviant behaviour of EVM & VVPAT. Presently, in all eventuality, the onus/burden of proof is on the elector, who will face the criminal charges irrespective of whether that reporting is truthful and honest. This could deter an elector from complaint which is an essential ingredient in a continuous exercise for improving a process” says the petition.
Aha says, “This may also create an illusion of free and fair elections, where as the fact would be that people have simply not come forward to lodge complaints and infringes upon a citizen’s right to freedom of expression, which is a fundamental right guaranteed under Article 19(1)(a) of the Constitution of India as held in Peoples Union for Civil Liberties & Anr. Vs. Union of India & Anr. (2013).
TEST VOTE EQUAL TO HOLDING VOTER WITNESS AGAINST HIMSELF
Ahya challenges the provision envisaged in the said Rule 49MA as per which, in the course of reporting the deviant behaviour of an electronic machine/equipment used in the election process, an elector has to cast two votes: first one in secrecy and the second a test vote in the presence of the candidates or polling agents.
“A test vote cast subsequently in the presence of others cannot become a conclusive evidence of the deviant behaviour or otherwise of the previous (first) vote cast in absolute secrecy. However, the said elector is being compelled under Rule 49MA to declare and thereby warned of a criminal charge for the first vote casted in absolute secrecy on the basis of the second vote casted in the presence of others. Therefore, the elector cannot be convicted by the evidence of second vote for the alleged incorrect reporting of the discrepancy in the first vote cast in absolute secrecy, unless and until, he himself is made a witness in his own case, in violation of the provision of Article 20(3) of the Constitution.
Article 20(3) in The Constitution of India 1949 reads as:
(3) No person accused of any offence shall be compelled to be a witness against himself.
Ahya has also made some illustrations to buttress his argument on loophole in Rule 49MA. As one such illustration, he says, “the possibility of an unsolicited programme, whereby the ballots casted for one candidate may be transferred, not sequentially, but rather intermittently (at pre-programmed intervals or otherwise) to another candidate and therefore, where an elector is asked to cast test vote as prescribed under Rule 49MA, he may not be able to reproduce the same result which he was complaining about, one more time in a sequence, because of the aforesaid intermittent pre-programed deviant behaviour of the electronic machines. The petitioner suggested ways to address the issue of reporting the discrepancy in future.
IT IS A MATTER OF FACT MENTI0NABLE HERE, THAT ALL EVMs & VVPATs, HAVE BEEN CHECKED FOR THEIR EFFICACY AND SMOOTH WORKING JUST PRIOR TO THE START OF VOTING AT ALL POLLING STATIONS……...
VIJAYASHREE RAMESH, ADVOCATE & SOCIAL ACTIVIST.