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REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9093 OF 2013
(Arisin !"# !$ SLP (Ci%i&' N!. 13(3) !$ 2012'
Dr. Subramanian Swamy .... Appellant(s)
Versus
Election Commission of India .... Respondent(s)
*ITH
*RIT PETITION (C' NO. +0, OF 2012
J U D - M E N T
P. S.#/.si%.01 CJI.
1) ea!e "ranted.
Ci%i& A223.& 4 SLP (C' N!. 13(3) !$ 2012
#) $%is appeal is directed a"ainst t%e &ud"ment and order
dated 1'.(1.#(1# passed by t%e Di!ision )enc% of t%e *i"%
Court of Del%i at +ew Del%i in ,.-.(C) +o. 11.'/ of #((/
w%ereby t%e *i"% Court disposed of t%e petition by
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disallowin" t%e prayer made by t%e appellant %erein for
issuance of a writ of mandamus directin" t%e Election
Commission of India (ECI)0Respondent %erein to incorporate
a system of 1paper trail2paper receipt3 in t%e Electronic
Votin" 4ac%ines (EV4s) as a con!incin" proof t%at t%e EV4
%as ri"%tly re"istered t%e !ote cast by a !oter in fa!our of a
particular candidate.
5) )ein" a""rie!ed of t%e abo!e6 t%e present appeal %as
been filed by way of special lea!e.
*ri# P3#i#i!n (Ci%i&' N!. +0, !$ 2012
7) 8ne Ra&endra Satyanarayan 9ilda %as filed t%is ,rit
-etition6 under Article 5# of t%e Constitution of India6 prayin"
for issuance of a writ of mandamus/direction(s) directin" t%e
:nion of India6 t%e C%ief Election Commissioner and t%e
$ec%nical E;perts Committee0Respondent +os. 105 %erein
respecti!ely to effect t%e necessary modifications in t%e
EV4s so as to allow t%e !oters to !erify t%eir respecti!e !otes
and to attac% t%e printers to t%e EV4s wit% a facility to print
t%e runnin" record of t%e !otes for t%e purpose of !erification
by t%e !oters in t%e process of !otin". *e also prayed for a
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direction to frame "uidelines and to effect necessary
amendments in t%e Conduct of Election Rules6 1/<1.
=) In !iew of t%e pendency of t%e appeal filed by Dr.
Subramanian Swamy6 t%is Court issued notice in t%e writ
petition and ta""ed wit% t%e said appeal.
<) *eard Dr. Subramanian Swamy6 appellant0in0person in
t%e appeal6 Dr. R.R. Des%pande6 learned counsel for t%e writ
petitioner6 4r. As%o> Desai and 4s. 4eena>s%i Arora6 learned
senior counsel for t%e ECI.
C!n#3n#i!ns5
') Dr. Subramanian Swamy6 t%e appellant %erein
contended before t%is Court t%at t%e present system of
EV4s6 as utili?ed in t%e last few "eneral elections in India6
does not meet all t%e re@uirements of t%e international
standards and t%ou"% t%e ECI maintains t%at t%e EV4s
cannot be tampered wit%6 but t%e fact is t%at EV4s6 li>e all
electronic e@uipments6 are open to %ac>in".
.) $%e appellant %as furt%er %i"%li"%ted t%at t%e instant
matter arises out of t%e refusal of t%e ECI to incorporate a
certain ob!ious safe"uard in t%e EV4s called 1paper
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bac>up36 1paper receipt3 or 1paper trail36 presently in use
and mandated in some countries li>e :SA6 w%ic% would easily
and c%eaply meet t%e re@uirement of proof t%at t%e EV4 %as
ri"%tly re"istered t%e !ote cast by a !oter. $%e appellant %as
furt%er %i"%li"%ted t%at t%e 1paper trail3 system is to
supplement t%e procedure of !otin" as in t%is procedure6
after recordin" a !ote in t%e EV46 a print out will come out
w%ic% will appraise t%e !oter t%at %is !ote %as been ri"%tly
re"istered and t%e same will be deposited in a bo; w%ic% can
only be used by t%e ECI in case of election dispute.
/) It is t%e cate"orical stand of t%e appellant t%at t%e
abo!e said system will brin" more accuracy in t%e present
system and if a particular election is c%allen"ed on t%e
"round t%at some particular identified !oterAs !oter or t%e
!otes of a "roup of !oters %a!e been suppressed2%a!e not
been correctly assi"ned by t%e EV4s6 t%e accepted current
procedure is for a re0run of t%e same EV4s for a re0count6
%owe!er6 under t%e new procedure6 a re0count will be of t%e
receipts in t%e ballot bo; containin" t%e printouts t%e EV4s
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%ad issued to t%e !oter t%ereby ensurin" more transparency
in t%e process.
1() $%e writ petitioner %as also raised similar contentions as
t%ose of Dr. Swamy. Accordin" to t%e petitioner6 in t%e
present system of !otin" t%rou"% EV4s6 t%ere is no suc%
facility by w%ic% a !oter can !erify and confirm %is own
!otin". At present6 a !oter presses a button only but cannot
ascertain t%e actual !otin". *e is not sure w%et%er %is !ote
is recorded or not6 if recorded6 w%et%er it is recorded in
fa!our of t%e person to w%om it was intended or not.
,%et%er it is !alid or in!alid and w%et%er it is counted or not.
It is submitted by t%e petitioner t%at unless and until answers
to t%ese @uestions are personally seen by t%e !oter6 it cannot
be said t%at !otin" is made by %im because 1pressin" a
button of c%oice and "ettin" flas%ed t%e red0li"%t3 is not
actual !otin" in real sense unless t%e !oter >nows well t%at
w%at %as %appened in conse@uence of pressin" a button of
%is c%oice from t%e EV4s.
S#.n6 !$ #/3 E&37#i!n C!00issi!n !$ In6i.5
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11) 4r. As%o> Desai6 learned senior counsel for t%e ECI
submitted t%at t%e appre%ension t%at EV4s could be
tampered wit% is baseless. It was also informed to t%is Court
t%at t%e ECI %as been e;plorin" t%e possibility of
incorporatin" a !iable Voter Verifiable -aper Audit $rail
(VV-A$) system as a part of t%e presently used EV4s to
ma>e t%e election system more transparent. Burt%er6 it was
brou"%t to our notice t%at t%e ECI conducted field trials for
VV-A$ system earlier also but t%e same %ad not been
successful and were discontinued. $%e ECI also filed a
counter affida!it statin" t%at t%e EV4s pro!ided by t%e
Commission are of suc% a %i"% end tec%nolo"y t%at it cannot
be %ac>ed.
1#) Referrin" to Section <1A of t%e Representation of t%e
-eople Act6 1/=16 it is submitted t%at t%e Statute itself
pro!ides for recordin" of !otes by EV4s and t%e ECI %as been
"i!en t%e discretion to prescribe recordin" of !otes by suc%
EV4s as it may deem fit. $%is discretion %as to be e;ercised
in a manner to preser!e t%e sanctity of t%e election process
and ensure t%at t%e election is conducted in a free and fair
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manner. $%e ECI %as e;ercised due dili"ence to ensure t%at
EV4s so used are 1tamper proof3 and it is also in t%e process
of e;plorin" to incorporate VV-A$ system w%ic% is
compatible wit% t%e present EV4s used by it. It is asserted
t%at t%ere is no instance of tamperin" wit% EV4s so far by
anyone.
15) It is furt%er submitted t%at t%e EV4s used in India are
uni@ue and unli>e t%e ones used in t%e elections in :SA and
ot%er countries6 w%ic% are personal computer based. EV4s
deployed by t%e ECI %a!e been lauded not only in India but
also abroad. EV4As Control :nit retains in t%e memory eac%
!ote recorded elector0wise. $%e information stored in t%e
memory of t%e Control :nit can be retrie!ed by usin" a
de!ice called t%e 1decoder3 w%ic%6 w%en attac%ed to t%e
Control :nit of EV46 can print out t%e statement of !otin"
data s%owin" t%e order in w%ic% eac% !oter %as !oted and to
w%om %e %as !oted.
17) Insofar as t%e transparency of t%e election process as
well as t%e ri"%t of a !oter to >now w%et%er %is !ote %as
actually been recorded for t%e candidate for w%om it was
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cast is concerned6 it is submitted t%at as soon as a !ote is
recorded by a !oter by pressin" t%e 1candidateAs3 button on
t%e )allot :nit6 a li"%t "lows a"ainst t%e name and symbol of
t%e candidate6 w%ic% t%e !oter can see for %imself2 %erself.
$%is is a !isual (electronic) assurance to t%e !oter t%at t%e
candidate for w%om %e %as cast %is !ote %as actually "ot t%at
!ote. $%ereafter6 t%e li"%t "oes off to protect t%e secrecy of
!otin".
1=) It is furt%er submitted t%at t%e feasibility of VV-A$
system was sou"%t to be e;plored to by !arious political
parties and t%ey were e;plained t%e tec%nical and
administrati!e safe"uards. $%e ECI also constituted a
$ec%nical E;perts Committee to e;amine t%e !iability of t%e
VV-A$ system. 8n #'.(=.#(116 t%e $ec%nical E;perts
Committee6 after discussion wit% political parties and ci!il
society members and also after seein" t%e demonstration of
t%e prototype VV-A$ system de!eloped by 42s. )%arat
Electronics td. ()E) and 42s. Electronics Corporation of
India td. (ECI)6 recommended t%at a field test of t%e
prototype VV-A$ system s%ould be carried out in a simulated
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election under different en!ironmental conditions in
Caisalmer6 $%iru!anant%apuram6 Del%i6 e% and C%erapun&i.
$%e ECI also %eld furt%er meetin"s wit% t%e manufacturers of
EV4s on !arious dates to fine tune t%e system and e;pedite
t%e follow up action re@uired. Se!eral meetin"s were also
%eld wit% t%e E;pert Committee on VV-A$ system.
1<) In wider fulfillment of t%e ob&ecti!es of t%e field trial6 t%e
ECI %as re@uested t%e +ational and State parties to e;tend
necessary cooperation by "ettin" in!ol!ed in t%e trial process
acti!ely and also witness t%e trial in order to %a!e a first
%and e;perience of t%e system. $%e ECI %as also re@uested
t%e indi!iduals includin" t%e appellant D Dr. Subramanian
Swamy and t%e "roups6 w%o %a!e been en"a"ed wit% t%e ECI
on t%e issue of EV40VV-A$6 to witness t%e trial.
1') ,e %a!e carefully perused t%e rele!ant materials and
considered t%e ri!al contentions.
Dis7"ssi!n
1.) ,%en t%e matter was listed before t%is Court for
%earin" on #'.(/.#(1#6 4r. As%o> Desai %ad brou"%t to our
notice t%at t%e ECI is contemplatin" foolproof met%od in
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EV4s for w%ic% t%ey are ta>in" !arious steps in consultation
wit% t%e $ec%nical E;perts Committee and t%e !iews of all
reco"ni?ed political parties. 4r. Desai also promised to
appraise t%is Court about t%e deliberations and t%e ultimate
decision to be ta>en by t%em in t%is re"ard. Accordin"ly6 t%is
Court "ranted sufficient time to t%e ECI to file Status Report
re"ardin" introduction of VV-A$ system in EV4s to be used
in t%e elections.
1/) -ursuant to t%e directions of t%is Court6 t%e ECI filed a
Status Report on t%e de!elopments of VV-A$ system. In t%e
said report6 t%e ECI6 citin" !arious tec%nicalities6 prayed for
furt%er time to ma>e t%e system more robust for t%e field
conditions.
#() 8n 1=.1#.#(1#6 42s )E6 )an"alore filed a report
s%owin" t%e status of de!elopment of VV-A$ system w%ic%
contains c%an"es t%at %a!e been carried out in VV-A$ from
September to December6 #(1# and also furnis%ed
c%ronolo"ical c%an"es made in VV-A$ system after t%e field
trial of t%e VV-A$ system %eld in Culy and Au"ust6 #(1#.
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#1) -ursuant to t%e directions of t%is Court6 t%e Secretary6
ECI6 filed an affida!it %i"%li"%tin" t%e followin" steps2
informationE
1(i) $%at !ide its Affida!it dated 17.(1.#(156 t%e
Commission %ad filed t%e status report re"ardin"
introduction of t%e VV-A$ system in t%e Electronic
Votin" 4ac%ines (EV4s).
(ii) $%at subse@uently6 in t%e $ec%nical E;pert
Committee meetin" %eld on (7.(#.#(156 t%e
Committee appro!ed t%e desi"n of t%e VV-A$ and
decided t%at software fine tunin" will be done and
completed by t%e end of Bebruary6 #(156 and
modified desi"n specifications will be submitted to
t%e $ec%nical E;pert Committee for appro!al.
$%e Committee also recommended t%at t%e
Commission may for usin" t%e VV-A$ and t%at t%e
VV-A$ s%ould be tried in a bye0election.
(iii) $%at in t%e $ec%nical E;pert Committee
meetin" %eld on 1/.(#.#(156 t%e Committee
finali?ed t%e VV-A$ desi"n.
$%e manufacturers6 namely6 42s. )%arat Electronics
imited and 42s. Electronics Corporation of India
imited %a!e @uoted Rs. 1<6#((20 (e;cludin" duties6
ta;es and transport c%ar"es) per VV-A$ system.
$%e Commission %as decided to purc%ase sufficient
units of VV-A$ for trials in a )ye0election6 at an
appro;imate cost of Rs.'#6/(6(((20 (Rupees se!enty
two la>% ninety t%ousand) appro;imately.
(i!) It is submitted t%at t%e Commission will
re@uire appro;imately 15 la>% VV-A$ units to be
manufactures for 15 la>% EV4s presently a!ailable
and rou"%ly about Rs. 1</( crores (8ne $%ousand
Si; *undred +inety Crores)(i.e. 15 la>% units ;
Rs.156((( per unit) are re@uired for t%e purpose of
implementation of t%e VV-A$ system ta>in" into
account t%e possible reduction in t%e cost per unit
w%en produced in bul>.
(!) It is furt%er submitted t%at in order to
implement t%e new system t%e Conduct of Election
Rules6 1/<1 will re@uire certain amendments.
In t%is connection6 !ide letter +o.
5212#(152Vol.II2SDR2.< dated #..(5.#(156 t%e
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Commission %as informed t%e e"islati!e
Department of t%e 4inistry of aw and Custice inter
alia t%e !arious amendments re@uired to t%e
rele!ant parts of Rules 7/A to 7/F6 <<A6 ==C6 =<C6
='C and Borm 1'C of t%e Conduct of Elections Rules6
1/<16 as well as introduction of Rules 7/4A and =<D
in t%e said RulesG
(!i) $%at t%e Commission %as called for a meetin"
of all t%e reco"ni?ed +ational and State -arties on
1(
t%
4ay6 #(15 for t%e purpose of demonstration of
VV-A$ unit to t%em and for discussion wit% t%em for
elicitin" t%eir !iews re"ardin" use of VV-A$ system
in t%e elections. $%e petitioner %erein and ot%ers
interested in t%e matter would also be in!ited at t%e
meetin".3
##) It is seen from t%e records t%at after !arious
deliberations wit% t%e e;perts and persons concerned wit%
t%e tec%nolo"y6 t%e $ec%nical E;perts Committee appro!ed
t%e final desi"n of VV-A$ units in its meetin" %eld on
1/.(1.#(15. In order to meet t%e directions of t%is Court and
for proper e;ecution of VV-A$ system6 as noticed abo!e6 t%e
ECI in its letter dated #..(5.#(156 addressed to t%e Secretary
to t%e 9o!ernment of India6 4inistry of aw and Custice stated
t%at necessary "round wor> for amendment to t%e Conduct
of Election Rules6 1/<1 (in rele!ant parts in Rules 7/A to 7/F6
<<A6 ==C6 =<C6 ='C and Borm 1'C) may be made so t%at t%e
amendment to t%e Rules can be notified immediately w%ic%
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will enable t%e ECI to use t%e VV-A$ system in bye0elections
in consultation wit% t%e political parties. )y placin" all t%ose
materials6 t%e ECI re@uested t%e 4inistry of aw and Custice
for draftin" and notifyin" amendment Rules e;peditiously.
#5) Brom t%e materials placed by t%e ECI6 it is noted t%at
t%e purc%ase order %as been placed wit% 42s )E and 42s
ECI for supplyin" 1=( and 5(( VV-A$ units respecti!ely at
Rs. 1<6#((20 per unit e;cludin" e;cise duty6 sales ta; and
transportation etc. costin" Rs. '#6/(6(((20 (appro;.). $%e ECI
%as also %i"%li"%ted t%at if t%e VV-A$ systems are ultimately
to be used wit% all t%e 15 la>% EV4s a!ailable6 t%e total cost
in t%e purc%ase of VV-A$ units may come to about Rs. 16</(
crores6 ta>in" into account t%e possible reduction in t%e cost
per unit due to bul> production t%e cost may come to Rs.
156(((20 per unit appro;imately.
#7) $%e affida!it dated #1.(..#(156 filed on be%alf of t%e
ECI6 s%ows t%at t%e 4inistry of aw and Custice6 on
#7.('.#(156 referred t%e draft notification to amend t%e
Conduct of Election Rules6 1/<1 to pro!ide for use of VV-A$
system of elections to t%e ECI for its !iews and comments.
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$%e ECI su""ested certain minor modifications in t%e draft
notification and sent t%e same bac> to t%e 4inistry of aw
and Custice on (#.(..#(15 wit% a re@uest to notify t%e
amendment Rules at t%e earliest. Accordin"ly6 t%e 4inistry
of aw and Custice notified t%e amendments to t%e Conduct
of Election Rules6 1/<1 in t%e 9a?ette of India !ide
notification +o. S.8. #7'((E) dated 17.(..#(15 to enable use
of VV-A$ wit% EV4s.
#=) $%e aforesaid affida!it of t%e ECI also s%ows t%at t%e
ECI %ad also con!ened a meetin" of all t%e reco"ni?ed
+ational and State political parties on 1(.(=.#(15 and
demonstrated before t%eir representati!es t%e wor>in" of
VV-A$ system. Separately6 on t%e same day6 t%e ECI also
%eld a meetin" wit% indi!iduals includin" t%e appellant
%erein w%o %ad been en"a"ed wit% t%e ECI o!er t%e past
se!eral years re"ardin" t%e functionin" of EV4s. VV-A$
system was demonstrated before t%em as well.
Representati!es of political parties and ot%er indi!iduals
e;pressed t%eir satisfaction o!er t%e VV-A$ system.
$%ereafter6 t%e ECI %ad decided to use t%e VV-A$ system in
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t%e bye0election from =10+o>sen (S$) Assembly Constituency
in t%e State of +a"aland. Instructions were issued to %old
special meetin"s wit% t%e contestin" candidates in t%at
constituency to brief t%em about t%e use of VV-A$ system.
$%e ECI also or"ani?ed special trainin" sessions for poll
officers for t%e use of VV-A$ and steps were ta>en to
educate t%e electors for t%e same.
#<) After !arious %earin"s6 w%en t%e matter was %eard on
7.1(.#(156 an affida!it dated (1.1(.#(15 filed on be%alf of
t%e ECI was placed before t%is Court. $%e said affida!it was
filed to place on record t%e performance2result of t%e
introduction of t%e VV-A$ system in t%e bye0election from
=10+o>sen (S$) Assembly Constituency of +a"aland for w%ic%
t%e poll was conducted on (7.(/.#(15 indicatin" t%e future
course of action to be decided by t%e ECI on t%e basis of said
performance. )y t%is affida!it6 it was brou"%t to our notice
t%at since VV-A$ system was bein" used for t%e first time6
t%e ECI %as decided t%at intensi!e trainin" s%all be "i!en to
t%e pollin" officers. 4embers of t%e $ec%nical E;perts
Committee of t%e ECI also went to super!ise trainin" and t%e
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actual use of VV-A$ in t%e bye0election. It is furt%er stated
t%at t%e ECI also wrote letters to all t%e reco"ni?ed political
parties and ot%er persons6 includin" t%e appellant %erein6
en"a"ed wit% t%e ECI on t%is sub&ect in!itin" t%em to witness
t%e use of VV-A$. It is also brou"%t to our notice t%at VV-A$
was successfully used in all t%e #1 pollin" stations of =10
+o>sen (S$) Assembly Constituency of +a"aland. It was also
stated t%at as per t%e Rules6 t%e paper slips of VV-A$ s%all
not be counted normally e;cept in case t%e Returnin" 8fficer
decides to count t%em on an application submitted by any of
t%e candidates. *owe!er6 since VV-A$ system was bein"
used for t%e first time in any election6 t%e ECI decided on its
own to count paper slips of VV-A$ in respect of all pollin"
stations. Accordin" to t%e ECI6 no discrepancy was found
between t%e electronic and paper count.
#') In t%e said affida!it6 it is finally stated t%at t%e ECI %as
decided to increase t%e use of VV-A$ units in a p%ased
manner and for t%is purpose t%e ECI %as already written to
t%e 9o!ernment of India6 4inistry of aw and Custice to issue
administrati!e and financial sanction for procurement of
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#(6((( units of VV-A$ (1(6((( eac% from 42s )E and 42s
ECI) costin" about Rs. 5..(1 crore.
#.) $%ou"% initially t%e ECI was little reluctant in
introducin" 1paper trail3 by use of VV-A$6 ta>in" note of t%e
ad!anta"e in t%e system as demonstrated by Dr.
Subramanian Swamy6 we issued se!eral directions to t%e
ECI . -ursuant to t%e same6 t%e ECI contacted se!eral e;pert
bodies6 tec%nical ad!isers6 etc. $%ey also %ad !arious
meetin"s wit% +ational and State le!el political parties6
demonstrations were conducted at !arious places and finally
after a t%orou"% e;amination and full discussion6 VV-A$ was
used successfully in all t%e #1 pollin" stations of =10+o>sen
(S$) Assembly Constituency of +a"aland. $%e information
furnis%ed by t%e ECI6 t%rou"% t%e affida!it dated (1.1(.#(156
clearly s%ows t%at VV-A$ system is a successful one. ,e
%a!e already %i"%li"%ted t%at VV-A$ is a system of printin"
paper trail w%en t%e !oter casts %is !ote6 in addition to t%e
electronic record of t%e ballot6 for t%e purpose of !erification
of %is c%oice of candidate and also for manual countin" of
!otes in case of dispute.
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#/) Brom t%e materials placed by bot% t%e sides6 we are
satisfied t%at t%e 1paper trail3 is an indispensable
re@uirement of free and fair elections. $%e confidence of t%e
!oters in t%e EV4s can be ac%ie!ed only wit% t%e
introduction of t%e 1paper trail3. EV4s wit% VV-A$ system
ensure t%e accuracy of t%e !otin" system. ,it% an intent to
%a!e fullest transparency in t%e system and to restore t%e
confidence of t%e !oters6 it is necessary to set up EV4s wit%
VV-A$ system because !ote is not%in" but an act of
e;pression w%ic% %as immense importance in democratic
system.
5() In t%e li"%t of t%e abo!e discussion and ta>in" notice of
t%e pra"matic and reasonable approac% of t%e ECI and
considerin" t%e fact t%at in "eneral elections all o!er India6
t%e ECI %as to %andle one million (ten la>%s) pollin" boot%s6
we permit t%e ECI to introduce t%e same in "radual sta"es or
"eo"rap%ical0wise in t%e ensuin" "eneral elections. $%e
area6 State or actual boot%(s) are to be decided by t%e ECI
and t%e ECI is free to implement t%e same in a p%ased
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manner. ,e appreciate t%e efforts and "ood "esture made
by t%e ECI in introducin" t%e same.
51) Bor implementation of suc% a system (VV-A$) in a
p%ased manner6 t%e 9o!ernment of India is directed to
pro!ide re@uired financial assistance for procurement of units
of VV-A$.
5#) )efore partin" wit% t%e case6 we record our appreciation
for t%e efforts made by Dr. Subramanian Swamy as well as
t%e ECI6 in particular 4r. As%o> Desai and 4s. 4eena>s%i
Arora6 learned senior counsel for t%e ECI.
55) ,it% t%e abo!e directions6 t%e appeal and t%e writ
petition are disposed of. +o separate order is re@uired in t%e
applications for inter!ention. )ot% sides are permitted to
approac% t%is Court for furt%er direction(s)6 if need arises.

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