Legal History of Evms and Vvpats: A Compilation and Analysis of Case Laws Edition 1 January 2024

LEGAL HISTORY OF
EVMs AND VVPATs

A compilation and analysis of case laws
Edition 1
January 2024
Nirvachan Sadan, Ashoka Road, New Delhi-110001

Document No.324.6.EPS:HB:021:2023
CONTENTS
Page
No.
Chapter 1 EVM Inception & Milestones 1
Chapter 2 Legal provisions regarding EVM/VVPATs 3
Chapter 3 Judicial Decisions on EVM/VVPATs 22
Abhay B. Chajed vs. Smt. Madhuri Misal 2017
1. 22
SCC OnLine Bom 739
Abhay B. Chajed vs. Smt. Madhuri Misal 2018
2. 24
SCC OnLine Bom 267
3. A.C. Jose vs. Sivan Pillai, (1984) 2 SCC 656 63
All India Anna Dravida Munnetra Kazhagam
4. vs. Election Commission of India, 2001 SCC 81
OnLine Mad 1398
Amitabh Gupta vs. Election Commission of
5. 121
India and Another 2018 SCC OnLine MP 1827
Anil Kumar vs. Election Commission of India
6. & Ors, W.P.(C) 11437/2023 & CM. APPL. 128
44513/2023
Anil Kumar vs. Election Commission of
7. India & Ors, Special Leave Petition (Civil) 139
21693/2023
Bahujan Hasarat Party vs. Union of India &
8. 141
Ors. (PIL No. 211/2022 )
Banwarilal Purohit vs. Vilas Muttemwar &
9. Ors; Election Petition No. 1 of 2004 [ 2005 142
SCC OnLine Bom 1789]
C.P. Joshi vs. Kalyan Singh Chouhan & Anr.,
10. 181
2009 SCC OnLine Raj 2971
C.R. Jaya Sukin vs. Election Commission of
11. 185
India & Ors., Writ Petition (Civil) 6635/2021
C.R. Jaya Sukin vs. Election Commission of
12. India, Special Leave Petition (Civil) 13278/ 188
2021
_______________________________________________________ LEGAL HISTORY OF EVMs AND VVPATs /iii

Election Commission of India vs. Central
13. Information Commission, 2009 SCC OnLine 190
Del 3515
Election Commission of India vs. Central
14. 210
Information Commission [W.P.(C) 2679/2019]
Girish M. Das vs. Chief Election Commissioner
15. 214
& Ors., 2012 SCC OnLine Guj 4916
Gopal Seth vs. Election Commission of India
16. 222
& ors W.P.A. No. 2607 of 2021
Hans Raj Jain vs. Election Commission of
17. 228
India 2020 SCC OnLine Del 149
Khemchand Rajaram Koshti vs. Election
18. Commission of India & Anr., Writ Petition PIL 231
36/ 2019
Krishna Kumar Gupta vs. Rajendra Shukla,
19. 344
2014 SCC OnLine MP 8785
Lakhan Ghanghoriya vs. Anchal Sonker,
20. (Election Petition No. 12/2014 ) 2014 SCC 356
OnLine MP 5165
Madhya Pradesh Jan Vikash Party vs. Election
21. Commission of India, Special Leave Petition 367
(Civil) 16870/ 2022
Manoranjan Santosh Roy vs. Union of India &
22. 370
Ors. WP(C) No. 482 of 2023
M. Varalakshmi vs. K. Pandurangan & Ors.,
23. 371
2010 SCC OnLine Mad 5322
Michael B. Fernandes vs. C.K. Jaffer Sharief,
24. 406
2004 SCC OnLine Kar 72
Mohinder Singh Gill vs. The Chief Election
25. 415
Commissioner (1978) 1 SCC 405
Mukesh Nayak vs. Brijendra Pratap Singh
26. (Election petition No. 32 of 2009), 2009 503
reported in SCC OnLine MP 627
N. Chandrababu Naidu vs. Union of India,
27. 520
(2019) 15 SCC 377
iv / LEGAL HISTORY OF EVMs AND VVPATs _______________________________________________________

N.P. Ponnuswami vs. Returning Officer, 1952
28. 527
SCR 218
Naresh Saraf vs. Election Commission of
29. 547
India, Writ Petition 28106/ 2018
Nyaya Bhoomi & Anr. vs. Election Commission
30. 549
of India, Writ Petition (Civil) 1332/ 2018
People's Union for Civil Liberties vs. Union of
31. 550
India, (2013) 10 SCC 1
Dr. Ramesh Pandey vs. Election Commission
32. 578
of India & another 2017 SCC OnLine Utt 676
Reshma Vithalbhai Patel vs. Union of India,
33. 597
(2018) 18 SCC 675
Subramanian Swamy vs. Election Commission
34. 599
of India, (2013) 10 SCC 500
Sunil Ahya vs. Election Commission of India,
35. 610
Writ Petition (Civil) 826/2023
T.A. Ahammed Kabeer vs. A.A. Azeez & Ors,
36. 613
EP 4 of 2001[(2003) 5 SCC 650]
T.R. Baalu vs. The Election Commission of
37. 634
India & Ors., 2014 SCC OnLine Mad 1171
Viplav Sharma vs. Union of India & Ors, WP
38. (C) No. 5521 of 2004 [(2005) 83 DRJ 665 637
(DB)]
Chapter 4 Conclusion 642
EVM Technical Safeguards and Involvement of
643
Political Parties in Various EVM Activities
Additional Information on EVMs/VVPATs 652
Interesting Facts on EVMs 654
Appendix 655
FAQs on EVMs 657
Annexure to FAQs 714
_______________________________________________________ LEGAL HISTORY OF EVMs AND VVPATs /v

PREFACE
This book will essentially service as a practical guide in making the

understanding and awareness about the legal aspects surrounding the
Electronic Voting Machines (EVM) / Voter Verifiable Paper Audit Trail
(VVPAT) better. The subject matter is presented in such a way that this
book could be readily used by various internal stakeholders connected
to the Election Commission of India like the Chief Electoral Officers,
District Election Officers, other Election related officials of the states
and UTs, and so on. Further, this book serves as a ready reckoner to
the legal practitioners of the country and assists the Hon’ble Courts in
cases relating to the Electronic Voting Machines.
The book provides a useful insight into the relevant statutory
framework governing EVMs and VVPATs. The utility of the booklet
is in extracting the significant rulings and observations of the Hon’ble
Supreme Court of India and various High Courts of the country. Above
all, it is an effort of the Election Commission of India to inform and
educate the public at large and stakeholders in the electoral process, the
evolution of Electronic Voting Machines/VVPATs in India from a legal
perspective.
vi / LEGAL HISTORY OF EVMs AND VVPATs _______________________________________________________

CHAPTER 1: EVM INCEPTION &
MILESTONES
1. Electronic Voting Machine (EVM) was first conceived in 1977.
Its prototype developed by Electronics Corporation of India Ltd.
(ECIL), Hyderabad, a PSU under Department of Atomic Energy,
in 1979 was demonstrated by the Election Commission of India
before the representatives of political parties on August 06, 1980.
2. After reaching a wide consensus on its introduction, the ECI issued
directives under Article 324 of the Constitution of India for the use
of EVMs and on 19th May, 1982 EVMs were used on a pilot basis
to conduct elections. The law was amended by the Parliament
in December 1988 and a new Section 61A was included in the
Representation of the People Act 1951, thereby empowering the
ECI to use EVM. The amendment came into force on 15th March,
1989.
3. After convincing demonstration of prototypes developed, Bharat
Electronics Ltd. (BEL), Bangalore, a Defence Ministry PSU, was
selected along with ECIL to manufacture the EVM.
4. The Government of India instituted an Electoral Reforms
Committee (ERC) in January 1990, consisting of representatives
from several national and state-level political parties under the
chairmanship of Mr. Dinesh Goswami. The ERC recommended
the examination of EVM by a team of technical experts.
5. A Technical Expert Committee (TEC) was formed under the
chairmanship of Mr. S. Sampath, Chairman, RAC, DRDO with
eminent scientists like Dr. P.V. Indiresen (IIT, Delhi), Dr. Rao C.
Kasarbada (ER&DC, Trivandrum) in the list among others. In April
1990, the Expert Committee unanimously recommended the use
of EVMs without any further loss of time marking it technically
sound, secure and transparent.
6. In 1998, a general consensus was reached on the use of EVMs
for conducting Indian elections. In 1998, EVMs were used in 16
Legislative ACs across three states of Madhya Pradesh, Rajasthan,
and Delhi.
_______________________________________________________ LEGAL HISTORY OF EVMs AND VVPATs /1

7. The use of EVMs further expanded in 1999 to 46 Parliamentary
Constituencies (PC), and later, in February 2000, EVMs were used
in 45 ACs in Haryana state assembly polls. All state assembly
elections thereafter witnessed the use of this machine.
8. In 2004, the EVMs were used in all 543 Parliamentary
Constituencies for the elections to the Lok Sabha. A new
technologically advanced voting system completely replaced the
erstwhile voting method of using ballot papers.
9. A number of technological changes were made in the EVMs in 2001
and the machines were further upgraded in 2006. The pre-2006
era EVMs are known as ‘Ml EVMs’, while EVMs manufactured
between 2006 to 2010 are called ‘M2 EVMs’. The latest generation
of EVMs, produced since 2013 are known as ‘M3 EVMs’.
10. To improve the transparency and verifiability in poll process the
Conduct of Election Rules, 1961 were amended and notified on
14th August 2013, thereby, Voter Verifiable Paper Audit Trail
(VVPAT) was introduced. They were first used in the by-election
for 51-Noksen AC in Nagaland.
2 / LEGAL HISTORY OF EVMs AND VVPATs _______________________________________________________

CHAPTER 2: LEGAL PROVISIONS
REGARDING EVM/VVPATs
Along with introduction of Section 61A to the Representation of the

People Act, 1951, several amendments were made to the Act and
Conduct of Election Rules, 1961 to enable smooth usage of EVMs/
VVPAT (Voter Verifiable Paper Audit Trail).
Relevant statutory provisions under the Representation of the
People Act, 1951 are as follows:
Section 58. Fresh poll in the case of destruction, etc., of ballot boxes
(1) If at any election —
(a) any ballot box used at a polling station or at a place fixed
for the poll is unlawfully taken out of the custody of the
presiding officer or the returning officer, or is accidentally
or intentionally destroyed or lost, or is damaged or tampered
with, to such an extent, that the result of the poll at that polling
station or place cannot be ascertained; or
(aa) any voting machine develops a mechanical failure during the
course of the recording of votes; or
(b) any such error or irregularity in procedure as is likely to vitiate
the poll is committed at a polling station or at a place fixed for
the poll, the returning officer shall forthwith report the matter
to the Election Commission.
(2) Thereupon the Election Commission shall, after taking all
material circumstances into account; either—
(a) declare the poll at that polling station or place to be void,
appoint a day, and fix the hours, for taking a fresh poll at that
polling station or place and notify the day so appointed and
the hours so fixed in such manner as it may deem fit, or
(b) if satisfied that the result of a fresh poll at that polling station
or place will not, in any way, affect the result of the election
or that the mechanical failure of the voting machine or the

error or irregularity in procedure is not material, issue such
directions to the returning officer as it may deem proper for
the further conduct and completion of the election.
(3) The provisions of this Act and of any rules or orders made
thereunder shall apply to every such fresh poll as they apply to the
original poll.
Section 135A. Offence of booth capturing —
(1) Whoever commits an offence of booth capturing shall be punishable
with imprisonment for a term which shall not be less than one year
but which may extend to three years and with fine, and where such
offence is committed by a person in the service of the Government,
he shall be punishable with imprisonment for a term which shall
not be less than three years but which may extend to five years and
with fine.
Explanation — For the purposes of this sub-section and section
20B, “booth capturing” includes, among other things, all or any of
the following activities, namely: —
(a) seizure of a polling station or a place fixed for the poll by any
person or persons, making polling authorities surrender the
ballot papers or voting machines and doing of any other act
which affects the orderly conduct of elections;
(b) taking possession of a polling station or a place fixed for the
poll by any person or persons and allowing only his or their
own supporters to exercise their right to vote and prevent
others from free exercise of their right to vote;
(c) coercing or intimidating or threatening directly or indirectly
any elector and preventing him from going to the polling
station or a place fixed for the poll to cast his vote;
(d) seizure of a place for counting of votes by any person or
persons, making the counting authorities surrender the ballot
papers or voting machines and the doing of anything which
affects the orderly counting of votes;

(e) doing by any person in the service of Government, of all or
any of the aforesaid activities or aiding or conniving at, any
such activity in the furtherance of the prospects of the election
of a candidate.
(2) An offence punishable under sub-section
(a) shall be cognizable.
Section 169. Power to make rules —
(1) The Central Government may, after consulting the Election
Commission, by notification in the Official Gazette, make rules for
carrying out the purposes of this Act.
(2) In particular, and without prejudice to the generality of the
foregoing power, such rules may provide for all or any of the
following matters, namely: —
(a) the form of affidavit under sub-section (2) of section 33A;
(aa) the duties of presiding officers and polling officers at
polling stations;
(aaa) the form of contribution report;
(b) the checking of voters by reference to the electoral roll;
(bb) the manner of allocation of equitable sharing of time on
the cable television network and other electronic media;
(c) the manner in which votes are to be given both generally and
in the case of illiterate voters or voters under physical or other
disability;
(d) the manner in which votes are to be given by a presiding
officer, polling officer, polling agent or any other person, who
being an elector for a constituency is authorized or appointed
for duty at a polling station at which he is not entitled to vote;
(e) the procedure to be followed in respect of the tender of vote
by a person representing himself to be an elector after another
person has voted as such elector;

(ee) the manner of giving and recording of votes by means
of voting machines and the procedure as to voting to be
followed at polling stations where such machines are
used;
(f) the procedure as to voting to be followed at elections held in
accordance with the system of proportional representation by
means of the single transferable vote;
(g) the scrutiny and counting of votes including cases in which a
recount of the votes may be made before the declaration of the
result of the election;
(gg) the procedure as to counting of votes recorded by means
of voting machines;
(h) the safe custody of ballot boxes, voting machines, ballot
papers and other election papers, the period for which such
papers shall be preserved and the inspection and production
of such papers;
(hh) the material to be supplied by the Government to the
candidates of recognised political parties at any election
to be held for the purpose of constituting the House of the
People or the Legislative Assembly of a State;
(i) any other matter required to be prescribed by this Act.
(3) Every rule made under this Act shall be laid as soon as may be after
it is made before each House of Parliament while it is in session for
a total period of thirty days which may be comprised in one session
or in two or more successive sessions, and if, before the expiry of
the session immediately following the session or the successive
sessions aforesaid, both Houses agree in making any modification
in the rule or both Houses agree that the rule should not be made,
the rule shall thereafter have effect only in such modified form
or be of no effect, as the case may be; so, however, that any such
modification or annulment shall be without prejudice to the validity
of anything previously done under that rule.

Relevant legal provisions under the Conduct of Elections Rules,
1961 (Statutory Rules and Order) read with Conduct of Elections
(Amendment) Rules, 2013 are as follows:
Rule 49A. Design of Electronic Voting Machines —
Every electronic voting machine (hereinafter referred to as the voting
machine) shall have a control unit and a balloting unit and shall be of
such designs as may be approved by the Election Commission.
Provided that a printer with a drop box of such design, as may be
approved by the Election Commission, may also be attached to a voting
machine for printing a paper trail of the vote, in such constituency or
constituencies or parts thereof as the Election Commission may direct.
Rule 49B. Preparation of voting machine by the returning Officer—
The balloting unit of the voting machine shall contain such particulars
and in such language or languages as the Election Commission may
specify.
(2) The names of the candidates shall be arranged on the balloting unit
in the same order in which they appear in the list of the contesting
candidates.
(3) If two or more candidates bear the same name, they shall be
distinguished by the addition of their occupation or residence or in
some other manner.
(4) Subject to the foregoing provisions of this rule, the returning
officer shall —
(a) fix the label containing the names and symbol of the contesting
candidates in the balloting unit and secure that unit with his seal
and the seals of such of the contesting candidates or their election
agents present as are desirous of affixing the same;
(b) set the number of contesting candidates and close the candidate set
section in the control unit and secure it with his seal and the seals
of such of the contesting candidates or their election agents present
as are desirous of affixing the same.

(c) where the printer for paper trail is used under the proviso to Rule
49-A, set the printer as per the number of contesting candidates set
in the control unit by—
(i) loading in the printer the serial numbers and names of
candidates and symbols allotted to them as given on the
balloting units under clause (a);
(ii) loading paper in the printer; and
(iii) sealing the printer in such manner as may be directed by the
Election Commission.
Rule 49C. Arrangements at the polling stations —
(1) Outside each polling station there shall be displayed prominently—
(a) a notice specifying the polling area, the electors of which are
entitled to vote at the polling station and, when the polling
area has more than one polling station, the particulars of the
electors so entitled; and
(b) a copy of the list of contesting candidates.
(2) At each polling station there shall be set up one or more voting
compartments in which the electors can record their votes free
from observation.
(3) The returning officer shall provide at each polling station one
voting machine and copies of relevant part of the electoral roll
and such other election material as may be necessary for taking
the poll.
(4) Without prejudice to the provisions of sub-rule (3), the returning
officer may, with the prior approval of the Election Commission,
provide one common voting machine for two or more polling
stations located in the same premises.
Rule 49E. Preparation of voting machine for poll —
(1) The control unit and balloting unit of every voting machine used at
polling station shall bear a label marked with —
(a) the serial number, if any, and the name of the constituency;

(b) the serial number and name of the polling station or stations
as the case may be;
(c) the serial number of the unit; and
(d) the date of poll.
(2) Immediately before the commencement of the poll, the presiding
officer shall demonstrate to the polling agents and other persons
present that no vote has been already recorded in the voting
machine and it bears the label referred to in sub-rule (1), and where
the printer for paper trail is used that the drop box of the printer is
empty.
(3) A paper seal shall be used for securing the control unit of the voting
machine, and the presiding officer shall affix his own signature
on the paper seal and obtain thereon the signature of such of the
polling agents present as the desirous of affixing the same.
(4) The presiding officer shall thereafter fix the paper seal so signed in
the space meant therefor in the control unit of the voting machine
and shall secure and seal the same.
(5) The seal used for securing the control unit shall be fixed in such
manner that after the unit has been sealed, it is not possible to press
the “result button” without breaking the seal.
(6) The control unit shall be closed and secured and placed in full view
of the presiding officer and the polling agents and the balloting unit
placed in the voting compartment.
(7) Where the printer for paper trail is used, the printer shall also be
kept along with the balloting unit in the voting compartment and
shall be connected to the electronic voting machine in the manner
as directed by the Election Commission.
Rule 49L. Procedure for voting by voting machines —
(1) Before permitting an elector to vote, the polling officer shall—
(a) record the electoral roll number of the elector as entered in
the marked copy of the electoral roll in a register of voters in
Form 17A.

(b) obtain the signature or the thumb impression of the elector on
the said register of votes; and
(c) mark the name of the elector in the marked copy of the electoral
roll to indicate that he has been allowed to vote:
(d) give details of the document produced by the elector in proof
of his/her identification.
Provided that no elector shall be allowed to vote unless he has his
signature or thumb impression on the register of voters.
(2) Notwithstanding anything contained in sub-rule (2) of rule 2, it
shall be necessary for any presiding officer or polling officer or
any other officer to attest the thumb impression of the elector on
the register of voters.
Rule 49M. Maintenance of secrecy of voting by electors within the
polling station and voting procedures —
(1) Every elector who has been permitted to vote under rule 49L shall
maintain secrecy of voting within the polling station and for that
purpose observe the voting procedure hereinafter laid down.
(2) Immediately on being permitted to vote the elector shall proceed
to the presiding officer or the polling officer incharge of the control
unit of the voting machine who shall, by pressing the appropriate
button on the control unit, activate the balloting unit; for recording
of elector’s vote.
(3) The elector shall thereafter forthwith—
(a) proceed to the voting compartment;
(b) record his vote by pressing the button on the balloting unit
against the name and symbol of the candidate for whom he
intends to vote; and
(c) come out of the voting compartment and leave the polling
station.
Provided that where printer for paper trail is used, upon casting the vote
by pressing the button as referred to in clause (b), the elector shall be
able to view through the transparent window of the printer, kept along

with the balloting unit inside the voting compartment, the printed paper
slip showing the serial number, name and the symbol of the candidate
for whom he has cast his vote before such paper slip gets cut and drops
in the drop box of the printer.
(4) Every elector shall vote without undue delay.
(5) No elector shall be allowed to enter the voting compartment when
another elector is inside it.
(6) If an elector who has been permitted to vote under rule 49L or
rule 49P refuses after warning given by the presiding officer to
observe the procedure laid down in sub-rule (3) of the said rules,
the presiding officer or a polling officer under the direction of the
presiding officer shall not allow such elector to vote.
(7) Where an elector is not allowed to vote under sub-rule (6), a remark
to the effect that voting procedure has been violated shall be made
against the elector’s name in the register of voters in Form 17A by
the presiding officer under his signature.
Rule 49MA. Procedure in case of complaint about particulars
printed on paper slip –
(1) 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.
(2) If the elector gives the written declaration referred to in sub-rule
(1), the presiding officer shall make a second entry related to that
elector in Form 17A, and permit the elector to record a test vote
in the voting machine in his presence and in the presence of the
candidates or polling agents who may be present in the polling
station, and observe the paper slip generated by the printer.
(3) If the allegation is found true, the presiding officer shall report the
facts immediately to the returning officer, stop further recording of

votes in that voting machine and act as per the direction that may
be given by the Returning Officer.
(4) If, however, the allegation is found to be false and the paper slip so
generated under sub-rule (1) matches with the test vote recorded
by the elector under sub-rule (2), then, the presiding officer shall –
(i) make a remark to that effect against the second entry relating
to that elector in Form 17A mentioning the serial number
and name of the candidate for whom such test votes has been
recorded;
(ii) obtain the signature or thumb impression of that elector
against such remarks; and
(iii) make necessary entries regarding such test vote in item 5 in
Part I of Form 17C.
Rule 49N. Recording of votes of blind or infirm electors-
(1) If the presiding officer is satisfied that owing to blindness or other
physical infirmities an elector is unable to recognise the symbol
on the balloting unit of the voting machine or unable to record his
vote by pressing the appropriate button thereon without assistance
the presiding officer shall permit the elector to take with him a
companion of not less than eighteen years of age to the voting
compartment for recording the vote on his behalf and in accordance
with his wishes:
Provided that no person shall be permitted to act as the companion
of more than one elector at any polling station on the same day:
Provided further that before any person is permitted to act as the
companion of an elector on any day under this rule that person shall
be required to declare that he will keep secret the vote recorded by
him on behalf of the elector and that he has not already acted as the
companion of any other elector at any other polling station on that
day.
(2) The presiding officer shall keep a record in Form 14A of all cases
under this rule.

Rule 49Q. Presiding Officer’s entry in the voting compartment
during poll —
(1) The presiding officer may whenever he considers it necessary so to
do, enter the voting compartment during poll and take such steps as
may be necessary to ensure that the balloting unit is not tampered
or interfered with in any way.
(2) If the presiding officer has reason to suspect that an elector who
has entered the voting compartment is tampering or otherwise
interfering with the balloting unit or has remained inside the voting
compartment for unduly long period, he shall enter the voting
compartment and take such steps as may be necessary to ensure
the smooth and orderly progress of the poll.
(3) Whenever the presiding officer enters the voting compartment
under this rule, he shall permit the polling agents present to
accompany him if they so desire.
Rule 49R. Closing of poll —
(1) The presiding officer shall close a polling station at the hour fixed
in that behalf under section 56 and shall not thereafter admit any
elector into the polling station:
Provided that all electors present at the polling station before it is
closed shall be allowed to cast their votes.
(2) If any question arises whether an elector was present at the polling
station before it was closed it shall be decided by the presiding
officer and his decision shall be final.
Rule 49S. Account of votes recorded —
(1) The presiding officer shall at the close of the poll prepare an account
of votes recorded in Form 17C and enclose it in a separate cover
with the words ‘Account of Votes Recorded’ superscribed thereon.
(2) The presiding officer shall furnish to every polling agent present at
the close of the poll a true copy of the entries made in Form 17C
after obtaining a receipt from the said polling agent therefor and
shall attest it as a true copy.

Rule 49T. Sealing of voting machine after poll —
(1) As soon as practicable after the closing of the poll, the presiding
officer shall close the control unit to ensure that no further votes
can be recorded and shall detach the balloting unit from the control
unit and from the printer, where printer is also used, so however,
that the paper slips contained in the drop box of the printer shall
remain intact.
(2) The control unit and the balloting unit and the printer, where it
is used, shall thereafter be sealed, and secured separately in such
manner as the Election Commission may direct and the seal used
for securing them shall be so affixed that it will not be possible to
open the units without breaking the seals.
(3) The polling agents present at the polling station, who desire to
affix their seals, shall also be permitted to do so.
Rule 49U. Sealing of other packets —
(1) The presiding officer shall then make into separate packet, —
(a) the marked copy of the electoral roll;
(b) the register of voters in Form 17A;
(c) the cover containing the tendered ballot papers and the list in
Form 17B;
(d) the list of challenged votes; and
(e) any other papers directed by the Election Commission to be
kept in a sealed packet.
(2) Each packet shall be sealed with the seal of the presiding officer
and with the seal either of the candidate or of his election agent or
of his polling agent who may be present at the polling station and
may desire to affix his seal thereon.
Rule 49V. Transmission of voting machines, etc., to the returning
officer —
(1) The presiding officer shall then deliver or cause to be delivered
to the returning officer at such place as the returning officer may
direct,—
(a) the voting machine;
(b) the account of votes recorded in Form 17C;
(c) the sealed packets referred to in rule 49U; and
(d) all other papers used at the poll.
(2) The returning officer shall make adequate arrangements for the safe
transport of the voting machine, packets and other papers for their
safe custody until the commencement of the counting of votes.
Rule 49W. Procedure on adjournment of poll —
(1) If the poll at any polling station is adjourned under sub-section
(1) of section 57, the provision of rules 49S to 49V shall, as far as
practicable, apply as if the poll was closed at the hour fixed in that
behalf under section 56.
(2) When an adjourned poll is recommended under sub-section (2)
of section 57, the electors who have already voted at the poll so
adjourned shall not be allowed to vote again.
(3) The returning officer shall provide the presiding officer of the
polling station at which such adjourned poll is held, with the sealed
packet containing the marked copy of the electoral roll, register of
voters in Form 17A and a new voting machine.
(4) The presiding officer shall open the sealed packet in the presence of
the polling agents present and use the marked copy of the electoral
roll for marking the names of the electors who are allowed to vote
at the adjourned poll.
(5) The provisions of rule 28 and rules 49A to 49V shall apply
in relation to the conduct of an adjourned poll before it was so
adjourned.
Rule 49X. Closing of voting machine in case of booth capturing —
Where the presiding officer is of opinion that booth capturing is
taking place at a polling station or at a place fixed for the poll, he shall
immediately close the control unit of the voting machine to ensure that
no further votes can be recorded and shall detach the balloting unit that
from the control unit.

Rule 55C. Scrutiny and inspection of voting machines—
(1) The returning officer may have the control units of the voting
machines used at more than one polling station taken up for
scrutiny and inspection and votes recorded in such units counted
simultaneously.
(2) Before the votes recorded in any control unit of voting machine
are counted under sub-rule (1), the candidate or his election agent
or his counting agent present at the counting table shall be allowed
to inspect the paper seal and such other vital seals as might have
been affixed on the unit and to satisfy themselves that the seals are
intact.
(3) The returning officer shall satisfy himself that none of the voting
machines has in fact been tampered with.
(4) If the returning officer is satisfied that any voting machine has in
fact been tampered with, he shall not count the votes recorded in
that machine and shall follow the procedure laid down in section
58, or section 58A or section 64A, as may be applicable in respect
of the polling station or stations where that machine was used.
Rule 56C. Counting of votes —
(1) After the returning officer is satisfied that a voting machine has
in fact not been tampered with, he shall have the votes recorded
therein counted by pressing the appropriate button marked “Result”
provided in the control unit whereby the total votes polled and
votes polled by each candidate shall be displayed in respect of
each such candidate on the display panel provided for the purpose
in the unit.
(2) As the votes polled by each candidate are displayed on the control
unit, the returning officer shall have,—
(a) the number of such votes recorded separately in respect of
each candidate in Part II on Form 17C;
Provided that the test vote recorded, if any, for a candidate, as
per item 5 in Part I of Form 17C, shall be subtracted from the
number of votes recorded for such candidate as displayed on
the control unit.
(b) Part II of Form 17C completed in other respects and signed
by the counting supervisor and also by the candidates or their
election agents or their counting agents present; and
(c) corresponding entries made in a result sheet in Form 20 and
the particulars so entered in the result sheet announced.
Rule 56D. Scrutiny of paper trail –
(1) Where printer for paper trail is used, after the entries made in the
result sheet are announced, any candidate, or in his absence, his
election agent or any of his counting agents may apply in writing to
the returning officer to count the printed paper slips in the drop box
of the printer in respect of any polling station or polling stations.
(2) On such application being made, the returning officer shall,
subject to such general or special guidelines, as may be issued by
the Election Commission, decide the matter and may allow the
application in whole or in part or may reject in whole, if it appears
to him to be frivolous or unreasonable.
(3) Every decision of the returning officer under sub-rule (2) shall be
in writing and shall contain the reasons therefor.
(4) If the returning officer decides under sub-rule (2) to allow counting
of the paper slips either wholly or in part or parts, he shall-
(a) do the counting in the manner as may be directed by the
Election Commission;
(b) if there is discrepancy between the votes displayed on the
control unit and the counting of the paper slips, amend the
result sheet in Form 20 as per the paper slips count;
(c) announce the amendments so made by him; and
(d) complete and sign the result sheet.
Rule 57C. Sealing of voting machines —
(1) After the result of voting recorded in a control unit has been
ascertained candidate-wise and entered in Part II of Form 17C and
Form 20 under rule 56C, the returning officer shall reseal the unit
with his seal and the seals of such of the candidates or their election

agents present who may desire to affix the seals thereon so however
that the result of voting recorded in the unit is not obliterated and
the unit retains the memory of such result and where printer for
paper trail is used, the returning officer shall seal the paper slips
in such manner, as may be directed by the Election Commission.
(2) The control unit and the paper slips so sealed shall be kept in
specially prepared boxes on which the returning officer shall record
the following particulars, namely: —
(a) the name of the constituency;
(b) the particulars of polling station or stations where the control
unit has been used;
(c) serial number of the control unit and printer wherever used;
(d) date of poll; and
(e) date of counting;
(ii) the provisions of rules 60 to 66 shall, so far as may be, apply
in relation to voting by voting machines and any reference in
those rules to, —
(a) ballot paper shall be construed as including a reference to
such voting machine;
(b) any rule shall be construed as a reference to the
corresponding rule in Chapter II of Part IV or, as the case
may be, to rule 55C or 56C or 57C.
Rule 92. Custody of ballot boxes and papers relating to election.—
(1) All ballot boxes used at an election shall be kept in such custody as
the chief electoral officer may direct.
(1-A) All voting machines used at an election shall be kept in the
custody of the district election officer concerned.
(2) The district election officer shall keep in safe custody—
(a) the packets of unused ballot papers with counterfoils attached
thereto;

(b) the packets of used ballot papers whether valid, tendered or
rejected;
(c) the packets of the counterfoils of used ballot papers;
(cc) the printed paper slips sealed under the provisions of Rule 57-
C;
(d) the packets of the marked copy of the electoral roll or, as the
case may be, the list maintained under sub-section (1) or sub-
section (2) of Section 152;
(dd) the packets containing registers of voters in Form 17-A;
(e) the packets of the declarations by electors and the attestation
of their signatures; and
(f) all other papers relating to the election:
Provided that in the case of an election in an Assembly constituency
or a Parliamentary constituency or a Council constituency which
extends over more districts that one, the said papers shall be kept
in the custody of such one of the district election officers having
jurisdiction over the constituency as the Election Commission may
direct:
Provided further that in the case of an election by assembly members
the said papers shall be kept in the custody of the returning officer.
Rule 93. Production and inspection of election papers—
(1) While in the custody of the district election officer or, as the case
may be, the returning officer—
(a) the packets of unused ballot papers with counterfoils attached
thereto;
(b) the packets of used ballot papers whether valid, tendered or
rejected;
(c) the packets of the counterfoils of used ballot papers;
(cc) the printed paper slips sealed under the provisions of rule 57C.
(d) the packets of the marked copy of the electoral roll or, as the

case may be, the list maintained under sub-section (1) or sub-
section (2) of section 152; and
(dd) the packets containing registers of voters in form 17A;
(e) the packets of the declarations by electors and the attestation
of their signatures; shall not be opened and their contents
shall not be inspected by, or produced before, any person or
authority except under the order of a competent court.
(1-A) The control units sealed under the provisions of rule 57C
and kept in the custody of the district election officer shall not
be opened and shall not be inspected by, or produced before, any
person or authority except under the order of a competent court.
(2) Subject to such conditions and to the payment of such fee as the
Election Commission may direct, —
(a) all other papers relating to the election shall be open to public
inspection; and
(b) copies thereof shall on application be furnished.
(3) Copies of the returns by the returning officer forwarded under rule
64, or as the case may be, under clause (b) of sub-rule (1) of rule 84
shall be furnished by the returning officer, district election officer,
chief electoral officer or the Election Commission on payment of a
fee of two rupees for each copy.
Rule 94. Disposal of election papers —
Subject to any direction to the contrary given by the Election
Commission or by a competent court or tribunal—
(a) the packets of unused ballot papers shall be retained for a
period of six months and shall thereafter be destroyed in such
manner as the Election Commission may direct;
(aa) the voting machines kept in the custody of the district election
officer under sub-rule (1A) of rule 92 shall be retained intact
for such period as the Election Commission may direct and
shall not be used at any subsequent election without the prior
approval of the Election Commission;

(b) the other packets referred to in sub-rule (1) of rule 93 shall
be retained for a period of one year and shall thereafter be
destroyed:
Provided that packets containing the counterfoils of used
ballot papers and the printer paper slips, if any, shall not
be destroyed except with the prior approval of the Election
Commission;
(c) all other papers relating to the election shall be retained for
such period as the Election Commission may direct.
Rule 95. Power of the Election Commission to issue directions —
Subject to the other provisions of these rules, the Election Commission
may issue such directions as it may consider necessary to facilitate the
proper use and operation of the voting machines.

CHAPTER 3: JUDICIAL DECISIONS
ON EVM/VVPATs
1. ABHAY B. CHAJED vs. SMT. MADHURI MISAL

Election Petition No. 15 of 2014 [2017 SCC
OnLine Bom 739]
CASE
DETAILS 05.05.2017
Mridula Bhatkar, J
ISSUES Examination of EVMs
The Court laid down the questions to be put forth
DECISIONS to the Central Forensic Science Laboratory [CFSL],
Hyderabad.
SUMMARY
In this election petition, Petitioner had sought examination of EVMs
used during the 2014 assembly election. The Commission heavily
relied on reports of the technical experts committee to assert reliability
of EVMs and introduction of VVPATs.
The Hon’ble Court directed that forensic scan of EVMs used in the
2014 Assembly Elections, specifically booth number 185 in Parvati
(Assembly Constituency), Pune be conducted. The Order laid down
the questions to be put forth to Central Forensic Science Laboratory
[CFSL], Hyderabad.
ORDER
Mridula Bhatkar, J
1. The following are the questions to be put forth to the FSL,

Hyderabad:
a) Whether there exists any electronic part/device within the
EVM, which can remotely connect with external devices, with
the help of infrared/blue tooth or similar technologies?
b) Whether there exists any additional memory chip inside EVMs
to store any program counter data inside the EVM machine?

c) Whether the machine codes (One Time Programmable/OTP
Codes) of all the exhibit EVM machines have been tampered?
d) Whether the hash values and metadata of the aforesaid
machine codes (One Time Programmable/OTP Codes) are the
same or different?
e) Whether the enclosed program counter data in the control unit
give the same result as declared by the Returning Officer of the
Election Commission dated 19.10.2014 at Parvati Assembly
Constituency?
f) Whether the EVM machines and its data have been accessed
in any manner during the period from the Date of polling and
Date of Result?
g) Whether there is any evidence or material indicating tampering
or manipulation of the EV machines i.e., the counting unit and
the ballot unit along with the connecting cables either from
any internal or external remote device or source?
h) Is there any reason as a result of which the votes cast in
favour of the candidate would either not be recorded or may
be recorded in favour of another candidate inspection and
evaluation of the EV machines and its components?
i) Is it possible to find out how many such votes are cast. If yes,
then how many and in whose favour?
2. The above questions be treated as a part of the order dated May 4,
2017. Further, technical data, if any, if asked for and if possible to
provide, may be supplied by the Collector to the CFSL, Hyderabad.
3. List the Election Petition on 20.6.2017.
4. All concerned to act on an authenticated copy of this order.

2. ABHAY BHAKCHAND CHHAJED vs. MADHURI MISAL
Election Petition No. 15 of 2014 [2018 SCC
OnLine Bom 267]
CASE
DETAILS 23.02.2018
Mridula Bhatkar, J
ISSUES Authenticity of the working of the EVMs.
The Hon’ble Court ordered a detailed forensic
examination of the EVMs from CFSL, Hyderabad
for checking any manipulation etc. The CFSL
DECISIONS report clearly ruled out any tampering alteration
or manipulation in the EVMs. The said report was
accepted by Hon'ble High Court and the petition
was dismissed vide its order dated 23.02.2018.
SUMMARY
The petitioner had inter-alia made allegations on the authenticity of
the working of the EVMs. The Commission submitted that pursuant
to Hon’ble Supreme Court’s Order in Subramanian Swamy v.
Election Commission of India, (2013) 10 SCC 500, the Commission
and Ministry of Law & Justice have taken steps in respect of usage
of VVPAT.
Further, the Hon’ble Court observed that in a report by CFSL Hyderabad,
the analysts have mentioned that there is no evidence of tampering,
altering or any other manipulation which could be detected. The
Commission also assured that there will be phase wise use of VVPAT
in view of the financial burden and technical availability. Therefore, the
Hon’ble Court held that it cannot be said that there is non-compliance
with the provisions of the Rules or Orders by the Election Commission
of India and the said report was accepted by Hon’ble High Court and
petition was dismissed vide its order dated 23.02.2018.
ORDER
Mridula Bhatkar, J
1. This Election Petition is filed under sections 99, 100, 123 of the
Representation of the People Act, 1951 (for short, hereinafter

called as ‘the Act’). It challenges the validity of the election to
the Maharashtra Legislative Assembly seat from 212, Parvati
Constituency, Pune, Maharashtra in the elections held on 15.1.2014
and the consequent result declared on 19.10.2014. The petitioner
though contested the election, had lost the seat. Respondent No.1
is the elected candidate from 212, Parvati Constituency in the
said election. Respondent No.2 is the Returning Officer, who was
subsequently deleted on 28.3.2016 and respondent No.3, is the
Election Commission of India.
2. At the request of the learned Counsel, the adjournments were
sought mainly by the petitioner and the respondent and their
counsel for personal pre-occupation and therefore, this Court
granted adjournments time to time as per the convenience of the
petitioner, though this is a proceeding under the Representation of
the People Act.
3. It is the case of the petitioner that he contested the election in
the said constituency as the official candidate of Indian National
Congress, a registered political party and respondent No.1 was the
official candidate of Bharatiya Janata Party, a registered political
party. The petitioner has challenged the election and the result
mainly on the grounds of mal practices or corrupt practices and
tampering of electronic voting machines, which had taken place
in his constituency i.e., 212, Parvati Assembly Constituency. The
challenge is also given on the ground that his polling agents were
not given entry at the time of mock poll conducted at the polling
stations i.e., 185 and 242 of 212, Parvati Assembly Constituency,
on the ground that name and signature of his election agent Sunil
Shinde was not correctly given. It is the case of the petitioner that
votes of several supporters of the petitioner, who had voted for
him, were not counted in his favor and thus, there is discrepancy
with the election results. Thus, physical count of votes cast by his
supporters does not match with the election results thereby led
the discrepancy and thus, there is a blatant abuse of the election
procedure.
4. Respondent No.1, who is the main contesting party, has
categorically denied all the averments and contentions raised
in respect of the election proceeding. So also, she rejected the
allegations on authenticity of the working of the Electronic Voting
Machines (EV Machines). The respondent justified the result
declared by the Election Commission. She also denied that there
were mal practices or abuse of the election procedure and prayed
that the petition be rejected.
5. The petition is marked at exhibit 1. Affidavit in Reply of the elected
candidate and MLA is marked at exhibit 2. Issues were framed and
they are as follows:
i) Whether the votes cast by voters by use of electronic voting
machines used at Booth Nos.86, 185, 191, 242 and 305 at the
election to 212 Parvati Legislative Assembly Constituency
held on 15.10.2014 have been incorrectly recorded?
ii) Whether the machines at booth Nos.86, 185, 191, 242 and
305 at the election to 212, Parvati Legislative Assembly
Constituency were tampered?
iii) Whether the petitioner proves that the results declared as
output from the electronic voting machines in respect of Booth
Nos.86, 185, 191, 242 and 305 at the election to 212, Parvati
Legislative Assembly Constituency are incorrect?
iv) Whether the petitioner proves that the election of Respondent
No.1 from 212, Parvati Legislative Assembly Constituency is
void under the provisions of the Representation of People Act,
1950?
v) What order?”
Affidavit in examination in chief marked at exhibit 3.
6. The petitioner examined himself and his witnesses. The Respondent
No.1 did not examine any witness and hence, Mr.Kale, the learned
Counsel for the respondent, filed a purshis for closure of evidence.
Therefore, the learned Counsel for the respondent No.1 argued
first.
7. Learned Counsel Mr. Kale for elected candidate submitted that
considering the evidence – oral and documentary, the petitioner
has challenged the election mainly on three grounds:

(i) His election agent Mr. Sunil Shinde and other polling
agents were not allowed to enter the Booth No.185 when
the mock poll took place;
(ii) There were many voters, who had voted for Indian
National Congress i.e., the petitioner. However, the actual
votes do not tally or match with number of these voters;
(iii) There was improper reception of votes as no VVPAT
(Voters Variable Paper Audit Trail) was fixed and thus,
the voting process was manipulated by a remote control
which amounts to booth capturing.
8. The learned Counsel submitted that it is necessary to see whether
on the basis of the documents and the evidence adduced, it is
difficult to say that the results declared are incorrect. He pointed
out from the examination in chief of the petitioner that he has
given the name of one Sudhir Shetye, who was not allowed to
enter. He relied on Form No.8 at exhibit 16, which was filled in
by the petitioner himself on 10.10.2014 mentioning the name of
Sunil Yadav Shinde as his election agent. However, at exhibit 18,
annexure 23, the name of Sudhir Shetye was mentioned and Mr.
Sudhir Shetye has signed the form. The learned Counsel submitted
that at the time of mock poll, all the agents were allowed and
the representative of the petitioner i.e., the election agent of the
petitioner, was also present. In respect of manipulation of the
EVMs, he relied on the report sent by the Central Forensic Science
Laboratory, Hyderabad (CFSL, Hyderabad) dated 19.6.2017. In the
said report, the analysts have mentioned that there is no evidence
of tampering, altering or any other manipulation which could be
detected. He submitted that the petitioner asked that the EVMs at
polling station No.185 only are to be sent to the CFSL, Hyderabad
out of the total 375 Control Units and Ballot Units. He submitted
that there are no specific allegations about the mock poll. He
pointed out that on 15.10.2014, mock poll was conducted and one
Jayashree Sable, polling agent of the petitioner, was allowed at the
mock poll. Therefore, the grievance of the petitioner that nobody
attended the mock poll is baseless and there was a discrepancy
in the name of the election agent by the petitioner himself. The

learned Counsel further submitted that the petitioner has deposed
that VVPAT was not attached to the EVM and, therefore, there is a
discrepancy in the physical count and election result.
9. Only oral allegations are made in respect of tampering of polling
station Nos.86, 191, 242 and 305. He submitted that there was vast
difference of votes i.e., 73611 votes between the elected candidate
and the petitioner. However, the difference of only two votes at
polling station No.185 i.e., 52 and 54 is alleged. The Election
Commission has not committed any wrong. He relied on the report
of PW2 Jyoti Kadam, Returning Officer. He submitted that the
evidence of Jyoti Kadam shows that she was not at fault in respect
of the name of the polling agent Sudhir Shetye. He submitted that
VVPAT machine was not used at all in the entire process of election
of Assembly Elections of 2014 and, therefore, the allegations of
the petitioner of non-use of VVPAT in 212, Parvati Assembly
Constituency, is not discriminatory.
10. On the point of inconsistency in the actual votes and the persons,
who have in fact voted for Indian National Congress, he read over
the relevant portions of evidence of the witnesses i.e., from 6 to
64. He submitted that out of total 64 witnesses examined by the
petitioner, 13 witnesses did not support the prosecution and from
the evidence of remaining 51 witnesses, he could not prove his
case that there is much discrepancy in the actual votes and the
counted votes, as votes recorded were 52. He further argued that
not a single complaint was lodged by the voters about the working
of EVMs.
11. Per contra, Mr.Sawant, the learned Counsel for the petitioner, has
argued that the case argued by the respondent is different than the
grievance made out by the petitioner. The petitioner has voiced his
grievance first on 13.10.2014 in respect of the EVMs and secondly,
his grievance about non-compliance of the election Rules which
are framed under the Representation of the People Act was also to
be put before the Returning Officer well within time. The learned
Counsel has submitted that the voting unit consists of balloting or
voting unit, control unit and the cables. The EVMs are required
to be approved by the Election Commission. However, one Praful

Vithhal Lokhe, who unfortunately has expired, had made a query
under Right to Information Act to the Election Commission about
the approval of the election machines and the Election Commission
gave a reply to his query at exhibit 11 dated 28.9.2013 wherein
it is mentioned specifically that the EVMs were approved by
the Expert Committee and not by the Election Commission. The
learned Counsel has submitted that this is a clear admission given
by the Election Commission about the approval of the EVM. He
submitted that the Returning Officer Jyoti Kadam (PW2) has
corroborated this evidence (page 5).
12. He submitted that the election agent and polling agent are required
to be appointed by every candidate who is contesting the election.
The petitioner has appointed election agent Mr. Sunil Yadav
Shinde. He was not a polling agent but the polling booth agents
who were appointed at different polling stations by the petitioner
could not attend the mock poll due to the variance in signature and
the name of election agent. He submitted that instead of the name
and signature of election agent Sunil Yadav Shinde mentioned in
form No.8 (exhibit 16), the Returning Officer had communicated
the name and signature of Sudhir Shetye, who was appointed
by the petitioner as his permission agent (Parwana Agent) and
not the election agent. Thus, instead of Sunil Shinde’s name and
signature, the name and signature of Sudhir Shetye was informed
to all the polling stations and all the polling agents of the petitioner
went to the respective polling stations with slips signed by Sunil
Yadav Shinde, the election agent. Due to variance in the name
and signature, they were not allowed to enter and attend the mock
poll which took place at around 6.30am before the actual polling
commenced. The learned Counsel submitted that when this was
pointed out to the Returning Officer, she circulated the name and
photograph of the signature of Sunil Yadav Shinde to all the polling
booth officers and thereafter, the polling agents of the petitioner
were allowed in the polling station. However, at that time, many of
them had missed the mock poll.
13. In support of his submissions, the learned Counsel relied on the
relevant portion in the cross-examination of the Returning Officer
(PW2) where she gave admission that Sunil Yadav Shinde was an

election agent appointed by the petitioner and Sudhir Shetye was a
permission agent. The learned Counsel pointed out 49A and Rule
49E(2) of the Conduct of Elections Rules, 1961 which state that
mock poll is required to be conducted before the actual poll and the
polling agents are supposed to attend. The said rules are as under:
“49A. Design of electronic voting machines – Every
electronic voting machine (hereinafter referred to as the voting
machine) shall have a control unit and a balloting unit and
shall be of such designs as may be approved by the Election
Commission:
Provided that a printer with a drop box of such design, as
may be approved by the Election Commission, may also be
attached to a voting machine for printing a paper trail of the
vote, in such constituency or constituencies or parts thereof as
the Election Commission may direct.
49E. …
(1) …
(2) Immediately before the commencement of the poll, the
presiding officer shall demonstrate to the polling agents and
other persons present that no vote has been already recorded in
the voting machine and it bears the label referred to in subrule
(1), and where the printer for paper trail is used that the drop
box of the printer is empty.”
14. The learned Counsel relied on the examination in chief of the
petitioner on the point of working of EVM. He submitted that the
Returning Officer (PW2) in her evidence has admitted that the
EVMs were checked in the presence of the candidates, their agents
and media 15 days prior to the actual voting day and they were
sealed and kept in the godown. She admitted that after the mock
poll, the machines should show number “0”. However, she has
no personal knowledge as she could not remain present at all the
polling stations.
15. Mr. Sawant submitted that the attendance of the polling agents at
the mock poll is necessary and the polling agents of the petitioner

were initially not allowed to attend and subsequently when they
were allowed, some of them reached late and some of them could
not go when the mock poll was over. He demonstrated how
presence at the mock poll of the polling agents is important. He
pointed out that at the time of mock poll, the machines are brought
to number “0” and then, they are required to be sealed at that time.
He presented a list of 13 polling stations disclosing the presence
/ absence of polling agents of the petitioner. He relied on exhibit
41 which is a letter dated 12.5.2017 written by the CFSL to the
Collector, Pune, by which the CFSL has sought extension of time
for analysis as it is a complex procedure.
16. He also referred to exhibit 7 which is the expert committee report
about working of EVMs. He submitted that as per this expert
committee report, it shows the procedure followed while assuring
complete exclusion of any kind of tampering in the EVM. He
argued that as per the report of the expert committee, the tampering
is possible in Control Unit and Ballot Unit either by attaching
some extra device or through cable. He argued that exhibit 35
discloses that only Ballot Unit and Control Unit were sent to CFSL
and Interconnecting Cables were not sent to CFSL. The learned
Counsel further relied on exhibit 33, which is a print out of data and
time key log of EVM, which was used in polling station No.185.
On the basis of the contents in this key log, he pointed out that the
power of the machine was on. It is pointed out that on 14.10.2014,
on the previous day of the voting day, the power of the EVM was
on and this creates doubt about the manipulation in the EVM.
17. The learned Counsel submitted that exhibit 40 is with the Court
and that is a sequential list print out and the said print out is to
be tallied with clause 4.3. of the Expert Committee report and
also exhibit 37 i.e., the Voters’ Register, is to be compared with
exhibit 40. He submitted that VVPAT is a must to stop functioning
of EVM getting corrupted. The learned Counsel further submitted
that he pointed out exhibit 37, the electoral roll and exhibit 32
is a voters’ roll from polling station No.185. He pointed out that
the mathematics of votes, as argued by the learned Counsel for
the respondent, may look attractive on the face of it but it is not
true and conclusive. He relied on the order of this Court passed on

5.5.2017 by which a questionnaire was sent to CFSL. He argued
that on 19th May, 2014, the Petitioner gave complaint which is
marked exhibit 5 and 5A about the working of EVM i.e., mal-
practices at the election booth and it cannot be discredited for want
of all details. The petitioner has not given up the case of improper
reception of votes by EVM. He submitted that the ratio laid down
in Dr. Subramanian Swamy vs. Election Commission of India is
of 2013 wherein the election of 2010 was challenged. The printers
and EVMs used in the said case which were challenged, were of
2010 and the present case is of 2014 i.e., subsequent to the case of
Subramanian Swamy (supra).
18. Issue Nos.(i), (ii) and (iii) are interconnected as they aim at tampering
and faulty machines and, therefore, the results are incorrectly
recorded in respect of the polling station Nos.86, 185, 191, 242
and 305 in 212, Parvati Legislative Assembly Constituency. Thus,
the evidence on these issues is discussed together and issue No.(iv)
is at the end.
19. Discussion on issue Nos.(i), (ii) and (iii) is also based on three
grounds put forth by the petitioner as mentioned in paragraph 7
and they are answered accordingly.
20. The petitioner examined 54 witnesses. Out of 54 witnesses, PW3
to PW54 are the voters from 212, Parvati Legislative Assembly
Constituency of October, 2014. The evidence of the said group
of witnesses can be assessed together as they all mainly have
examined for the purpose that they all have voted for the petitioner
1 AIR 2014 SC 18 Abhay Chajed, the candidate of Indian National
Congress. PW1 is the petitioner himself and PW2 is Mrs. Jyoti
Bhushan Kadam, the Returning Officer.
21. PW1, the petitioner, has deposed consistently about the facts
which he has pleaded in the petition. He contested the election
from Parvati constituency and also stated that proper procedure
was not followed at the time of mock poll so also at the time of
voting. He has put up a grievance about the same by sending a
letter dated 19.10.2014 immediately after declaration of the results
to the Chief Election Commissioner which was received by the
office of the Election Commissioner at New Delhi on 24.10.2014

i.e., marked exhibit 5. He made a complaint regarding tampering
of electronic voting machine and manipulation of the result of
election. He also submitted that on 13.9.2014, in the meeting called
by the District Collector of all the office bearers of all the political
parties in Pune, he, being the President of Indian National Congress
party, Pune, had attended the meeting and had raised the issue that
Voters Verifiable Paper Audit Trail (VVPAT) is to be attached to
the EVMs. Then, he further stated that he had appointed one Sunil
Shinde, as his election agent and his name is also appearing on
the form as election agent. However, a wrong name of Sudhir
Shetye was appearing on the specimen signature of the election
agents and no signature of Sunil Shinde was appearing on the form
i.e., exhibits 17 and 18. He deposed that the Returning Officer
has circulated the signature of one Sudhir Shetye instead of Sunil
Shinde to all the polling stations in the Constituency No.212. This
has created chaos and for mock poll, his agents could not reach on
time; they were late and reached in the midst of the mock poll in
some places and in some places, they reached after the poll was
over. Therefore, there was nobody from his side to verify whether
the mock poll was conducted by following all the procedure or
not?
22. Another grievance is that from polling station Nos.185 and 242
at Parvati, many people had voted for him, however, when the
results were declared, he noticed that the number of voters, who
have voted for him in polling station No.185 was miserably less. It
was declared that he has received only 52 votes and, therefore, he
examined many witnesses from 3 to 54 on the point of voting. All
these witnesses i.e., from PW3 Mallesh Bangarappa Ambikar to
PW54 Rupali Ramulu Koli were examined only on the point that
they have voted for Indian National Congress and they pressed the
button in front of the symbol of the Indian National Congress i.e.,
“Palm”.
23. Let me assess the evidence of the petitioner and the other
witnesses on these points. Firstly, on the points of grievance
of functioning of EVMs, the petitioner has stated that he sent a
letter dated 19.10.2014 to the Chief Election Commissioner and
which was received by the office of the CEC on 24.10.2014. It is

marked at exhibit 5. In the said letter, he has mentioned the subject
as “Tampering of EVMs during the State Assembly elections”.
This letter was sent by him on the day where he had knowledge
that he had lost the elections. In the letter, he has stated that his
complaint is based on well researched suspicion that EVMs have
been tampered with and the result of election is manipulated. He
has pointed out that it has taken place in 212, Parvati Legislative
Assembly Constituency. He submitted the the election agent was
Sunil Shinde and the name and signature of different person had
been circulated to all polling agents and because of this, none of
the polling agents was in a position to vet the actual signature of
his election agent and it left the door open for manipulations. He
has specifically referred to the exercise of mock poll which was
carried out to check functioning of EVMs. However, his all polling
agents in polling stations were deprived of attending the mock
poll and check whether the buttons were properly pressed and the
machines are showing ‘0’ figure. He has mentioned that it was
the duty of the Chief Election Commissioner of Maharashtra to
provide VVPAT to the EVMs to ensure physical verification of the
acknowledgment slips in the event of disputes. However, ordinary
EVMs have been issued for this process. He has expressed his fear
about tampering of EVM through wire of the button A and button
B connected to the in box. So he has demanded forensic enquiry
into all EVMs. His supporters had communicated him the physical
count of voting and it does not tally with the election results and
so, he placed the said letter as a formal complaint as he wanted
time to put up his grievance systematically. In his evidence, he
relied on one letter (exhibit 6) dated 16.8.2014, which he had
sent to the Election Commissioner, Government of Maharashtra
in the capacity of President, Pune District Congress Committee.
The subject was regarding EVMs. Two months prior to assembly
elections, the letter was sent when the District Collector had invited
the reports of all the political parties to check the electronic voting
machines and after inspection, the petitioner has communicated
the observations of his representatives that all the EVMs had
been brought from Uttar Pradesh and has expressed doubt about
the authenticity of the machines and also expressed surprise that
some machines were earlier used for the LokSabha elections

and then how those machines can be used within six months for
the Assembly elections of Maharashtra. He has referred to the
judgment of the Supreme Court in the case of Dr. Subramanian
Swamy (supra).
24. This oral evidence can be appreciated on the basis of the
documentary evidence especially exhibit 7 i.e., report of the expert
committee for evaluation of the upgraded EVMs. The report was
submitted by the Committee on 5.9.2006 when the EVMs have been
put in use for a period of 15 years and, therefore, they were due for
replacement. The committee under the Chairmanship of Shri P.V.
Indersen and Members - Professor A.K. Agarwala and Professor
D.T. Sahani, asked Bharat Electronics Ltd. (BEL) & Electronics
Corporation of India Ltd. (ECIL) to introduce additional features
to further the cause of reliability and tamperproof working of
the new EVMs to be manufactured. They studied the working of
EVMs, its results, functioning in the elections while preparing the
report.
25. In order to assess the allegation of tampering, one has to know the
constitution of the EVM. In clause 3.3 of the exhaustive report,
it is mentioned that EVM system consists of three hardware
subsystems and one software namely, Control Unit (CU), Ballot
Unit (BU) and Interconnection Cable between BU and CU. The CU
is the main unit which stores all data and controls the functioning
of the EVM. When the voter presses his choice key on the BU,
then, the BU has to transmit faithfully the same information to
CU as per the key pressed by the voter. This information has to
be transferred through interconnecting cable. The essence of
faultless, authentic and tamperproof working of EVM is in faithful
recording of voting data. This is controlled and functioned through
the micro chip embedded in the CU and the programmed software
is installed in the chip. The committee has also considered the
issue of tampering with Interconnecting Cable between the CU
and BU. One of the measures to plug on tampering is the Presiding
Officer to exhibit the cable to all the polling agents and get their
certificate to make sure that no device has been inserted between
the cable and the socket and once the cable is inserted, the machine
is sealed. Precaution is also taken to stop wireless signal injection

in the CU. In clause 3.6, the committee has mentioned that EVMs
are subject to mock poll validation at various stages in front of
all party representatives and this is the best proof of validation of
fairness of programme as well as data being stored inside. Sealing
is also second level protection after which the Committee has to
certify the EVM system as tamperproof.
26. The committee also gave recommendations i.e., (a) to (j) in para
3.9. Recommendation (i) in para 3.9 states that at the time of the
insertion of the cable, it is formally recorded by the Presiding
Officer and the polling agents, that no device has been inserted
between the cable and the connector. In the evidence of the
petitioner and in the letters (exhibit 6) and as argued by the learned
Counsel, and as it is argued that at many places, the mock polling
is unattended by the representatives of the petitioner because the
name and signature of the polling agent supplied by the Returning
Officer to all the booths, was found different and, therefore, the
representatives were not given entry till the things were verified
and set right by the Returning Officer by sending messages.
27. On this point, let me analyse the evidence of the Returning Officer
Jyoti Kadam Bhosale. It is not disputed that she worked as a
Returning Officer for the Legislative Assembly elections. She has
deposed that the copy of the report of the mock poll in respect of
the polling station No.185 is marked exhibit 13 and polling station
No.242 marked as exhibit 14. It shows the name of the candidates
and the respective number of votes cast during the mock poll. It
shows at the end that all the candidates at polling station No.185
and also polling station No.242 were certified by the Presiding
Officer of 212, Parvati Legislative Assembly Constituency. Both
No.185 is verified and found correct by one Koli Shivaji Chander
on 15.10.2014 and in polling station No.242, it is verified by the
Presiding Officer Qureshi Wahab Amir on 15.10.2014 at 6.35.
28. She produced the report of the mock poll in respect of 15 polling
stations (in common parlance, sometimes also known as ‘polling
booths’) of 212, Parvati Legislative Assembly Constituency, where
40 BUs and CUs were replaced by the Returning Officer and
mock poll certificates issued by the Returning Officer and they are

marked at exhibit 15/1 and 15/15. In the said report, on page No.2
shows the names of the candidates and page No.3 shows the names
of the polling agents (column 2), names of the party (column 3),
names of the candidates (column 4) and signatures of the polling
agent is mentioned in column No.5. In exhibit 14, no name of any
polling agent is appearing. That means none was present.
All the mock poll certificates are prepared as per annexure XVII.
The mock poll is conducted on the same day of the election but
prior to the commencement of voting so that CU and BU and the
connecting wire are available to representatives of all the parties
for inspection and in their presence, the mock poll is conducted to
show that no tampering is possible in EVM. Thus, the mock poll
certificates are to be prepared and issued by the Presiding Officer
of the polling station. At the end in the form, there is a typed
endorsement as under:
“At the time scheduled for Mock Poll, no Polling
Agent was present. ... After waiting for fifteen more
minutes, I conducted Mock Poll along with other
polling staff at _____ AM.”
It is very much expected of the Presiding Officer to write the
time and so also to score off or to keep the statement as per
the attendance of the representatives of the parties. No time is
mentioned. However, the representatives of two candidates i.e.,
MNS and BJP were present.
On page 3 of each Mock Poll Certificate, in clause 4, there is a
declaration,
“I have cleared the memory of the EVM after the
Mock Poll and verified that the memory has been
cleared by pressing the Total button and seeing that
the Total is shown as “0”.
Clause 5 mentions,
“At the time of Mock Poll, the following of Polling
Agents representing the Candidates whose names
mentioned against the names of such agents were
present and I, have obtained their signatures.”
Clause No.6 is about Poll Start Date and Time seen
on the display of CU at the time of start of actual poll
….. (To be filled in case of Post 2006 EVMs).” Then,
there is a chart of the names of the polling agents;
name of party; name of the candidates and signature
of polling agent.
29. Exhibit 14 shows that on page 4, the presiding officer has scored
off the sentence that the agent of only one contesting candidate was
present. However, he kept the first part that at the time scheduled
for mock poll, no polling agent was present and after waiting for
15 minutes, he conducted the mock poll in the presence of other
officers at 6.35am.
30. Exhibit 15 :-
◦ Exhibit 15/1 – polling station No.114 – on page 3, the
representatives of BJP, Shiv Sena and the petitioner’s candidate
were present, signed by Santosh Raghunath Punekar, the
presiding officer. It was conducted at 6.15am.
◦ Exhibit 15/2 – polling station 82 – representatives of petitioner
and Shiv Sena were present. Signed by the Presiding Officer at
6.45am.
◦ Exhibit 15/3 – Polling station No.56 – Representatives
of Petitioner was present alongwith other candidates’
representatives. Signed by the Presiding Officer at 7 am.
◦ Exhibit 15/4 – Polling station No.315 – Nobody’s name is
appearing. Signed by the Presiding Officer at 6.45 am.
◦ Exhibit 15/5 – Polling station No.291. Representative of
Petitioner was not present. Signed by the Presiding Officer at
6.45 am.
◦ Exhibit 15/6 – Polling station No.68. Representative of BJP
was present however, the representative of the Petitioner was
not present. Signed by the Presiding Officer at 6 am.
◦ Exhibit 15/7– Polling station No.300. Nobody was present
Signed by the Presiding Officer. No time.

◦ Exhibit 15/8 – Polling station No.15. No Representative was
present. Signed by the Presiding Officer at 6 am.
◦ Exhibit 15/9 – Polling station No.219A. None present. Signed
by the Presiding Officer at 6.30 am.
◦ Exhibit 15/10 – Polling station No.130. None present. Signed
by the Presiding Officer at 6am.
Petitioner was not present but representatives of BJP, Shiv
Sena, NCP and MNS were present. Signed by the Presiding
Officer at 6am.
Petitioner was present alongwith representatives of BJP, NCP
and Shiv Sena. Signed by the Presiding Officer at 6am.
◦ Exhibit 15/13 – Polling station No.228. Representatives
of Shiv Sena, NCP were present but representative of the
Petitioner was not present. Signed by the Presiding Officer at
6.15 am.
Petitioner was not present. But representatives of BJP, NCP
and Shiv Sena were present. Signed by the Presiding Officer
at 6 am.
Petitioner was present alongwith the representatives of BJP
and Shiv Sena. Signed by the Presiding Officer at 6.30 am.
31. Thus, it shows that at the time of mock poll, the representatives of
the petitioner were present at some polling stations and at some
places were absent. The grievance is made that due to variation
in the signature of petitioner’s election agent Sunil Shinde, his
attendance was obstructed. Now, I will sift through the evidence
of appointment of Polling Agent. The document at exhibit 16 is a
letter of appointment of the polling agent where the petitioner’s
signature is appearing. Exhibit 16 is submitted under Rule 12(1) of
Conduct of Election Rules. The name of Sunil Shinde as election
agent on 10.10.2014 is appearing. However, exhibit 17 is another

document produced by the Returning Officer on which the name
of the petitioner is shown and his signature is shown and the name
of the election agent Sudhir Shetye is mentioned in one column
and there is also a column of the signature of the election agent.
Exhibit 17 is produced by Returning Officer and on that, it shows in
Marathi “Parwanasathi Pratinidhi” (representative for permission)
in the name of Sudhir Shetye and his signature is seen. However,
Sunil Shinde is not mentioned. Exhibit 16, however, shows that
the petitioner has appointed Sunil Yadav Shinde as election agent
on 10.10.2014. But signature and name of Sudhir Shetye was
provided in the other form. This can be explained by the petitioner
only and neither Sunil Shinde nor Sudhir Shetye were examined.
32. The Returning Officer produced Exhibit 18. It is a form of
candidates and their election agents’ specimen signatures, copies
of which are supplied to all the polling stations. The first column is
about the name of the Candidate; 2nd column shows the specimen
signature of the Candidate; the third column is about the name of
their election agent and the fourth column mentions the signature
of the election agent. Copies of these forms are supplied to all
the polling stations, to enable the presiding officer to verify the
signature and identity of the election agent of each candidate.
On this exhibit 18, the name of the petitioner and his signatures
are seen and in the next column, the name of Sudhir Shetye is
appearing as election agent and his specimen signature is seen in
the column 4.
33. The Returning Officer in her evidence has stated that the petitioner
has appointed Sunil Shinde as his election agent and no signature
and no name of Sunil Shinde is appearing on other forms i.e.,
exhibits 17 and 18. She has deposed that she circulated all specimen
signature of Sudhir Shetye as election agent of Abhay Chajed. She
deposed that she did not remember whether she has circulated the
corrected name of Sunil Shinde as election agent of the petitioner
alongwith his specimen signature on Whatsapp of her cellphone.
She has deposed that due to the lapse of two years, she DID not
remember who has pointed out this variance in the name of the
election agent from Sudhir Shetye to Sunil Shinde.

34. The Returning Officer was cross examined on this point. In that,
she has stated that the forms at exhibits 16 and 17 were submitted
by the petitioner to the Returning Officer and exhibit 18 is prepared
by the Returning Officer. Exhibit 16 and 17 were submitted on
different dates by the petitioner. She said that the person whose
name is declared under Rule 12(1) on exhibit 16, is expected to sign
as election agent on the form at exhibit 17, which is given to the
candidate to procure the specimen signature of the election agent.
However, it is found that she admitted that there is a variance in the
name of the election agent Sunil Shinde as the name and signature
appearing on exhibit 17 is Sudhir Shetye.
35. Thus, from this, it can be inferred that though the petitioner gave the
name of Sunil Shinde as per the requirement of Rule 12(1) of the
Conduct of Election Rules as his election agent and his signature is
appearing on exhibit 16 so also the signature of the election agent
that he has accepted his declaration and his signature are also
appearing. However, this form is filled up on 10.10.2014. However,
on the form at exhibit 17, there is no date to know as to when this
form was filled up but the name and signature of the petitioner are
appearing and instead of Sunil Shinde, the name of Sudhir Shetye
and his signature are appearing. However, on the same form, there
is an endorsement in Marathi such as “parwanasathi pratinidhi”.
So, it appears that a representative was also to be appointed to
obtain some permission and for that purpose, the name of Sudhir
Shetye was given and his specimen signature was supplied. It
appears that there was some confusion on the part of the petitioner
while filling the form at exhibit 17 and the name and signature
therefore was circulated as specimen signature of Sudhir Shetye,
as the election agent of the petitioner. On this basis, it cannot be
said that the officers working in the election commission or the
Returning Officer had deliberately misguided the petitioner. No
suggestion is also put to her in her evidence. It appears that it is
a bonafide mistake and subsequently, the Returning Officer had
corrected it by replacing the name and signature by messaging
on Whatsapp. The record shows that the representative of the
petitioner was present at the polling station No.156 vide exhibit
15/12 at 6am. This shows that the representative of the petitioner

was allowed in one polling station where the mock poll started
at 6am. Considering the time record of all the polling stations as
produced before the Court, 6am is the earliest time. As per 15/1
i.e., polling station No.114, he representative of the petitioner
was present at 6.15am. Then, as per exhibit 15/12, i.e., at polling
station No.8, the representative of the petitioner was present at
6.45am. Thus, this shows that no mock poll was conducted prior
to 6am. The entry given to the representative of the petitioner even
in one polling station at 6am shows that the issue of signature of
his election agent was either corrected or the issue was sorted out
before 6am. How it was sorted out has not come up on record as
PW2 the Returning Officer, did not remember it due to the time
gap of two years.
36. One has to take into account the effect of this confusion on the
polling day. The certificates of 15 polling stations alongwith
polling station Nos.185 and 242 are produced disclosing the
presence of representatives of each candidate. All these certificates
show that some representatives of some candidates were present
at some mock polls conducted at polling stations. There is not a
single case where all the representatives of a particular candidate
have attended the mock polls at all the polling stations. Thus, the
grievance of the petitioner that only some of his representatives
could enter at the polling stations because of confusion in the name
of his election agent, may be true. The mock poll undoubtedly is not
a mere formality but a very essential and important stage assuring
that the machines are tamperproof so all the representatives of the
candidates are required to be present at the mock poll. It is the
duty of the presiding officer of a polling station to conduct mock
poll in the presence of the officers and in the presence of all the
representatives at a particular time. However, if the representatives
do not attend the mock poll in time, then, he cannot wait for long
time. It is mentioned in the certificate at the end that he is expected
to wait for only 15 minutes and then, shall conduct mock poll in
the presence of the other officers.
37. On the basis of this oral, documentary and circumstantial evidence,
it cannot be concluded that the representatives were obstructed for
this reason. Not a single representative of the petitioner is examined

to show that though he reached on time, he was not allowed only
for the reason of identity of the election agent and due to variance
in the specimen signature of the election agent. Further assuming,
if at all they wee not allowed, yet this fact itself is not enough to
draw inference that due to the absence of the representatives of the
petitioner, there was tampering at the time of mock poll. It is to
be noted that the representatives of other candidates including the
elected candidates were also not present at some polling stations. In
3 to 4 polling stations, no representative of either of the candidates
was present and mock poll was conducted and certificate was issued
and kept in the record. No other candidate or representative raised
objection. In the present scenario, the petitioner could establish
that all his representatives were not allowed to enter the poling
stations.
38. Let me advert to the issue of tampering of EVMs by relating to
the evidence brought before the Court. It can be assessed on the
basis of the report of the Expert Committee submitted on 5.9.2006.
The committee has also considered the queries made by various
organisations in 1990 and 2005. Two points were advanced that
the machine could be tampered with and design may not be secure
(trojan horse) and another, the machine denies the candidates the
right to recount. In clause 4.3, the committee has said that the major
advantage of the EVM developed in India is the fixed programme
nature of the system. The programme is permanently fused and
hence, cannot be read or tampered with even if it can be accessed
from other source. Even then, as a matter of abundant precaution,
the instrument may be tested by suppliers before the poll to check
that it has not been replaced. An additional seal on CU, BU cards
prior to candidate key allocation may be introduced to ensure that
the card is not replaced.
39. In clause 4.4, it is mentioned about when the machine denies the
right to recount. It is meted with by mentioning that the whole
process is stored in memory and can be dumped through printer
to get a detailed picture of voting so also the register of voters
is to be maintained by the election commission in the sequence
of voting. It is mentioned that the committee has stated that not
only the process of recount is possible but also the verification of

recount against any possible tampering is also feasible. Each role
and key press is time / date stamped. This fact is corroborated with
the documentary evidence i.e., the Time & Key Log at Exhibit
35 (Annexure C), the printout disclosing the time and date of the
operations of various keys, that is of each voting machine.
40. Exhibit 4 is a final result sheet of the Election of the Maharashtra
Legislative Assembly Constituency – 2014 from 212 Parvati
Assembly (Part 1). In the said constituency, there are 328 polling
stations. It contains details of bifurcation of the number of valid
votes cast in favour of each candidate so also total rejected votes,
NOTA total votes recorded in C.U. and tendered votes in the
tables. The vote secured by each candidate and total valid votes
are mentioned. It is form No.20 maintained under Rule 56(7)
of the Representation of People Act. This form is signed by the
Returning Officer Jyoti Kadam. In all the polling stations, the
total number of votes recorded were 189592, out of which 187818
are total valid votes. The candidate of Indian National Congress
i.e., the petitioner got 21887 votes; the winning candidate of
Bharatiya Janata Party secured 95498 votes. In between these
two candidates, the candidates of Nationalist Congress Party and
Shiv Sena respectively secured 26087 and 26471 votes. Thus, the
petitioner was on the 4th rank. No grievance is made in respect
of mock poll or manipulation of EVM by other candidates of
Nationalist Congress Party or Shiv Sena or other party. The polling
station No.185 Parvati is at serial No.192. The petitioner secured
52 votes; NCP got 139 votes, Shiv Sena got 132 and BJP got 206
votes. Similarly, at polling station No.242, the votes obtained are
27, 65, 82 and 168 respectively. Thus, it is clear that the difference
between the votes secured by the petitioner and the votes secured
by the winning candidate of BJP is approximately 73000 and as a
test case, the record of polling stations, record of voters of polling
station No.185 was called and was sent to Central Forensic Science
Laboratory, Hyderabad.
41. Now, at this stage, let me deal with the evidence brought on record
about the EVMs and all the voting of polling station no.185 of
Parvati constituency. The learned Counsel for the petitioner had
filed Application (L) No.15 of 2017 for sending EVMs alongwith

voters’ register and the sequential list at polling station No.185.
(Although the application was made for sending EVMs of both
polling station Nos.185 and 242, the EVM of only polling station
No.185 was sent.) The CEC also appeared at that time and gave
say and also graciously offered full cooperation, if required. The
respondents did not take objection and thus, in order to find out the
truth, the application was allowed on 4.5.2017 by permitting the
material i.e., the EVM with voter’s register and the sequential list to
be sent to the Central Forensic Science Laboratory, Hyderabad in a
sealed condition. A questionnaire was sent to the Central Forensic
Science Laboratory, Hyderabad, as a guideline provided in the
order dated 3.5.2017 and 4.5.2017. Mr.Surya Prasad, Government
Examiner of Questioned Documents and DFSS, Government of
India at Hyderabad by his letter dated 19.6.2017 informed that
analysis is ready and the report is also ready and requested to
depute a special messenger. Thereafter, the Collector, brought
the machines and report to Pune. The examination report of the
Forensic Department is at exhibit 35.
42. The report at exhibit 35 dated 19.6.2017 discloses sealed parcels
at serial Nos.1 to 3 which show C.U., B.U. and batteries. It was
argued that the Electronic connecting wire was not sent, however,
it was explained that the connecting wire is always attached to
the B.U. and therefore, it is not treated as a separate article. The
parcels were intact and sealed. In the result of the examination, it
was mentioned that no additional external devices were mounted
as well as no additional internal devices were embedded in the
questioned exhibit. The hardware and software exhibits were
tested and found that one time programmable code i.e., OTP was
in working condition. The total number of votes were found 583.
This tallies with form No.20 at exhibit 4 and the votes which
are mentioned at polling station No.185. The polling data was
shown as 15.10.2014. Polling start time was 7.11.56. When it is
compared with exhibit 13, a mock poll certificate, it is found that
the timing was not mentioned by the Presiding Officer. It was only
mentioned that the actual poll start time was mentioned as 7.10. It
was mentioned that the Control Unit was scanned through electro
magnetic detector TDK-RF Solutions, EMI test for identification

of any foreign body like Bluetooth, Wireless Fidelity (WiFi), Infra
Red (IR) embedded in the Control Unit. The Spectral analysis of
electromagnetic reveals that no such devices were embedded in
its Control Unit. The hard copy of the Electromagnetic Detector
spectrum both OFF and On condition of Control Unit is given and
produced and is marked exhibit B. The Control Unit was found
to have provision to store last 100 votes and no evidence of any
tampering or accessing the data was detected. It is opined as
follows:
“(g) The exhibit control unit bearing serial number
G 02053 marked Ex-CU1 and exhibit ballot unit
bearing serial number J27793 marked Ex-BU1 were
forensically analyzed and found that they are stand-
alone, non-networked. OneTime Programmable
(OTP) machine, which is neither computer controlled
externally nor could be connected internally or to
any network. Hence, it is opined that no evidence of
tampering, altering or any other manipulation could
be detected.”
(Emphasis applied)
43. The learned Counsel for the petitioner by filing Application
(Lodging No.18 of 2017, requested for production of two documents
i.e., Voters’ Register and Sequential List. In para 1, a question
was put to the Returning Officer Jyoti Kadam as to whether any
application was made by the petitioner to her for correction in the
name of his election agent at the polling time. The answer was
no such application was made for correction of the name of the
election agent.
44. I have taken note of section 94 of the Representation of People
Act, which states that secrecy of voting not to be infringed and no
witness or other person shall be required to state for whom he has
voted at any election. However, in the present case, the petitioner
chose to examine nearly 52 witnesses who stepped in the witness
box and they themselves voluntarily have stated to whom they
voted for. Nobody can be asked to give evidence and to disclose
his choice of the candidate as in India, the secret ballot system is

followed. However, this bar or rule does not operate against the
voters who themselves voluntarily want to disclose their choice of
the candidate and therefore, some persons voluntarily came before
the Court as witnesses and disclosed that they have voted for most
of them for the petitioner.
45. The documents which were asked for and marked exhibits in the
examination in chief of the Returning Officer, were directed to
be produced before the Court. This documentary evidence was
discussed and the documents can be listed herein to recapitulate
the evidence. They are: letter dated 19.10.2014 (exhibit 5A), letter
dated 16.8.2014 (exhibit 6A), Copy of report of mock poll in
respect of polling station 185 (exhibit 13) and polling station 242
(exhibit 14), Reports of mock poll in respect of 15 polling stations
of 212, Parvati Legislative Assembly Constituency (exhibit 15/1
to 15/15), letter of appointment of polling agent (exhibit 16),
specimen signature of petitioner and election officer Mr.Sudhir
Shetye (exhibit 17), specimen signature of all the candidates
and their election agents (exhibit 18), etc. These documents
were brought on record and copies supplied to both the parties.
However, sequential list and voters’ register are the confidential
documents on the basis of which, the fact as to who voted for
whom, is traceable, were kept with me in a sealed condition and
the learned Counsel and the parties, regarding the principle behind
section 94 the Representation of People Act, also did not press for
the disclosure of the same.
46. On this point, it is useful to refer to the evidence of Returning
Officer who threw light on the sealing of the machines and storage
of the machines in the godown before the election. She has stated
that VVPATs were not used but only EVMs were used. She
has stated that as a Returning Officer she had checked whether
the EVMs provided for the said constituency were in working
condition and properly maintained or not. She admitted that she
is not personally aware whether EVMs were approved by the
Election Commissioner or any committee of experts. She has said
that prior to voting, she has verified the status of all the EVMs
that they were showing ‘zero’. She has also checked the EVMs
in the presence of candidates, election agents, observers, media

people on a scheduled date prior to the election and all the EVMs
were found okay. After checking, the machines were sealed and
kept in the godown. The record discloses the godown was also
sealed and it was under the surveillance of CCTVs and the Central
Reserve Police Force guards were deputed. This activity was done
on 5.10.2014 to 6.10.2014 in a Government godown and after its
sealing on the same day, all the EVMs were to be shifted to the
strongroom at Koregaon road and thereafter on 13.10.2014, they
were to be kept in a badminton hall of Kataria high school and
they were to be sealed and then the strongroom was to be sealed.
Then, on 14.10.2014 at 7am, the strongroom was to be opened
and all the EVMS were to be sent to respective polling stations
and the Returning Officer has asked the candidates to send their
representative.
47. Returning Officer was questioned in respect of receipt of the
complaint dated 19.10.2014 i.e., exhibit5 and she said that she
replied to that by letter dated 20.10.2014 and informed that she
could not take steps because the complaint was not supported
with concrete evidence and, therefore, she disposed of the said
application.
48. The petitioner has filed the affidavit which is marked exhibit
19 wherein they have stated that they are the voters of Parvati
constituency and their names are appearing in polling station 242
and they voted in room No.3 of Aranyeshwar Mandir, Sahakar
Nagar, Pune and they all have voted for the petitioner. However,
from the polling station No.242, the Indian National Congress
has received 27 votes and the persons who have voted for Indian
National Congress in reality, are more than 27 votes.
49. The petitioner has raised issue that though many voters had pressed
the button of the symbol “palm” (“panja” in vernacular, as used by
the witnesses), the actual result did not tally with their oral evidence.
To prove this fact as a test case, he has examined the witnesses
PW3 to PW54. All these witnesses are from one constituency and
they claimed they voted in the Assembly elections and all of them
have said that they voted for either the petitioner or his symbol
“Palm” (panja). All the witnesses have mainly stated that they
went to polling station No.242 and voted in the constituency for
assembly election on 15.10.2014 for Indian National Congress i.e.,
Palm (panja) symbol.
50. Exhibit 19 is the copy of the affidavit dated 30.11.2014 signed
and affirmed by the voters from polling station No.242. Exhibit
19A is the original affidavit on stamp paper dated 30.11.2014 of
polling station No.242. Exhibit 20 is the copy of the affidavit dated
30.11.2014 signed and affirmed by voters from polling station
No.185. Nearly 120 persons signed their names and stated that
they are voters from Parvati Constituency and their names were
mentioned in polling booth No.185. They have voted in Room
no.3, Gandhi Adhyapak Vidyalaya, Sahakarnagar, Pune and have
voted for petitioner by pressing the button in front of “panja”. It
was stated further that from polling booth No.185, Indian National
Congress party received only 52 votes, however, the persons who
have voted for Indian National Congress, are far more than the
actual votes counted as 52.
51. Exhibit 20A is the original affidavit with the signatures. Many
of them have put thumb impressions on exhibits 19A and 20A.
Thereafter, exhibits 21 to 31 are the affidavits of the witnesses
wherein they have stated that they have voted for Indian National
Congress from polling booth No.185 in 212, Parvati Legislative
Assembly Constituency. Besides this, the persons gave the
affidavits (exhibits 21 to 31) as witness Nos.3 to 54 are examined.
All the witnesses have mainly stated the samething that they have
voted for ‘panja’. They have also stated that they pressed the
button in front of the symbol “panja”. Most of them identified their
signatures of thumb impression in the affidavit. However, some of
them like witness No.13 Avale Vilas Baburao has denied that he
made the affidavit and put the signature or thumb impression. He
also stated that the contents in the affidavit were not explained.
PW14 Prabhu Rama Aavle, PW 15 Bharti Prabhu Aavle also
denied putting signatures or thumb impressions.
52. However, PW16 Suman Haril Aavle, admitted that she put the
thumb impression on the affidavit. PW17 Chhaya Rajesh Aavle
similarly admitted that she signed the affidavit. PW23 Shakuntala
Prameshwar Londe stated that she caste her vote for Panja. She
admitted that her signature is appearing on exhibit 20(exhibit
20A). Similarly, PW24 Salu Bhagwan Kendale, PW25 Nagarbai
Sankar Gayakwad also admitted that they signed exhibit 20. PW34
Krushna Limbaji Kamble admitted that she voted for Panja and
she identified her signature on the exhibit 20. PW37 Surekha Datta
Kamble admitted that she signed exhibit 20. PW40 Swati Malhari
Pandgale also admitted that she voted and signed on exhibit 20.
Like these witnesses, in the same manner, all the witnesses have
deposed and corroborated that they voted for Indian National
Congress party.
53. In the cross-examination, the learned Counsel for the respondents
tried to demolish the evidence by asking questions that they have
no proof to show that they have voted in the Assembly elections
and none of them had proved that in fact they voted on that day or
not.
54. Such proof is also not possible after 2 to 3 years. A question
was also put to them about their capacity to read and write the
affidavits and some of them have admitted that they are illiterate
and therefore, they themselves did not read the affidavits but were
read over to them. However, all of them did not admit that they did
not vote for Indian National Congress in the election.
55. One Application (L) No.18 of 2017 was made with prayer that
Central Forensic Science Laboratory, Hyderabad is to be directed
to produce and provide a detailed voting or sequential printout
which is “DATE – TIME – STAMP recorded in the chip” with the
assistance of M/s.ECIL, if required. This application was allowed
and accordingly exhibit 40 is the sealed envelope containing
sequential printout of polling station Nos.185 of 212, Parvati
Legislative Assembly Constituency.
56. In order to test the veracity of the witnesses, Exhibit 40 was opened
by me with a view to ascertain whatever stated by the witnesses
about the voting to Indian National Congress party and their actual
voting tallies or not. The process of actual voting is required to be
taken into account. When the voter enters the polling booth and
tells his name and also his electoral number, his name is written
by the attending staff of the Election Commission in the voters
register, which is maintained under Form 17A. Then, the name

is written by the attending staff in the Register which is required
to be maintained as per Election Rules i.e., Form No.17A. After
writing the name, the staff asks the voter to sign on the register. The
voter signs the register, indelible ink is put on the finger nail and
thereafter, he goes to the machine where he is supposed to vote.
As soon as he presses the button. After pressing the button, there
is a beep sound, which gives the signal that the vote is recorded
and only then, the other voter is allowed to go and vote his vote. At
that time it gets recorded and the vote is registered and recorded
from the BU to CU. This data is not available to anybody because
it is a secret ballot system. However, the data can be retrieved
from the machine, if such order is passed. In the present case, the
Returning Officer was directed to produce this retrieved data and
this retrieved data is called the Sequential List, which is exhibit 40.
This list shows that as per the sequence, the votes are registered
as per the voters register (exhibit 37), which is maintained under
Form 17A.
57. The voting register gives the serial number in column 1, then
the name of the candidate is written; thereafter the Constituency
number and the last column is the signature column. Thus, when a
voter appears before the staff of the Election Commission and he
writes the name and signature, all these names appear as per serial
numbers. So, for example, if the number of voters, who have come
for voting is 300, the numbers and not the names of the persons will
appear from 1 to 300 in the sequential list. The EV machines have
inbuilt programme of the serial numbers 1 onwards as mentioned
in column 1 of the Voters Register under Form 17A. The Code
numbers of each contesting candidates are also programmed and
that in-built programme is already fed to the computer and thus,
as soon as the voter at serial No.1 presses button, the timing will
be registered. This programme will follow the time sequence and
the serial numbers of the voters as 1, 2, 3...., who comes and votes,
is recorded as per the serial and time sequence. This data gets
recorded in the machine and it can be retrieved.
58. As said above, the Sequential List (exhibit 40) was tallied on the
basis of the voters’ register (exhibit 37) which is mandatorily
maintained by the Returning Officer. In the present case, on the

basis of the sequence, the identity of the voter can be fixed after
tallying the sequential list with the voters register and then, it can
be traced as to who has voted for whom. When it was compared
with, it is found that though some witnesses have stated that they
have voted for Indian National Congress, in fact they have voted
for other party and not Indian National Congress i.e., the symbol
of “panja”.
59. The witness is under moral as well as legal obligation to speak the
truth. However, disregarding the sanctity of oath, the witnesses on
oath may lie. Their evidence is to be sifted, weighed and if found
reliable, then only can be believed. Most of the witnesses who
are examined before the Court are from the category of illiterate
voters. Hardly, anybody was educated. It is not that a person who is
an illiterate, will not speak the truth. However, education makes a
difference in understanding the issue. A majority of them who have
stated that they have voted for Indian National Congress, is found
correct after comparing it with the Sequential List printout (exhibit
40) and Voters’ Register (exhibit 37). However, it is found that
some witnesses actually did not vote and lied. There is a possibility
that they would have come from Pune to Mumbai only as a free
trip or would have succumbed to the peer pressure or for any other
reason. Thus, the number of witnesses examined and who have
stated that they have voted for Indian National Congress party and
the number of votes which were actually secured by the Indian
National Congress party i.e., the petitioner, as found in exhibit 40,
anyhow did not cross the number 52. The sequential list printout
showed that 52 persons have voted for Indian National Congress
and, therefore, the case of the petitioner cannot be accepted due to
the discrepancy between the persons, who stated that they voted
for Indian National Congress and the actual votes received by the
party. It is not established that the witnesses who have stated that
they have voted for Indian National Congress party, have really
voted for it. Some of them have lied and therefore, the petitioner
was misguided and could not discharge the burden to prove that
EV Machines were faulty and were not receiving the signals when
a button is pressed by the voters and votes were transferred to some
other candidate. On this point, the learned Counsel for respondent

No.1 relied on the judgment of Dr. Subramanian Swamy vs.
Election Commission of India (supra).
60. Alongwith exhibit 35, annexures A, B and C are received. Annexure
A is the breakup of the votes received by all 15 candidates of poll
date 15.10.2014 and obviously of polling booth No.185, which
was sent to Central Forensic Science Laboratory. The petitioner
is the candidate 1, who has received 52 votes. He examined 54
witnesses. Candidate 2 has received 139. Candidate 3 received 33
votes and Candidate 4 has received 132 votes.
61. Annexure B is a sweep settings screen A. This is regarding testing
of EVMs and has reference to EVM power ON and power OFF.
Annexure C is the printout of the chart under three heads, namely,
date, time and event of working of the particular EVM from
polling booth No.185, which was sent to Central Forensic Science
Laboratory and which was tested in the Forensic Laboratory. This
is a sample case chosen by the petitioner. Let me analyse the said
evidence. The dates given are different in this chart. This is from
month of April, May, June, August and October. So, it appears that
in these months and on those dates, the machines were operated.
Under the second heading, the timing is mentioned with precision
of hour, minutes and seconds. In the third heading, i.e., ‘Event’, the
functions of the EVM for which it was operated is also mentioned.
The functions which are given are required to be explained. They
are of different operations i.e., ‘Power Off’, Print Key, Total Key,
Result Key, Close Key, Clear Key, Candidates Set Key. which are
mentioned a number of times under this caption of Event. The
machine was put to the function on many occasions during these
months. This was mainly to see the operation and also keeping it
in working condition. My attention was drawn to 2 - 3 dates which
are very important. On 19.4.2014, Candidate Set Key was used.
On the same day, at “00:00:00” hours, the Candidate Set Key was
used. Thereafter, the Candidate Set Key was used on 19:8:2014 at
14:34:29 and again at 14:46:39. Again on 27.8.2014, at 16:36:16,
the Candidate Set key was used. Thereafter, on 5.10.2014, at
17:37:42, the Candidate Set Key was used. The election day was
14.10.2014. Thus, after 5.10.2014 till 15.10.2014 and thereafter,
on 15.10.2014 and 19.10.2014, the Candidate Set Key was not

used. However, it shows that on 15.10.2014, the machine was
operated at 6:18:29 in the morning. Result Key was used thereafter
on the same day at 6:18:29. There was a Total Key used at 6:18:40.
At 6:19:36, it was a Close Key. At 6:20:37 again Result key. At
6:24:05, there was a Clear Key used. At 6:31:29, the Total Key
and at 6:36:32, the Power Off key was used. Again, at 7:4:38, there
was a Total Key. Also, at 7:12:39, the Total Key and the last on
15.10.2014, at 18:05:21, the Power Off key was used.
62. Thus, it shows that at 6:18:29 in the morning, the mock trial
was conducted and the machine till evening at 18:03:58, was in
operation. The power was OFF at 18:5:21 hours. This documentary
evidence corroborates the evidence of the Returning Officer.
63. The second angle to the difference shown after random verification
is also required to be discussed on the basis of submissions made
by the learned Counsel for the petitioner raising point of absence of
use of VVPAT. The judgment of the Supreme Court in the case of
Dr. Subramanian Swamy (supra) is relied on by both the parties.
The judgment directly emphasises the necessity and importance of
use of VVPATs in our democratic country. The learned Advocate
Mr.Kale for the respondent has submitted that the judgment is
delivered on 8.10.2013 by the Supreme Court and, therefore, the
Supreme court was dealing with the issue about elections which
had taken place in 2009. Therefore, the EV machines which were
used in the Parliamentary or Assembly polls of 2009 were to
be considered and the issue of use of EV machines before this
Court is of Assembly Elections of 2014 i.e., after the judgment.
He has argued that thereafter, these EV machines were used with
ultimate precaution and they are tamperproof. Furthermore, it
is not the case that in Assembly Elections in only Pune or only
Maharashtra of 2014, the VVPAT units were not attached and not
used. Thus, it is not the case that prejudice is caused and possibility
of manipulations existed in the elections in Maharashtra only. He
pointed out that all over India, VVPAT units were not attached to
the EV machines.
64. Discussed earlier, as there is a possibility of voters lying on oath,
similarly, a possibility of hacking of electronic gazzettes cannot be

overruled. In the judgment of Dr. Subramanian Swamy (supra),
the appellant in the Writ Petition has prayed for writ of mandamus
directing the Election Commission of India to incorporate the
system of paper train / paper receipt in the EV machines, which
is a convincing proof that a vote cast by a voter is a candidate of
his / her choice is rightly registered or not. The VVPAT system
supplements the procedure of voting, when a voter casts his or her
vote, by pressing a button, the voter sees a light and his vote is
registered and the data accordingly gets stored, even as the voting
continues. Thus, it is an understanding of casting of vote virtually.
However, by use of VVPAT, as soon as a button is pressed, light gets
on and his/her vote is registered in the machine and simultaneously
the voter gets a paper trail / slip from the machine showing the
name or symbol whom he has voted for. Thus, this is a tangible /
real proof of his/her act of voting. Voter can verify and confirm his/
her own voting. The Representation of People Act, 1951 and the
Rules framed thereunder i.e., the Conduct of Election Rules, 1961,
are relied on by the learned Counsel for the petitioner. It is true that
earlier, in the year 1950, there was no use of machines but it was an
old method where voters used to put stamp on a symbol of his / her
choice on the ballot paper. However, after the amendment, section
61A was inserted by the Act of 1989 w.e.f. 15.3.1989 which states
about the use of voting machines at elections. Voting machines are
explained as any machine or apparatus for giving or recording of
votes. Responding to the astonishing technological development,
the Legislature has amended the Act and inserted section 61A. This
has really reduced the use of manpower, preparation, distribution
and manual counting in respect of ballot papers and also the votes.
In consonance with section 61, Rule 49 was amended to a great
extent. Rule 49 speaks about voting by ballot at notified polling
stations. In the said section, Chapter II was inserted by amendment
on 24.3.1992 and Rules 49A to 49X were added. These rules were
framed for voting by EV machines.
65. Let me refer to the judgment of the Supreme Court in
Dr. Subramanian Swamy (supra), wherein the Supreme Court with
the assistance of the petitioner and also the Election Commission
of India has considered many affidavits and reports in respect of

use of VVPAT. The reports of the technical experts committee
i.e., Bharat Electronics Ltd. (BEL) & the Secretary of Electronics
Corporation of India Ltd. (ECIL) were placed before the Supreme
court. After various hearings before the Supreme Court, an affidavit
dated 1.10.2013 was filed by the Election Commission of India
placing on record the result of introduction of VVPAT system in
the by-election from 51-NOCSEN (ST) assembly constituency of
Nagaland for which the poll was conducted on 4.9.2013, wherein
the VVPAT system was being used for the first time in India by
Election Commission of India. The Election Commission of India
in the said case before the Supreme Court has informed that at the
relevant time, if the VVPAT systems are to be used with all 13 lakh
EV machines available, the total cost for purchase of VVPAT units
may come about Rs.1,69,000 crores as the cost of a unit may come
approximately to Rs.13,000/-.
66. It appears that the ECI and the Ministry of Law and Justice both have
expressed a very positive approach which is manifested when the
Ministry of Law and Justice notified the amendment to the Conduct
of Election Rules 1961 in the Gazzette of India vide notification
No.S.O.2470(E): MANU/LEGL/0005/2013 dated 14.8.2013 to
enable use of VVPAT with EV machines. Pursuant to the said
notification, amendment in Rule 49A to 49(X), 55(C), 56C, 57C
and 66A were amended. Rule 49 and Rule 49A as amended are as
follows:
“49
…
Provided that a printer with a drop box of such design, as may
be approved by the Election Commission, may also be attached
to a voting machine for printing a paper trail of the vote, in such
constituency or constituencies or parts thereof as the Election
Commission may direct.”
“49E. Preparation of voting machine for poll - (1) The
control unit and balloting unit of every voting machine used
at polling station and the printer for paper trial where used,
shall bear a label marked with -

(a) the serial n umber, if any, and t he name of t he constituency;
(b) the serial number and name of the polling station or
stations, as the case may be;
other person present that no vote has been already recorded
in the voting machine and it bears the label referred to in
sub-rule (1), and where the printer for paper trail is used
that the drop box of the printer is empty.”
(emphasis added)
67. Rule 56D is about Scrutiny of paper trail and Rule 57C states about
sealing of voting machines. All these amendments came into effect
w.e.f. 14.8.2013. They are as under:
56D. Scrutiny of paper trail- (1) Where printer for paper
trail is used, after the entries made in the result sheet are
announced, any candidate, or in his absence, his election
agent or any of his counting agents may apply in writing to the
returning officer to count the printed paper slips in the drop
box of the printer in respect of any polling station or polling
stations.
(2) On such application being made, the returning officer shall,
subject to such general or special guidelines, as may allow the
application in whole or in part or may reject in whole, if it
appears to him to be frivolous or unreasonable.
(e) Every decision of the returning officer under sub-rule(2)
shall be in writing and shall contain the reasons therefor.
(4) If the returning officer decides under sub-rule (2) to allow
counting of the paper slips either wholly or in part or parts, he
shall -

(a) do the counting in the manner as may be directed by the
Election Commission;
(b) if there is discrepancy between the votes displayed on the
control unit and the counting of the paper slips, amend the
result sheet in Form 20 as per the paper slips count;
(d) complete and sign the result sheet.”
57C. Sealing of voting machines- (1) After the result of voting
recorded in a control unit has been ascertained candidate-
wise and entered in Part II of Form 17C and Form 20 under
rule 56C, the returning officer shall reseal the unit with his
seal and the seals of such of the candidates or their election
agents present who may desire to affix their seals thereon so
however that the result of voting recorded in the unit is not
obliterated and the unit retains the memory of such result and
where printer for paper trail is used, the returning officer shall
seal the paper slips in such manner, as may be directed by the
(2) The control unit and the paper slips so sealed shall be kept
in specially prepared boxes on which the returning officer
shall record the following particulars, namely:-
(b) the particulars of polling station or stations where the
control unit has been used;
(c) serial number of the control unit and printer wherever
used;
(e) date of counting.”
68. The Supreme Court has finally given directions about the use of
VVPAT as follows:
“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.
(emphasis applied)
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.”
(emphasis applied)
69. On query to the learned Counsel appearing for Election Commission
of India, who appeared in the present petition at the time of sending
of the machines to the Forensic Laboratory, I found it is necessary
and useful to ask the Election Commission of India that as on
today, how far the orders of the Supreme Court regarding the use
of VVPAT are implemented.
70. The learned Counsel for the Election Commission of India has
informed the Court that till today, in Gujarat Assembly polls of
2017, VVPAT apparatus was provided to all the EV machines.
Though earlier, the VVPAT was not used in any Parliamentary
elections. He submitted that the Election Commission of India
will use EV machines alongwith VVPAT apparatus in the next
Parliamentary as also the Assembly elections in future.
71. In a country like India, democracy keeps the nation alive. Elections
are a vital and an integral part of any democracy. For this, a free
and fair election process is essentially a lifeline. Therefore, it is
the obligation of the State, especially the welfare State to assure a
transparent and non-corrupt system for the same.
72. Thus, the use of VVPAT apparatus will be a step towards
provision of tamperproof EV machines. Therefore, principally,
the submissions made by the learned Counsel for the petitioner on
the use of VVPAT, are accepted. However, I am fully aware that
the proceeding before this Court is not under the writ jurisdiction
but is under the Representation of People Act where election of
one Legislative constituency is challenged and specifically under
section 100 of the Representation of People Act praying that the
election is to be declared void. At this stage, issue No.(iv) that
whether election of respondent No.1 from 212, Parvati Legislative
Assembly Constituency is to be declared void, can be answered
easily on the background of the earlier discussion. Section 100
reads as under:
“100. Grounds for declaring election to be void —
(1)
(a) …
(b) …
(c) …
(d) that the result of the election, in so far as it concerns a
returned candidate, has been materially affected—
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the
returned candidate [by an agent other than his election agent],
or

(iii) by the improper reception, refusal or rejection of any vote
or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders made
under this Act, the High Court shall declare the election of the
returned candidate to be void.….”
73. Admittedly, there is no use of VVPAT though the Rules are
amended. However, as observed by the Supreme court, the Election
Commission of India has assured that there will be phasewise
use of VVPAT in view of the financial burden and technical
availability. Thus, under the circumstances, it cannot be said that
there is noncompliance with the provisions of the Rules or orders,
by the Returning Officer or by the ECI.
74. It is not the case that only in Maharashtra or Pune VVPAT devices
were not used but all over India, till today, the Election Commission
of India could not incorporate VVPAT system in the Parliamentary
or State Assembly Elections. Moreover, the words used in section
100(d) are the result of election has been “materially affected”. It is
not only “affected”. The adjective “materially” has been used and
is required to be proved with sufficient evidence.
75. The petitioner has not made personal allegations against the
respondent No.1, the elected candidate. No charges are made about
hacking machines administration of mal-practices or use of threat,
muscle power or vote purchasing, etc. The petitioner appears
to be fair and balanced in not making baseless and irrelevant
allegations against the elected candidate 1. The petitioner has
in fact challenged the election machinery and the voting system
and the use of Electronic Voting machines without VVPAT. Thus,
though the main contesting party was the elected candidate, who
would have been a sufferer of the fall-out of the decision of this
case, the main grievance was against respondent No.3, the Election
Commission of India. However, the Election Commission of
India who appeared through its Counsel, rendered all necessary
assistance and furnished the required information.

76. Thus, considering the entire evidence tendered before the Court, I
answer the issues as follows:
1) Issue No.(i) - Negative 2) Issue No.(ii) - Negative
3) Issue No.(iii) - Negative 4)Issue No.(iv) - Negative
77. The difference between the votes of the returned candidate and
the elected candidate is of 73611 votes. Thus, the evidence is not
sufficient to hold that the because of non-compliance of the Rules
or because of the use of EV Machines or due to the change in
the name and signature of polling agent, the case of the petitioner
is materially affected to declare the election to be void and the
petition fails. Accordingly, the petition is dismissed.
78. In view of the dismissal of the Election Petition, all the connected
Applications filed in it are also dismissed.
79. I appreciate Mr. Vishwajeet Sawant, Mr. Prabhakar Jadhav, Mr.
Vishal Kale and Mr. Amey Deshpande, who have worked on the
issue for a long time and assisted the Court.

3. A.C. JOSE vs. SIVAN PILLAI
Civil Appeal No. 3839 of 1982 [(1984) 2 SCC 656]

CASE
05.03.1984
DETAILS
Fazalali, J and Syed Murtaza, J
ISSUES Use of EVMs without an express provision in law
The election of the returned candidate with respect

DECISIONS to the 50 polling stations where the voting machines
were used was set aside.
SUMMARY
EVM was first used by the Election Commission in fifty polling stations
for election to No. 70 Parur Assembly Constituency in Kerala on May
19, 1982. The returned candidate had secured 30450 votes, out of which
11268 votes were cast manually, according to the conventional method
provided in the Conduct of Election Rules, 1961 (“Rules”) made under
the Representation of the People Act, 1951 (“Act”), and 19182 votes
were cast by means of electronic machines. Votes by the mechanical
process were cast in 50 out of the 85 polling stations. Voting by way of
EVM was done in pursuance of the direction issued by the Commission
under Article 324 of the Constitution, by virtue of a notification
published in the Kerala Gazette on May 13, 1982. Interestingly, prior
to issuing the said notification, the Commission had sought sanction of
the Government of India, which was refused. Thereby, usage of EVMs
and election of the returned candidate was challenged in the instant
matter.
The Hon’ble Supreme Court refrained from making any comment on
either the defects or advantages of EVMs and was informed by the
Commission that at eleven elections held under the Act, the mechanical
device was used and in nine, no challenge has been raised. The Hon’ble
Court observed that this judgment will not affect those nine elections
in any manner and held that the order of the Commission regarding
casting of ballots by machines in some of the polling stations was
without jurisdiction. The election of the returned candidate with respect

to the 50 polling stations where the voting machines were used was
then accordingly set aside.
ORDER
Fazalali, J and Syed Murtaza, J
1. This election appeal has been filed by the appellant, who was a
candidate for election to “No. 70-Parur Assembly Constituency”
in Kerala but was not elected. Six candidates contested the said
election which was held on May 19, 1982 out of whom the first
respondent (Sivan Pillai), who was a candidate of the Communist
Party of India, and the appellant were the two principal contestants.
The result of the election was announced on May 20, 1982 in which
the first respondent was declared elected having secured 30,450
votes as against 30,327 votes secured by the appellant. Thus, the
first respondent secured 123 more votes than the appellant. Of
the 30,450 votes, 11,268 were cast manually, according to the
conventional method provided in the Conduct of Election Rules,
1961 (for short, to be referred to as the ‘Rules’) made under
the Representation of the People Act, 1951 (hereinafter to be
referred to as the ‘Act’), and 19,182 votes were cast by means
of electronic machines (for short, to be referred to as ‘voting
machines’). This was done in pursuance of the direction issued
by the Election Commission of India (for facility, to be referred
to as the ‘Commission’) by virtue of a notification published in
the Kerala Gazette on May 13, 1982. The said notification was
purported to have been made under Article 324 of the Constitution
of India and has been extracted on pages 3 to 5 of the judgment
of the High Court and it is not necessary for us to repeat the same
having regard to the point of law that we have to decide in the
instant case.
2. It may be mentioned that prior to issuing the notification the
Commission had sought the sanction of the Government of India
which was however refused. As mentioned above, the votes by the
mechanical process were cast in 50 out of the 84 polling stations.
3. The trial Court upheld the validity of voting by machine and held
that the respondent was duly elected to the Assembly seat. Hence,
this appeal by the appellant.

4. Article 324 of the Constitution gives full powers to the Commission
in matters of superintendence, direction and control of the
preparation of electoral rolls and also for the conduct of elections
to the Parliament and State Legislatures. It was argued that the
Commission being a creature of the Constitution itself, its plenary
powers flowing directly from Article 324 will prevail over any Act
passed by the Parliament or Rules made thereunder. In order to
buttress this argument, it was contended that the manner of voting
was a matter coming within the ambit of Articles 324 and 327 which
empowered the Parliament to make laws in respect of matters
relating to or in connection with the elections to the Parliament
or the State Legislatures and would be deemed to be subsidiary to
the power contained in Article 324 and if there was any conflict
between a law enacted by the Parliament and the powers given to
the Commission regarding regulating the conduct of elections to
Parliament that law must yield to Article 324, otherwise the very
object of Article 324 would be defeated. Notice was given by this
Court both to the Union of India as also the Commission though in
terms of Section 82 of the Act they are not necessary parties and
were not before the High Court.
5. This is a very attractive argument but on a closer scrutiny and
deeper deliberation on this aspect of the matter, it is not possible
to read into Article 324 such a wide and uncanalised power. Which
is entrusted to the Commission as Mr Jethmalani would have
us believe. Part XV of the Constitution contains Articles 324 to
328 which relate to the manner in which elections are to be held.
The rights of the persons who are entitled to vote, preparation
of electoral rolls, delimitation of constituencies, etc, but this is
merely the storehouse of the powers and the actual exercise of
these powers is left to the Parliament under Articles 325 to 329. In
other words, Article 324 has to be read in harmony with and not in
isolation of, Articles 326 to 329. Article 324 may be extracted thus:
324. Superintendence, direction and control
of elections to he vested in an Election
Commission-(1) The superintendence,
direction and control of the preparation of
the electoral rolls for, and the conduct of, all

elections to Parliament and to the Legislature
of every State and of elections to the offices of
President and Vice-President held under this
Constitution shall be vested in a Commission
(referred to in this Constitution as the Election
Commission).
(2) The Election Commission shall consist of the
Chief Election Commissioner and such number
of other Election Commissioners, if any, as the
President may from time to time fix and the
appointment of the Chief Election Commissioner
and other Election Commissioners shall, subject
to the provisions of any law made in that behalf
by Parliament, be made by the President.
(3) When any other Election Commissioner is so
appointed the Chief Election Commissioner
shall act as the Chairman of the Election
Commission.
(4) Before each general election to the House of the
People and to the Legislative Assembly of each
State, and before the first general election and
thereafter before each biennial election to the
Legislative Council of each State having such
Council, the President may also appoint after
consultation with the Election Commission such
Regional Commissioners as he may consider
necessary to assist the Election Commission in
the performance of the functions conferred on
the Commission by clause (1).
(5) Subject to the provisions of any law made by
Parliament, the conditions of service and tenure
of office of the Election Commissioners and the
Regional Commissioners shall be such as the
President may by rule determine :
Provided that the Chief Election Commissioner shall
not be removed from his office except in the manner

and on the like grounds as a Judge of the Supreme
Court and the conditions of service of the Chief
Election Commissioner sha11 not be varied to his
disadvantage after his appointment :
Provided further that any other Election Commissioner
or a Regional Commissioner shall not be removed
from office except on the recommendation of the
Chief Election Commissioner.
(6) The President, or the Governor of a State, shall,
when so requested By the Election Commission,
make availab1e to the Election Commission or
to a Regional Commissioner such staff as may
be necessary for the discharge of the functions
conferred on the Election Commission by
clause (1).
6. While interpreting a constitutional provision we must remember
the memorable words of Chief Justice Marshall :
We must never forget that it is the Constitution which we are
expounding.
7. Another golden rule laid down by this Court on the interpretation
of statutes is that we should so interpret the language of a
statute as to suppress the mischief and advance the object. It is
true that Article 324 does authorise the Commission to exercise
powers of superintendence, direction and control of preparation
of electoral rolls and the conduct of elections to Parliament and
State Legislatures but then the article has to be read harmoniously
with the articles that follow and the powers that are given to the
Legislatures under Entry 72 in the Union List and Entry 37 of
the State List of the Seventh Schedule to the Constitution. The
Commission in the garb of passing orders for regulating the conduct
of elections cannot take upon itself a purely legislative activity
which has been reserved under the scheme of the Constitution only
to Parliament and the State Legislatures. By no standards can it
be said that the Commission is a third Chamber in the legislate
process within the scheme of the Constitution. Merely being a
creature of the Constitution will not give it plenary and absolute

power to legislate as it likes without reference to the law enacted
by the legislatures.
8. It was further argued that this power was necessary in order to make
the Commission an independent body and in this connection our
attention was drawn to a speech of Dr Ambedkar in the Constituent
Assembly when the question of making the Election Commission
an independent body was being debated. At page 905, Constituent
Assembly Debates (Vol. 8) , Dr Ambedkar observed thus :
But the House affirmed without any kind of dissent that in the
interest of purity and freedom of elections to the legislative
bodies, it was of the utmost importance that they should be freed
from any kind of interference from the executive of the day. In
pursuance of the decision of the House, the Drafting Committee
removed this question from the category of Fundamental Rights
and put it in a separate part containing Articles 289, 290 and so on.
Therefore, so far as the fundamental question is concerned that the
election machinery should be outside the control of the executive
Government, there has been no dispute. What Article 289 does is
to carry out that part of the decision of the Constituent Assembly.
It transfers the superintendence, direction and control of the
preparation of the electoral rolls and of the elections to Parliament
and the Legislatures of States to a body outside the executive to be
called the Election Commission.
9. These observations merely show that the intention of the founding
fathers of our Constitution was to make the Commission a
separate and independent body so that the election machinery
may be outside the control of the executive Government. What Dr
Ambedkar, or for that matter the founding fathers, intended was
that the superintendence, direction and control of the preparation
of electoral rolls and of all elections to Parliament and State
Legislatures should be left to the Election Commission. This object
has been fully carried out by the provisions in Articles 324 to 329.
Neither the observations of Dr Ambedkar nor the provisions of the
Constitution could ever have intended to make the Commission an
apex body in respect of matters relating to elections, conferring on
it legislative powers ignoring the Parliament altogether.

10. Mr Asoke Sen, appearing for the Commission, speaking in the
same strain as Mr. Jethmalani, contended that Article 324 was a
Code in itself and was couched in a very plain and simple language
which admits of no ambiguity and, if so construed, it gives full
power, and authority to the Commission to give any direction in
connection with the conduct of elections. It was further submitted
that if this interpretation is not given then Articles 325 to 329
would amount to defeating the very object which was sought to
be achieved by Article 324. Supporting argument was built up by
Mr Sen by heavily relying upon the opening words in Article 327
to the effect : “subject to the provisions of this Constitution” and
absence of any such rider in Article 324. For the reasons which we
will give hereafter, it is not possible tor us to accept the somewhat
far-fetched argument of the learned counsel.
11. Reliance was placed on a decision of this Court in Sadiq Ali v.
Election Commission of lndia where the Court observed thus :
(SCC p. 672, para 15) Article 324 of the Constitution provides
inter-alia, that the superintendence, direction and control of the
preparation of electoral rolls for and the conduct of all elections
to Parliament and Legislative Assemblies of the States and all
elections to the offices of President and Vice-President held under
the Constitution shall be vested in the Commission ....
Without prejudice to the generality of the foregoing power, sub
section (2) enumerates some of the matters for which provision
may be made in the rules. Sub-section (3) requires that the rules
framed should be laid before each House of Parliament. Conduct
of Election Rules, 1961 were thereafter framed by the Central
Government. Rule 5 of those Rules require the Commission to
specify the symbols that may be chosen by candidates at elections
in Parliamentary and Assembly elections and the restrictions to
which that choice shall be subject. Rule 10 makes provision for
allotment of symbols to the contesting candidates by the Returning
Officer subject to general or special directions issued by the
Commission.
12. The first part of the above observations merely repeats the language
of Article 324 but the second part dearly shows that the power

under Article 324 is conditioned by the Rules made by the Central
Government for the conduct of all elections. These observations,
therefore, do not appear to us to be of any assistance to the stand
taken by the appellant.
13. Reliance was also placed on the following observations in the said
case:
Question then arises as to what is the binding nature of the decision
given by the Commission under paragraph 15. In this respect it
has to be borne in mind that the Commission only decides the
question as to whether any of the rival sections or groups of a
recognised political party, each of whom claims co be that party.
is that party. The claim made in this respect is 0nly for the purpose
of symbols in connection with the elections to the Parliament and
State Legislatures and the decision of the Commission pertains to
this limited matter ...
(emphasis supplied)
14. These observations also do not advance the matter any further
because it was clearly held that the claim made in respect of
symbols pertained only to the limited matter which was being
considered by the Commission. The following observations of this
Court in that case completely clinch the issue against the appellant
:
It would follow from what has been discussed earlier in this
judgment that the Symbols Order makes detailed provisions for the
reservation, choice and allotment of symbols and the recognition
of political parties in connection therewith. That the Commission
should specify symbols for elections in Parliamentary and assembly
constituencies has also been made obligatory by Rule 5 of Conduct
of Election Rules. . . .
(emphasis supplied)
15. Thus, it is manifestly apparent from this decision that the rulemaking
power of the Commission under the Act, with respect to symbols,
would have to prevail over any order that it may pass and the words
“conduct of elections” would not make the Commission a purely
legislative body.

16. Another case on which great reliance was placed is : Mohinder
Singh Gill v. Chief Election Commissioner, New Delhi. In this
case, it was held that an order passed by a statutory functionary
on certain specific grounds cannot be supplemented by external
evidence like affidavits or otherwise. This case also nowhere lays
down that the Commission posses plenary powers - both executive
and legislative - in the guise of conduct of elections. One of the
main questions posed by Krishna Iyer, J., speaking for the Court,
was as follows:
Can the Election Commission, clothed with the comprehensive
functions under Article 324 of the Constitution, cancel the whole
poll of a constituency after it has been held, but before the formal
declaration of the result has been made, and direct a fresh poll
without reference to the guidelines under Sections 58 and 64 (a) of
the Act, or other legal prescription or legislative backing? If such
plenary power exists, is it exercisable on the basis of his inscrutable
‘subjective satisfaction’ or only on a reviewable objective
assessment reached on the basis of circumstances vitiating a free
and fair election and warranting the stoppage of declaration of the
result and directions of a fresh poll not merely of particular polling
stations but of the total constituency ?
17. The learned Judge while answering the question observed thus:
Article 324, which we have set out earlier, is a
plenary provision vesting the whole responsibility
for national and State elections and, therefore, the
necessary powers to discharge that function. It is
true that Article 324 has to be read in the light of
the constitutional scheme and the 1950 Act and the
1951 Act. Sri Rao is right to the extent he insists that
if competent legislation is enacted as visualised in
Article 327 the Commission cannot shake itself free
from the enacted prescriptions. . . . And the supremacy
of valid law over the Commission argues itself. No
one is an imperium in imperio in our constitutional
order. It is reasonable to hold that the Commissioner
cannot defy the law armed by Article 324. Likewise,
his functions are subject to the nonns of fairness and

he cannot act arbitrarily. Unchecked power is alien to
our system. . .
Article 324, in our view, operates in areas left unoccupied by
legislation and the words ‘superintendence, direction and control’
as well as ‘conduct of all elections’, are the broadest terms ....
(emphasis supplied)
18. The observations, extracted above, furnish a complete answer
to the arguments of Mr Jethmalani and Mr Asoke Sen as it has
been clearly held that Article 324 would operate only in areas left
unoccupied by legislation, even if the widest possible connotation
is given to the language of Article 324. While summarising the
propositions, the Court made the following observations :
Two limitations at least are laid on its plenary character in the

exercise thereof. Firstly, when Parliament or any State Legislature
has made valid law relating to or in connection with elections,
the Commission shall act in conformity with, not in violation
of such provisions but where such law is silent Article 324 is a
reservoir of power to act for the avowed purpose of, not divorced
from pushing forward a free and fair election with expedition.
Secondly, the Commission shall be responsible to the rule of
law, act bona fide and be amenable to the norms of natural
justice in so far as conformance to such canons can reasonably
and realistically be required of it as fairplay-inaction in a most
important area of the constitutional order, viz., elections. ...
(emphasis supplied)
19. This is actually the main spirit and gist of the decision which appears
to have been relied upon by the appellant but which does not at
all support his stand. In the aforesaid case, there did not appear
to be any conflict between the order passed by the Commission
and the Act or the Rules. The question at issue in the instant case
did not really arise in the form and shape as has been presented
before us. On the other hand, the matter seems to have been fully
settled by an earlier decision of this Court in N.P. Ponnuswami
v. Returning Officer, Namakkal Constituency where Fazal Ali, J.

(as he then was) while making a very pointed and crisp approach,
scientifically analysed the position thus :
Broadly speaking, before an election machinery can be brought
into operation, there are three requisites which require to be
attended to, namely, (1) there should be a set of laws and rules
making provisions with respect to all matters relating to, or in
connection with, elections. and it should be decided as to how these
laws and rules are to be made; (2) there should be an executive
charged with the duty of securing the duly conduct of elections
; and (3) there should be a judicial tribunal to deal with disputes
arising out of or in connection with elections. Articles 327 and 328
deal with the first of these requisites, Article 324 with the second
and Article 329 with the third requisite. The other two articles in
Part XV, viz., Articles 325 deal with two matters of principle to
which the Constitution-framers have attached much importance.
They are : (1) prohibition against discrimination in the preparation
of, or eligibility for inclusion in, the electoral rolls, on grounds of
religion, race, caste, sex or any of them; and (2) adult suffrage. Part
XV of the Constitution is really a code in itself providing the entire
groundwork for enacting appropriate Jaws and setting up suitable
machinery for the conduct of elections.
20. We fully endorse and follow the above observations of the
Constitution bench which lay down the correct law on the subject
and we have nothing further to add to the approach made by this
Court in the case referred to above. On the other hand, our view
that Articles 324 to 329 have to be construed harmoniously flows
as a logical corollary from the ratio in Ponnuswami case.
21. The pointed and pungent observations, extracted above, really
amount to a Bible of the election law as culled out from an
interpretation of the provisions of Articles 324 to 329 of the
Constitution, and were referred to with approval even in Mohinder
Singh Gill case. During the last three decades this case has neither
been distinguished nor dissented from and till holds the field and,
with due respect, very rightly. No other case ever made such a
dynamic and clear approach to the problem, perhaps due to the fact
that no such occasion arose because the Commission has always

been following the provisions of the Act and the Rules and had
never attempted to arrogate to itself powers which were not meant
to belong to it. Indeed, if we were to accept the contention of the
respondents it would convert the Commission into an absolute
despot in the field of election so as to give directions regarding
the mode and manner of elections bypassing the provisions of the
Act and the Rules purporting to exercise powers under cover of
Article 324. If the Commission is armed with such unlimited and
arbitrary powers and if it ever happens that the person manning
the Commission shares or is wedded to a particular ideology,
he could by giving odd directions cause a political havoc or
bring about a constitutional crisis, setting at naught the integrity
and independence of the electoral process, so important and
indispensable to the democratic system.
22. Further, such an absolute and uncanalised power given to the
Commission without providing any guidelines would itself destroy
the basic structure of the rule of law. It is manifest that such a
disastrous consequence could never have been contemplated by
the Constitution makers, for such an interpretation, as suggested
by the counsel for the respondent, would be far from attaining
the goal of purity and sanctity of the electoral process. Hence,
we must construe Articles 324 to 329 as an integral part of the
same scheme collaborating rather than colliding with one another.
Moreover a perusal of Articles 324 to 329 would reveal that the
legislative powers in respect of matters relating to Parliament or
the State Legislatures vest in Parliament and in no other body. The
Commission would come into the picture only if no provision has
been made by Parliament in regard to the elections to the Parliament
or State Legislatures. Furthermore, the power under Article 324
relating to superintendence, direction and control was actually
vesting of merely all the executive powers and not the legislative
powers. In other words, the legislative power of Parliament or of
the Legislature of a State being made subject to Article 324 only
means that no law made by Parliament under Article 327 or by a
State Legislature under Article 328 can take away or deprive the
Commission of the executive power in regard to matters entrusted
to it, viz. superintendence, direction and control of elections. The
right to file an election petition directly flows from Article 329

and cannot be affected in any manner by the exercise of executive
power by the Commission under Article 324.
23. In view of the above, it is not necessary for us to consider a number
of other authorities that were cited before us as they do not appear
to be directly on point.
24. It is pertinent to indicate that the High Court fell into an obvious
fell by acceptance of the position that the direction of the
Commission was intended to operate in an uncovered field. When
the Act and the Rules prescribed a particular method of voting, the
Commission could not innovate a new method and contend that
use of the mechanical process was not covered by the existing law
and, therefore, did not come in conflict with the law in the field.
25. To sum up, therefore, the legal and constitutional position is as
follows:
(a) when there is no parliamentary legislation or rule made under
the said legislation, the Commission is free to pass any orders
in respect of the conduct of elections.
(b) where there is an Act and express Rules made thereunder, it is
not open to the Commission to override the Act or the Rules
and pass orders in direct disobedience to the mandate contained
in the Act or the Rules. In other words, the powers of the
Commission are meant to supplement rather than supplant the
law (both statute and Rules) in the matter of superintendence,
direction and control as provided by Article 324.
(c) where the Act or the Rules are silent, the Commission has no
doubt plenary powers under Article 324 to give any direction
in respect of the conduct of election, and
(d) where a particular direction by the Commission is submitted
to the Government for approval, as required by the Rules, it is
not open to the Commission to go ahead with implementation
of it at its own sweet will even if the approval of the
Government is not given.
26. Apart from the arguments referred to above, an alternative
argument put forward before us was that even the Rules framed

under the Act authorise the Commission to give directions to
hold voting by the use of a voting machine and this is covered
by Section 59 of the Act and Rule 49 of the Rules. This argument
merits serious consideration. In the instant case, the main grievance
of the appellant is that the voting by mechanical process was not
permissible either under the Act or under the Rules. Reliance was,
however, placed by the appellant on Section 59 of the Act which
runs thus :
59. Manner of voting at elections.-At every election where a
poll is taken votes shall be given by ballot in such manner as
may be prescribed, and no votes shall be received by proxy.
27. It is obvious that Section 59 uses the words “ballot in such manner
as may be prescribed”, which means prescribed by the Rules made
under the Act. A reference to Section 61 of the Act would show
that Parliament intended use of ballot paper only for casting of
votes. This takes us to Rule 49, the relevant part of which may be
extracted thus :
49. Voting by ballot at notified polling stations.-(1)
Notwithstanding anything contained in the preceding
provisions of this Part, the Election Commission may, by
notification published in the Official Gazette at least 15 days
before the date, or the first of the dates, of poll appointed for
an election, direct that the method of voting by ballot shall be
followed in that election at such polling stations as may be
specified in the notification.
28. It was submitted that having regard to the modem and changing
conditions of the society a dynamic approach should be made to the
interpretation of the aforesaid two legal requirements. The matter
does not rest here : something could be said for the view that the
word ‘ballot’ include” voting by machines. Section 59 proceeds to
explain its intention in setting up the mode, manner and method
of voting by prescribing express roles as to how the voting should
be done. In this connection. Reference may be made to Rule 22
which related to the form of ballot paper and its contents. Rule 23
requires the Returning Officer to record on the counterfoil of the
ballot paper the electoral roll number of the elector as entered in

the marked copy of the electoral roll. Rule 27 refers to the return
of ballot paper after an elector has recorded his vote or made his
declaration. Rule 30, which prescribes the contents of the ballot
papers, is completely contrary to the concept of ballot by machine.
Similarly, Rules 33, 38, 39 and 40 seem to be wholly inconsistent
with the mechanical process but seem to adopt the conventional
method. As we have already indicated, these Rules are binding on
the Commission and it cannot by an executive fiat either override
them or act contrary to the statutory provisions of the Rules.
29. On a proper and detailed analysis of these Rules it is clear that
the Act by framing the Rules completely excluded the mechanical
process which, if resorted to, would defeat in a large measure the
mandatory requirements of the Rules.
30. It is a well settled rule of interpretation of statutes that words,
phrases or sentences of a statute should ordinarily be understood
in their natural, ordinary, popular and grammatical sense unless
such a construction leads to absurdity. Mr Jethmalani argued that
the word ‘ballot’ is wide enough to include the mechanical process
and, therefore, the direction of the Commission falls squarely
within the four corners of both Section 59 and Rule 49. Reliance
was placed on the dictionary meaning of the word ‘ballot’’ which
has been defined in Black’s Law Dictionary (Fourth Edn.) at page
182 thus :
Means act of voting, usually in secret, by balls or
by written or printed tickets or slips of paper ; the
system of voting by halls or tickets, or by any device
for casting or recording votes, as by voting machine.
In Stroud’s Judicial Dictionary (Third Edn.), however ‘ballot’
means “votes recorded - all ballot papers put into the ballot boxes
by the electors (p. 3239)”. Stroud therefore, does not subscribe to
the view of casting of vote through a voting machine and we agree
with this view because casting of votes by machine is a mechanical
process, which has come into existence long after the Act was
passed and is not generally invoked in most of the democratic
countries of the world.

31. Concise Oxford Dictionary defines the word ‘ballot’ thus : (usu,
secret) voting ; small ball, ticket or paper used in voting; votes so
recorded.
32. In Webster’s Third New International Dictionary (Vol. I) at page
168 ‘ballot’ is defined thus : to obtain a vote from (a body of voters)
(the men on the: proposal), to select by ballot or by the drawing of
lots.
33. It may be mentioned here that the word ‘ballota’ has been derived
from the word ‘ballot’ which existed at a time when there was no
question of any system of voting machine. Even in 1951 when the
Act was passed or the Rules were made, the system of voting by
machine was not in vogue in this country. In these circumstances,
therefore, we are constrained to hold that the word ‘ballot’ in its
strict sense would not include voting by the use of voting machines.
Legislatures must be deemed to be aware of the modern tendencies
in various democratic countries of the world where the mechanical
system has been introduced and if despite the plain meaning of the
word ‘ballot’ they did not choose to extend the definition given as
far back as 1950, it may be safely presumed that the Parliament
intended to use the word ‘ballot’ in its popular rather than a
technical sense. Our view finds a good deal of support from the
circumstance that even though the system of voting by mechanical
process was submitted to the Government for approval yet the
same was declined which shows that the rule-making authority was
not prepared to switch over to the system of voting by machines,
perhaps on account of the legal bar as indicated by us.
34. It is rather unfortunate that the Union of India which is a party to
this Case, has taken a very neutral stand by neither supporting nor
opposing the direction given by the Commission.
35. Having regard to these circumstances, therefore, we are clearly
of the opinion that according to the law as it stands at present, the
order of the Commission directing casting of ballot by machines
in some of the polling stations, as indicated above, was without
jurisdiction and could not have been resorted to.
36. It was further pointed out by the respondent that the process of
voting by machines is very useful as it eliminates a number of

drawbacks and expedites, to a great extent, the declaration of the
result of the election by eliminating the process of counting of
votes from the ballot boxes. On the other hand, the appellant has
pointed out a number of defects, some of them being of a vital
nature, which would defeat the electoral process. We would now
indicate some of the apparent defects which were pointed out to us
by the counsel for the appellant after giving a demonstration of the
voting machine before us:
The absence of a provision for identifying the candidate for whom
a void vote has been cast-
a) by impersonating a dead voter.
b) by impersonating an absentee voter, by the genuine voter who
tenders a vote after a vote has been cast in his name by an
impersonator (Rule 42),
c) where a vote is void having been cast after closing time (Rule
43),
d) where the voter has cast votes in more than one booth in the
same constituency [Section 62(2)],
e) where the voter has cast two votes in two constituencies
[Section 63(3)],
f) where the voter is disqualified under Section 16 of the Act
[Section 62 (4)],
g) where an elector marks a ballot paper wrongly for a candidate,
he loses the right to get a fresh ballot paper for casting his vote
correctly (Rule 41).
h) The provisions of Section 100 (1 ) ( d) and more so Section
101 (a) and (b) under which by excluding the void votes or
votes cast as a resu1t of corrupt practices any other candidate
can be declared duly elected as the true representative of the
constituency.
37. On the other hand. a number of advantages which could be
obtained by using the mechanical process were pointed out by the
respondent, the sum and substance of which was that despite some

defects the electoral process would he expeditious and would cut
out a number of delays or mistakes committed at various stages. The
fact, however, remains that if the mechanical process is adopted,
full and proper training will have to be given to the voters which
will take quite some time. However, we refrain from making any
comments on either the defects or advantages of voting machines
because it would be for the Legislature and the Government, if it
revises it, decision at one time or the other, to give legal sanction
to the direction given by the Commission. For these reasons , it is
not necessary for us to go into the very detailed notes of arguments
submitted by the parties in respect of this aspect of the matter.
38. Lastly, it was argued by the counsel for the respondents that the
appellant would be estopped from challenging the mechanical
process because he did not oppose the introduction of this process
although he was present in the meeting personally or through his
agent. This argument is wholly untenable because when we are
considering a constitutional or statutory provision there can be no
estoppel against a statute and whether or not the appellant agreed
or participated in the meeting which was held before introduction
of the voting machines, if such a process is not permissible or
authorised by law he cannot he estopped from challenging the
same.
39. For the reasons given above, we allow the appeal, set aside the
election of the respondent with respect to the 50 polling stations
where the voting machines were used and we direct a repoll to
be held in these 50 polling stations. We, however, do not touch
or disturb the results of the votes secured in the other 34 polling
stations which was done in accordance with law, viz., the use of
ballot papers. After the repoll, the result of the election would
be announced afresh after taking into account the votes already
secured by the candidates, including the respondent. We make no
order as to costs.
40. In course of argument, Mr Sen for the Commission informed us
that at eleven elections held under the Act, the mechanical device
was used and in nine, no challenge has been raised. It follows that
our judgment will not affect those nine elections in any manner.

4. ALL INDIA ANNA DRAVIDA MUNNETRA KAZHAGAM
vs. ELECTION COMMISSION OF INDIA
W.P. No. 3346 and others of 2001 [2001 SCC

CASE OnLine Mad 1398]
DETAILS 10.04.2001
N.K. Jain, C.J
The petitioner challenged legal provisions
pertaining to EVMs and had alleged that the EVMs
ISSUES were tamperable and hackable and also challenged
use of EVMs in General Elections to the Tamil
Nadu State Legislative Assembly 2001.
The Hon’ble Court held that there is also no question
of introducing any virus or bugs for the reason
that the EVMs cannot be compared to personal
computers. The programming in computers has no
bearing with the EVMs. The computer would have
DECISIONS
inherent limitations having connections through the
Internet and by their very design, they may allow
the alteration of the programmes but the EVMs are
independent units and the programme in EVM is
entirely a different system.
SUMMARY
The Petition was filed seeking writ of prohibition or direction for
prohibiting the ECI from using Electronic Voting Machines in the
constituencies in the ensuing General Elections to the Tamil Nadu
State Legislative Assembly. A comprehensive counter was filed by the
Election Commission, wherein the functioning of EVMs was narrated
in detail. An elaborate mention was made about the design of EVMs
and the voting procedure, annexing the manuals prepared by Bharat
Electronics Limited (BEL) and Electronics Corporation of India
Limited (ECIL). It was categorically stated that by using the EVMs
the need for printing huge quantity of ballot papers is dispensed with
saving the cost of paper and printing to a great extent. Voting by EVMs
is smooth and easy and the result can be ascertained in a few hours. It
was asserted that no rigging is possible.

The Hon’ble Court held that there is also no question of introducing
any virus or bugs for the reason that the EVMs cannot be compared to
personal computers. To expel doubts as to whether the vote of an elector
has been registered, the Hon’ble Court observed that a perusal of the
machine manual reveals that whenever a person casts his vote, a beep
sound will be heard to those who are present in the booth concerned,
and that is the signal of the registration of the casting of vote. A safety
measure is provided that if the concerned person or agents do not hear
any sound, they will inform the Polling Officer to release the lock. The
Hon’ble Court also dismissed the contentions on pre-programming of
EVMs.
The Court further observed that the advantages of using EVMs outweigh
the advantages in conventional ballot boxes. Need for printing huge
quantity of ballot papers is dispensed with saving on the cost of paper
and printing. The invalid votes in the old system play a major role in
turning the result of the elections. In the EVMs, invalid votes do not
arise, and every vote is accounted. No rigging is possible and results can
be ascertained in a shorter time. In the ballot papers in the conventional
system, the voters prefer to write some messages leaving a bad taste
and also wasting the whole exercise. This is not possible in the EVMs.
Thus, the Hon’ble Court was of the view that the voter cannot dictate
that he should be allowed to cast his vote in the method he chooses.
ORDER
N.K. Jain C.J
1. Dr. J. Jayalalitha, former Chief Minister of Tamil Nadu, and the
General Secretary of All India Anna Dravida Munnetra Kazhagam
with the allegation that AIADMK, a registered political party
registered with the Election Commission of India has filed writ
petition W.P. No. 3346 of 2001 on 21.2.2001 seeking to issue a
writ of prohibition or direction in the nature of writ prohibiting
the Election Commission of India from using Electronic Voting
Machines in the constituencies in the ensuing General Elections to
the Tamil Nadu State Legislative Assembly. A learned single Judge
ordered notice on 22.02.2001 and further directed the Registry to
place the matter before the First Bench as the matter involved
public interest.

2. W.P. No. 3633 of 2001 was filed on 23.2.2001 by one Haneefa,
who alleges to be a businessman and manufacturer of Electrical
and Electronic equipments, including Electronic Voting Machines,
praying to issue a direction to remove, strike and declare Section
61-A of Representation of People Act, 1951 (hereinafter referred
to as Act) as invalid and ultra vires the Act and Articles of the
Constitution and to direct the Chief Election Commissioner of India
to forbear from using EVMs in the ensuing Assembly Elections
in four States viz., Tamil Nadu, Pondicherry, Kerala and West
Bengal. W.P. No. 4454 of 2001 was filed by the General Secretary
of All India Forward Bloc (Tamil Nadu) on 8.3.2001, a recognised
political party, seeking for a direction to declare Section 61-A of
the Act as ultra vires the Constitution and the Parent Act.
3. Another W.P. No. 4945 of 2001 was filed by the AIADMK on
13.3.2001 for a direction to declare Section 61-A of the Act, as
ultra vires and repugnant to Articles 324,326,327 and 328 of the
Constitution of India, apart from the other provisions of the Act
itself, for the reasons that the said section was inserted on the ground
of lack of guidelines, arbitrariness and exercise of vague, unfettered
and uncanalised power given to the Election Commission of India
in selecting the constituency or constituencies for using Electronic
Voting Machines. The learned single Judge ordered notice on
14.3.2001, and directed to post the matter before the First Bench.
4. W.P. No. 5077 of 2001 was filed on 14.3.2001 by the President of
the Pattali Makkal Katchi (PMK), a political party registered with
the Election Commission of India seeking for a direction to declare
Section 61-A of the Act, as ultra vires and also to strike it down as
the powers conferred on the first respondent - Election Commission
are vague and without guidelines, in selecting constituencies for
using Electronic Voting Machines (in short EVMs).
5. W.P. No. 6038 of 2001 was filed by the Communist Party of India
(CPI), a recognised and registered political party with the Election
Commission of India on 27.3.2001 praying for a direction to
declare Section 61-A of the Act, 1951, on the same grounds, as
stated in the other writ petitions, stated above.

6. Similarly, W.P. No. 4417 of 2001, W.P. No. 4466 of 2001 and W.P.
No. 6039 of 2001 were filed on 5.3.2001, 5.3.2001 and 27.3.2001
respectively by the Pattali Makkal Katchi (PMK), Indian National
League and Communist Party of India, registered political parties,
with the same prayer to forbear the Election Commission of India
from using the Electronic Voting Machines in the ensuing general
elections 2001 to be conducted for the Legislative Assembly
Constituencies in Tamil Nadu, and also in the Union Territory of
Pondicherry, and in the Tiruchirapalli Parliament Constituency in
Tamil Nadu.
7. There are two sets of writ petitions viz., one challenging the vires
of Section 61-A of the Act, and the another for a direction not
to use the Electronic Voting Machines in the ensuing elections in
Tamil Nadu, Pondicherry, Kerala and West Bengal.
8. The case put-forth by the writ petitioners in the various writ
petitions in brief is: The manner of voting is enshrined in Section
59 of the 1951 Act and it shall be by ballot in the manner as may
be prescribed. Section 61-A has been inserted permitting the
introduction of the use of EVMs in respect of certain constituencies.
Section 94 refers to the maintenance of secrecy of voting and it
should not be infringed upon under any circumstances. In the event
of filing election petition, only when the ballot papers are made
available for Court’s scrutiny, the Court could exercise its power.
But no corresponding provision for safeguard is made in the event
of EVMs being used, and nothing is said about the preservation of
the contents in the EVMs.
9. It is also pointed out that Chapter II of Part IV of the Conduct of
Election Rules, 1961 (hereinafter referred to as the ‘Rules’) deals
with voting by EVMs. Rule 49-E speaks about the preparation
of voting machines for the polls. Rule 49-E (2) speaks about the
demonstration of the voting machines by the Presiding Officer of
the poll. Rule 49-E (3) and E (4) relate to sealing of the machines.
The overall control of the machine is only with the Presiding
Officers of the polling both. Section 49-L deals with the procedure
for voting through EVMs. Rule 49-0 allows an elector to exercise

no vote option to avoid his vote being impersonated or rigged. In
the conventional system, a voter can get a ballot paper but need not
mark and the secrecy is maintained. There is no such provision in
EVMs for exercising no vote. The secrecy is thus lost.
10. It is alleged that the ballot box is made out of thick iron sheets, while
EVM is a fragile instrument and the buttons to be used are meant
for feather touch operations. Any bad element could damage the
same. During the pendency of the election petitions either before
the High Court or the Supreme Court, the preservation of EVMs
requires several supporting apparatus to be kept continuously
running which will be very difficult.
11. As regards the actual working of EVMs, doubt is raised as to
whether an individual can press the button more than once and
cast his vote more than once. Another doubt is also raised as to
when a person casts his vote, normally the next vote can be cast
only after the lock is released by the Presiding Officer in the booth,
but if a voter and an officer connive, is it possible to exercise more
than one vote. Whether a voter can know that his vote has been
duly registered is also a doubt raised by some of the petitioners.
Some writ petitioners raised another doubt that after one person
has voted, if the Presiding Officer forgets to release the lock and
the next voter presses the button of his choice and the vote does
not register, will the second voter know that his vote has not been
registered. It is also asked as to what is the guarantee if a person
presses a button next to a particular symbol, that the vote has indeed
been accounted in that symbol only, and not in any other symbol.
Another question is also posed to the effect that in the event of an
election petition, how can the validity of each vote be accounted
for. Another interesting question is raised regarding the mode to
ensure the prevention of mischiefs viz. introduction of computer
bugs and viruses and internet hacking since EVMs are set up with
computerised voting facility by a programmed microchip. Some
writ petitioners apprehend a situation that if a voter deliberately
or accidentally disconnects the EVMs during election process or
damages it in any way necessitating spot repair or even replacing
of the machine, what would happen to the votes already cast.

12. It is further pointed out that Section 61-A is somewhat restricted
to use EVMs in ‘Such constituency or constituencies’ only as the
Election Commission (hereinafter referred to as ‘EC’) may deem
fit. The word “such” in the context cannot mean all constituencies.
EVMs cannot be used for the whole lot of constituencies. This
section also does not authorise the use of EVMs in the ensuing
General Elections to the State Legislative Assembly. The machines,
if at all necessary, could be initially tested in panchayat and local
body elections on a large scale and only if found successful, they
could be used in General Elections. It is stated that Section 61-A
of the Act is not a method to supplement or supplant the method
of voting as adequately indicated in the rest of the provisions of
the Act but it is only an alternative method. It cannot displace or
dislodge the procedure laid down for voting by means of paper
ballots. The Delegated legislation has no check over it and there is
no way of obtaining redress. No rules had been framed on the issue
of how the study was made to use EVMs in certain constituencies.
With similar allegations that vague, and unfettered and arbitrary
powers have been given to the Election Commission in respect of
use of EVMs, the petitioners are before us with the prayer as stated
above.
13. Detailed counters in respective writ petitions have been filed by
the Election Commission denying the allegations, as alleged in the
affidavits filed in support of the writ petitions. It is stated that in
view of the decision of the Supreme Court in A.C. Jose v. Sivan
Pillai (1984) 2 SCC 656 : AIR 1984 SC 921), the EVMs could
not be used after 1983. But on the recommendation of the Election
Commission, Act 1 of 1989 was introduced by the Parliament
introducing Section 61-A. Corresponding amendments were made
in the Rules and a new chapter regarding EVMs was inserted. The
design and model of the existing EVMs were finalised by the EC
in May 1989. By March 1990, the Commission procured 1,50,000
EVMs from Electronic Corporation of India Ltd. (ECIL for short)
at a cost of Rs. 73.5 crores. It is also stated that the matter was
referred to the Electoral Reforms Committee known as Dinesh
Goswami Committee, which appointed another ‘Technical Experts

Committee’ consisting of distinguished scientists. The Experts
Committee examined the machines minutely from all technical
angles and recommended its use. The Election Commission held
meetings in December 1995 and May 1997 in which a large
number of parties were positive about the introduction of EVMs.
A conclusion was arrived at that the EVMs had to be introduced
in India initially in a limited manner and thereafter it should be
expanded. In 1998 general elections, due to paucity of time EVMs
could not be used. However in November 1998 the use of EVMs
was started at the general elections to the Legislative Assemblies
in Madhya Pradesh, Rajasthan and Delhi. In the counter, the
proper preparations so made, regarding choosing of constituencies,
preparation of materials to polling and counting agents and the
conduct of special training programmes to them by the Election
Commission are stated in detail. Mass Communication through
media is also mentioned. The arrangements made for testing of
each machine, by the personnel of mobile parties consisting of
technical staff and the readiness for replacement of any machine,
if machine developed any defect are also mentioned. The Election
Commission engaged the ‘Centre for Study of Developing
Societies, Delhi’ to conduct a detailed study on the use of EVMs in
Madhya Pradesh and Delhi during 1999 bye-elections in which the
awareness of public at 87.7% the favourable response for the use of
EVMs at 90.6% and time taken for counting by 2 to 3 hours, were
revealed. It is stated that in June 1999 the EC extended the use of
EVMs to 45 Parliamentary constituencies for electing the 13th Lok
Sabha involving 17 States including the State of Tamil Nadu and 3
Union Territories covering and 62,360 polling stations, the number
of electors beingalmost 60 million. In Delhi, all the Parliamentary
Constituencies with 9,132 polling stations were covered by EVMs.
The use of EVMs during the general election to the Haryana
Legislative Assembly in February 2000 is also spoken to. It is
further stated that out of 1,01,245 machines used in the Lok Sabha
and State Assembly Elections between 1998 and 2000, only 12
machines were found to have developed some defects in operation
of memory with the error percentage 0.001. If any machine needed
replacing, the memory of the votes recorded therein before the

defect developed remains intact and can be retrieved at the time
of counting the votes. In order to eliminate such defects, a further
review by a team of officers of the EC with the representatives
of ECIL at Hyderabad was held on 26.4.2000. The improvements
made in the new machines pertaining to the provision of additional
set of memory device to store data and an Auxiliary Display Unit
to read and display the data stored are also set out in the counter
in detail. The technology is robust and simple. The Government
of India accepting the proposals of the EC provided funds for the
purchase of more EVMs during the general elections in April -
May 2001. The Commission accordingly placed orders for the
purchase of 1.30.000 more EVMs from the ECIL and BEL at a
cost of 150 crores.
14. In the counter, elaborate mention is made about the design of
EVMs and the voting procedure, annexing the manuals prepared
by BEL and ECIL. It is categorically stated that by using the EVMs
the need for printing huge quantity of ballot papers is dispensed
with saving the cost of paper and printing to a great extent. Voting
by EVMs is smooth and easy and the result can be ascertained
in 2 hours. No rigging is possible. The functioning of EVMs is
narrated in the counter in detail. The present EVM can be used in
a constituency where the number of contesting candidates is up
to 64. The voter can see a red light glowing against the name and
symbol of the contested candidates and also here a ‘Beep Sound’
emanating from the control unit to indicate that his vote has been
recorded for whom it was intended. Every vote will be recorded
only after releasing through the control unit for the next elector.
Thus, no vote will be wasted. The control unit is like the brain of
the whole system. It can record 3,840 votes at a polling station.
It is also stated that in the case of filing of an election petition,
using the information so kept in the memory of EVMs, it can be
retrieved.
15. Like conventional voting, Section 169(1)(h) empowers the making
of rule for safe custody of voting machines and contents and by
the insertion of Rules 92(1-A), 92(2)(dd), 93(1)(dd), 93(1-A) and
Rule 94(aa), safe custody and the preservation of voting machines

are taken care of Rules 49-B, 49-E, 49-L, 49-M, 49-T and 49-U of
the Rules provide for the preparation of voting machines, sealing
and for securing and their applications have been stated in detail in
the counter.
16. It is stated that no single occasion of the smashing or damaging
or tampering with the EVM has been reported. The memory of
EVMs shall not be erased at least for 10 years. It is not possible
for an individual elector to press the candidate’s button on the
balloting unit more than once. The checking of the identity of the
elector through agents is maintained in EVMs also. Thus, no proxy
vote can be franchised. The indication of glowing of green bulb
when it is ready and the beep sound after casting the vote have
been mentioned in the counter. It is also stated that the microchip,
which is the brain of the whole system can never be replaced. The
programme is written independently in the assembly language of
the microprocessor by the two Public Sector Corporations ECIL
and BEL, and fused on the microprocessor chip at the facility of
the chip manufacturer, Hitachi Corporation, Japan. Once fused, the
instructions cannot be altered or overwritten by anyone including
the persons writing the programme. This is commonly known as
Firmware. In the case of EVMs, the microprocessor chip is soldered
directly on the printed circuit motherboard. Since the distances
between the contacts are too small to be handled even by highly
skilled workers, the actual placement is done using machines with
in-built robotic arms and contact leads are wave-soldered on to the
motherboard. It is infeasible for the chip to be replaced through a
manual process. It is further stated that general purpose computers
such as Desktop, Personal Computers cannot be compared with
the EVMs produced in India.
17. It is also stated that Section 61-A of the 1951 Act empowers the
Election Commission to use the EVMs in such constituency or
constituencies, as the Election Commission may deem fit, taking
into consideration the circumstances of each case. In an appropriate
case, the Commission may even decide to use the EVMs in all
Constituencies of a State if justified and warrant the use of such
machines. The intention of the Parliament was to maximise the use

of EVMs in general election. The Constitution and the statutory
provisions, collectively give the limited area where discretion
should be exercised. With these, it is submitted that all the writ
petitions deserve to be dismissed.
18. A detailed counter affidavit has been filed on behalf of the Union
of India denying the allegations made by the writ petitioners. It
is stated that Section 61-A has been inserted by the Act 1 of 1989
in conformity with the pronouncement of A.C. Jose’s case and
corresponding Rules were made thereunder. Relevant portions
from the Statement of Objects and Reasons are mentioned. It
is categorically stated that there is no abdication of power and
sufficient guidelines are available to the Election Commission as
evidenced by the Rules. It is further submitted that the manner of
voting through voting machines has been elaborately prescribed
by the Rules. Most of the averments in the counter affidavit of
the Election Commission are reiterated in this counter affidavit.
Huge amount to the tune of Rs. 1 SO crores has been spent for
acquisition of EVMs to conduct elections in a free, fair and smooth
manner. The apprehensions of the writ petitioner are unfounded
and Section 61-A is in no way repugnant to the provisions of the
Constitution and the Act. Therefore, the writ petitions have to be
dismissed with exemplary cost.
19. W.P. Nos. 6038 and 6039 of 2001 were filed on 27.3.2001 and also
posted before the Court on 29.3.2001.
20. As the points involved are same and identical and as agreed to, all
the writ petitions are heard together.
21. Mr. P.P. Rao learned Senior Counsel argued exhaustively on
27.3.2001 and 28.3.2001. The learned counsel for the petitioners in
other writ petitions adopted the arguments of Mr. P.P. Rao learned
Senior Counsel.
22. Mr. P.P. Rao learned Senior Counsel for the petitioner in W.P. No.
3346 and 4945 of 2001 mainly attacked the decision of EC making
use of EVMs, stating that Section 61-A of the Act suffers from
arbitrariness on account of abdication of powers. He submitted that

when power has been conferred under Section 59 of the Act, the
words “Notwithstanding” “in such manner as may be prescribed”
and a such constituency or constituencies used in Section 61-A
will clearly reveal that there is abdication of powers. Therefore,
the said Section is liable to be struck down. He relied upon the
decision in in re Art. 143, Constitution of India and Delhi Laws
Act (1912) etc., (AIR 1951 SC 332) wherein after referring to
American and English cases, it has been held as follows:
“…The Policy may be particularised in as few or as many words
as the legislature thinks proper and it is enough if an intelligent
guidance is given to the subordinate authority. The Court can
interfere if no policy is discernible at all or the delegation is of
such an indefinite character as to amount to abdication, but as the
discretion vests with the legislature in determining whether there
is necessity for delegation or not, the exercise of such discretion is
not to be disturbed by the Court except in clear cases of abuse.”
“…The limits of the powers of delegation in India would therefore
have to be ascertained as a matter of construction from the
provisions of the Constitution itself and as I have said the right of
delegation may be implied in the exercise of legislative power only
to the extent that it is necessary to make the exercise of the power
effective and complete..”
23. He submitted that essential things relating to the election must be
provided only by the legislation and not by delegated legislation.
He also relied on paragraphs 231 to 234,246,252 and 262 of the
aforesaid judgment. Learned Senior Counsel then referred to the
portions in the decision wherein it was held that the delegation
of legislative authority could be permissible but only as ancillary
to, or in aid of the law making powers by the proper legislature
and not as a means to be used by the latter to relieve itself of its
own responsibility or essential duties by devolving the same on
some other agent or machinery and it can, on no account throw
the responsibility within the Constitution imposes upon it on the
shoulders of an agent or delegate and thereby practically abdicate
its own powers. He further relied on the decision in B. Shama
Rao v. Union Territory of Pondicherry (AIR 1967 SC 1480)

particularly referring to paragraph 5 wherein it has been stated
that “the legislatures had power to delegate within certain limits
but delegation of an essential legislative function which amounts
to abdication even partial is not permissible”. Stressing the above
proposition learned Senior Counsel submitted that in the instant
case, there is a total abdication of legislative power by Parliament
to the Election Commission. Learned counsel drew our attention
to paragraph 24 of the aforesaid judgment in which majority
view was expressed, paragraph 37 wherein the classification was
commented upon by Mahajan J and respective views expressed
by their lordships in different paragraphs of the said judgment.
Learned Senior Counsel also referred to the decision in Hamdard
Dawakhana v. The Union of India (AIR 1960 SC 554) where the
constitutionality of Drugs and Magic Remedies Act 1954 was
challenged on the ground of violation of the Articles in Part III of
the Constitution of India and the impugned Section therein was
struck down. He further submitted that even when the words used
were “subject to” in the above mentioned case, the Supreme Court
did not hesitate to strike down the offending Rule and the same
principle would be squarely applicable to the present case where
the words “notwithstanding anything” have been used. Then
the learned counsel relied upon the decisions in Jothi Pershad
v. Administrator for the Union Territory of Delhi (MR, 1961 SC
1602) and Ramakrishna Dalmia v. S.R. Tendolkar (AIR 1958
SC 538) to show that excessive delegation is present in this case.
Relying upon the decision in Devi Das Gopalkrishnan etc. v. State
of Punjab (AIR 1967 SC 1895) pertaining to the case which arose
under the Punjab General Sales Tax Act, learned Senior Counsel
submitted that guidelines are necessary to conduct election in the
manner as prescribed and in the absence of the same Section 61-A
is liable to be struck down as it is ultra vires the act. He also relied
upon the decision in Harakchand Ratanchand Banthia etc v. Union
of India ((1969) 2 SCC 166 : AIR 1970 SC 1453) and contended
that there is excessive delegation in the instant case.
24. Next he relied on the decision of the Supreme Court in A.N.
Parasuraman v. State of Tamilnadu ((1989) 4 SCC 683) and
contended that the legislature cannot delegate its essential function

of determining the legislative policy and Rule of Conduct. He also
submitted that the mere fact that high constitutional functionary,
viz., Election Commission, has been invested with the power cannot
make any difference. The learned Senior Counsel also relied on
the decision of the Supreme Court in Delhi Transport Corporation
v. D.T.C. Mazdoor Congress (AIR 1991 SC 100) wherein it was
observed, fundamental rights can ill afford to be consigned to the
limbo of undefined premises and uncertain applications. That will
be a mockery of them.
25. The learned Senior Counsel also relied on the decision of the
Supreme Court in A.R. Antulay v. R.S. Nayak ((1988) 2 SCC 602)
and submitted that no prejudice need to be proved for enforcing
the fundamental rights. The violation itself is prejudice. In the
instant case, no opportunity was given to the public at large
when particularly most of the voters are illiterate and are more
accustomed to the traditional method of voting. Learned Senior
Counsel submitted that opportunity of being heard must have been
given to the public when their rights are involved in the same way
as provided for delimitation of constituencies and reservation of
constituencies for SCs and STs. Learned Senior Counsel then
relied upon the decision in. L. Kapoor v. Jag Mohan ((1980) 4
SCC 379 : AIR 1981 SC 136) in which it has been postulated that
the requirements of natural justice are met only if opportunity to
represent is given in view of proposed action. It is absent in this
case and as such, it is a clear violation of principles of natural
justice rendering the Act a nullity. Learned Counsel vehemently
contended that though right to vote is not a fundamental right, it
is a constitutional right and not a mere statutory right. He stoutly
argued that violation of fundamental right itself renders the
impugned action void.
26. He further contended that their lordships while setting aside the
impugned election for want of jurisdiction, in A.C. Jose’s case (cited
supra) observed that before the introduction of voting machines,
people should have been given training and in the instant case, no
training was given. Therefore, Section 61-A is liable to be struck
down as ultra virus.

27. Mr. Abdul Kalam, learned Counsel for the petitioner in W.P. No.
3633 of 2001 has raised two points viz. (i) right to vote is curtailed
or invaded rather it destroys the very purpose of the election and
(ii) by delegation under Section 61-A whether it curtails the power
of election tribunal.
28. Mr. V.T. Gopalan, learned Additional Solicitor General for the
respondent - Union of India commenced his argument reiterating
the averments made in the counter affidavit. It was submitted that
after the decision of the Honorable Supreme Court in A.C. Jose’s
case (cited supra) the defects pointed out therein have been removed
by introducing Section 61-A on 15.3.1989. Thereafter, the Rules
have been framed exercising the power conferred under Section
169 of the Act. He also submitted that a detailed procedure for the
EVMs has been prescribed in the Act and the Rules. He submitted
that the Section should be read with the Rule framed under the Act.
He submitted that a policy to use the EVMs is there in the Act and
it is sufficient and there is no question of excessive delegation. He
submitted that Rules only supplement the Section and they are not
overriding the Act. As such, no question of excessive delegation
will arise. He also submitted that no question of absence of
guidelines would arise in this case. Learned Additional Solicitor
General submitted that nothing is available to lay our hands on,
to contend that Section 61-A has been introduced arbitrarily. He
further submitted that the petitioners have not challenged the Rules
and only Section 61-A has been challenged. He pointed out that
the Rules have been framed using delegated legislation and they
are to be laid on the table of both the Houses of Parliament and
the Parliament can make amendments, if necessary. He submitted
that as stated above, the Parliament’s control over the delegated
legislation is present and no question of abdication of powers by
the Parliament to the Government will arise. He drew our attention
to sub Sections (ee), (gg) and (h) of Section 2, which elaborately
detail out the manner and the procedure to be followed at the Poling
Stations, at the counting points and also about the preservation of
EVMs in safe custody. He implored that the Rules have to be read
as part and parcel of the Act. He relied on the decision in Peerless

General Finance and Investment Corporation Ltd. Case ((1992)
2 SCC 343). He took us through Chapter II of the Conduct of the
Election Rules particularly. Rules 49(A) to 49(X). According to the
learned Additional Solicitor General, a thorough reading of Section
61-A coupled with Section 169(2) and Chapter II of the Rules as
stated above will show that there is a complete scheme and it is
a code by itself for voting through Electronic Voting Machines.
Rebutting the argument that Parliament alone can make provision
for election matters, relying upon Article 312, where delegation is
permitted, he submitted that the phrases used in Art. 327 and Art.
312 are more or less couched in similar language. He also relied on
the decision in D.S. Garewal v. State of Punjab (AIR 1959 SC 512).
He relied on the decision in Rajnarain Singh v. Chairma Patna
Administration Committee (AIR 1954 SC 569) wherein it was held
as follows.
“Delegation is given to the Court to the extent of authorising an
executive authority to modify the law, but not in any essential
feature. As to what constitutes an essential feature cannot be
enunciated in general terms. Thus there can be delegation of
legislative functions to executive authorities within certain limits”.
This decision, according to the Learned Additional Solicitor
General, is a complete answer to the case of the petitioner as in the
instant case, the Rules were laid before the Parliament and once
they got the seal of approval, nothing further could be decided
against the rules.
29. On the question of interpretation of statutes, learned Additional
Solicitor General relying upon the decision in Sanjeev Coke Mfg.
Co. v. Bharath Coking Coal Ltd. ((1983) 1 SCC 147 : AIR 1983 SC
239), submitted that once a statute leaves Parliament House, the
court is the only authentic voice to echo the intent of the Parliament.
He further submitted that keeping in mind the number of EVMs
available, the fact that elections are going to be held only for five
State Assemblies, the fact that the voting machines can be used
only if the maximum number of candidates is less than 64, and the
Election Commission is going to use EVMs in such Constituencies

and, therefore, it will not mean that there is an arbitrary exercise of
power.
30. On the question of violation of principles of natural justice, learned
Additional Solicitor General submitted that there is no obligation
to give public hearing, rather opportunity was given to the political
parties, and their suggestions have also been considered. Sufficient
safeguards have been given in the Rules. The vires of the act is now
challenged after an abnormal delay, even when on earlier occasion
respective political parties participated in the elections and voters
have exercised their votes through the EVMs. Only to forestall the
election, the Vires of the Act is now challenged when the elections
are going to be held within two months. He further submitted that
though the propositions enunciated in the case laws, cited by the
learned Senior Counsel for the petitioner are not disputed, yet
they are not applicable, to the facts of the present case. Mr. G.
Rajagopalan learned Senior Counsel appearing for the respondent
Election Commission took us through the chronological stages
shown in the Representation of People Act especially Chapter IV
Polling, Chapter VII publication of results in Part V and Sections 56
to 62 of the Act. He submitted that two methods are contemplated
for the conduct of election viz., one under Section 59 and another
under Section 61 -A of the Act which came to be inserted after the
pronouncement in A.C. Jose case (supra). He submitted that right
to vote is not a constitutional right but statutory right. Therefore
nobody can say that he will vote in a particular way. Voting can
be done either through Ballot as referred to under Section 59 or
through voting machines as stated under Section 61 -A. He relied
on the passages available in the book authored by Her Excellency
T.S. Rama Devi, Governor of Karnataka and Mr. S.K. Mendiratta,
where in it has been mentioned that “the huge consumption
of papers, lakhs of ballet boxes, storage and upkeep during the
non-election period is a serious problem”. EVMs are simpler and
quicker. It was also submitted that EC was satisfied scientifically
and technologically that these machines cannot be tampered with
and all the political parties are aware of the same.

31. Regarding the words “notwith standing anything” used in Section
61-A, learned Senior Counsel referred to various dictionaries viz.
Black’s Law Dictionary 7th edition, Legal thesaurus by William C.
Burtan and Dictionary on Modern Legal usage and submitted that
what is contained in Section 61-A is nothing more and nothing less
and it cannot be construed that it overrides the provision forever.
He clarified that recording of vote by machines is notwithstanding
what is contained in Section 59 and the rules made thereunder. The
phrase was used by way of abundant caution. For that proposition,
he relied on the decisions in Union of India v. G.M. Kokil (1984
Supp SCC 196 : AIR 1984 SC 1022), P.E.K. Kalliani Amma v. K.
Devi ((1996) 4 SCC 76 : AIR 1996 SC 1963) and the Dominion
of india etc. v. Shrinbai A. Irani (AIR 1954 SC 596). He also
submitted that the scheme of the Act is very clear and unambiguous
to remove the defects pointed out in A.C. Jose case, which held
that there was want of legislative sanction, after due deliberations
and consideration, the Parliament has enacted Act 1 of 1989 and
Section 61-A has been inserted. Lastly, he submitted that the word
“notwithstanding” is to be read in the context of combined reading
of Sections 59 and 61-A.
32. Learned Senior Counsel submitted that when there is no
arbitrariness, the question of abdication of power does not arise.
As regards “constituency or constituencies”, the same has to be
decided by the Election Commission as per the available situation.
The use of EVMs is a foolproof system, not prone to any error,
and it was also confirmed by the various technical experts and
Committees formed. Therefore, these writ petitions are filed for
nothing but to stall the election process for one reason or other. He
submitted that the writ petitions are liable to be dismissed.
33. Mr. P.P. Rao learned Senior Counsel, in rejoinder, brought to
our notice the difference between the Sections 59 and 61-A and
submitted that there is no mandate in Section 61-A, like in Section
59. He further submitted that the procedural part is left with the
Government of India. Rule making power is given to Union of India
under Section 169, and their power is notwithstanding anything
contained in the Act and the Rules made there under, which

amounts to abdication of powers. The words “notwithstanding” is
the objectionable part. About the constituencies as to where it shall
be used, the legislation is silent. That apart, it is left completely to
the EC, whereas Section 59 leaves nothing to the EC. Therefore,
Sections 59 and 61-A are not pari materia. He also submitted that
as far as EC is concerned, unfettered power of discretion is given
to select the constituencies.
34. Regarding abdication of power learned Senior Counsel submitted
that Section 169(3) talks of laying before Parliament which shall
be for delegation of power and not in the case of abdication of
powers. Safeguards are contemplated in the case of delegated
legislation and not in the case of abdication, which goes to the root
of the matter. He further submitted that Section 61-A does not say
that voting machine means electronic or non-electronic machine
whereas Section 59 clearly says ballot. He also submitted that it is
also not said in the Section that both the ballot and voting machines
can be side by side. He submitted that explanation to Section 61-A
refers to ballot or ballot papers whereas Section 61-A does not
use the word ballot. Learned Senior Counsel submitted that though
right to vote is not a fundamental right, yet it is a constitutional
right, not a statutory right. He drew our attention to Article 246(1).
Learned Senior Counsel submitted that the difference between
Articles 312 and 327 has already been specified and for that
proposition, he relied on the decision in Harla v. State of Rajastan
(AIR 1951 SC 467).
35. Mr. N. Jothi, learned counsel for the petitioner in rejoinder in reply
to the stand of the EC, submitted that they can even over rule the
explanation given under Section 61-A in view of the words used
“anything” contained in the Act and Rules. He submitted that no
advantage has been shown and the advantages stated cannot be
a greater advantage at all. He further submitted that one of the
advantages that invalid votes can be eliminated is not at all an
advantage, as the voters will do it intentionally. He also argued
that there is no question of estoppel on the part of the petitioner,
as every election gives fresh cause of action. Pertaining to election
process, learned counsel submitted that it starts with finalisalation

of the candidates, He further submitted that the machines are not
sealed in the presence of any of the political parties prior to the
finalisation of the candidates. But they are now available with the
revenue officials. He submitted that neither the political parties nor
the public are permitted to see them. So there is every possibility of
setting the programme in such a way as to favour a particular party
candidate. He apprehends that there is every possibility of pressing
“Result” button at the stage of voting itself. He also submits that
EVMs can be destroyed by banging on it. He further submitted that
in counting nobody knows how the votes are counted.
36. We have heard the learned counsel for the respective parties and
perused the materials and the citations relied on by the counsel at
bar. It will be appropriate to extract the relevant Sections framed
under the Act and the respective amendments, which are as follows:
Section 61-A: Voting machines at elections - Not withstanding
anything contained in this Act or the rules made thereunder, the
giving and recording of votes by voting machines in such manner
as may be prescribed may be adopted in such constituency or
constituencies as the Election Commission may, having regard to
circumstances of each case, specify.
Explanation- For the purpose of the Section, “Voting machines”
means any machine or apparatus whether operated electronically
or otherwise used for giving or recording of votes and any
reference to a ballot box or ballot paper in this Act or the rules
made thereunder shall, save as otherwise provided, be construed
as including a reference to such voting machine wherever such
voting machine is used at any election”
Section 58: Fresh poll in the case of destruction, etc., of ballot
boxes - (1) If at any election,—
(a) Any ballot box used at a polling station or at a place fixed
for the poll is unlawfully taken out of the custody of the
presiding officer or the returning officer, or is accidentally
or intentionally destroyed or lost, or is damaged or tampered
with, to such an extent, that the result of the poll at that polling
station or place cannot be ascertained; or

(aa) any voting machine develops a mechanical failure during the
course of the recording of votes : or
(b) Any such error or irregularity in procedure as is likely to
vitiate the poll is committed at a polling station or at a place
fixed for the poll, the returning officer shall forthwith report
the matter to the Election Commission.”
Section 59: Manner of voting at elections— At every election
where a poll is taken votes shall be given by ballot in such manner
as may be prescribed, and no votes shall be received by proxy
Section 169:
“(1)…
“(2) In particular, and without prejudice to the generality of the
foregoing power, such rules may provided for all or any of the
following matters, namely:
(ee) The manner of giving and recording of votes by means of
voting machines and the procedures as to voting to be followed at
polling stations where such machines are used:
(gg) the procedure as to counting of votes recorded by means of
voting machines;
(h) The safe custody of [ballot boxes, voting machines], ballot
papers and other election papers, the period for which such paper
shall be preserved and the inspection and production of such papers;
(i)
(3) Every rule made under this Act shall be laid as soon as may be after
it is made before each House of Parliament while it is in session for
a total period of thirty days which may be comprised in one session
or [in two or more successive sessions, and if before the expiry of
the session immediately following the session or the successive
sessions aforesaid, both Houses agree in making any modification
in the rule or both Houses agree that the rule should not be made,]
the rule shall thereafter have effect only in such modified form
or be of no effect, as the case may be; so, however, that any such

modification, or annulment shall be without prejudice to the
validity of anything previously done under that rule.”
37. Let us first examine whether the new Section 61-A introduced by
Act 1 of (1989) is ultra vires the Constitution and in particular.
Articles 14,248,324, and 326 to 328. Learned counsel for the
petitioner vehemently contended that Section 61-A suffers from
arbitrariness, excessive delegation, lack of guidelines, and by the
use of the expression ‘notwithstanding’ there is total ‘abdication’
of legislative power.
38. So far as the law is concerned it is well settled that either the Rule
or the notification cannot override the provisions of the Act but
at the same time it can supplement the act. Now, the question is
whether the insertion of Section 61-A overrides the other provisions
of the act or not. It is also settled that delegation of legislative
authority could be permissible with restrictions/limitations but
the Parliament can on no account throw the responsibility, which
the Constitution imposes upon it on the shoulders of an agent or
delegate. No doubt, if any provision of the act confers uncanalised
and uncontrolled powers to the executive, it will be ultra vires.
The crux of the argument of the learned Senior Counsel for the
petitioners is that due to the words “notwithstanding” in the manner
as may be prescribed and “such constituency or constituencies”,
Section 61-A is ultra vires of the act. It is seen that Section 61-A,
which has been inserted to give effect to the decision in A.C. Jose
v. Sivan Pillai ((1984) 2 SCC 656 : AIR 1984 SC 921), consists
of three parts viz., the enacting part spelling out the wisdom and
policy of Parliament, the non obstante clause giving overriding
effect to the enacting part, and the third part, viz., delegation of
the power of manner of using the voting machine. Under Sections
169(2)(ee) (gg) and (h) specific power has been given to make
Rules and Rules have to be read as part of the Act. The Rules
have to be laid before Parliament and we are told that the new
Rules relating to EVMs were laid before both the Houses of the
Parliament. The Parliament indeed can make amendments if
necessary. The Parliament’s control over the legislation cannot be
said to be absent. The legal and constitutional position as it then

stood, has been summed up in A.C. Jose case to the effect that
when there is no Parliamentary legislation or Rule made under
the said legislation, the Commission is free to pass any orders in
respect of the conduct of the elections. It is also made clear that
when there is an Act and express Rules are made thereunder it is
not open to the Commission to override the Act or the Rules and
pass orders in direct disobedience to the mandate contained in the
Act or the Rules. It has been specifically stated that the powers
of the Commission are meant to supplement rather than supplant
the law in the matter of superintendence. It is crystal clear that
no mandate is given a go-by by the enactment of section 61-A.
The word ‘notwithstanding’ should mean that notwithstanding
what is stated in Section 59 with regard to ballot papers, votes
given by ballot shall mean and include the giving and recording
of votes by voting machines. The word ‘notwithstanding’ has been
defined variedly as ‘despite, in spite of in Blacks Law Dictionary
VII edition;’ all the time, although, nevertheless (William C.
Burton); As rightly pointed out by Mr. G. Rajagopalan learned
senior counsel, the said word cannot be construed to mean that it
overrides every other provision. Sections 59 and 61-A can co-exist
if a harmonious construction is attempted. In Union of India v.
G.M. Kokil (1984 Supp SCC 196 : AIR 1984 SC 1022), the word
‘notwithstanding’ has been considered by the Supreme Court and
it is categorically stated that non-obstante clause is a legislative
device employed to give overriding effect to certain provisions.
Similarly in 5m/. P.E.K. Kalliani Amma v. K Devi ((1996) 4 SCC
76 : AIR 1996 SC 1963), non obstante clause has been dealt with
and found that the non obstante clause will not be an impediment
for the operation of the enactment. In the Dominion of India etc..
v. Shrinbai A. Irani (AIR 1954 SC 596), it has been observed that
“the non obstante clause has to be read as clarifying the whole
position and, must be understood to have been incorporated in the
enactment by the legislature by way of abundant caution and not
by way of limiting the ambit and scope of the operative part of the
enactment.” A reference can also be made to the decision in P.E.K.
Kalliani Amma v. K. Devi (supra) wherein their lordships held as
follows:

Non obstante clause is sometimes appended to a Section in the
beginning with a view to give the enacting part of the Section,
in case of conflict an overriding effect over the provision of Act
mentioned in that clause. It is equivalent to saying that in spite
of the provision or Act mentioned in the non obstante clause,
the enactment following it will have its full operation or that
the provision indicated in the non obstante clause will not be an
impediment for the operation of the enactment (see Union of
India v. G.M. Kokil (1984 supp. SC 196). In view of the above
discussion, so far as the word “notwithstanding” is concerned,
we are of the view that the mere use of the word notwithstanding
in the facts and circumstances of the case, cannot be held to be
amounting to abdication of powers.
39. Regarding the contention that the words “in such manner as may
be prescribed” cannot be used in the absence of any guidelines,
the Parliament after the decision rendered in A.C. Jose’s case, had
deliberations and after consideration declared its policy to use
EVMs. We are of the view that the Parliament cannot give elaborate
details. Therefore, by merely saying that no guidelines have been
given explicity, Section 61-A cannot be declared as ultra vires of
the Act. This argument can be looked at from another angle also.
A look at Section 59 which reads, “at every election where a poll
is taken votes shall be given by ballot in such manner as may be
prescribed, and no votes shall be received by proxy” shows that
the Parliament has used the same words “in such manner as may
be prescribed” employed in Section 61- A also, and it is prevailing
from the beginning. It is revealed that Parliament for conducting
elections through ballot boxes have not given any guidelines as
suggested but Rules have been framed to conduct elections as that
of papers ballot, in such a manner prescribed i.e. for that specific
Rules are there. So, when such a system was in vogue, it cannot be
said that in the absence of guidelines, Section 61-A has to be struck
down for using the words “in such manner as may be prescribed.” In
other words, without any elaborate detail regarding the procedure
of conducting elections through ballot box in Section 59 of the
Act, when the system was settled, the procedure was there. So on
merely saying that no guidelines have been given under Section

61-A when under this Section also Rules, and manner have been
prescribed, no direction can be given and the argument of Mr. Rao
is not acceptable. We are of the firm view that when the Sections
and the Rules form a complete code by the delves, no question
of absence of guidelines will arise. That apart, as stated above,
sub Sections (2)(ee), (2)(gg), and (2)(h) of Section 169 make it
clear that sufficient power has been conferred upon the EC to make
Rules.
40. Regarding the contention that without specifying the constituency,
mentioning ‘such constituency or constituencies’, in Section 61-A
of the Act, is ultra vires, on a perusal, we find that the scheme of
the Act is very clear and the legislative policy is to permit EVMs.
Section 61-A provides that the giving and recording of votes by
EVMs in such manner as may be prescribed may be adopted in
such constituency or constituencies as the EC may, having regard
to the circumstances of each case, specify. According to the
learned counsel for the writ petitioners to choose the constituency
where EVM has to be used, more power has been given to the
EC. As we have stated already, the use of EVMs depends upon
the number of contestants, the stage of elections in a particular
constituency, feasibility and the availability of machines. Taking
into account all these circumstances, the EC has to decide whether
in such constituency, EVMs can be used or not. Therefore, it
cannot be said for the use of EVMs and to exercise discretion,
more power is given to the EC, and interference is required by
this Court. For the reason discussed above, we are also of the view
that no particular constituency can be earmarked in Section 61-A
of the Act itself for the use of EVMs because of the primacy of
the EC under Art. 324 of the Constitution. That apart as between
Arts. 324 and 327, Art. 324 is not subject to any provision of the
Constitution. In such circumstances, if the Parliament makes any
law, which has even indirect effect of interfering with the EC, that
law would certainly be invalidated. Further as per Section 169 of
the Act, the Central Government may consult with the Election
Commission for making rules for carrying out the purposes of the
Act. In view of this act, we are quite convinced that the policy of
the Parliament alone is stated in the act, leaving the details to the

Central Government to get implemented in consultation with the
EC. Therefore, on this ground also, it cannot be said that Section
61-A smacks of arbitrariness.
41. So far as the argument regarding delegation of powers is concerned
the learned Senior Counsel relied on the decision Tata Iron and
Steel Ltd. v. Workmen ((1972) 2 SCC 383 : AIR 1972 SC
1917), wherein stressing the need for flexibility of procedure
to meet the changing circumstances and that the Parliamentary
procedure and discussion in getting through a legislative measure
is time consuming, the Supreme Court explained the necessity for
delegated legislation and observed as follows:
“The legislature, it must be borne in mind, cannot abdicate its
authority and cannot pass on to some other body the obligation
and the responsibility imposed on it by the Constitution. It can
only utilise other bodies or authorities for the purpose of working
out details within the essential principles laid down by it. In such
cases, therefore, it has to be seen if there is delegation of essential
legislative function or if it is merely a case in which some authority
or body other than the legislature is empowered to work out the
subsidiary and ancillary details within the essential guidelines,
policy and principles, laid down by the legislative wing of the
Government.”
42. If we examine the present situation in the light-of note of caution
found in the above judgment of the Supreme Court, as discussed
above, the conclusion is inescapable that there has been no
abdication. The policy decision to use EVMs is taken by Parliament
and the details are to be worked out only by the EC in the fact
situation.
43. Under Section 169 of the Act, the Central Government in
consultation with the EC by notification in the Official Gazette
may make rules for carrying out the purposes of the 1951 Act.
Incidentally, as already noticed Article 324 is supreme and is
not subject to any provision in the Constitution and in fact,
Articles 326 and 327 are subject to Article 324. The framers of
the Constitution took care to leave scope for exercise of residuary

power by the Commission in its own right and it is within the
domain of the Election Commission to conduct election and it is
for the Government to articulate its policy and the decision is to be
carried out by EC, the details of which cannot be provided in the
enacted law and further, it is bound to take some time to cope with
the situation.
44. The power of superintendence, direction and control of the
preparation of the electoral rolls and the conduct of all elections
have been vested with the EC under Article 324 of the Constitution.
This position is strengthened in view of the decision in Mohinder
Singh v. Chief Election Commissioner ((1978) 1 SCC 405 : AIR
1978 SC 851) wherein it was held that every contingency could
not be foreseen or anticipated with precision. That is why there
is no hedging in Article 324. The commissioner may be required
to cope with some situation, which may not be provided for in
the enacted laws and the rules. The Supreme Court also extracted
from Sutherland Statutory Construction, 3rd Edition, page 20 the
following:
“An express statutory grant of power or the imposition of a definite
duty carries with it by implication, in the absence of a limitation,
authority to employ all the means that are usually employed and
that are necessary to exercise of the power or the performance of
the duty…. That which is clearly implied is as much a part of a law
as that which is expressed.”
45. The Supreme Court ultimately found that the Election Commission
is competent to order repoll in an appropriate case.
46. It is also noticed that the Rules framed under Section 169 of the
1951 Act have not been challenged. Merely saying that there has
been excessive legislation is not enough. As already stated, the
Parliament is not expected to say every minute detail in the act
itself and the desires and wishes of the Parliament are to be carried
out and for that Rules have been made wherein elaborate procedure
has been prescribed. That apart, the counsel has not been able to
point out, which Rule is ultra vires the Act or the Constitution,
in the instant case. We find substance in the argument of Mr. V.T.

Gopalan, additional Solicitor General to the effect that the Rules
framed and laid down before the House of Parliament will answer
many of the queries raised by the petitioners. The provisions of the
1951 Act and the Rules make a complete code by themselves. In
view of the above discussion, we are of the view that the EC is not
invested with arbitrary exercise of power in the matter of choice of
constituency or constituencies.
47. So far as the argument that in this Statement of Objects and
Reasons, it is only mentioned ‘modern electronic’ processes should
be deployed, ‘side by side’, with the existing conventional system
in the voting process’, but now, without determining and deciding
certain constituencies, the Election Commission is going to use
EVMs in the entire elections, and therefore it is bad, is concerned,
the counsel cannot take advantage of mentioning of the words
‘side by side’ in this Statement of Objects and Reasons. It cannot
be interpreted that even at one constituency or even in one booth,
both systems can go side by side. It only means, the Election
Commission has to decide about the constituency or constituencies
for the use of EVMs at present where the contestants do not exceed
64. It depends upon the feasibility and the other circumstances,
which are within the domain of the Election Commission, by
exercising its discretion to come to a conclusion. Moreover the
Election Commission cannot implement the new system overnight
to all the constituencies and it can be implemented in a phased
manner and in doing so, it can be used as per the procedure in
select constituencies and in other places, the old method will be
adopted. That apart, it is well established that objects and reasons
are only an external guide for making a provision. In S.S. Bola
v. B.D. Sardana ((1997) 8 SCC 522 : AIR 1997 SC 3127), it
has been held that if the words used in the statute are clear and
unambiguous, then the statute itself declares the intention of the
legislature and in such a case, it would not be permissible for a
Court to interpret the statute by examining the Objects and Reasons
for the statute in question. Therefore, the Section cannot be struck
down on the ground of arbitrariness also when the provisions are
clear, as in the present case.

48. As already stated, the principles set out in the various decisions
relied on by the learned Senior Counsel for the petitioners are not
at all helpful to decide the controversy in hand. However, the point
to be considered is whether, as contended by the learned Senior
Counsel, in the present case, there has been total abdication of
legislative power by the Parliament to the EC. The position can
be aptly summarised by borrowing liberally from the judgment
of Mukherjea, J. (as the learned Judge then was) in Re Article
143, Constitution of India Etc. (AIR 1951 SC 332) particularly
paragraphs 246 and 262. After referring to the American and the
English cases, the learned Judge has succinctly put the matter and
the relevant portions as follows:
“The limits of the powers of delegation in India would therefore
have to be ascertained as a matter of construction from the
provisions of the Constitution itself and as I have said the right of
delegation may be implied in the exercise of legislative power only
to the extent that it is necessary to make the exercise of the power
effective and complete…
… The legislature must retain in its own hands the essential
legislative functions, which consist in declaring the legislative
policy and laying down the standard, which is to be enacted into
a rule of law, and what can be delegated is the task of subordinate
legislation, which by its very nature is ancillary to the statute
which delegates the power to make it.”
49. In Rajnarain Singh v. Chairman, Patna Administration
Committee (supra), the Supreme Court dealt with under Section
3 of the Bihar and Orissa Act I of 1915, as amended in 1928, by
which the Central Government was given power to frame rules in
future, which may have the effect of adding, altering, varying or
amending the rules accepted under Section 4 as binding. The rules
were laid on the table of Parliament for 14 days before they were
to come into force. The Supreme Court held that Parliament had in
no way abdicated its authority but was keeping strict vigilance and
control over its delegate. The relevant portion runs as follows:

“delegation is given to the Court to the extent of authorising an
executive authority to modify the law, but not in any essential
feature. As to what constitutes an essential feature cannot be
enunciated in general terms. Thus, there can be delegation of
legislative functions to executive authorities within certain limits”
50. In view of what we have stated above, we have no hesitation to
hold that there is no abdication of powers. No excessive delegation
also can be traced out. Parliament has given sufficient powers to the
Election Commission and it has been used in just, fair and proper
manner. We are also of the view that no arbitrariness is shown and
there is no absence of guidelines in the introduction of Section
61-A, as stated above : So, we find no good reason to declare that
Section 61-A is ultra vires. We answer the question raised at the
beginning in the negative. The writ petitions W.P. Nos. 3346 and
3633 of 2001 challenging the vires of the Section are therefore
dismissed.
51. Now, the other writ petitions, wherein some doubts and
apprehensions have been raised about the satisfactory functioning
of the E.V. Ms, can be considered as per the respective arguments
advanced by the parties. To understand the issue on hand and to
decide the issue, we think it necessary to repeat what had already
been mentioned earlier. As the facts culled out from the records, it
is seen that after the decision in Jose’s case, on the recommendation
of the Election Commission, Section 61-A came to be introduced
to the Representation of the People Act, 1951 and corresponding
amendments were also incorporated in the conduct of Election
Rules mentioning about the procedure of conduct of elections using
EVMs. Section 49-A talks of design of EVMs, fixing the label and
set the number of contesting candidates. Section 49-D speaks about
the admission to polling stations of candidates and election agents.
Section 49-E speaks about the preparation of voting machines
and the demonstration to the effect that no vote had already been
recorded in the voting machine. The procedure regarding fixation
of paper seal, affixing signatures of agents, seal used for securing
the contra unit and closing the same were elaborately mentioned.
Identification of electors, which is a salient feature is talked in

Section 49-H coupled with Section 49-J challenging the identity
by the agents. Safeguards against impersonation are spoken to
in Section 49-K. Procedure for voting is elaborately narrated in
Section 49-L and maintenance of secrecy of voting is mentioned
in Section 49-M(2). Section 49(0) talks about the procedure when
elector decides not to vote. This will not amount to invalid vote.
Section 49-P speaks about tendered votes. We take such pains just
to show that sufficient safeguards have been taken in introducing
the above Sections formulating the procedures to be followed
while making use of EVMs by introduction of Section 61-A.
52. The matter relating to the use of EVMs was referred by the
Government in February, 1990 to the ‘Dinesh Goswami Committee’
consisting of representatives of several recognised national and
State parties, which in turn, for the technical evaluation of the
machines, appointed a technical experts committee, consisting of
distinguished scientists. The technical experts committee examined
the machines minutely from every angle and unanimously
recommended the machines for using in elections. The EVMs
were put to use during the general elections to the Legislative
Assemblies in Madhya Pradesh, Rajasthan and Delhi in November,
1998 and they worked efficiently and smoothly without any
problem, appreciated by one and all. Moreover, the ‘Centre for
Study of Developing Societies’ Delhi, engaged by the Election
Commission, conducted a detailed study on the use of EVMs
during these elections and the study indicated that the response
to the use of EVMs was very favourable with 90.6% saying that
they preferred the EVMs. Further in 45 constituencies, EVMs
were put to use in February, 2000 general elections to the Haryana
Legislative Assembly. Out of 1,01,245 machines used during these
elections between 1998 and 2000 only 12 machines, working out
to 0.001%, were found to have developed some problems. In order
to eliminate even such marginal defects, a further review by a team
of officers of the Election Commission with the representatives
of ECIL at Hyderabad was held and certain improvements were
made. The Election Commission had taken every precaution as a
prudent normal person can take in this matter. Though the error

margin is negligible, they did not want to take any chance and
made corrections in the machines. During the use of EVMs in the
Assembly Elections during 1998, they had stationed mobile parties
with spare EVMs to replace in the event of any emergencies. They
took various steps like mass media campaign and holding public
demonstrations about the use of the machines, for both the public
and the agents of the political parties. Now, it is seen that they had
gained the confidence and only after they were satisfied, they went
in for the use of the same.
53. It is settled that this Court while exercising the writ jurisdiction
under Article 226 of the Constitution of India has no power to sit
in appeal over the conclusions arrived at by Technical Experts and
eminent scientists. Nor has this Court the expertise to go into the
technical aspects. Nonetheless as some apprehensions are voiced,
the Court can see whether a person, who is a voter in the voter’s
list, will be allowed to cast vote of his choice and every vote will
go and count for the account of the particular contestant to whom
he voted and whether with the connivance of the officers, a voter
can cast more than one vote.
54. On considering this aspect, we find that specific rules are there.
Merely on the apprehension, howsoever strong it may be, a
decisive conclusion cannot be arrived at. Assumptions and
presumptions cannot lead to a decision in the absence of concrete
materials placed, when the entire case was argued on the basis of
apprehension. This Court cannot come to the conclusion on the
basis of such apprehension so as to defeat the object of the Act and
the purpose of using EVMs. The mere statement that the petitioner
could demonstrate some EVMs to show the possibility of misuse,
is not helpful as those machines are not going to be used in the
polls. In view of the earlier discussion, this Court finds no gound
to witness the demonstration.
55. On a perusal of the Rules and the counter affidavits, as discussed
above, it is clear that the identity of the voter is ascertained by
proper indentity card or by the polling agents/representatives
of the political parties at that particular booth. Each and every

voter is subjected to that test. That is not taken away. About the
functioning of the EVMs., it has been categorically stated that it
contains two units, namely control unit and ballot unit, which are
inter-connected. Once a person casts a vote, a beep sound would
emanate and he cannot again press the balloting unit and it would
be locked automatically. Unless the next voter arrives to vote
after completing the formalities, the Presiding Officer will not
release the lock. Moreover, the agents/representatives of all the
contestants are there to inform the Presiding Officer to release the
lock if necessary. Only after the polling officer releases the lock for
the next person, the machine will become functional. Further when
agents of all the contestants are there, it is not possible for the
Polling Officer to connive with anybody as suggested, in releasing
the locks. Furthermore, the responsibility of accountability to
the number of persons voted in that booth is fixed on the Polling
Officers concerned. So, the Polling Officer cannot at his own whims
and fancies, release the lock. In any case, it is not possible for the
Presiding Officer to connive with the voter to cast vote more than
once. So, the apprehension of the petitioners is uncalled for.
56. Learned Counsel submitted that as per the observations made in
A.C. Jose case (supra), the EVMs should be used initially in urban
areas, which is lacking in this case and as such, the use of EVMs
should be stopped. As discussed and as seen from the counter, the
machine is so simple, robust and the Election Commission has the
discretion to select the constituency or constituencies where the
EVMs to be used, after ascertaining the feasibility. The argument
of the learned counsel for the petitioners is not appealing to us on
this ground.
57. Next, it is contended that a doubt will always remain there as to
whether the vote of an elector has been registered. A perusal of
the machine manual produced before us reveals that whenever a
person casts his vote, a beep sound will be heard to those who
are present in the booth concerned, and that is the signal of the
registration of the casting of vote. A safety measure is provided
that if the concerned person or agents do not hear any sound, they
will inform the Polling Officer to release the lock.

58. Next it was vehemently contended that there is no guarantee
provided to the effect that an elector could be sure that the vote cast
by him by pressing the button, has been registered to the account
of the contestant whom the voter intended. In the counter of the
Election Commission, it has been mentioned that the EVMs have
been so designed and manufactured in such a foolproof manner
that each vote is recorded faithfully and correctly only for the
candidate in whose favour it is cast by the elector. The programme
in the microchip in the EVM cannot be re-written or replaced. It is
also seen that the gap is so little that only robotic arms can solder
the leads. Further it is seen that it is absolutely impossible, when a
vote is registered to a particular contestant, it can be accounted to
another candidate. It is also seen that this apprehension had been
removed by a demonstration of the EVMs before the Election
Commission and the representatives of various political parties.
The manufacturing process involves the logical design of the
electronic gadgets and the programme is written independently by
the Public Sector Corporations ECIL and BEL and fused with the
chip at the facility of the manufacturer Hitachi Corporation, Japan.
In view of this, the apprehension of the counsel that it will not go in
the account of the same contestant falls to the ground. As per Rule
49-E (2) of the Rules, the presiding officer, immediately before the
commencement of the poll, shall demonstrate to the polling agents
and other persons present that no vote has already been recorded
in the voting machine. In view of the full safeguard in the Rules,
the contention on pre-programming of EVMs falls to the ground.
For the same reason, the argument that the polling agents and
political parties are not permitted to see the EVMs before polling
and therefore there is a possibility of programming in favour of a
particular candidate is unfounded.
59. It is also seen that control unit is the brain of the whole system.
It has various buttons, ‘ballot’ ‘close’ ‘total’ and ‘result’. Every
branch of the unit is safeguarded and only the officers concerned
can operate those buttons by breaking a paper seal. At every
branch, the seals of polling agents are to be obtained. So, if there
is any tampering, it could be noticed by one and all. So also, the
apprehension of the counsel for the petitioner that at the time of

polling itself, a voter can press the result button is misconceived.
So far as the apprehension that nobody knows as to how the votes
are counted, elaborate procedure has been set out in Part V and
Rule 66-A. Chapters 5 in EVM Manuals submitted by the Election
Commission also speak about the counting procedure. The book
titled ‘Election in India - Major Events & New Initiatives 1996-
2000’ published by Election Commission elaborately details the
procedure in the conduct of elections.
60. There is also no question of introducing any virus or bugs for the
reason that the EVMs cannot be compared to personal computers.
The programming in computers, as suggested, has no bearing
with the EVMs. The computer would have inherent limitations
having connections through Internet and by their very design,
they may allow the alteration of the programmes but the EVMs
are independent units and the programme in EVM is entirely a
diffrent system. The accidental damage of the EVMs will not cause
any danger to the votes already cast and the poll can be continued
with the new one, as mobile parties with spare EVMs will be
requisitioned, as per the contention of the Election Commission.
61. The advantages of using EVMs outweigh the advantages in
conventional ballot boxes. Need for printing huge quantity of
ballot papers is dispensed with saving on cost of paper and printing.
The invalid votes in the old system play a major role in turning
the result of the elections. In some cases, the margin between the
elected and defeated candidate is below 500 whereas the invalid
votes run to 1000. In the EVMs, invalid vote does not arise and
every vote will be accounted. No rigging is possible and results
can be ascertained in a shorter time. In the ballot papers in the
conventional system, the voters prefer to write some messages
leaving a bad taste and also wasting the whole exercise. This is
not possible in the EVMs. It is worthwhile to mention that the
former Chief Election Commissioner, presently adorning the Chair
of Governor, Karnataka, praised the use of EVMs in the election to
the effect that it is cheaper, easy to use and quicker and the need for
printing huge quantity of ballot papers is dispensed with saving the
cost of paper and printing.

62. Learned counsel submits that right of hearing was given pertaining
to the provisions of SC/ST Act and Delimitation Act. No such
provision is prescribed in Section 61-A. We feel that this argument
is not laudable for the reason that notice of hearing afforded in the
provisions of SC/ST and Delimitation Act will not have anything
to do with this case, as the right of a voter is not curtailed in the
instant case and the use of EVMs in the elections cannot be said to
be bad on this count. The cases relied upon by the learned counsel
on this issue are not helpful. Further, individual notice of hearing to
more than 100 millions of voters is beyond imagination. As already
stated, in the meeting conducted by Election Commission, various
political parties participated and wide publicity was made through
TV, Cinema, AIR, Press, etc. So, the contention that after the last
election, EC had not made any programme to start with the use of
EVMs in urban places, is not appealing and on this ground, the use
of EVMs cannot be stopped. That apart, it is seen that millions of
people had cast their votes using EVMs during the early occasions
and wide publicity was given for the use of EVMs. So, in view
of the discussion we had earlier, we feel that the argument of the
learned counsel for the petitioners on this aspect will not hold any
field.
63. Mr. N. Jothi, learned counsel for the petitioner, submitted that mere
sitting of the Election Commission with political parties alleged is
not sufficient and it will not preclude them from challenging the use
of EVMs and he relied on AC. Jose case (supra). But this ground
cannot be taken advantage of by the learned counsel to contend
that EVM itself is bad and no delay had occurred. As already
stated there is no estoppel in challenging the statute but once
the petitioners had participated in the discussions and thereafter
participated in the earlier elections wherein EVMs were used after
insertion of Section 61-A, the argument of the learned counsel
for the petitioners is not helpful. On the other hand, the argument
of the learned counsel for the Election Commission that the writ
petitions are filed now only to forestall the ensuing elections has
some force.

64. The argument of Mr. Rao, learned senior counsel, that the ultimate
decision to start using EVMs taken by the Election Commission
was not disclosed to them and a wrong impression was given in the
counter affidavit that all agreed is not helpful and as discussed, it
cannot lead to baning using the EVMs for the reasons stated above.
That apart, the petitioners have not pointed out any single failure
in the machines earlier used in some of the constituencies in Tamil
Nadu during the Bye-Elections 1999, nor it was challenged.
65. The mere wild allegation of Mr. N. Jothi, learned counsel for the
petitioners, that programme could have been written so as to suit
the ruling party, is not tenable. The election is being conducted
by the Election Commissioner, who is an independent high
constitutional functionary. So, we are not acceding to the learned
counsel for petitioners to issue a direction to ban the use of EVMs
on this ground.
66. So also the apprehension of the learned counsel that a mere blow
on the EVM will damage the entire system and the data stored
already would have jumped to other persons also is not tenable in
view of the elaborate safeguards provided in the Rules.
67. The allegation of Mr. Jothi, learned counsel, that machines are not
sealed before political parties and are with the revenue officers and
they are not permitted to see and on the basis of that they should be
prohibited, in our view, it is uncalled for the reasons already stated.
68. The contention of the learned counsel that the use of EVMs in
Japan and United States proved to be failure also will not hold any
water. In India, we are not following the system prevailing in the
United States of America or Japan.
69. The contention of the learned counsel that the objection raised by
the political parties should have been taken into consideration,
that the EVMs should have been used initially at urban places and
thereafter only final decision should have been arrived at, is also
not tenable. In fact, there is clamour for use of EVMs in more
constituencies which would be evident from the letters on file,
addressed to the Election Commission by political parties, which

are in opposition. In our view, the voter cannot dictate that he
should be allowed to cast his vote in the method he chooses. In
view of the insertion of Section 61-A and the procedure prescribed
and the Rules framed there under, we are satisfied that there is no
bar on the Election Commission to choose the constituencies to
use the EVMs and it is well within its jurisdiction in the exercise of
the power conferred upon it. Therefore, as held above, no direction
as prayed for in these writ petitions can be granted.
70. Mr. N. Jothi, learned counsel for the writ petitioners, contended
that what all the Election Commission had contended before this
Court had already been negatived by the Supreme Court in A.C.
Jose case (supra) itself, that in A.C. Jose case, their Lordships
found that the use of EVMs itself was bad for want of legislative
power and accordingly, repelled the contentions of Election
Commission advanced therein. In the said decision, their Lordships
also observed at para 37, ‘however, we refrain from making any
comments on either the defects or advantages of voting machines
because it would be for the legislature and the Government, if it
revises its decision at one time or the other, to give legal sanction
to the direction given by the Commission.’ In the instant case,
after the introduction of Section 61-A, Rules were framed there
under. In the meeting conducted by Election Commission, several
political parties participated and apprehensions raised by political
parties were also clarified. In the subsequent elections, millions of
electors cast their votes using the EVMs. In such a fact situation,
the argument of the learned counsel for the Election Commission
that the purpose of the challenge of the writ petitioners raising
technical aspects, with inordinate delay of about 10 years is only
to forestall the ensuing elections to be held within two months, has
some force. As already stated, since we have upheld Section 61-A,
and on merits also, we find no infirmity to call for our interference.
Under these circumstances, it is not proper and necessary to dismiss
the writ petitions on this ground of delay.
71. As already discussed, the procedure has been fully set out in the
Rules. That apart, no Rule has been challenged. On this ground
also Section 61-A, cannot be held to be bad. So, a direction to ban

the election cannot be issued on that ground also.
72. Next it was contended that sufficient training was not given.
This contention is also not tenable. As per the counter, sufficient
training has been given to the offcials and officers concerned. As
discussed, we are satisfied that the EVMs are user friendly and
they can be used with ease without spending much of the time on
training. As stated before us, the Election Commission will spread
full awareness among the voters through various programmes in
the mass media and will ensure to impart proper and more training
before the actual election. It is expected that the EC will carry out
its objectives expeditiously.
73. The other argument advanced on the other side is that no voter
has approached the Courts anywhere in India and therefore, the
writ petitions filed by political parties cannot be entertained and
are to be dismissed as not maintainable and no direction in the
nature of Writ of Prohibition can be issued as it is settled that a
writ of prohibition is not a writ of course but can only be issued
when there is a defect of the jurisdiction apparent on the face of the
proceedings if the authority exceeded the jurisdiction or assumed
jurisdiction when there is no jurisdiction. According to the
Election Commission, political parties are not voters themselves.
So they cannot take up the cause of voters and insist that they
expected a particular voter had voted in their favour, to defeat the
secrecy of the voter in the democracy. Though the argument has
some substance, since we have already considered the vires and
upheld Section 61-A, and have also gone into the merits of the
case and satisfied that sufficient safeguard has been provided as
per the Rules, it will not be proper to throw out the writ petitions
on the ground of maintainablity at this stage. We are satisfied that
sufficient safeguard has been provided as per the Rules. So, we are
of the view that the writ petitions cannot be thrown to the ground
on this score.
74. The argument of Mr. Jothi that the mere quick results and elimination
of invalid votes cannot be a ground to have the EVMs when they
have in-built danger, has no substance. Nothing has been shown

to convince us what is the in-built danger. We are quite satisfied
with the procedure prescribed under the Rule for the use of EVMs.
From the counter also, we arc satisfied with its functioning. It is
very simple and perfectly sound as per technology without defect.
As stated, this Court, on an overall consideration, including the
points alleged, has upheld the vires of the Act.
75. So far as W.P. No. 3633 of 2001 is concerned, a machine was
designed by the petitioner therein but it was not accepted by the
Election Commission and ultimately, it was turned down. He filed
a writ petition challenging the same and it was dismissed. Now,
the petitioner has filed this petition challenging the vires of Section
61-A of the Act. Election Commission has objected to stating that
the present writ petition is not maintainable. In our view, the writ
petitioner could have challenged the vires of the Section 61-A in
his earlier writ petition itself. That apart, the petitioner was also
not able to show that he is a voter in the electoral list and he filed
the writ petition in the capacity of a voter. Since we have already
gone into the merits of the case, in its entirety, it will not be proper
to dismiss the writ petition solely on the ground of maintainability
of this writ petition.
76. As stated above, though this Court is not inclined to go into
technical aspects, but as argued vehemently, on an overall
consideration, we find that no two votes can be cast by a single
voter, as every vote is recorded only after releasing the lock by the
Polling Officer. Registration of vote is ensured by glowing of the
bulb in ‘green’. The secrecy is thus maintained. There is a provision
for demonstration before voting, and sealing at every stage
including at the counting stage. The result button can be touched
only by piercing the paper seal and not otherwise. At every stage,
the agents of the respective parties are there. We are quite convinced
that sufficient safeguards are maintained by framing of Rules to
have the election conducted in just, fair and proper manner. The
data are stored in the EVMs permanently and they can be retrieved
and used in the event of any Election Petition/s being filed before
the Court of Law. The apprehension of the petitioners that the use
of EVMs will not serve any purpose because of lack of procedures

on maintaining the secrecy, counting registration of votes to the
person to whom it was intended by pressing button, is unfounded.
The minor defects which occurred in earlier elections amounting
to 0.001% are negligible. The Election Commission also informed
us that by use of some more modern technology, such defects also
would be eliminated. In view of what has been stated above, we
are in entire agreement with the contentions of the EC and we
find no good ground to prohibit the use of EVMs in the ensuing
elections. All objections raised on behalf of the petitioners are not
acceptable and liable to be rejected. No other points were argued.
The writ petitions have no merit and are liable to be dismissed.
Accordingly, all the writ petitions are dismissed. We hope and trust
that the EC will ensure that the various minus points attributed to
EVMs are taken proper note of and remedial measures are taken
well in advance including wide publicity before EVMs are put into
operation so that a voter, whose name is in the voters’ list, shall
exercise his franchise and a free, fair and independent election can
be held and the public can repose confidence in the system and
the election process. All the writ petitions fail and are dismissed.
There will be no order as to costs. Consequently, all the connected
miscellaneous petitions are also dismissed. Office shall issue a
copy of this order to the Election Commission of India.

5. AMITABH GUPTA vs. ELECTION COMMISSION OF
INDIA AND ANOTHER
W.P. No. 28295 of 2018 [2018 SCC OnLine MP
CASE 1827]
DETAILS 07.12.2018
S.K. Seth, CJ. and Vijay Kumar Shukla, J.
ISSUES EVM Tampering
The Hon’ble Court held that no direction as prayed
for by the petitioner, can be granted. It was also
held that once the election process has commenced,
DECISIONS
the writ petition cannot be entertained, in view
of constitutional bar under Article 329(b) of the
Constitution of India
SUMMARY
The Petition was filed seeking a direction to count all VVPAT slips along
with the counting of votes through EVMs in the 2018 State Assembly
elections. The Commission brought to notice of the Hon’ble Court that
the issue relating to counts of votes with VVPATs slips through EVMs
has already been declined by various High Courts and the Supreme
Court. Further, it was contended that the petition cannot be entertained,
in view of the constitutional bar engrafted under Article 329(b) of the
Constitution as the election process has already commenced.
The Hon’ble Court perused Rule 56-D of the Conduct of Elections Rules,
1961 to hold that in case where the printed paper trail is maintained
by the Election Commission during the election, the candidate or his
election agent or counting agent can apply to the Returning Officer
to count the printed paper slips in respect of any polling station or
stations under sub-rule (2) or Rule 56-D. Upon such application
being made, the Returning Officer would decide the matter and may
allow the application in whole or in part or reject if it appears to him
to be frivolous or unreasonable. Sub-rule (3) or Rule 56-D requires
that such decision of the Returning Officer would be in writing and
contain reasons. Under sub-rule (4) of Rule 56-D the conclusions of the
Returning Officer granting the request for counting of paper slips are
specified. It was thus held that the guidelines for mandatory counting

of paper slips in one polling station per Assembly constituency is in
addition to the powers of the Returning Officer under Rule 56-D to
accept the request of a candidate for counting all the paper slips in as
many polling stations as the case for such counting is made out.
The Hon’ble Court held that no direction as prayed for by the petitioner,
can be granted. It was also held that once the election process has
commenced, the writ petition cannot be entertained, in view of
constitutional bar under Article 329(b) of the Constitution of India.
Accordingly, the Hon’ble Court dismissed the petition stating that there
was no merit in the petition.
ORDER
S.K. Seth, CJ. and Vijay Kumar Shukla, J.
1. The petitioner who is a practicing lawyer, has filed the present
petition, pro bono publico seeking a direction to the respondents
to count all VVPAT (Voter Verifiable Paper Audit Trail) slips along
with the counting of votes through EVMs (Electronic Voting
Machine) in the ongoing State Assembly elections.
2. The petitioner has stated that the respondent No.1, Election
Commission of India has conducted polling in the State Assembly
Election 2018 by use of EVMs fitted with a VVPAT which is an
independent system attached with EVMs that allows the voters to
verify that their votes are cast as intended. Though the petitioner
has highlighted certain incidents viz. failure of CCTV camera and
delay in discharge of VVPATs and lack of sufficient security in
respect of polled/unused EVMs and VVPATs, but he confined his
prayer in the present writ petition for direction to the respondents
to count all votes polled in the State Assembly Election 2018 with
the VVPATs through EVMs, because the issue regarding alleged
tempering of EVMs and VVPATs and lack of sufficient security to
the aforesaid machines, has already been considered by this Court
in the case of Naresh Saraf vs. Election Commission of India
and others [W.P. No.28106.2018] on 6-12-2018.
3. It is strenuously urged that paper trail should also be counted along
with the EVM counting, in order to ensure complete transparency
and restore confidence of the voters in the electoral process.

4. Learned counsel appearing for the respondents submitted that
the issue relating to counts of votes with VVPATs slips through
EVMs has already been declined by various High Courts and the
Supreme Court. He referred the orders passed by the Apex Court
in the cases of Kamal Nath vs. Election Commission of India
and others [Writ Petition (Civil) No.935 of 2018] passed on
12-10-2018; Prakash Joshi vs. Election Commission of India
[W.P.(C) No.983 of 2017, dated 30-10-2017]; and Manubhai
Chavada vs. Election Commission of India & others [Writ
Petition (Civil) No.1012 of 2017]. He also placed reliance on the
order passed by the Gujarat High Court in the case of Shailesh
Kumar Nagjibhai Pansuriya vs. Election Commission of India
and others [Special Civil Application No.22074 of 2017, dated
12-12-2017].
5. In addition to above submissions, learned counsel for the
respondents submitted that the instant writ petition cannot be
entertained, in view of the constitutional bar engrafted under
Article 329(b) of the Constitution of India, as the election process
has already commenced.
6. Having heard learned counsel for the parties, we do not find any
merit in the present petition for issuing directions to the respondents
to count VVPATs slips along with counting of votes through EVMs
in the ongoing State Assembly elections.
7. In the case of Kamal Nath (supra) a prayer was also made for
issuance of directions to the respondents for conducting VVPAT
verification at least 10% randomly selected polling stations in each
assembly constituency/assembly segment to ensure free and fair
elections. In the said case the main prayer was sought to provide
to the petitioner soft copies of the draft electoral rolls published on
July 31, 2018 in the text format. However, while declining the said
prayer, the Apex Court also examined other relief of the petitioner
for conducting VVPAT verification. In para 26 of the judgment,
the Apex Court has referred the order passed in Prakash Joshi
(supra) and did not entertain the said relief. Paras 26 to 28 of the
jedgment being relevant are extracted hereunder:

“26. Other relief which is claimed by the petitioner is
to seek directions for conducting VVPAT verification
at least 10% randomly selected polling stations in
each assembly constituency/assembly segment to
ensure free and fair elections. In this behalf, our
attention was drawn by the respondents to Rule
56(d). It was also submitted by the respondents that
this issue cannot be raised by the petitioner having
regard to the orders passed on earlier occasions in
few writ petitions which were filed on this aspect.
The respondents referred to orders passed in Prakash
Joshi v. Election Commission of India4. In that case
also, where identical prayer was made, the petition
was disposed of by orders dated October 30, 2017 in
the following manner:
“Mr. K.K. Venugopal, learned Attorney
General submits that as far as Prayer (a)
is concerned, the Election Commission of
India has already implemented the same. The
situation is accorded to by Mr. Amit Sharma,
learned counsel for the Election Commission
of India. As far as Prayer (b) is concerned, it is
urged by Mr. K.K. Venugopal that guidelines
have already been brought by the Election
Commission of India. The same is disputed by
Mr. Kapil Sibal and Mr. Vivek Tankha, learned
senior counsel appearing for the petitioner.
We leave it to the discretion of the Election
Commission of India, as we are not inclined
to enter into the said arena. As far as Prayer
(c) is concerned, it is submitted by Mr. K.K.
Venugopal that the Election Commission of
India has issued appropriate guidelines, and this
Court may say that no officer/official against
whom disciplinary proceedings have been
initiated shall be posted in any key positions.
Having heard Mr. K.K. Venugopal, we direct

that the Election Commission of India shall
not post any officer/official against whom the
disciplinary proceedings has been initiated
in any key position in any district. As far as
prayer (d) concerning installation of CCTV
cameras inside the polling booth to watch the
mobility of persons inside the polling booth
and display of such videograph alongwith
the number of votes poll outside the polling
booth on a display board is concerned, we are
of the considered opinion that the same is not
permissible and accordingly, the said prayer
stands rejected.
The writ petition is accordingly disposed of.”
27. Another writ petition being W.P.(C) No. 1012
of 20175 was filed before this Court in October
2017 itself, with almost identical prayer. This was
dismissed in limine on November 20, 2017. In the
counter affidavit, ECI has also referred to similar writ
petitions filed in the High Court of Gujarat, which
met the same fate.
28. In view of the orders dated October 30, 2017
passed in W.P.(C) No. 983 of 2017 and on the basis
of statement given by the ECI in the Court, we do not
intend to entertain this relief.”
8. At this juncture, it is also apt to quote Rule 56D of the Conduct of
Elections Rules, 1961. It reads thus :
“56D. Security of paper trail:
1. Where printer for paper trail is used, after the
entries made in the result sheet are announced, any
candidate, or in his absence, his election agent or any
of his counting agents may apply in writing to the
returning officer to count the printed paper slips in
the drop box of the printer in respect of any polling
station or polling stations.

2. On such application being made, the returning
officer shall, subject to such general or special
guidelines, as may be issued by the Election
Commission, decide the matter and may allow the
application in whole or in part or may reject in whole,
if it appears to him to bed frivolous or unreasonable.
3. Every decision of the returning officer under sub-
rule (2) shall be in writing and shall contain the
reasons therefor.
4. If the returning officer decides under sub-rule (2)
to allow counting of the paper slips either wholly or
in part or parts, he shall -
(a) do the counting in the manner as may be
directed by the Election Commission;
(b) If there is discrepancy between the votes
displayed on the result sheet in Form 20 as per the
paper slips count;
(d) complete and sign the result sheet.”
9. A bare perusal of this Rule would show that in case where the
printed paper trail is maintained by the Election Commission
during the election the candidate or his election agent or counting
agent can apply to the Returning Officer to count the printed paper
slips in respect of any polling station or stations under sub-rule (2)
or Rule 56D. Upon such application being made, the Returning
Officer would decide the matter and may allow the application
in whole or in part or reject if it appears to him to be frivolous
or unreasonable. Sub-rule (3) or Rule 56D requires that such
decision of the Returning Officer would be in writing and contain
reasons. Under sub-rule (4) of Rule 56D the conclusions of the
Returning Officer granting the request for counting of paper slips
are specified. From the materials on record thus it emerges that the
guidelines for mandatory counting of paper slips in one polling
station per Assembly constituency is in addition to the powers
of the Returning Officer under Rule 56D to accept the request

of a candidate for counting all the paper slips in as many polling
stations as the case for such counting is made out.
10. In view of the above discussion, we are of the considered opinion
that no direction as prayed for by the petitioner, can be granted.
The petitioner could have submitted his suggestion, if any, before
the Election Commission of India.
11. Apart from this once the election process has commenced, the writ
petition cannot be entertained, in view of constitutional bar under
Article 329(b) of the Constitution of India. Law in this regard is
no longer res integra. Reference may be made in the judgements
of the Apex Court rendered in the cases of N.P. Poonuswami vs.
Returning Officer, AIR 1952 SC 64 and Election Commission
of India vs. Ashok Kumar, (2000) 8 SCC 216.
12. In view of the aforesaid, we do not find any merit in the present
writ petition and the same is accordingly dismissed. No order as to
costs.

6. ANIL KUMAR vs. ELECTION COMMISSION OF INDIA &
ORS.
WP(C) 11437/2023 [2023 SCC OnLine Del 5364]
CASE
29.08.2023
DETAILS
Sanjeev Narula, J
The petitioner challenged the preparations and
conduct of First-Level Checking [“FLC”] of
Electronic Voting Machines [“EVMs”] and Voter-
ISSUES
Verified Paper Audit Trails [“VVPATs”], intended
for use in the upcoming General Elections to the Lok
Sabha scheduled to be held in 2024.
The Hon’ble Court dismissed the petition and held
that the FLC process not only involves the active
participation of engineers from BEL and ECIL, but
it also encourages involvement of representatives
from national and state recognized political parties.
This inclusive approach guarantees transparency and
ensures that the process remains beyond reproach.
DECISIONS The representatives are not mere spectators; they
are involved at multiple levels, including the sealing
mechanism, which acts as an added layer of security
to ensure the sanctity of the EVMs, post-check. Their
signatures accentuate the rigor and transparency of the
process. Additionally, the DEO’s close supervision,
coupled with technological measures such as
webcasting, ensures further layers of oversight.
SUMMARY
This Writ Petition was filed seeking direction upon the Commission
to re-initiate the First Level Checking (FLC) for EVMs and VVPATs,
which are currently in the custody of Respondents No. 3 to 13 [Sub-
Divisional Magistrates]. It was also prayed that further directions be
issued to ensure that adequate notice is provided to all political parties,
thus enabling them to designate their representatives for meaningful
participation in the FLC as it is also crucial for the Respondents to
adhere to the guidelines set by the ECI in its notices dated 30th August,

2017 and 13th September, 2022. The Election Commission opposed
the petition.
The Hon’ble Court observed that as per Paragraph No.5 of ECIs
instructions dated 13.09.2022, the DEO is required to intimate the
dates of the process at least two days prior to the commencement of
FLC. Also, the Court held that the Delhi Pradesh Congress Committee
[“DPCC”] notably chose to stay away from the FLC process. Therefore,
Petitioner’s contention that DEO’s notice informing the FLC schedule
was inadequate did not find favor with the Court.
It was held that there are sufficient robust procedures which exude
complete transparency & thus, given the rigorous and transparent
procedure and petitioner’s contentions questioning the reliability or
security of the FLC process, are unfounded. Further, it was held that it is
not possible to accept with the prayer of the petitioner to re-convene the
FLC as the ECI operates on strict timelines and delays can potentially
jeopardize the entire electoral process.
Conclusively, the petition lacks substantive grounds and therefore the
Court declined to accede to the relief sought by the Petitioner. The
petition was dismissed along with other pending applications.
ORDER
Sanjeev Narula, J.
1. Mr. Anil Kumar, in his capacity as the President of the Delhi
Pradesh Congress Committee [“DPCC”], a unit of the Indian
National Congress, has voiced concerns regarding the approach
and procedure adopted by Respondent No. 2 – the Chief Electoral
Officer, during the preparations and conduct of First-Level
Checking [“FLC”] of Electronic Voting Machines [“EVMs”] and
Voter-Verified Paper Audit Trails [“VVPATs”], intended for use in
the upcoming General Elections to the Lok Sabha, scheduled to be
held in 2024.
2. By invoking the extraordinary jurisdiction of this Court under
Article 226 of the Constitution of India, 1950, the Petitioner,
through this Public Interest Litigation [“PIL”], delineates his
grievance as follows:
2.1. On the 11th and 12th of July, 2023, the Offices of concerned
District Election Officers [“DEOs”] issued communications
detailing the FLC schedule in various districts for EVMs and
VVPATs to be utilised in the 2024 General Elections. As per
these notices, the FLC was to take place daily between the
15th and 30th of July, 2023, from 09:00 AM to 07:00 PM at
the designated venues. All national and state level parties
were requested to nominate their authorized representatives to
oversee the said process.
2.2 According to the guidelines issued by Respondent No. 1 –
Election Commission of India [“ECI”],1 the FLC typically
starts 180 days prior to the General Elections to Lok Sabha or
as otherwise directed by ECI. Thus, FLC should have begun in
the second week of September 2023. This would have ensured
adherence to the guidelines set forth by ECI, both in intent and
in execution. Instead, the FLC process was advanced by three
months.
2.3. The communication intimating the schedule for FLC process
was woefully inadequate. As per the prevalent mandate, the
political parties ought to be intimated of the FLC at least one
week prior to its commencement. A mere two-day notice prior
to the commencement of FLC did not afford the political
parties sufficient opportunity to instruct Booth Level Agents
or engage individuals with the requisite training in order to
effectively participate in the process.
2.4. Addressing the lack of specific details of the EVMs and
VVPATs that were being subjected to FLC, the Petitioner,
on 15th July, 2023, wrote to the DEOs seeking pertinent
information. However, despite opportunity, the DEOs
remained unresponsive to the issues highlighted by the
Petitioner/ DPCC.
2.5. The approach of Respondents appears to be covert and lacks
transparency. Absent the crucial details concerning the EVMs
and VVPATs which were being tested, the role of political
stakeholders was reduced to being mere observers of the

process, thereby casting doubts over the integrity of the entire
electoral process. In the spirit of transparency, it is essential
that all stakeholders are informed of the particulars of EVMs
and VVPATs so that they can effectively monitor and verify
the machines during the FLC.
2.6. Highlighting the discrepancy in the entire FLC process,
Petitioner approached Respondent No. 2 vide communication
dated 03rd August, 2023, requesting them to terminate the
ongoing FLC. In response, Respondent No. 2 disagreed with
Petitioner’s allegations and refused to entertain his request.
2.7. The afore-noted deviation from the stipulated procedure
warrants this Court’s intervention. Invoking its powers under
Article 226 of the Constitution, the Court must direct the
ECI to re-initiate the FLC for EVMs and VVPATs, which are
currently in the custody of Respondents No. 3 to 13 [Sub-
Divisional Magistrates]. Further directions ought to be issued
to ensure that adequate notice is provided to all political
parties, thus enabling them to designate their representatives
for meaningful participation in the FLC. It is also crucial for
the Respondents to adhere to the guidelines set by the ECI in
its afore-mentioned notices dated 30th August, 2017 and 13th
September, 2022. Such adherence is pivotal in upholding the
integrity, transparency, and sanctity of our democratic process.
3. Contrarily, Mr. Sukumar Pattjoshi, Senior Counsel representing
the Respondents No. 2 to 13, firstly points out that petition’s
averments directed towards the State Election Commission are
misconceived as the said Commission has no role to play in the
Lok Sabha General Elections. Nonetheless, he argues that the FLC
process strictly adhered to the extant norms, including the ECI’s
Instructions on FLC, as revised from time to time. The Petitioner
as well as other eligible stakeholders were given adequate notice
for participation in the FLC process. However, for reasons best
known to the Petitioner’s side, they opted not to delegate their
representatives. That apart, he emphasises that FLC process for
EVMs and VVPATs has been finalized in three states of Kerala,

Jharkhand and Delhi, and the procedure is in progress for another
five states. In Delhi alone, a total of 42,000 ballot machines and
23,000 VVPATs have been checked. The directions proposed by
the Petitioner, if granted, could potentially derail the pre-fixed
election schedule.
Analysis and findings:
4. The arguments presented by both sides call for a thorough scrutiny
and meticulous deliberation. Conscious of the overarching
importance of the election process, the bedrock upon which our
democratic nation stands, we acknowledge that any concern
regarding the transparency or efficacy of this process demands our
utmost attention.
5. The first-level checking of EVMs and VVPATs operates under the
ambit of directives periodically issued by the ECI. The guidelines/
instructions dated 13th September, 2022, elucidate the following
procedure for conducting FLCs:
“3. FLC when to be done:
(a) FLC of EVMs and VVPATs shall be done before every General/
Bye-election to Assembly and Parliamentary Constituency or
in any elections where EVMs and VVPATs are used.
(b) FLC of EVMs and VVPATs shall commence:
(i) within one month of occurrence of vacancy in case of bye-
election.
(ii) at least P-120 days in case of General Election to State
Legislative Assembly.
(iii) at least P-180 days in case of General Election to Lok
Sabha or as instructed by the Commission.
(P-may be estimated based on the last General Election).
(c) FLC is to be done sufficiently in advance so that all checks
are carried out without any undue haste in the presence of
representatives of National and State Recognised Political
Parties.

(d) FLC of EVMs and VVPATs shall be completed, as far as
possible, three months before tentative announcement of
election. The same may be calculated considering the last
time announcement of election.”
4. Schedule of FLC:
(a) Depending on the number of EVMs and VVPATs to be checked
in FLC, the CEO/DEO shall prepare a schedule for the FLC
of EVMs in consultation with EVM manufacturers (BEL &
ECIL).
(b) Ensure timings of FLC from 9 am to 7 pm on all days including
holidays. For any exemption request for timing or OFF on a
particular day due to any valid reason, prior approval of the
CEO concerned is required.”
[Emphasis Supplied]
6. One of the quintessential aspects of the FLC process is the active
involvement of political parties’ representatives. To this effect, the
guidelines state:
“5. FLC to be done in the presence of representatives of National
and State Recognised Political Parties:
(a) The schedule for FLC shall be communicated to every
National and State Recognised Political Party at the district
headquarters with proper acknowledgement and copy
endorsed to the parties at State headquarters, in writing by
the DEO at least 2 days before the beginning of the FLC in
the district.
(b) On the day of the FLC, representatives of all National and
State Recognised Political Parties authorised by the District
President of the party shall be encouraged to be present.
(c) A register shall be kept at FIC hall by the DEO in Annexure-1
in which signatures of the representatives of National and
State Recognised Political Parties shall be taken every day as
token of their presence.”
[Emphasis Supplied]

7. The FLC is a meticulous procedure, designed to uphold
transparency, integrity, and security of the electronic voting
system. The process is executed by certified engineers from
Bharat Electronics Limited [“BEL”] and Electronics Corporation
of India Limited [“ECIL”] and encompasses several vital steps:
(a) the initial clearance of the machines by officials designated
by the DEO, (b) a comprehensive visual inspection conducted by
authorized engineers from BEL/ECIL, (c) rigorous functionality
tests using the pre-first level checking unit by field engineers, and
(d) symbol uploading in VVPATs through the symbol loading unit
by BEL/ECIL’s authorized engineers, for mock polling.
8. Beyond the above-outlined rigorous steps for functionality checks,
we note that for ensuring integrity of FLC process, the guidelines
provide for sealing of the cabinet of the control units using a
modified pink paper seal provided by the Nasik Security Press.
This sealing is done in the presence of representatives of all the
national and state recognized political parties, as per the following
method:
“9. Sealing of plastic cabinet of Control Unit of EVMs with
modified Pink Paper Seal
(a) In order to ensure that the Control Unit of EVM cannot be
opened after First Level Checking of the EVMs, the cabinet of
the Control Units shall be sealed with the modified Pink Paper
Seal supplied by the Nasik Security Press, in the presence
of the representatives of the National and State Recognised
Political Parties present at the time of FLC, as per the
following procedure:
(i) Modified Pink Paper Seal has two portion/part of same
Unique Serial Number. First, split the seal into two separate
Pink Paper Seals.
(ii) Remove the gummed paper from Pink Paper Seal carefully.
(iii) These two Pink Paper Seals shall be pasted on two sides of the
Cabinet of the Control Unit as shown in the figures:

Control Unit sealed with Modified Pink Paper Seal
(iv) For proper fixing of the seals, the BEL and ECIL shall
emphasise the following:
• Proper handling of seals.
• The surface on which seal need to be applied should be
clean and free from dust, dirt, water. chemical and oil.
• The peeling off/removal of seal from the release liner
surface with clean finger nails.
• The application to the applicable surface should be done
gently with thumb pressure of finger (4-5 times) to avoid
possibility of air pocket, crease.
• The seal applied on the EVM surface should not be
partially stuck and removed and re-used.
(v) While marking FLC-OK in EVM Management System (EMS)
using Mobile App. the Unique Serial Number of Pink Paper
Seal shall be entered by scanning QR-Code.
(b) Take signatures of the Engineer and the representatives of the
National and State Recognised Political Parties present along
with the party name in abbreviations below their signatures.
Allow them to note down the serial number of the pink paper
seal.
(c) Marking of FLC-OK and FLC-Reject of machines in EMS
should be done on daily basis.
(d) Maintain a register in Annexure-9 for mentioning the unique
number of CU and serial number of’ pink paper seal and take
their signature and provide photocopy to the National and

State Recognised Political Parties.
(e) Provide photocopy of list of FLC-OK Ballot Units, Control
Units and VVPATs to the National Ind State Recognised
Political Parties after completion of FLC and also to all the
contesting candidates as soon as last date of withdrawal of
candidature is over and take their acknowledgement.
(f) Ensure the availability of photocopy of the register at the time
of Commissioning of EVMs/VVPATs.”
9. As evident from the detailed procedures noted above, the FLC
process not only involves the active participation of engineers
from BEL and ECIL, but it also encourages involvement of
representatives from national and state recognized political parties.
This inclusive approach guarantees transparency and ensures that
the process remains beyond reproach. The representatives are not
mere spectators; they are involved at multiple levels, including
the sealing mechanism, which acts as an added layer of security
to ensure the sanctity of the EVMs, post-check. Their signatures
accentuate the rigor and transparency of the process. Additionally,
the DEO’s close supervision, coupled with technological measures
such as webcasting, ensures further layers of oversight.
10. The involvement of political parties, down to the acknowledgment
of the FLC “OK” machines, underlines the democratic spirit and
the inclusivity of the process. However, DPCC notably chose to
stay away. Petitioner’s contention that DEO’s notice informing the
FLC schedule was inadequate, does not find favour with the Court.
As per paragraph 5 of ECI’s Instructions dated 13th September,
2022, the DEO is required to intimate the dates of the process at
least two days prior to the commencement of FLC. Considering
the time sensitivity and the mandate to conclude the process three
months prior to the tentative announcement of election,2 despite
their absence, FLC was conducted and has since culminated with
the issuance of FLC-OK ballot units, control units, and VVPATs
lists to all the national and state recognized political parties.

11. The Petitioner’s reservations regarding the process stem from a
perceived lack of prior information regarding the list of EVMs
and VVPATs scheduled for checks. The Court, upon perusal
of the stipulated instructions and procedures, does not find any
such directive demanding prior notification. There are sufficient
robust procedures (as delineated above) which exude complete
transparency. The sealing process – a crucial part of FLC – is
not just demonstrative in nature but also participative, allowing
political representatives to mark their approval through signatures.
The provisions for recording and distributing details like the
unique number of control units and pink paper seal serial numbers
enhance the process’ credibility, leaving little room for scepticism.
Thus, given the rigorous and transparent procedure, Petitioner’s
contentions questioning the reliability or security of the FLC
process, are unfounded.
12. The insistence by Mr. Salman Khurshid, Senior Counsel for
Petitioner, on pre-providing serial numbers does not stand as
a legitimate premise for the relief of re-initiating the entire
FLC process. The Court’s specific inquiry into DPCC’s non-
participation during FLC yielded no substantial justification, apart
from the repetitive claim of lack of serial numbers and a non-
responsive stance from Respondents regarding their representation
dated 15th July, 2023. Given the gravity of the electoral process, the
Petitioner’s focus should have been on active participation, rather
than on abstaining due to procedural apprehensions. Moreover,
in our view, when a procedure as significant as the FLC offers
opportunities for representation and observation from political
entities, it becomes the duty of these representatives to participate
actively and ensure the process’ credibility. Abstaining from
participation and later questioning the integrity of the same process
does not reflect well on the Petitioner.
13. Furthermore, Petitioner’s notion that re-convening the FLC would
not lead to any time loss is a perspective that the Court finds hard to
accept. The ECI operates on strict timelines. Delays can potentially
jeopardize the entire electoral process. Given the specificity of the

afore-discussed timelines mentioned in ECI’s Instructions and
advanced stages of the General Elections process, as highlighted by
Mr. Pattjoshi, any alterations, such as re-initiation of the process,
would be a significant regression. Ultimately, the aim of the FLC
and the entire electoral process is to serve the public and ensure
their trust in the democratic process. The safeguards and checks
embedded in the guidelines are sufficient to ensure the integrity of
FLC process. The inclusion of political representatives in sealing
the EVMs is a significant step towards mutual accountability.
Every recognized political party was given an equal opportunity to
be a part of the process. Thus, there participation in this democratic
process plays a pivotal role in ensuring its sanctity. The petition, in
our considered view, lacks substantive ground. Consequently, the
Court is not inclined to accede to the relief sought by the Petitioner.
14. For the foregoing reasons, the present petition is dismissed along
with other pending applications.

7. ANIL KUMAR vs. ELECTION COMMISSION OF INDIA &
ORS
Special Leave Petition (Civil) 21693/2023
(Supreme Court of India)
CASE 09.10.2023
DETAILS
Hon'ble the Chief Justice J.B. Pardiwala. J and
Hon'ble Mr. Justice Manoj Misra
To re-initiate the First Level Checking (FLC) for
ISSUES
EVMs and VVPATs .
The Hon’ble High Court dismissed the PIL and
held that the Delhi Pradesh Congress Committee
[“DPCC”] notably chose to stay away from the FLC
process and there are sufficient robust procedures
DECISIONS
which provide complete transparency & thus, given
the rigorous and transparent procedure. Thus, the
petitioner’s contentions questioning the reliability or
security of the FLC process, are unfounded.
SUMMARY
The SLP arose out of impugned final judgment and order dated
29.08.2023 passed by the High Court of Delhi in Anil Kumar v.
Election Commission of India & Ors, in WP(C) No. 11437/2023. This
writ petition was filed seeking the direction upon the Commission to
re-initiate the First Level Checking (FLC) for EVMs and VVPATs and
further directions be issued to ensure that adequate notice is provided
to all political parties.
While dismissing the PIL, the Hon’ble High Court held that the Delhi
Pradesh Congress Committee [“DPCC”] notably chose to stay away
from the FLC process and there are sufficient robust procedures
which provide complete transparency & thus, given the rigorous
and transparent procedure, Petitioner’s contentions questioning the
reliability or security of the FLC process, are unfounded. Thus, the PIL
was dismissed with costs.
The Hon’ble Supreme Court reviewed the procedure and highlighted
that the participation of political parties was just a single aspect of the

process and non-participation of certain parties should not lead to a
complete halt in the entire process as all other parties have faith in
EVM and it is replicated all across India.
Accordingly, the petitioner withdrew the plea and SLP was dismissed.
ORDER
Hon’ble The Chief Justice J.B. Pardiwala. J and Hon’ble Mr. Justice
Manoj Misra
1 Mr. Narendra Hooda, senior counsel appearing on behalf of the
petitioner seeks the permission of the Court to withdraw the
Special Leave Petition.
2 The Special Leave Petition is dismissed as withdrawn.

8. BAHUJAN HASARAT PARTY vs. UNION OF INDIA & ORS.
[PIL No. 211/2022] (Allahabad High Court-
Allahabad Bench)
CASE
21.02.2022
DETAILS
Hon'ble Pritinker Diwaker, J. and Hon'ble Ashutosh
Srivastava, J.
Prayer to vote by Old Mechanism for casting the
ISSUES
vote.
The Hon’ble Court declined to entertain the petition
DECISIONS and the petitioner prayed for withdrawal of the writ
petition.
SUMMARY
The Petitioner Party prayed for providing the option to voters to cast
their votes by ballots during the Uttar Pradesh Legislative Assembly
Elections, 2022.The Hon’ble Court declined to entertain the petition
and the same was dismissed as withdrawn by petitioner vide order dated
21.02.2022 with liberty to avail the remedy available to the petitioners
under the law.
ORDER
Hon’ble Pritinker Diwaker, J. and Hon’ble Ashutosh Srivastava, J.
Sri V.K. Sharma, counsel for the petitioners, learned counsel for Union
of India, Sri Jitendra Ojha, counsel for respondent no.2 and Sri Ten
Singh, counsel for respondent no.3.
Counsel for the petitioners prays for withdrawal of the writ petition
with liberty to avail the remedy available to the petitioners under the
law.
The petition is, accordingly, dismissed as withdrawn with the aforesaid
liberty.

9. BANWARILAL PUROHIT vs. VILAS MUTTEMWAR &
ORS
Election Petition No. 1 of 2004 [ 2005 SCC OnLine
CASE Bom 1789]
DETAILS 21.10.2005
A.H. Joshi, J
ISSUES EVM Tampering
The Hon’ble Court rejected the contentions holding
DECISIONS that petitioner failed to adduce any material to
substantiate his claim.
SUMMARY
The petitioner had alleged that there are several stages during the
election process when the EVMs are open to tampering.
The Hon’ble Court rejected this contention holding that petitioner had
failed to adduce any material to substantiate his claim and held that
the allegation about EVMs being stored in most vulnerable premises is
required to be proved by oral evidence which would be very limited and
may suffice on its quality. This could have been done by the petitioner
by producing his own evidence and such other documents, photographs
etc., which petitioner considers, are within his control and power. He
has preferred not to examine even his Election Representative, who is
his son. In so far as the security is concerned, this witness has admitted
that the Deputy Commissioner of Police was In-charge of the security.
The Court further held that the allegation wherein the Petitioner claimed
that the procedure to be undertaken in the booths was not followed, was
a matter to be proved by the petitioner by bringing evidence which was
essentially in the nature of oral evidence of polling agents to prove acts
and omissions in adopting a proper procedure. Petitioner has chosen
not to bring any evidence in this regard. Thus, the Court concluded that
on perusal of evidence, the petitioner has barely suggested a remote
possibility of EVMs being tampered and Hon’ble Court thereby
rejected the petition.
ORDER
A.H. Joshi, J.

1. This is a petition under Section 80 of the Respresentation of the
Peoples Act, 1951, which pertains to 23-Nagpur Kamptee Lok
Sabha Constituency. The election programme was declared on 23-
3-2004.1-4- 2004 was the date fixed for nominations, 5-4-2004
was the date fixed for withdrawal. The date of Polling was 20-4-
2004. The results were declared on 13-5-2004 and Respondent No.
1 was declared elected. The Petition
2. The Election Petition runs into around 50 pages. The summary of
the contents of the Election Petition therefore needs to be drawn
which, is as under:
(a) Petitioner, was Member of the Maharashtra Legislative
Assembly for two terms and was a Minister of Government
of Maharashtra and was a Member of Lok Sabha for three
times and had won elections with handsome margin. On two
occasions he had lost with sender margin. According to him,
he has record of high ethical standard in public life and his
participation in social organizations as Managing Editor of
the leading English newspaper “The Hitavada” is of wider
acclaim and therefore, he has number of loyal supporters. He
had status of being a front runner in the election in pre-poll
surveys.
(b) There are several areas in the constituency, where the
performance of the respondent No. 1 was estimated by
independent experts to be extremely poor. For instance, in some
parts of western Nagpur where several thousands of people are
affected due to the acquisition of their lands as also homes for
the Cargo Hub Project, there was a mass movement against
the respondent No. 1. Apart from mis, there was a strong anti-
incumbency factor working against the respondent NO. 1 in
the entire constituency. There was virtually a wave against the
respondent No. 1 who was not even allowed to enter some of
these localities. However, surprisingly, the respondent No. 1
polled highest number of votes in the areas affected by the
Cargo Hub Project.
(c) In the results in question, the Petitioner polled extremely
low percentage of votes in the stronghold areas, while the

respondent no. 1 polled exceptionally high votes which is
shocking. Returned candidate received over 2.74 lakhs votes,
while petitioner got only 28000 votes.
(d) After votes were polled and before counting was held, the
EVMs which contained the recorded votes were not kept
in tamper proof strong rooms, as required by law and as
prescribed by the Election Commission.
(e) As per the information gathered by the petitioner, there is
every possibility that these machines can be rigged and/or
manipulated and/or tampered with and if it is done by skillful
hand, it is a matter of 5 to 10 minutes to tamper with the
EVMs.
(h) There are several stages during the election process when
these EVMs are open to tampering, especially in absence of
sufficient safeguards being observed by the Returning Officer.
These safeguards were provided by law, but in actual practice,
none have been followed.
(g) The Election Commission of India has issued guidelines and
has framed statutory rules and provided for checking of the
machines at different stages during the election process. The
initial stage is the preparation of the EVMs by the Returning
Officers, the next stage is that of mock poll and then of
conducting trials even during the course of actual polling. It is
apparent that all these provisions are made so as - to minimise
the possibility of tampering and at least to bring about a sense
of fairness and transparency in the entire process. Observance
of these provisions is mandatory in nature, however, the
respondent no. 2/Returning Officer failed to observe the
procedure as required by law.
(h) Rules provide for random checking of EVMs during or amidst
the polling, which was never done in the elections presently in
question and this creates serious doubt on the reliability and
transparency of the election process.
(i) That as per the instructions issued by the Election Commission
of India, the mock polls have to be conducted in the manner

as prescribed. The instructions further say that in the mock
poll at least 50 votes should be polled so as to test veracity
of the machine and ensure their error free functioning and
consequent reliability. However, in the instant case, mock poll
was never conducted at all. Had the mock poll been conducted,
then in that event, the manipulations done to the machines at
the instance of the respondent No. 1 could have been possibly
detected at that stage itself.
(j) Since beginning the EVMs were not kept properly in safe
custody despite repeated complaints by the petitioner to the
respondent No. 2/Returning Officer about these lacunae. The
law provides that the control units as well as the ballot units
are to be kept in strong room However, the rooms in which the
machines were kept by the respondent No/Returning Officer
were “strong rooms” only for the name sake.
(k) In the Hand book for returning Officers issued by the “Election
Commission of India” in, the year 2004, It is provided that
each and every machine which is to be employed during the
course of election has to be thoroughly tested for its 100%
error free functioning at the time of poll. In Chapter XII
of this hand book it is clearly specified that the process of
preparation of voting machine has to be done in the presence
of the candidates, however, this was not so done.
(l) The machines were got tested from the personnel deputed
by the manufacturers namely Electronics Corporation of
India Limited, Hyderabad much before the candidates at
the elections were finalised and therefore, this was done in
absence of candidates before 5-4-2004.
(m) There is no competent authority independent of the machine
manufacturing company to verify the reliability of the
machines and for certification thereof as being tamper proof.
In absence of some such authority to look after the certification
procedure of the EVMs, there is a huge scope for manipulation
at this level, which may result in a sophisticated hijacking of
the vote, as has apparently happened in present case at the

instance of the respondent No. 1, rendering the entire election
process doubtful.
(n) The security measures which are provided that:—
(i) the strong rooms should be kept fully guarded at all times
under the charge of a senior police officer not below the
rank of Dy. Superintendent of police;
(ii) the central police forces should be used for such guard
duty;
(iii)the door of the strong rooms is supposed to have a double
lock and be kept under a seal.
These dictates have not been followed.
(o) The doors had glass panels of which some were completely
broken, through which strong rooms are easily accessible
for ingress and egress. Apart from this, the duty to guard the
machines was entrusted to a constable which is obviously in
clear breach of the provisions making it mandatory to post
a Dy. Supdt. Of Police on duty, though there is a Central
Reserve Police Force (CRPF) Camp permanently stationed at
Nagpur, the respondent No. 2/Returning Officer, did not avail
their services.
(p) The petitioner obtained photographs of the so-called “Strong
rooms” a bare perusal whereof do expose that security
arrangements undertaken by the respondent No. 2/Returning
Officer were inadequate.
(q) No prior notice as mandated by law was given about the
date and time of opening of the strong rooms, though clause
18.1 to 18.4 of the Hand book requires Returning Officers to
issue such notice. This failure which is a clear violation of
the statutory rules and guidelines, which render the election
concerned liable to be set aside;
(r) There is every possibility that the personnel of the machine
manufacturing company may have acted under the influence
of a candidate and at his instance and for his benefit, they

could easily have programmed the machines in such a fashion
so as to benefit such a Candidate.
(s) In the present case, there are several indicators that the
tampering of the machines has been done at this level at the
instance of the respondent No. 1 who is the returned candidate.
(t) The petitioner had received several reports and complaints
about possibility of tampering with the Electronic Voting
Machine and the results of the Election are vitiated as herein
after.
(u) Respondent no. 2 - Returning Officer did not - follow the
mandatory rules and orders during the election process which
has materially affected the validity of election and the results
are rendered liable to be set aside.
3. That all this was done with deliberate and malafide intention to
assist a particular candidate in manipulating the EVMs.
That the election agent of the petitioner had approached the
respondent No. 2/Returning Officer to seek the inspection of the
records as provided for under Rule 93 of the Conduct of Election
Rules. In regard to inspection, the Election Commission of India
has issued some guidelines under the statutory powers conferred
on it. According to these guidelines, whenever a request is made
for “urgent” inspection, then the same is to be given on the very
same day the request is made and if the request is not for urgent
inspection, then the inspection is to be given on the next day of the
request being made. In the instant case, the request was for urgent
inspection of the records. The same was made on 26th May 2004,
but the inspection was not given on the same day as required by
law.
4. The election agent of the petitioner kept on making rounds of the
office of the respondent No. 2/Returning Officer and after a gap of
five days, i.e. On 1st June, 2004, for the first time, it was informed
that a list of the documents sought to be inspected is required.
5. It had been brought to the notice of the respondent No. 2/Returning
Officer that there is no such requirement in law in as much as in

regard to the inspection of records, an hourly fee is provided. Had
the fees been prescribed document-wise/then it could be possible
to argue that a list of documents to be inspected is required. Apart
from this, the election agent of the petitioner had, requested for
inspection Of “all” records. This clearly meant that, all that was
permissible to be shown and offered for inspection in terms of Rule
93 of the Conduct of Election Rules, it was sought to be inspected.
Thus, there was no need of a list containing the particulars
especially in the instant matter. Moreover, the list could have been
asked for on the very same day when the request was made. The
respondent NO. 2/Returning Officer took 5 days time asking for
the list, which conduct remains an unanswered puzzle till date.
According to the petitioner, the only possibility could be that in the
interregnum, the several defaults committed during the process of
election were being tried to be covered up.
6. Petitioner has taken support of articles and opinion of experts in
support of the plea that the EVMs can be rigged and tampered
with. The experts relied upon are three in number. This aspect is
dealt by petitioner as follows:—
a) According to Dr. Satinath Chaudhary who is a non resident
Indian (NRI) Computer Science Teacher in the United States
of America and an alumnus of Indian Institute of Technology,
Kharagpur, he had expressed in Public Interest Petition filed
by him in the Supreme Court that EVMs could be programmed
in such a manner that even if the Voter punches the candidate
of his choice, the votes would keep on adding in favour of the
programmed winner including that rigging could be done by
using a remote control.
(b) Another expert Shri Ravi Visvesvaraya Prasad, has expressed
in his published article that the EVMs which are manufactured
could contain several flaws including faulty logic, incorrect
algorithms, erroneous data flows, errors in circuit designs,
mistakes in the software code, mistakes or malicious back
doors in data bases and etc. and it is possible to tamper with
EVMs. According to him, the software module of the EVM
could be written in a manner which could pass all trials and

manipulate the results of the actual voting. According to Shri
Prasad, the EVM could be programmed in such a fashion so
that at the end of 5 hours of polling, it would transfer 60% of
the votes of the 5 lowest candidates to a favoured candidate.
He has further expressed a possibility that by using the electro-
magnetic pulse generator near an EVM, its memory could also
be erased. In his opinion, all electronic circuits are susceptible
to electro magnetic interference. Even in the “strong room”, the
EVMs are not safe, since an expert who knows the resonance
frequency of the circuit could remotely send signals from a
distance away from strong rooms. It is possible in the natural
course of handling of the EVMs and their transportation from
one place to another that its components could be reset. It has,
therefore, been suggested that all EVMs should have paper
back-up or paper trail to have evidence of actual vote.
Even in United States of America, EVMs are without adequate
safeguards and are vulnerable to tampering. This author is
described in the newspaper as ‘Technologist’ in Electronics
(At page 66 of paper book).
(c) The petitioner has obtained opinion from the local scientists
Dr. S.S. Limaye and Shri Chandak opining that EVMs can
very easily be opened. The seals thereon can be easily be
duplicated and/or manipulated and as such, the EVMs are not
tamper proof at all. Taking into consideration the possibility
of tampering/manipulation, the Election Commission of
India has issued detailed guidelines to check the veracity of
the machine at different stages during the election process.
That there is no method of checking/verifying that internally
the components of the machine are properly working and/
or the same are not manipulated and/or tampered with. The
internal testing of the machine is done by an employee of the
manufacturing company. Therefore, if one is able to exert
some influence on the said employee, then at that stage itself,
the scope for manipulation can be inserted. It is significant
to note that subsequent to this stage, there is no check on the
internal components of the machine i.e., as to whether the
same are proper or not, or if they are manipulated.

7. These factors according to petitioner make it absolutely clear that
the election presently in question has been manipulated by or at
the instance of the returned candidate i.e. Respondent. NO. 1 and
therefore, under these circumstances, the elections in question
deserve to be set aside in the paramount interest of justice, equity
and fair play.
8. THE WRITTEN STATEMENT OF THE RESPONDENT NO.1
9. The petition was contested by filing the written statement in which
contesting respondent No. 1 alleged that the petition consists of
self praise by the petitioner. He further contends that whenever
the Petitioner had set up his candidature as an official nominee of
all India political party, he had secured success, however, there
is nothing to the credit of the Petitioner personally. He further
pleads that the Petitioner’s claim that he is leading the crusade
against the corruption, is also erroneous. The respondent No. 1
answered various crucial pleas contained in the Election Petition
as follows:—
(a) The allegations of tamperability of EVMs has been denied
being extremely vague and baseless.
(b) The source of information about tamperability of EVMs
through experts namely Satinath Chaudhary, Ravi
Visvesvaraya Prasad, Prf. Dr. S.S. Limaye and Ghandak as so
called experts has no worth credit as they are not experts at all.
(c) As to the safeguards in the EVMs, the Respondent No. 1
asserted in para 11 which is quoted as follows:
“11. It is not disputed that the Election Commission of India
has issued the detailed guidelines to check the veracity of
the machine at different stages during the election process.
It is, however, denied that the guidelines are issued only
taking into consideration the possibility of tampering/
manipulations of the Electronic Voting Machines. It is denied
that “the safeguard enumerated by the Election Commission
are all external safeguards. It is also denied that there is no
method of checking/verifying that the internal components
of the machines are properly working, and/or same are not

manipulated and/or tampered with. It is denied for want of
knowledge that the internal testing of the machine is done by
the employee of the manufacturing company. It is denied that if
one is able to exert some influence on the said employee, then
at that stage itself the scope or manipulation can be inserted.
It is denied that it is significant to note that subsequent to
this stage, there is no check on the internal components of
the machine that as to whether the same are proper or not,
or if they are manipulated. It is absolutely right that during
the election process at several stages, demonstration of the
machine is taken and further if there is some tampering as
aforesaid, then it could be detected easily. It is denied that the
petitioner can rely on the opinion of the technologist Shri Ravi
Vishweshwar Prasad. As already stated, said Shri Prasad is not
an expert of Electronic Voting Machines. It is denied that Dr.
Prasad has opined that Electronic Voting Machines could be
programmed to accurately record votes for three hours and it
could then be instructed to assign 70 per cent of all subsequent
votes, caused to whichever candidates was leading at the end
of the first three hours irrespective of the whichever button
the voter pushed. It is further denied that he has further opined
that since public demonstration shall last less than three hours,
a manipulated/tented Electronic Voting Machines would
easily pass such test. It is denied that the machine should
be programmed to assign all votes after the first few ones
to a particular candidate, It is denied that according to Shri
Prasad, this is alleged to have happened in a local election in
the United “States of America. It is denied that it is clear that
the safeguards are easier to breach than they are enforced by
the Election Commission. It is denied that there is any scope,
much less a lot of scope left for manipulation and tampering.”
(d) The Respondent further pleaded that adequate arrangements
for security were made by the respondent no. 2. According
to respondent, all the guidelines given by the Election
Commission were strictly followed. As far as the documents
filed on record are concerned, the respondent did not admit
most of them.

(e) The Respondent further pleaded that the process of preparation
of machines etc was properly done. Further that the machines
were certified to be tamper-proof and it was impossibles to
cause automatic transfer or hijacking of codes or programme
the machines by way of automatic transfer of votes etc.
(f) No specific allegations are made about actual rigging or
specific allegations against any specific person or officer about
acts of favour to the respondent no. 1
(g) The points of dispute about trustworthiness of EVMs are all
castles of imagination and there is no factual basis whatsoever,
THE WRITTEN STATEMENT OF RESPONDENT NO. 2. THE
RETURNING OFFICER.
10. The Returning Officer also filed Written Statement and denied
all the allegations contained in the petition and claimed due and
thorough observance of rules as to preparation, storing and use of
EVMs.
11. The Election Commission who was served has sent its reply by
registered post and claimed that in view of Section 82 of the
Representation of Peoples Act and reported Judgments of Supreme
Court, which are as follows:—
1. Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691 : AIR 1982 SC
983.
2. Sundara Rama Reddy v. Election Commission of India (1991
Supp (2) SCC 624 : (1991 AIR SCW 772),
3. Micheal Fernandes v. C.K. Jaffar Sharrife [C.A. No. 1318 of
2001), it be deleted, from the array of respondents.
ISSUES
12. This Court then called the parties to file draft issues and after
hearing the parties settled the issues, which are as follows.
ISSUES
1. Does the petitioner prove that the Electronic Voting Machines
are prone/vulnerable to tampering?

2. Does the Petitioner prove that the respondent No. 2/Returning
Officer has breached the guidelines issued by the Election
Commission regarding safety of the Electronic Voting
Machines?
3. Does the Petitioner prove that non observance of the rules and
regulations by the Returning Officer has materially affected the
results and whether due to such non observance of regulations
the elections are liable to be declared as void?
13. Evidence by Affidavit and Cross Examination:
14. After framing of the issues, the parties consented for recording
examination in chief by way of affidavit.
15. The Petitioner filed his affidavit Exh. 26 26 and affidavits of three
witnesses in addition to himself, namely Dr. S.S. Limaye Exh. 29,
Mr. Ravi Visvesvaraya Prasad Exh. 27 and Mr. Arun Mehta Exh.
32. All these witnesses had stepped into the witness box for cross
examination and were cross examined by advocate of Respondent
No. 1 and 2.
16. AS TO EVIDENCE OF THE PETITIONER HIMSELF AS
PW 1:—
(a) The petitioner as the first witness confirms the contents of the
Election Petition to be true when he stepped into the witness
box for offering cross examination.
(b) After narrating about his credibility and his Weightage in the
constituency after coming to the ground of challenge to the
election, he has referred about what Dr. Satinath Chaudhary
has said about the susceptibility about tampering of EVMs in
para 6. ABOUT E.V. Machines:—
(c) This witness admits that he does not have personal knowledge
about his grievances about EVMs and all that he has stated
about un-reliableness of EVMs is based on the opinion
received by him from experts and hence, he is not a witness
on the point of trustworthiness of EVMs.

ABOUT PREPARATIONS OF EVMs BY R.O. AND
OTHERS:—
(d) In so far as the petitioner’s grievance about preparation, testing
of machines, failure to conduct mock polls, all are petitioners
statement on what he has “learnt” from various other sources.
The petitioner’s evidence on this point carries no Weightage
for preponderance of proof of facts and all what the petitioner
has said is about apprehension about susceptibility of machines
to tampering etc.
ABOUT SAFE CUSTODY OF EVMs IN STRONG ROOMS:—
(e) The next aspect dealt with in the evidence of petitioner is
about improper safety security arrangement of the EVMs in
the Nagpur Constituency. The petitioner also has grievance
about failure to conduct testing of machines. This information
given by the petitioner is on the basis of what he has ‘learnt’.
The petitioner himself has not seen as to how the security of
the Electronic Voting Machines was inadequate. Though he
has said in the petition about photographs, he has not proved
these facts, nor he has brought evidence of any other witnesses
to prove lack of adequate or proper security.
(f) Petitioner’s witnesses were cross examined for purposes
namely:
(i) The petitioner was cross examined to reveal from his
testimony that whatever information the petitioner had
was on the basis of knowledge which he had gathered
from the persons whom he regards as experts and he has
no personal knowledge.
(ii) Further that his knowledge relating to security
arrangements was on the basis of the facts namely that
the Returning Officer and Local Officers did not respond
to the petitioner’s inquiries.
(iii) Further focus of cross examination was also aimed at
demonstrating that the petitioner’s version about the
process of preparation of EVMs, their testing etc. was

done in presence of the election representative, polling
agents, counting agents etc, of the petitioner and that he
was also given intimation about various stages of dealing
with the Electronic Voting Machine prior to voting, after
voting and before counting.
(iv) Though this witness has initially denied all these things,
he has later on admitted the signatures of his Election-
Representatives, counting agents etc.
(v) One and only thing this witness proves can be summarised
as follows:
Petitioner believes that on the basis of the experts opinion
received by him that the EVMs can be tampered with.
That EVMs were gravely susceptible for interference and
tampering;
That he fears that such tampering has occurred and that
the results of elections were thereby affected.
This witness does not make any specific imputation or
attribution of any particular Officer involved in process
of holding election that such Officers had permitted or
admitted some persons, access to the EVMs at any point
of time thereby rendering it possible for such persons to
interfere in the machines, tamper with these and ensure
change in the election results, unfavourable to the
petitioner and favourable to the Returned candidate.
(g) No attempt even suggestive has been made by the petitioner
to suggest as to how the alleged tampering in the EVMs has
adversely affected results of election and to what extent the
votes otherwise polled in favour of the petitioner were due to
such tampering transfer in favour of the Returned Candidate
or any other candidate resulting into situation beneficial to the
returned candidate or prejudicial to the petitioner.
ABOUT EXPERT WITNESSES:—
(h) Other witnesses examined by the petitioner are three experts
Prof. Limaye, Shri Ravi Visvesvaraya Prasad and Shri Arun
Mehta. All these witnesses are described as experts.
Dr. Limaye’s affidavit Exh. 29 need not be dealt with as
Learned Senior Advocate Shri M.N. Ghatate has stated that
he would not place reliance on the testimony of Dr. Limaye
because, due to his employment in College of which the
petitioner is at the helm of affairs as a trustee, this witness
may be criticized as interested witness.
(i) In so far as status of the witnesses as experts is concerned, it
would be necessary to refer to their own narration contained
in the affidavit of these witnesses.
Now so far as testimony of Ravi Visvesvaraya Prasad Exh. 27
and third witness Arun Mehta’s affidavit Exh. 32 is concerned,
it needs to be dealt with.
These witnesses state about their status as technocrats or
experts in their affidavit as follows:—
Affidavit of Ravi Visvesvaraya Prasad:—
“I, Shri Ravi Visvesvaraya Prasad, Son of Shri H.Y. Sharada
Prasad, born on 07 September 1960 at New Delhi and Resident
of 19 Maitri Apartments, Block A-3, Paschim Vihar, New
Delhi 110 063, the deponent named above, do hereby take
oath and state on solemn affirmation as under:
(1) I say that my professional and educational qualifications
are:— (i) Master of Science degree in Electrical and Computer
Engineering, Carnegie Mellon University, Pittsburgh,
Pennsylvania, 15213, United. States of America, acquired
during the years 1982 to 1986.
(ii) Master of Engineering degree on Metallurgical
Engineering and Materials Science, Carnegie Mellon
University, Pittsburgh, Pennsylvania, 15213, United
States of America, acquired during the years 1982 to
1985.
(iii) Lead Assessor Diploma (with Honours) in System and
Software Quality Assurance of the European Union’s
BOOTSTRAP Programme of the European Strategic
Programme for Research in Information Technology.
The Honours Diploma was awarded in the year 1993
jointly by the University of Freiburg in Germany and the
University of Graz in Austria.
(iv) Master of Science in Physics, Indian Institute of
Technology, Kanpur, 208016, acquired during the years
1977 to 1382.
(v) Member of the Research Staff at the Robotics Institute,
Carnegie Mellon University, Pittsburgh, Pennsylvania,
15213, United States of America, during the years 1985-
1986, working on projects sponsored by the American
Association for Artificial Intelligence.”
(2) I say that I am a technical and engineering consultant in
the fields of electronics, microelectronics, circuit design,
computer software, hardware, telecommunications and data
communications. I further say that I have nineteen years of
international professional experience in providing engineering
and technical consultancy and advisory services in these fields
to multinational corporations, international organizations and
leading Indian business houses.”
Testimony of Arun Mehta Exh. 32.
“I, Shri Arun Mehta, Son of Shri Kanwal Krishan Mehta, born on 14th
September 1953 at Mumbai and resident of B-69, Lajpat Nagar, New
Delhi 110024, the deponent named above, do hereby take oath and
state on solemn affirmation as under:
1. I say that my professional and educational qualifications are:—
2. a) Bachelor of Technology in Electrical Engineering from Indian
Institute of Technology, Delhi, acquired during the years 1970 to
1975.
b) Master of Sciences from the State University of New York at
Stony Brook, New York, United States of America, acquired
during the year 1975 to 1976.
c) Doctorate in Electrical Engineering from the Ruhr University,
Bochum, Germany, acquired during the years 1982 to 1987.
3. I say that I am a technical and engineering consulatant in the field
of electronic controls, computer software, hardware, media and the
Internet. I further say that I have 34 years of International work
experience in the field of Computers.
4. I say that I have published several dozen articles on these subjects
in leading International and Indian scientific and technical journals,
as well as in the mass media magazines and Newspapers.”
(j) These witnesses are examined to suggest that:
(i) That the Electronic Voting Machines which are used in
United States are also capable of tampering.
(ii) Thatthese witnesses demanded public scrutiny and
open public testing of EVMs used in India for ensuring
transparency and fairness in the election and that these
facilities were denied and therefore, according to these
witnesses, the conduct of election was not above suspicion
(k) Thus, the entire case rests on the evidence of three witnesses
brought before the Court by the Petitioner as experts, to prove
the susceptibility of EVMs for their being tamper-prone;
(l) It reveals from what is quoted as to the educational background
and field in which these witnesses are working as noted in
their affidavits can be drawn as a common factor as fallows:
All these three witnesses are educated in the field of
engineering, computers and software.
They are concerned with fair election.
They claim knowledge of various languages of computer and
software.
Ravi Visvesvaraya Prasad and
Arun Mehta claim that they have independently developed
EVM Programme on personal computer and they have
themselves tested it and found that it was capable of being
tampered.
(m) After this evidence, the petitioner has closed the evidence.

17. The respondents preferred to rely upon documentary evidence
produced by them during cross-examination of petitioner and did
not lead any evidence in rebuttal. Thus, the case has proceeded on
the basis of whatever evidence has been brought forward by the
petitioner.
PETITION’S CLAIM FOR INSPECTION
18. After the evidence of respective parties was closed, the hearing
was adjourned from time to time for oral arguments, when the case
was fixed for oral arguments, petitioner filed Civil Application
No. 4517 of 2005 on 12th July, 2005 which is at Exh. 157. By
this application, petitioner has applied for inspection of Electronic
Voting Machines.
19. The prayer is based on averments contained in the application,
which read as follows:—
“2. It is humbly submitted that the Respondent no. 2/Returning
Officer has had the control over the machines which were used at
the elections in question. Those machines are still in the custody
of the Respondent no. 2. The said Respondent has strenuously
claimed before this Hon’ble Court that the machines were secured
all throughout and that they have hot been tampered with at all.
The Respondent no. 2 has further claimed that proper security
arrangements were in place all along and there was no scope
whatsoever for anybody to tamper with the said machines, directly
or indirectly.”
“3. In this backdrop it is humbly submitted that it was incumbent
upon the Respondent no. 2 to enter the witness box and prove all
these claims made by him in his written statement. However, the
respondent No. 2 did not enter the witness box at all and therefore
adverse inference needs to be drawn and it needs to beheld, that
the said claims made by the Respondent no. 2 are not proved at
all. The further necessary consequences will obviously have to
follow.”
20. The petitioner has stated that 25 per cent machines need to be
inspected.

21. This application has been opposed by the respondents on the ground
that by this application petitioner is making an effort of collecting
evidence and delaying the hearing of the Election Petition.
According to the respondents, there are no justifiable grounds,
whatsoever, for the inspection. According to the respondents, the
prayer for inspection is not genuine, sincere or bona fide.
22. For this purpose, learned Senior Advocate Shri Ghatate had filed
copies of orders passed by the Delhi High Court in Balraj Madhok’s
case where initially prayer for inspection was rejected and relied
upon reported judgment of Hon’ble Supreme Court of India in
that case, i.e., Balraj Madhok v. Shashi Bhushan ((1972) 2 SCC
616) : (AIR 1972 SC 2558), wherein Lordships of Supreme Court
allowed Balraj Madhdk’s prayer for inspection to limited extent.
23. The support from this judgment in order to seek a support for his
submissions as to the burden of proof and the circumstances in
which the inspection ought to be granted.
24. Petitioner’s allegation in Balraj Madhok case : ((1972) 2 SCC
616 : AIR 1972 SC 2558) (supra) was that the ballot papers
were chemically treated and in the course of time, automatically
the marking of votes done by the voters would disappear and
marking of votes, which was done prior by use of chemicals for
any particular candidate, would surface and appear and, thus, facts
to which petitioner could not have access could be discovered and
brought before the Court. Thus, device of inspection was needed
for discovering the evidence of which petitioner had no control
and probably the respondents had knowledge about these facts.
25. This Court finds that the petitioner has proceeded on the basis of a
plea that the EVMs were not properly prepared, mock polls were
not taken, periodic checking of votes was not done and rigging of
the machines was done.
26. In so far as preparation of EVMs and mock poll is concerned,
these are the matters to be verified from record and in relation to
this record, the petitioner does not raise any dispute. In so far as
periodic checking is concerned, it was a facility available and could
have been used by the Polling Agents as well as by the Returning

Officer. Any grievance is not made by the petitioner by stating that
any request for such trial checks was made, but was rejected.
27. Moreover, petitioner is, not seeking inspection of records in this
respect.
28. In the present case, as the petitioner and his witnesses have said
that if the machines are inspected, it would be possible for them to
find out the manner in which those could be tampered with. The
petitioner, however, has from the very beginning, proceeded on
the pre-conceived and pre-concluded conviction or belief that the
machines are capable of tampering and have been tampered.
29. It is, therefore, necessary, in the background of these submissions,
to see as to whether now really the petitioner needs inspection of
EVMs. This needs to be examined in the light of facts that one
EVM was brought before the Court, its seals were opened in
presence of petitioner’s expert witness. Dr. Limaye when he was in
the witness box and was under the cross-examination, had seen the
internal security arrangements and now by physical verification
or inspection of the machines externally, no material, whatsoever,
can be explored.)
30. It is seen that the prayer for inspection of EVMs was not made soon
after filing of the petition, or after receiving of Written Statement
or filing affidavits of Petitioner’s witnesses, nor was it done before
offering these witnesses for cross-examination. The procedure
now adopted could better have been resorted even before framing
of issues and at the most before affidavits of these witnesses were
filed.
31. This Court had heard learned Advocates of the parties on merits
of the petition as well by keeping the application undecided, by
leaving it open to the Court to decide this application any time
including in the midst, if need to do so could be perceived.
32. Moreover, the plea for inspection has come up after closing of
evidence and after petition was listed for arguments and on various
occasions prayer for adjournment for preparation for argument
was made and granted. This Court, therefore, finds that it is not

necessary to grant the said prayer and hearing of the petition needs
to be proceeded on the basis of assessment of evidence and effect
thereof in the light of oral submissions by the parties. Reasons due
to which this Court has reached this conclusion are recorded at
appropriate place being part and parcel of merit of the case.
33. Mr. M.N. Ghatate, Learned Senior Advocate, made it clear
that his client would not rely upon evidence of Dr. Limaye and
would restrict his reliance only on the testimonies of Shri Ravi
Visvesvaraya Prasad and Shri Arun Mehta.
34. What is seen as crux of contentions of Mr. Ghatate, could be
summarized as follows:—
(1) The law, as it exists, does not repose total confidence in the
election machinery. It shall be clear from the Representation
of Peoples Act, Rules and the Handbook recently framed for
directing operations of EVMs system, it involves, at every
stage, the candidates and their representatives. However, this
involvement is short in so far as the stage of testing of EVMs
prior to commencement of process of election is concerned
and thereby the candidates and members of public at large are
excluded from a guarantee to them that the EVMs are tamper-
proof.
(2) The purpose of involvement of candidates or their
representatives in the process of various stages of preparation of
testing of EVMs etc., stands defeated, if there is no meaningful
involvement of the candidates and their representatives.
(3) Whatever is the extremely limited transparency available in the
present system of use of EVMs, is destroyed, when meaningful
participation of the candidates or their representatives is
excluded.
(4) Failure of the Returning Officer in employing rigorous
measures of security of EVMs results in admitting the
possibility of EVMs being rendered available and susceptible
for tampering. In the result, the inherently required assurance
of fair elections is taken away.

(5) In the process of hearing of Election Petition, now it is a settled
law that a petitioner cannot prove all that he pleads. Whenever
entire information, details whereof which he is - supposed to
prove, is in control and possession of the election machinery,
the burden of proof of the election petitioner, in this situation,
is, therefore, extremely limited, which is of raising the
reasonable preponderance of proof existence of such facts and
the respondents, in that situation, have to disprove by bringing
facts before the Court, the existence whereof is suggested by
the evidence brought forward by the petitioner.
(6) In the present case, the Election Petitioner has shown that
he was excluded from the process of preparation of EVMs,
mock polls etc., and, therefore, the burden to prove that
this procedure was followed, essentially was shifted on the
Returning Officer, which has not been discharged by him, as
the respondents including the returned candidate, have chosen
to abstain from stepping into witness box and have failed to
bring evidence of whatever type.
(7) Admission of certified copies by the Election Petitioner
pertaining to various documents, which are either
the appointment of representatives, such as Election
Representative, Polling Agent etc. and admission of signatures
of many amongst those by the candidate on the memoranda
of mock poll and certain other election procedures does not
amount to petitioner’s admission of these facts. The admission
also does not constitute proof of facts of the evidence and
facts sought to be represented through the contents of these
documents. In this background, failure of the respondents
to prove those facts within their exclusive knowledge and
control renders the evidence of the petitioner uncontested and
ordinarily the petition must succeed on the point of his plea of
non-observance of mandatory, provisions of Rules and of law
on the part of Respondent No. 2, whether or not on the point
of the question as to whether due to this procedure, the result
of election was materially altered.

(8) The failure of respondents to step into witness box, renders
leaves petitioner’s evidence uncontroverted and in the result
adverse inference needs to be drawn.
Learned Senior Advocate Mr. M.N. Ghatate relied for this
proposition on following reported Judgments:—
A. R. Puthunainar v. P.H. Pandian [(1996) 3 SCC 624] : (AIR
1996 SC 1599)
B. Shashi Bhushan v. Balraj Madhok ((1972) 4 SCC 594 : (AIR
1972 M 1251).
C. Balraj Madhok v. Shashi Bhushan [(1972) 2 SCC 616] : (AIR
1972 SC 2558),
D. Punit Rai = ((2003) 8 SCC 204) : (AIR 2003 SC 4355).
E. Virendra Kumar Saklecha = ((1972) 1 SCC 826) : (AIR 1974
SC 1957).
F. Lachaman Uttamchan = AIR 1964 SC 40,
G Birad Mal Singhvi = 1988 Supp SCC 604 : (AIR 1988 SC
1796)
H. Dr. Wimal Mundada = (1996) 9 SCC 351 : (AIR 1995 SC
1836).
J. Suryakanta Mahadik = (1996) 1 SCC 384 : (1996 AIR SCW
171).
K. A. Yunus Kunju = (1984) 3 SCC 346,
L. Gajanan Bapat = (1995) 5 SCC 347 : (AIR 1995 SCW 2284).
M. R. Puthunanar = (1996) 3 SCC 624 : (AIR 1996 SC 1599).
N. Santosh Yadav = (2002) 1 SCC 160 : (AIR 2002 SC 241).
O. Raj Kumar = (2002) 4 SCC 631 : (AIR 2002 SC 1554).
P. R.V.E. Venkatachala Gounder = (2003) 8 SCC 752 : (AIR
2003 SC 4548).

(9) Whether or not, effective orders of setting aside the results
of election can be done by this Court, this Court would be
competent to issue general directions and guidelines to the
Election Commission to ensure that the present scenario of
want of transparency in the process of election is done away.
(10) The paper back-up of every vote cast by a voter needs to
be ordered which alone could be the evidence beyond-
destructibility with the ease with which the EVMs are capable,
as well further directions to involve the candidates and their
representatives right from the process of testing of EVMs
needs to be ordered. The source code and other information,
which is kept secret by the manufacturers of EVMs, need to
be made open, capable of public testing, in order to assure the
transparency of election process and that EVMs are proved to
be tamper-proof.
(11) According to Mr. Ghatate, it is now well established that in a
country like United States where Electronic Voting Machines
have been in use for more than a one-and-half decade, the
EVMs are found to be capable of tampering and are not
foolproof. He placed reliance on a book titled “Black Box
Voting - Ballot Tampering - 21st Century” by Bev Harris,
where the mind of American voter is expressed to crave for
an assurance in tamper-proof Electronic Voting Machines as a
device of saving democracy.
35. The learned Advocate Shri A.V. Gupta advanced his submissions
based on Notes of Arguments already filed. Points contained in his
Written Notes of Submissions, as well those orally advanced, are
summarized as follows:—
(a) The foundation of the Election Petition, the evidence that is
brought and oral submissions advanced are totally divergent
from one another.
(b) The allegation that EVMs were not preserved in “Electro-
magnetic Impact-safe strong rooms” is not proved.
(c) The allegation that strong rooms being unsafe and that were
not properly protected is not proved by evidence of either type

including by use of the photographs about unsafely guarded
strong rooms, which petitioner has claimed that he has those.
Thus, all these allegations are hot proved.
(d) Petitioner’s plea that EVMs are tampered is based on suspicion
and his feeling and perception, than on evidence.
(e) The claim of the petitioner that whenever he contested the
elections on a ticket of a recognized national party, he was
successful while he was a defector, he is defeated, is proved
on his own showing.
(f) Any preponderance of proof is not raised, nor is otherwise
available, where the petitioner could have shown that there
was an anti-incumbency wave against the respondent no. 1,
while there was a stronghold support in favour of the petitioner.
(g) None of the candidates set up by the petitioner’s Vidarbha
Rajya Party secured the minimum required votes to prevent
forfeiture of their Security Deposits.
(h) Petitioner did not have a complaint about rigging of votes
in other constituencies where his party had contested the
elections.
(i) Petitioner’s submission that burden of proof lies on the party
within whose knowledge special facts exist, is true, however,
for invoking or rousing of such situation, certain preliminary
compliances by minimal proof of facts is required to be done.
(j) The petitioner has, on the other hand, proved that the rigging
is based on suspicion. Statement before the Court in an echo
by all the witnesses of the petitioner that they are suspecting
rigging and are ‘seriously concerned about fairness of
election’, does not, in any manner, require the respondents to
disprove such suspicion by bringing positive evidence, which,
according to the petitioner, is within the knowledge of the
respondents.
(k) The suspicion need not be and cannot be disproved.
(l) Petitioner has failed to demonstrate and establish any of the
grounds provided under Section 100 of the Representation of
Peoples Act, 1951, to enable this Court exercise the jurisdiction
and power to set aside the election.
(m) In order to argue on strict proof of allegations contained in the
Election Petition, learned Advocate Shri Gupta placed reliance on
following Judgments:—
1. Gajanan Krisnaji Bapat v. Dattaji Raghobaji Meghe [(1995)
5 SCC 347] : (AIR 1995 SC 2248).
2. Harikrishna Lal v. Babu Lal Marandi [(2003) 8 SCC 613] :
(AIR 2004 SC 1067).
3. Jeet Mohinder Singh v. Harminder Singh Jassi [(1999) 9 SCC
386] : (AIR 2000 SC 256).
4. Narendra Singh v. Mala Ram [(1999) 8 SCC 198] : (AIR 1999
SC 3655).
5. Santosh Yadav v. Narender Singh [(2002) 1 SCC 160] : (AIR
2002 SC 241).
6. T.A. Ahammed Kabeer v. A.A. Azeez [(2003) 5 SCC 650 : (AIR
2003 SC 2271) at page 666].
7. Mahender Pratap v. Krishan Pal [(2003) 1 SCC 390] : (AIR
2003 SC 304).
8. Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204 :
(1992 AIR SCW 1480).
9. A.S. Mehta v. Vasumati (AIR 1969 Guj 48).
10. Forest Range Officer v. P. Mohammed Ali (1993 Supp (3) SCC
627 : AIR 1994 SC 120).
11. Bal Krishna Das v. Radha Devi (AIR 1989 All 133).
12. State v. Kanhu Charan Barik (1983 Cri LJ 133).
13. Sagar Ram v. Banarasi Das (AIR 1974 P&H 330).
36. According to Mr. Gupta, (the primary facts required for setting
aside of the declaration in relation to a returned candidate has to
be done only when the grounds on which I election can be set

aside, are complied with. Present is not a case where the petitioner
has pleaded any of the violations contemplated by Clauses (a) to
(c) of Section 100 of the Representation of Peoples Act. His case
also does not fall in Sub-clauses (i), (ii) and (iii) of Clause (d) of
Section 100(1). The petitioner is, thus, required to prove that either
of the provisions of Constitution of India, or Representation of
People Act, or Rules or Orders made under this Act are violated,
however, this not being done, the petition is liable to be dismissed.
37. Learned Asstt. Govt. Pleaders - Shri A.M. Deshpande and Mrs.
Bharti Dangre reiterated the submissions advanced by the Advocate
for the Respondent No. 1 and further added that the petitioner has
failed to prove that the election machinery had failed to comply
with any specific mandatory provisions of law. No specific acts by
any specific officer involved in the election are proved and that no
rigging being permitted and allowed has been proved. The Asstt.
Govt. Pleaders, therefore, prayed for a declaration that allegations
levelled against the Returning Officer are false and baseless and
prayed for costs.
38. Both the respondents stressed for special compensatory costs. Mr.
Gupta has also filed a Pursis about fees charged by him and has
quantified his demand of costs to a sum of Rs. 2,50,000-00.
ANALYSIS OF PLEADINGS & EVIDNCE
39. Oh discreet scrutiny of the Election Petition, it reveals that it does
not spell out violation of mandatory provisions of the Constitution
of India, or Representation of Peoples Act, or Rules made
thereunder.
40. The case, thus, falls on the last clause - “Non-compliance with
provisions of Rules or orders made under this Act.” The petitioner
has, thus, to demonstrate the specific rule.
41. The Election Petition also does not spell out any specific Rule.
However, the violation, that has been claimed, is of a Handbook
for Returning Officers where EVMs are used. The Manual consists
of a compilation, inter-alia, set of Rules, titled as “Conduct of
Elections (Amendment) Rules, 1992” by which, by introducing

new Chapter, namely Chapter-II, voting by electronic machines is
introduced.
42. These Rules prescribe the details relating to preparation of voting
machines, procedure on the polling stations, duties of Officers and
various related matters. In the entire process of arguments, though
reliance was placed on various clauses of the Manual, violation of
any particular rule contained in the Rules (Amended Rules, 1992),
was neither pleaded, nor is brought to the notice of the Court.
43. After perusal of evidence and analysis, consideration of evidence
and submissions, it is seen that the testimony of PW1 has, thus, a
status of hearsay.
44. Petitioner names his son as an Election Agent and attributes some
knowledge to him, who has not been examined. Petitioner also
claims that at the Polling Stations, mock polls were not conducted
and various procedures required to be followed in the Manual
were not violated. However, a single Polling Agent has not been
examined.
45. The responsibility to prove the factual aspect about lack of security
and failure to comply certain stages, did rest on the petitioner,
which was very limited. The evidence that is within the power and
control of the Election Petitioner has to be expected to come before
the Court by way of rebuttal. Had the evidence been brought by the
petitioner, for proof of primary facts to be proved by him, in that
eventuality alone, duty to prove otherwise would have got shifted
on the respondents.
46. It is in this situation, it will have to be seen as to what are the facts
which are proved from the evidence of the petitioner and thereby
the question will have to be decided as to whether and to what
extent, the burden did shift on the respondents.
47. As is seen from the submissions of learned Senior Advocate Shri
Ghatate, things, which were required to be proved and their extent,
can be discussed as follows:—
(a) About security of EVMs:

The allegation about EVMs being stored in most vulnerable
premises is required to be proved by oral evidence which would be
very limited and may suffice on its quality.
This could have been done by the petitioner by producing his
own evidence and such other documents, photographs etc., which
petitioner considers, are within his control and power. Petitioner
has preferred to rely upon his own testimony. He has preferred not
to examine even his Election Representative, who is his son.
In so far as the security is concerned, this witness has admitted that
the Deputy Commissioner of Police was In-charge of the security.
This witness does not depose absence of police guards or any
loopholes therein. Moreover, the allegation is that the insecurity
is owing to willful act on the part of the election machinery where
they wanted to help the returned candidate. This allegation is
suggestively, made in the Election Petition. However, no evidence,
in this regard, whatsoever, is brought before the Court.
Unless and until loopholes in the security are at least suggestively
proved, distinguishable from barely alleged, burden to disprove
whatever facts sought to be proved by the petitioner, the onus did
not shift on the respondents. Moreover, any such burden did never
primarily rest on the respondent no. 1. It could, at the most, be said
that had the facts been proved by the petitioner, the onus would
have shifted on the respondent no. 2, which situation is not created
by the petitioner.
[b] Failure to undertake certain important procedures, namely:—
[1] preparation of election machines in a proper manner;
[2] conducting mock poll;
[3] conduction trials of functioning of EVMs and intermittent
account of votes polled etc.
48. All these are the matters which were liable to be done in presence
of the representatives of the candidates. Petitioner admits that
he had registered his address with the Returning Officer and all
communications sent by the Returning Officer were received by
him, including the notice sent to him asking him to attend at the

time of preparation of EVMs for the purpose of election which stage
occurred after withdrawal of candidature and after finalization of
list of contesting candidates was complete.
49. Other steps, such as mock polls and accounting of votes, were
to be undertaken on the booths in presence of Polling Agents.
This was a matter, admittedly, beyond the knowledge of the
petitioner. Admittedly, petitioner had appointed large number of
Polling Agents. The allegation that procedure to be undertaken in
the booths was not followed, was a matter to be proved by the
petitioner by bringing evidence which was essentially in the nature
of oral evidence of polling agents to prove acts and omissions in
adopting a proper procedure. Petitioner has chosen not to bring
any evidence in this regard. Had this evidence been brought with
required magnitude, it would, have been a foundation to further
prove that these lapses have materially affected the results of
election. Petitioner has not even attempted to prove this later part.
50. The challenge, therefore, rests on three things, namely:—
[1] inherent susceptibility of machines, for rigging based on
petitioner’s belief that rigging was possible as well that it was
done in order to favour the respondent no. 1 due to connivance
by the election machinery;
[2] that in absence of transparency, the entire purity of election
process is vitiated;
[3] actual proof of facts that the EVMs were tampered, and;
[4] In case, some, amongst these points, are proved, whether
rebuttal is done, by the respondents.
51. The facts which the petitioner was required to prove are that any
act of the persons involved in the election machinery which has
rendered access to someone for and on behalf of the returned
candidate, i.e., Respondent No. 1. If this is done, it shall throw the
ball into court of Respondents and in this eventuality the Returning
Officer has to prove that either no such access was granted or no
rigging was allowed, or possible.

52. On perusal of evidence and upon examining entire spectrum that
could be portrayed therefrom, this Court reaches an irresistible
conclusion that the petitioner has barely suggested a remote
possibility of EVMs being tampered. This suggestion too is given
without exact knowledge of EVMs in use even by witnesses who
claim themselves to be experts.
53. It is a matter common knowledge to those who are not even expert
in the field of electronics that unscrupulous people dealing in
electronic gadget are capable of tampering large range of electronic
gadgets including those which are most sophisticated gadgets. The
source of tampering is always and an unscrupulous human. In the
present case, unless and until it is demonstrated even by suggestive
evidence that someone had access to the EVMs, the allegation of
possibility of tampering remains a possibility or imagination, but
not a fact.
54. These witnesses also admit that there exists a certifying agency,
namely Electronic Commission of India whose expert has certified
the EVMs to be tamper-proof.
55. In the aforesaid premises, it will have to be held that on facts that
the petitioner has not proved lack of security and consequently that
ingress permitted to somebody for and on behalf of respondent
no. 1 by the connivance or positive willingness of the Returning
Officer or any of his subordinates. Petitioner has not been able to
name anyone responsible for any such alleged ingress or access.
Allegation that the election machinery was sympathetic, or has
favoured the respondent no. 1 is easier to be made and the most
difficult to prove, nevertheless some suggestive evidence could
have been brought which has not been brought forward by the
petitioner.
56. The alleged acts of Returning Officer in failure to give the
inspection does not, in any manner, assist the petitioner’s plea of
bias or favouritism.
57. Next question is as to whether EVMs were susceptible for rigging
and whether rigging could have been done by using devices which
could be operated from a remote distance and without actual access
to either the strong room or to the EVMs.
58. Had it been a case that these two experts had transferred the
EVM function designed and demonstrated by them to any other
technocrat who was not a participant in the process of preparation
of the EVM gadgets 6n IBM compatible P.C., owned or used by
these witnesses and he would have broken the Codes, seals and
entered the machine and tampered the data, it would have been
probably a positive version about possibility of telling that EVMs
prepared by the experts, though guarded with utmost security
arrangements by the petitioner’s witnesses, were found vulnerable
for tampering, physically or even remotely.
59. The paradox of the situation its that these witnesses have themselves
designed the machine on their own P.C., they knew the method of
working and now they, certify themselves that the EVM designed
by them was demonstrated to be capable of tampering and rigging.
These witnesses also do not state that they have tried and found
that EVM prepared by them IBM compatible PC was tamperable
by any remote function by a stranger or even by themselves.
60. This evidence of petitioner’s witnesses, thus, does not inspire any
confidence to prove the fact that per se the EVMs are tamperable,
or on facts that those were tampered with.
61. Let it be as it is, yet one does not need expert evidence to consider
a fear and possibility that any electronic gadget is capable of
tampering, the question to be addressed is what are the reasons,
grounds and circumstances in which tampering has occurred?
62. Learned Senior Advocate Shri Ghatate has placed fervent reliance
on a book namely “Black Box Voting - Ballot Tampering - 21st
Century” by Bev Harris.
63. It is seen after reading of this book that there is a grave concern
expressed by the author thereof and many citizens loving the
republic that the strong democracy should not be rendered fragile
at the hands of EVMs, designed, supplied, operated and controlled
by persons who have got criminal record as noted in data collected
by them. The said author has recorded in Chapter- XI at page 199
of the said book as to the modalities which may be employed for
ensuring safeguards while using EVMs.

64. Even by undertaking paper trail, the author is not sure about
rigging, since ultimately, it depends on the mind and hands who
deal in the machines. It is, thus, the credibility of machine is totally
dependent on the integrity and credibility of persons handling it
and not barely due to the inherent vulnerability thereof.
65. It is further seen from this book that in United States, EVMs have
been criticized as unsafe, because their manufacturing is done by
private entrepreneurs whose credentials are not proved, or in few
known cases, facts about credentials of the persons handling these
machines are proved to be contrary, i.e., they have grave criminal
record, while entire information about their designs etc., is kept
secret qua - the public at large - these persons have full access to
entire election Mechanism.
66. Admittedly, in the present case, even the experts are admitting
that the software data or equipments used in the EVMs are
proprietary and are designed by Electronics Corporation of India
for the Election Commission and the manufacturers are under an
obligation not to reveal those to outsiders, nor on facts, have those
been so opened.
67. As can be seen from evidence of the witnesses brought by the
petitioner, i.e., Ravi Visvesvaraya Prasad and Arun Mehta are
concerned with fair elections. Both these witnesses have not stated
anything inside the EVMs.
68. These witnesses are common on the ground that these are
machines of proprietary nature, designed and manufactured at
the requisition of the Election Commission. These witnesses also
admit that hardware and software used in these machines are the
matters not known to the public at large, or even experts, including
these witnesses. These witnesses even admit that the information
or data used in these machines is not made open authorizedly or
even unauthorizedly, or in the pirated form,
69. These witnesses admit mat they had designed the module of
electronic voting machines and tried it on personal computer which
was IBM compatible and was done on Microsoft DOS platform.
These technocrats further admit that the EVM designed by them

was capable of tampering. These persons further answer that the
testing as to whether EVM devised by them was tamper-proof was
done by themselves and have expressed concern about fairness
of elections without adding specifically as to whether process of
election in the present Election petition was not tamper-proof.
70. Versions of these witnesses about tamperability and fairness are as
follows:—
A. In his cross-examination, PW 3 - Ravi Visvesvaraya Prasad
admitted the following marked portions:—
“Such type of tampering is possibly only if the persons knows
entire things and has free access to the machine.”
[quoted from Para 21 of the cross-examination].
“All that we have come to know from the source who want to
maintain anonymity that the entire EVM work is got done by
ECI and Bharat Electronic Ltd, Which is their proprietary and
SUIGENERES, which is built and manufactured by them and
no particulars are available to outsiders.”
COURT QUESTION:
Question : To your knowledge has the Data or technic brought
in use in EVMs used in India being subject to piracy?
“Answer : No, because nobody knows anything about the
contents of any type or particular thereof.”
B. In his cross-examination/PW 4 Aran Mehta admitted the
following:—
“While it is a fact that since I have no opportunity to personally
examine the circuits and components used in the EVM to pin
pointedly locate fallibility while like any other electronic
equipment.”
“In the absence of knowledge about the circuit diagrams and
list of parts used in it, it is not possible for me to claim this
knowledge.”

“I do not know if the EVMs used in the last general elections
of Lok Sabha were or were not candidates, location specific
since for making any specific statement one shall need
knowledge list of - parts and the internal circuit of the EVMs.
For the same reason I am also unable to state as to what type
of memory, namely “One Time Reas Only Memory” or “Flash
Memory” were used in these machines.”
[quoted from Para 8 of the cross-examination]. COURT
QUESTIONS:
“Question : Could you know from any source including other
than official as to on which platform and by use of which
software and what safety codes are employed by the ECI
while manufacturing the electronic voting machine brought in
use in India?
Answer : I am not aware as to what control chips or what
software platform was used for design of the EVM used in
the last election, subject, matter since the matter has been kept
secret.
Question : To your knowledge has the data technicalities
brought in use in EVMs use in India being subjected to piracy?
Answer : I am not aware of systematic study on the vulnerability
of Indian EVMs and failures.
Question : Is that you are more concerned with over all fairness
of electron, than much specific act of failure or tampering cone
in the present case?
Answer : It is true that I am seriously and more concerned with
the fairness of elections and tampering proof election process.
My efforts and apprehensions have come true when people
are complaining about the trust worthiness of the machine.
However, I am unaware of fillies and tampering if any done in
the present case.”
[quoted from the questions posed by Court during cross-
examination].
The versions of these witnesses speak volumes about their
concern about fairness in election than their knowledge.
71. The question of rigging is liable to be regarded as pleaded and
attempted to be proved by the petitioner based on suspicion.
Petitioner’s witnesses are concerned about fair elections. Their
grievance is that the process of manufacturing, functioning,
hardware and software used in the EVMs is not made available for
public scrutiny and, therefore, they entertain and harbour doubts
about unsafeness of the EVMs and apprehend that rigging was
possible. These witnesses do not aver in specific, a single statement
that in the constituency where the petitioner has lost in the present
election, rigging was done.
72. In the light of what reveals from the discussion above, this Court
has to record its conclusions based on what emerges as a dictum
of various precedents. Since many of the Judgments cited by both
the parties are common and are relied upon to support respective
contentions, it shall suffice if this Court considers as to what is the
summary of dictum.
73. It can be safely said that it is well settled by precedents that the
duty of a petitioner challenging the election of a returned candidate
is to prove his contentions and allegations to the hilt as if in a
criminal trial. Only exception to this rule would be that petitioner
shall have to prove that his claim is based on such facts which are
exclusively within the knowledge of the respondents and upon such
pleading and proof, the burden of proof of facts within the personal
knowledge of the respondents would be upon the respondents.
Save and except this situation, the petitioner’s burden is ultimate,
74. An Election Petition is a contest between the petitioner and the
constituency. He urges to unseat a candidate who has been chosen
by the constituency. When he means to unseat such candidate, he
has to prove that the candidate was seated on a foundation which
is deprecated by law.
75. In the present case, the entire crux of the matter, being as to
whether certain mandatory procedures were followed? and as to
whether rigging was done?, it would not be possible for this Court

to hold, answering both these questions favourably and it would
not be possible to answer the Election Petition favourable to the
petitioner.
76. Petitioner’s witnesses seem to be technocrats and educators.
From what they Have stated about themselves and what they have
Stated about EVMs suggests that they are computer professionals,
educators, technocrats and consultants. Status of these witnesses
as expert witnesses is not satisfactorily proved.
77. As is seen from what has emerged from the evidence, it is clear that
petitioner has failed to demonstrate violation of any mandatory
provisions contained in the Constitution or Act or Rules, whereof
the petition cannot be answered in affirmative.
78. This Court, therefore, answers all Issues in negative.
79. Learned Senior Advocate Shri Ghatate seriously urged for general
directions to the Election Commission. According to Mr. Ghatate, in
the Writ Petition, which was filed in the Supreme Court expressing
apprehensions about possibility of rigging of EVMs, the issue was
not dealt with by the Supreme Court, leaving it open to be dealt
with at appropriate case and stage and present is such appropriate
stage and case where this issue has to be dealt with and gone into.
80. While general powers of this Court sitting under Article 226 of
the Constitution of India are considered amply wide, question of
propriety needs to be addressed while considering Senior Advocate
Mr. Ghatate’s general prayer.
81. This Court, exercising the jurisdiction under Representation of
Peoples Act, is acting as a Tribunal and on facts, had it been a case
that on fact it was proved that the rigging was done, it would not
have been totally out of place and a matter of impropriety for this
Court to make certain observations and issue general guidelines.
This Court is in no way, dispassionate to the urge of the technocrats
as much ordinary citizens are, towards fair election. This urge,
however, cannot be considered to be a sufficient foundation for
issuing general directions. The mere possibility of tampering the
electronic devices, therefore, cannot be a ground for issuance of

general directions. This Court needs to deal with three more points
before parting with the judgment. They are, namely:—
[1] Application for inspection.
[2] Application of the Returning Officer for discharge.
[3] Costs.
82. And, these points are dealt with as herein below:
(a) For the discussion contained in Paragraphs 20 to 22 in this
Judgment, this Court holds that the prayer for inspection has
come as a chance recourse after closing of evidence. In the
light of the quality of evidence that has come before this Court
the prayer is based on ingenuity which rather would have been
genuine had it been made at appropriate stage. Petitioner has
filed this petition feeling disgruntled. Had he some doubts
about security since beginning, he could have been diligent
throughout. Petitioner has failed to bring the evidence which
he could have easily brought and summoned. This prayer for
inspection is, therefore, devoid of merits and is, therefore,
rejected.
(b) The petition contained allegations against the Returning
Officer that they have favoured the Respondent No. 1. the
returned candidate. On the facts of presence of such pleading
in the petition, this Court has felt that it would not be proper
to delete or discharge the Returning Officer from the array
of respondents. It is in this background in order to secure
participation of the Returning Officer and assistance from the
Government Pleader, this Court has considered to continue
the Returning Officer on the facts of the case.
(c) In so far as costs are concerned, it is the sweet choice of the
contesting parties to have assistance of highly paid lawyers
which fact itself is not decisive of the costs to be ordered.
Petitioner has examined himself and three witnesses.
Considering urge of these witnesses relating to the fairness of
elections and the time spent in their cross-examination each
which was not more than two days as far as Witness No. 2

is concerned and even one afternoon session each as far as
remaining two witnesses are concerned. Moreover, had the
request for costs come forward based on genuinely incurred
expenses, apart from the high mounted figure of fees, it would
have led the Court to find out ground level genuine expenses
and order payment of costs. This Court, therefore, holds that
the respondent no. 1 shall bear own costs.
(d) Moreover in a litigation of present nature which touches the
governance and if a Returning Officer is required to face a
trial, the very fact Would not entitle restitution of entire costs
incurred by such candidate.
This Court, however, is of the view that if at all costs are
required to be ordered those be ordered in favour of the
Returning Officer who was drawn into the controversy
without adequate sense of responsibility as to the allegations
to be levelled against him. Out of the deposited costs, a sum
of Rs. 25,000-00 [rupees twenty-five thousand only] be paid
as quantified costs to the State of Maharashtra, who was
required to defend the Election Petition for and on behalf of
the Returning Officer.
(e) Remaining amount in deposit be refunded to the petitioner.
83. In the result, this Court finds that there is no merit in the Election
Petition. The same deserves to be dismissed and is dismissed.
84. Costs shall be as observed in paragraph 55(c) above.

10. C.P. JOSHI vs. KALYAN SINGH CHOUHAN & ANR.
Election Petition No. 1/2009 (2009 SCC OnLine
CASE Raj 2971)
DETAILS 10.07.2009
Prakash Tatia, J
ISSUES Exclusion of votes allegedly cast by impersonation.
The Hon’ble Court deleted the Election Commission
of India from the array of the party becuase the
Election Commission of India contended that it has
been impleaded as party in the election petition to
facilitate the process of decoding of EVMs, then
DECISIONS factually it has no basis because of the reason that
the Election Commission of India neither itself can
decode the EVMs nor EVMs are required to be
decoded through the Election Commission of India
and the court’s direction is required to be given to
who can decode the EVMs.
SUMMARY
In this Election Petition, decoding of EVM was prayed for exclusion
of votes allegedly cast by impersonation. The Election Commission
of India contended that it has been impleaded as party in the election
petition to facilitate the process of decoding of EVMs, then factually
it has no basis because of the reason that the Election Commission of
India neither itself can decode the EVMs nor EVMs are required to
be decoded through the Election Commission of India and the court’s
direction is required to be given to who can decode the EVMs. Therefore,
the Election Commission of India has no power or jurisdiction to ask
the manufacturer of EVM, namely, M/s Bharat Electonics Limited,
Bangalore and M/s Electonic Corporation of India Ltd., Hyderabad to
detach the particulars of the votes polled on the EVM and to establish
as to which voter voted for whom.
The Hon’ble Court held that the election petition is required to be
decided expeditiously and impleading of Election Commission of India
in this case is found to be unnecessary and the presence of Election
Commission of India in this election petition cannot facilitate early

disposal of the election petition nor it can help for decoding of the
EVMs if needed.
In view of the above submissions, the Hon’ble Court directed that the
Election Commission be deleted from the array of parties.
ORDER
Prakash Tatia, J.
The petitioner has challenged the election of respondent no. 1 who was
declared elected from Nathdwara Legislative Assembly Constituency
No. 176 in Rajasthan for which the election was held on 4.12.2008
and the result was declared on 8.12.2008. In the process of election,
the Election Voting Machines (for short “EVM”) were used. The
petitioner alleged that respondent no. 1’s wife cast votes at two places
in the constituency where from respondent no. 1 was declared
elected and, therefore, both the cast votes were liable to be rejected
being void. It has been also alleged that votes of some of the genuine
voters have been cast by other persons by impersonation and, therefore,
it will be necessary to decode the EVM and votes which were cast
by impersonation are required to be excluded after decoding EVMs
and tendered ballot papers cast by the genuine voters be opened and
counted.
In the election petition, the petitioner in addition to respondent elected
candidate, impleaded Election Commission of India as party to whom
notice was sent by the order of this Court. Notice was also sent to
the elected candidate respondent no. 1. Respondent no. 2-Election
Commission of India submitted preliminary reply on 25.3.2009 and
raised objection that the Election Commission of India cannot be
implelded as party in the election petition in view of specific provisions
made under Section 82 of the Representation of People Act, 1951
(for short “the Act of 1951”). It is submitted that in view of the
judgment of Hon’ble Apex Court delivered in the case of Jyoti Basu
v. Debi Ghosal (1982 (1) SCC 691) and in the case of B. Sundra
Rami Reddy v. Election Commission (1991 Suppl. (2) SCC 624)
and further in view of the decision of the Hon’ble Apex Court delivered
in the case of Micheal Fernandeas v. C.K. Jaffar Sharif (AIR 2002
SC 1041), because of misjoinder of the party, the name of respondent
no. 2 be struck off from the array of the respondents. Respondent no.
2 on the same ground of impleading Election Commission of India as
party in the election petition, prayed that the election petition itself be

dismissed on account of impleading Election Commission of India as
party and impleading of Election Commission of India as party is
violative to Section 82 and 86(1) of the Act of 1951.
Rejoinder has been filed by the election petitioner and it has
been stated that sincethe petitioner has prayed for recounting of
votes by excluding votes which have been cast by respondent no.
1 wife at two polling stations and by excluding the votes cast
at polling station nos. 27, 61, 73, 117, 190 and 199, therefore, in
case this Court will hold decoding of the votes is required, then it
can be facilitated by the presence of Election Commission of India in
the election petition as party respondent. It is submitted that before
preferring the election petition, the petitioner sought information from
the Chief Electoral Officer, Rajasthan about decoding of votes cast
at a particular serial number on EVM vide letter dated 8.1.2009. The
Chief Electoral Officer, Rajasthan referred the matter to the Election
Commission of India and the Election Commission of India vide its
communication dated 27/28.1.2009 clarified that the manufacturer
of EVM namely, M/s Bharat Electonics Limited, Bangalore and M/s
Electonic Corporation of India Ltd., Hyderabad have developed a
device “Decoder” to detach the particulars of the votes polled on
the EVM and to establish as to which voter voted for whom. The
petitioner was informed that such facility cannot be obtained without
the orders of the competent court. The copy of the letter of the
Election Commission of India has been forwarded to the petitioner by
the Joint Chief Electoral Officer, Rajasthan, Jaipur vide letter dated
19.3.2009. The petitioner placed on record these two letters.
On merit, it has been submitted that Section 82 of the Act of 1951
only requires impleadment of certain persons as party but it
does not provide that persons other than those who have been
mentioned in Section 82 of the Act of 1951 shall not be impleaded
as party respondents. Therefore, impleadment of party to the election
petition who is not mentioned in Section 82 of the Act of 1951 cannot
be said to be in violation of Section 82 of the Act of 1951. It has been
stated that presence of Election Commission of India before this Court
in this election petition may facilitate disposal of the election petition
expeditiously in the spirit of Section 86(6) of the Act of
1951.Section 86(6) of the Act of 1951 provides early disposal of the
election petition. It has been stated that the judgments referred in the
application of respondent no. 2- Election Commission of India have

no application to the facts of this case because issue of decoding
of votes cast through EVM is involved and in one of the case, i.e.
T.A. Ahammed Kabeer v. A.A. Azeez ((2003) 5 SCC 650), the Election
Commission of India was duly represented through its counsel.
The learned counsel for the parties submitted oral arguments and
relied upon the judgments referred above and other judgments
also in support of their contentions, which in detail requires no
reference because of the plain and simple reason that even if best
of the best case of the petitioner is accepted that the other persons
other than the persons referred in Section 82 of the Act of 1951 can be
impleaded as party in the election petition filed under the provisions of
the Act of 1951 then according to the petitioner himself, the Election
Commission of India has been impleaded as party inthe election
petition to facilitate the process of decoding of EVMs, then factually
it has no basis because of the reason that the Election Commission of
India neither itself can decode the EVMs nor EVMs are required to be
decoded through the Election Commission of India and the court’s
direction is required to be given to whom, who can decode the EVMs.
The Election Commission of India already conveyed to the petitioner
that decoding cannot be obtained without orders of the competent
court. Therefore, the Election Commission of India also has no
power or jurisdiction to ask the manufacturer of EVM, namely, M/s
Bharat Electonics Limited, Bangalore and M/s Electonic Corporation
of India Ltd., Hyderabad to detach the particulars of the votes
polled on the EVM and to establish as to which voter voted for
whom. The election petition is required to be decided expeditiously
and impleading of Election Commission of India in this case, in fact,
is found to be unnecessary and the presence of Election Commission
of India in this election petition cannot facilitate early disposal of the
election petition nor it can help for decoding of the EVMs if needed.
Further more, in the case of Ahammed Kabeer v. A.A. Azeez ((2003)
5 SCC 650), the Election Commission of India was represented by
its counsel but the Election Commission was not admittedly party
respondent in the election petition.
Therefore, the preliminary objection raised by respondents no. 1
and 2 is allowed and the respondent no. 2-Election Commission of
India is deleted from the array of the party. Necessary correction
be made in the original petition today itself in court in red ink.

11. C. R. JAYA SUKIN vs. ELECTION COMMISSION OF INDIA
WP(C) No. 6635 of 2021, (Delhi High Court)
CASE 03.08.2021
DETAILS
Hon'ble the Chief Justice and Hon'ble Ms. Justice
Jyoti Singh
Stoppage on use of EVMs and use of ballot paper in
ISSUES
all forthcoming elections.
The Hon’ble Court dismissed the petition holding
that there was no material on record to evidence
that the EVMs in India are unreliable or suffer from
DECISIONS any drawback so as to discontinue their use in the
elections. The Court also imposed costs on the
petitioner.
SUMMARY
The Public Interest Litigation was filed seeking directions to the
Commission to stop the use of EVMs in all forthcoming elections and to
use ballot paper instead. EVMs have been approved by the Commission
after due deliberation and also have a sanction by the Parliament under
Section 61A of the Representation of the People Act, 1951.
The Hon’ble High Court dismissed the present petition and held that
the petition has been filed in a haste without any research and placing
concrete material on record in support of the relief sought and the petition
only contains baseless allegations wholly unsubstantiated. Petitioner
strenuously submitted that as per his research and knowledge, the
EVMs are not used in most parts of the world such as United Kingdom,
Netherland, Ireland, Italy and United States. The Court further held that
this contention, cannot further the case of the Petitioner in the absence
of placing any material on record to evidence that the EVMs in India
are unreliable or suffer from any drawback so as to discontinue their
use in the elections.
Accordingly, the Petition was dismissed with costs of Rs.10,000/- whilst
observation that petition is akin to a “publicity interest litigation” and is
based on hearsay and baseless allegations.

ORDER
Hon’ble the Chief Justice and Hon’ble Ms. Justice Jyoti Singh
1. This writ petition has been preferred with the following prayers:-
“In the facts and circumstances of the case, as mentioned above,
it is, therefore, most humbly prayed that this Hon’ble Court may
graciously be pleased to;-
A) Issue a writ of mandamus or any other appropriate Writ
or Order or Direction or any suggestion or observation or
particularly the nature of Writ, by giving direction to the
Respondents No.1 to stop the use of Electronic Voting Machine
(EVM) and use ballot paper in any forthcoming elections.
B) Pass any other appropriate relief which may deem fit in the
facts and circumstances of the case.”
2. We have heard the Petitioner, who appears in person, at length.
3. Looking to the facts and circumstances of the case, we are of the
view that the Petitioner has not been able to highlight any public
interest in the present writ petition. From the arguments canvassed
by the Petitioner as well as the pleadings, it is evident that the
Petitioner has been unable to place any material on record detailing
the working of the Electronic Voting Machine (EVM) and/or the
alleged drawbacks. The petition has been filed merely on the basis
of some news items without any further research on the issue.
Nothing concrete has been pointed out to support the allegation
that the EVMs can be manipulated.
4. Petitioner strenuously argues that he has made substantial research
before filing the Petition and in this context draws the attention
of the Court to four annexures (Annexures P-1, P2, P-3 and P-4)
appended to the writ petition. We have carefully perused the
said Annexures. Annexure P-1 is a news reporting by BBC on
25.01.2019 as well as by “The Quint” on 31.05.2019. Annexures
P-2 is the memo of writ petition preferred by the Petitioner before
the Hon’ble Supreme Court and Annexure P-3 is the order dated
06.01.2021 passed by the Hon’ble Supreme Court in the said writ
petition, granting permission to the Petitioner to withdraw the

writ petition with liberty to approach the appropriate High Court.
Annexure P-4 is a copy of the representation dated 08.01.2021
sent by the Petitioner to the Election Commission of India. It is
not understood how any of these documents aid the Petitioner
in furthering his case that EVMs should not be used during the
election process and only ballot papers should be the mode of
voting.
5. Per contra, learned counsel appearing on behalf of the Election
Commission of India, on advance copy of the writ petition, submits
that the EVMs have been approved by the Election Commission
of India after due deliberation and also have a sanction by the
Parliament under Section 61A of the Representation of the People
Act, 1951.
6. We find that the petition has been filed in a haste without any
research and placing concrete material on record in support of the
relief sought and the petition only contains baseless allegations
wholly unsubstantiated. Petitioner strenuously submitted that as per
his research and knowledge, the EVMs are not used in most parts
of the world such as United Kingdom, Netherland, Ireland, Italy
and United States. This contention, according to us, cannot further
the case of the Petitioner in the absence of placing any material on
record to evidence that the EVMs in India are unreliable or suffer
from any drawback so as to discontinue their use in the elections.
7. In view of the aforesaid, we see no reason to entertain this writ
petition. The same is accordingly dismissed along with the
pending application, with costs of Rs.10,000/-, to be deposited by
the Petitioner with the Delhi State Legal Services Authority within
four weeks from today. The aforesaid amount shall be utilized for
the programme ‘Access to Justice’.
8. Liberty is, however, granted to the Petitioner to approach this Court
in case, after a thorough research, he is in a position to substantiate
the allegations with necessary material and documents.
9. A copy of this order be sent forthwith to the Member Secretary,
Delhi State Legal Services Authority, Patiala House Courts, New
Delhi.

12. C.R. JAYA SUKIN vs. ELECTION COMMISSION OF INDIA
Special Leave Petition (Civil) 13278/ 2021
CASE
05.09.2022
DETAILS
Hon'ble Dr. Justice D.Y. Chandrachud and Hon'ble
Ms. Justice Hima Kohli
Stoppage on use of EVMs and use of ballot paper in
ISSUES
all forthcoming elections.
The Hon’ble Court refused to interfere with the order
of Hon’ble Delhi High Court dated 03.08.2021 in
WP(C) No. 6635 of 2001 whereby the Court had
DECISIONS rejected the prayer of the petitioner to conduct all
forthcoming elections with ballot paper.
SUMMARY
The SLP arose out of the decision dated August 03, 2021 passed by
the Hon’ble High Court of Delhi in C.R. Jaya Sukin v. Election
Commission of India & Ors., Writ Petition 6635/ 2021. Before the
Hon’ble High Court, a Public Interest Litigation was filed seeking
inter-alia the following prayer:
“Issue a writ of mandamus or any other appropriate Writ or Order
or Direction or any suggestion or observation or particularly the
nature of Writ, by giving direction to the Respondents No.1 to stop the
use of Electronic Voting Machine (EVM) and use ballot paper in any
forthcoming elections.”
The EVMs have been approved by the Election Commission of India
after due deliberation and also have a sanction by the Parliament under
Section 61A of the Representation of the People Act, 1951.
While dismissing the PIL, the Hon’ble High Court observed that
the Petitioner was unable to place any material on record to show
alleged drawbacks or that EVMs can be manipulated. Thus, the PIL
was dismissed with costs and the Hon’ble Supreme Court upheld the
decision of the Hon’ble Delhi High Court and dismissed the SLP.

ORDER
Hon’ble Dr. Justice D.Y. Chandrachud and Hon’ble Ms. Justice Hima
Kohli
1. We are not inclined to entertain the Special Leave Petition under
Article 136 of the Constitution.
2. The Special Leave Petition is accordingly dismissed.
3. Pending application, if any, stands disposed of.

13. ELECTION COMMISSION OF INDIA vs. CENTRAL
INFORMATION COMMISSION
Writ Petition (C) No. 4715 of 2008 [2009 SCC
CASE OnLine Del 3515]
DETAILS 04.11.2009
Sanjeev Khanna, J.
The respondent sought the entire EVM that is used by
the Election Commission for conducting elections
ISSUES and if such a request can come under the section 2(f)
of the RTI Act.
Application seeking an EVM is actually an application
for supply of a product and not any information. It is
DECISIONS beyond the scope of the RTI Act.
SUMMARY
The Election Commission of India had filed this Writ Petition against
the Order dated 06.06.2008 passed by the Central Information
Commission directing disclosure of information in EVMs such as date
and time, votes polled, vote tally and any other information which were
noted down from theEVM machines, including any spare machines that
were used, Form 17C etc.under the Right to Information Act, 2005.
The Hon’ble Court held that the right to information is an important
right. At the same time, maintaining secrecy and confidentiality of the
ballot papers, etc. is also an equally valuable right. It was observed
that the enactment of RTI Act has not occasioned an absolute right to
citizens of India to ask for full details of electronic data relating to
ballot papers stored in the control unit of the EVMs.
It was held that an application under the RTI may lie only with
respect to information which the public authority can access. No
confirmation of information can be made unless the data stored in
the control units is encoded and downloaded. This is prohibited
in the Election Rules. The Election Commission would be acting
contrary to the express provisions of the Election Rules. Insisting
for the information on the basis that it is mere “confirmation” and not
“information” would only amount to indirectly achieving something

which is directly prohibited.
Furthermore, it was held that taking recourse to the RTI Act, secrecy of
the data stored in the control unit of the EVMs will be obliterated and will
be open to verification and examination in spite of strict and stringent
provisions to the contrary in the Representation of the People Act and
the Rules. Once the
EVMs are sealed it is no longer open to the Election Commission to
de-seal them and re-examine the data stored in the control unit except
when the pre-conditions mentioned in the relevant rules are satisfied.
This requires anorder of a competent court/tribunal which is passed only
when the stringent conditions are satisfied.
The Hon’ble Court observed that the aggrieved party is not left
remediless and that in case of an election petition, the competent court
can always direct furnishing of information on being satisfied that the
parameters specified by the Supreme Court for furnishing of information
and re-examination of datastored in the EVMs are met.
ORDER
Sanjiv Khanna, J.
1. The Election Commission of India (Election Commission for short)
has filed the present Writ Petition against the Order dated 6th June,
2008 passed by the Central Information Commission (hereinafter
referred to as CIC, for short) directing disclosure of the following
information to Shri Neelesh Mishra- respondent no.2 herein under
the Right to Information Act, 2005 (hereinafter referred to as RTI
Act, for short) :-
“1. x x x x x
2. x x x x x
3. x x x x x
4. Confirmation of information on the EVM (date
and time, votes polled, vote tally and any other
information which were noted down from the
EVM machines, including any spare machines that

were used, to from 17 C math (sic) the information
presently available on the EVMs and that there has
been no deletion/alteration or addition of addition of
information by reason of any technical or other flaw
in the EVMs.
5. Confirmation that the date, time and/or any other
information or the lack thereof on spare EVMs
that were not used at all, continues to be consistent
with the information so recorded at the time of the
assembly election.
6. That if there is any discrepancy in information or
the lack thereof on the EVMs in question (including
spare EVMs) as of today in comparison to the
recorded information at the time of the Assembly
Election, then what is the cause of the same? Please
provide information as to the steps being taken by
the Election Commission of India to iron out any
technical glitches in the EVMs, if the same becomes
apparent by reason of the information sought by the
undersigned.”
2. It is the contention of the petitioner that the aforesaid information
cannot be made available to respondent no. 2, as it is not held by
or under control of the Election Commission as per the provisions
of the Representation of Peoples’ Act, 1951 (hereinafter referred
to as REP Act, for short) and Conduct of Election Rules, 1961
(hereinafter referred to as Election Rules, for short). It is submitted
by the petitioner that there is no conflict between the provisions of
the REP Act, the Election Rules and the provisions of the RTI Act,
therefore, the CIC has erred in directing disclosure of information
sought by respondent no.2.
3. In 1989, the REP Act was amended to authorize use of Electronic
Voting Machines (hereinafter referred to as EVMs, for short) for
polling and counting of votes. In the year 1992, the Election Rules
were amended to incorporate provisions for EVMs.

4. Each EVM has a balloting unit and a control unit. Data of the votes
polled is stored in the control unit. After polls, the data stored in
the control unit is encoded for counting of votes which is done in
the presence of the candidates or their election/counting agents.
Thereafter, entries are made in Form nos.17C and 20 and the poll
result in form of a result-sheet is announced. After the counting
is over and the results are announced, the control units are sealed
following the procedure mentioned in Election Rule 57C which
reads as under:
“57C. Sealing of voting machines- (1) After the
result of voting recorded in a control unit has been
ascertained candidate-wise and entered in Part II of
Form 17C and Form 20 under Rule 56C, the returning
officer shall reseal the unit with his seal and the seals
of such of the candidates or their election agents
present who may desire to affix the seals thereon so
however that the result of voting recorded in the unit
is not obliterated and the unit retains the memory of
such result.
(2) The control unit so sealed shall be kept in specially
prepared boxes on which the returning officer shall record
the following particulars, namely:-
(b) the particulars of polling station or stations where the
control unit has been used;
(c) serial number of the control unit;
(e) date of counting;”
5. Maintenance of secrecy is enshrined and duly provided in Section
128 of the REP Act which reads as under:-
“128. Maintenance of secrecy of voting.- (1) Every
officer, clerk, agent or other person who performs,
any duty in connection with the recording or counting

of votes at an election shall maintain, and aid in
maintaining, the secrecy of the voting and shall not
(except for some purpose authorized by or under any
law) communicate to any person any information
calculated to violate such secrecy.
(2) Any person who contravenes the provisions of
sub-section (1) shall be punishable with imprisonment
for a term which may extend to three months or with
fine or with both.”
6. Further, under the Election Rules, the production, inspection and
disposal of ballot papers/ EVMs is subject to and controlled by
Rules 92, 93 and 94.
7. Rule 92 provides for the custody of ballot boxes and papers relating
to election and reads as under:
“92. Custody of ballot boxes and papers relating
to election- (1) All ballot boxes used at an election
shall be kept in such custody as the chief election
officer may direct.
(1A) All voting machines used at an election shall
be kept in the custody of the concerned district
election officer.
(2) The district election officer shall keep in safe
custody-
(a) the packets of unused ballot papers with
counterfoils attached thereto;
(b) the packets of used ballot papers whether
valid tendered or rejected;
(c) the packets of the counterfoils of used ballot
papers;
(d) the packets of the marked copy of the
electoral roll or, as the case may be, the list
maintained under sub-section (1) or sub-
section (2) of Section 152;
(dd) the packets containing registers in Form-
17A;
(e) the packets of the declarations by electors
and the attestation of their signatures; and
(f) all other papers relating to the election.
Provided that in the case of an election in an assembly
constituency or a parliamentary constituency or
a council constituency which extends over more
districts than one, the said papers shall be kept in the
custody of such one of the district election officers
having jurisdiction over the constituency as the
Election Commission may direct;
Provided further that in the case of an election by
assembly members the said papers shall be kept in
the custody of the returning officer.
8. Rules 93 and 94 of the Election Rules read as under:
93. Production and inspection of election
papers-(1) While in the custody of the district
election officer, or, as the case may be, the returning
officer-
(a) the packets of unused ballot papers with
counterfoils attached thereto;
(b) the packets of used ballot papers whether valid
tendered or rejected;
(c) the packets of the counterfoils of used ballot
papers;
(d) the packets of the marked copy of the electoral
roll or, as the case may be, the list maintained under
sub-section (1) or sub- section (2) of Section 152;
and
(dd) the packets containing registers in Form-17A;

(e) the packets of the declarations by electors and the
attestation of their signatures;
shall not be opened and their contents shall not be
inspected by, or produced before, any person or
authority except under the order of a competent court.
(1A) The control units sealed under the provisions
of rule 57C and kept in the custody of the district
election officer shall not be opened and shall not
be inspected by, or produced before, any person or
authority except under the orders of a competent
court.
xxxxxx
(aa) the voting machines kept in the custody of the
district election officers under sub- rule(1A) of Rule
92 shall be retained intact for such period as the
Election Commission may direct and shall not be
used at any subsequent election without the previous
approval of the Election Commission;
(b) the other packets referred to in sub-rule (1) of
Rule 93 shall be retained for a period of one year and
shall thereafter be destroyed:
Provided that the packets containing the counterfoils
of used ballot papers shall not be destroyed
except with the previous approval of the Election
Commission;
(c) all other papers relating to the election shall be
retained for such period as the Election Commission
may direct.”
94: Disposal of election papers -Subject to any
direction to the contrary given by the Election
Commission or by a competent court or tribunal-

(a) the packets of unused ballot papers shall be
retained for a period of six months and shall
thereafter be destroyed in such manner as the Election
Commission may direct;]
(aa) the voting machines kept in the custody of the
district election officer under sub-rule (1A) of rule 92
shall be retained intact for such period as the Election
Commission may direct and shall not be used at any
subsequent election without the previous approval of
the Election Commission;
(b) the other packets referred to in sub-rule (1) of rule
93 shall be retained for a period of one year and shall
thereafter be destroyed:
provided that packets containing the counterfoils of
used ballot papers shall not be destroyed except with
the previous approval of the Election Commission;
(c) all other papers relating to the election shall be
retained for such period as the Election Commission
may direct.”
9. Rule 93 stipulates that ballot papers in physical form cannot be
inspected or produced before any person or authority except under
the order of a competent court. Rule 93(1A) which deals with data
stored in the control unit in electronic form, states that the control
unit cannot be opened, inspected or produced before any person
or authority except upon an order of a competent court. Use of the
word “shall” in said Rule; “shall…not opened except under the
orders of a Competent Court..”, makes the provision imperative or
obligatory.
10. The object and purpose behind these Rules is to maintain utmost
secrecy and confidentiality of the ballot papers and the control
unit which contains the information regarding the votes polled,
the votes secured by each candidate in a polling station etc. Such
information is kept secret to maintain confidentiality, and secure
information relating to voters, pattern of voting etc. and avoid

unnecessary petitions based on mere apprehensions and unfounded
grounds. Ensuring confidentiality and secrecy of the votes polled
is sacrosanct in elections by a secret ballot. This is necessary to
protect the electorate from any reprisal or adverse consequences
for voting in a particular manner or for a party/candidate. The
object is that the said material should not be accessible unless a
Competent Court for valid reasons directs disclosure or inspection.
11. The contention of the respondent no. 2 that the restriction contained
in Rule 93 is of limited nature and applies only when the election
papers are in custody of the District Election Officer (hereinafter
referred to as DEO, for short) and once it is outside his control,
the restriction or bar no longer operates is not correct. The Rules
do not authorize the Election Commission to access and disclose
information/data stored after expiry of any period. Prohibition
continues till destruction. Opening of seals and inspection require
order of a competent court.
12. Rule 94 of the Election Rules deals with the discretion of Election
Commission in the matters of retention and disposal of the election
papers. Rule 94 2(aa) which specifically deals with the EVMs kept
in the custody of the DEO, states that the Election Commission may
direct the period for which it may be retained and its subsequent
usage at any elections. It states that the Election Commission, the
Court and the Tribunal are at par to issue directions with regard to
such disposal. That is to say, subject to any directions by the Court
or Tribunal, the Election Commission may dispose the election
papers in the manner provided in the Rule therein, but where there
is a specific direction, the elections papers should be disposed
accordingly. The power vested on the Election Commission,
is only with respect to the retention and disposal of the election
papers and not to order access and examination.
13. Retention and disposal of the EVMs, an administrative act,
exercised by the Election Commission, is aimed at avoiding
technical delays and problems due to non-availability of the
EVMs; retaining sealed papers/units and maintain confidentiality
over a length of time.

Thus, even though, the Election Commission has the power under
Rule 94 (2)(aa) to retain or dispose of the voting machines, but that
by itself does not expand Election Commissions power and negate
the requirement of an order of a competent court under Rule 93.
14. In fact, on a conjoint reading of said Rules the two conclusions that
emerge are as follows:
a) Firstly, that the words „orders of a Competent
Court used in the rules 92 and 93 is to be strictly
construed and in the absence of any apparent
ambiguity, no more should be imputed that what is
expressly provided for. Order of the competent court
is mandatory.
b) Secondly, that even after the expiry of the period
provided in the Rule or by an express direction of the
Election Commission, the specified information, data
or ballot papers cannot be disclosed without express
order from a competent court. Election Commission
does not have power and authority to direct de-
sealing for examination or verification of data. This
power is solely vested on the Competent Court.
15. The Supreme Court has interpreted Rule 93 in various cases. In
Ram Sewak Yadav vs. Hussain K. Kidwai, (1964) 6 SCR 238, it
was observed that ballot papers may be inspected only under an
order of a competent court/tribunal, but other documents are open
for public inspection subject to certain conditions. An order for
inspection should not be granted as a matter of course, on mere
allegations and vague pleas made in the petition. In Bhabhi vs.
Sheo Govind and others (1976) 1 SCC 687, after considering
earlier judgments, the Supreme Court observed that inspection of
the ballot papers cannot be allowed in order to indulge in a roving
inquiry or in order to fish out materials for declaring elections to
be bad. The primary aim of the courts is to do justice to the parties
balancing the respective rights and interest and accordingly it was
held that the following conditions are imperative before inspection
of ballot papers can be allowed. It was held :

“15. Thus on a close and careful consideration of
the various authorities of this Court from time to
time it is manifest that the following conditions are
imperative before a court can grant inspection, or for
that matter sample inspection, of the ballot papers:
(1) That it is important to maintain the secrecy of the
ballot which is sacrosanct and should not be allowed
to be violated on frivolous, vague and indefinite
allegations;
(2) That before inspection is allowed, the allegations
made against the elected candidate must be clear
and specific and must be supported by adequate
statements of material facts;
(3) The Court must be prima facie satisfied on the
materials produced before the Court regarding the
truth of the allegations made for a recount;
(4) That the Court must come to the conclusion that
in order to grant prayer for inspection it is necessary
and imperative to do full justice between the parties;
(5) That the discretion conferred on the Court should
not be exercised in such a way so as to enable the
applicant to indulge in a roving enquiry with a view
to fish materials for declaring the election to be void;
and
(6) That on the special facts of a given case sample
inspection may be ordered to lead further assurance
to the prima facie satisfaction of the Court regarding
the truth of the allegations made for a recount, and
not for the purpose of fishing out materials.
If all these circumstances enter into the mind of the
Judge and he is satisfied that these conditions are
fulfilled in a given case, the exercise of the discretion
would undoubtedly be proper.”

16. Underlying principle behind the aforesaid judgment is to protect
secrecy and confidentiality of ballots, unless there are compelling
and justiciable reasons why in a particular case inspection of ballot
papers should be allowed and this requires an order of a competent
court/tribunal. Thus, vague or indefinite material even if involving
bold and serious allegations, cannot be a ground to overlook
principles of secrecy and confidentiality attached to ballot papers.
The aforesaid principle was again reiterated in V.S. Achutanandan
versus P.G. Francis and another (2001) 3 SCC 81 wherein it was
emphasized that it is for the applicant to prima facie establish
existence of grounds justifying examination of the ballot papers.
The following principles were enunciated by the Supreme Court:-
1. The secrecy of the ballot is sacrosanct and shall
not be permitted to be violated lightly and merely
for asking or on vague and indefinit allegations or
averments of general nature. At the same time purity
of election process has to be preserved and therefore
inspection and recount shall be permitted but only on
a case being properly made out in that regard.
2. A petitioner seeking inspection and recount of
ballot-papers must contain averments which are
adequate, clear and specific making out a case of
improper acceptance or rejection of votes or non-
compliance with statutory provisions in counting.
Vague or general allegations that valid votes were
improperly rejected, or invalid votes were improperly
accepted would not serve the purpose.
3. The scheme of the rules prescribed in Part V of
the Conduct of Election Rules, 1961 emphasises the
point that the election petitioner who is a defeated
candidate has ample opportunity to examine the
voting papers before they are counted, and in case
the objections raised by him or his election agent
have been improperly overruled, he knows precisely
the nature of the objections raised by him and the

voting papers to which those objections related. It is
in the light of this background that Section 83(1) of
the Act has to be applied to the petitions made for
inspection of ballot boxes. Such an application must
contain a concise statement of the material facts.
4. The election petitioner must produce trustworthy
material in support of the allegations made for a re-
count enabling the court to record a satisfaction of a
prima facie case having been made out for grant of
the prayer. The court must come to the conclusion
that it was necessary and imperative to grant the
prayer for inspection to do full justice between the
parties so as to completely and effectually adjudicate
upon the dispute.
5. The power to direct inspection and re-count shall
not be exercised by the court to show indulgence to
a petitioner who was indulging in a roving enquiry
with a view to fish out material for declaring the
election to be void.
6. By mere production of the sealed boxes o ballot
papers or the documents forming part of record of
the election proceedings before the court the ballot
papers do not become a part of the court record and
they are not liable to be inspected unless the court
is satisfied in accordance with the principles stated
herein above to direct the inspection and recount.
7. In the peculiar facts of a given case the court may
exercise its power to permit a sample inspection to
lend further assurance to the prima facie satisfaction
of the court regarding the truth of the allegations
made in support of a prayer for re-count and not for
the purpose of fishing out materials.”
17. The aforesaid dictum will equally apply to the data and information
stored in the control unit in electronic form. Principles of secrecy

and confidentiality in both cases are identical and the ratio of the
aforesaid decisions equally applies.
18. The CIC has, however, relied upon Section 22 of the RTI Act to
hold that the REP Act and the Election Rules framed there under
have to give way to the over-riding provision and the non-obstante
clause in the RTI Act. Section 22 of the RTI Act reads as under:-
“22. Act to have overriding effect.-The provisions
of this Act shall have effect notwithstanding anything
inconsistent therewith contained in the Official
Secrets Act, 1923 (19 of 1923), and any other law for
the time being in force or in any instrument having
effect by virtue of any law other than this Act.”
19. REP Act is prior in point of time and in case of conflict with any
provision of the RTI Act, the latter Act will prevail. Further the
Rules framed under the REP Act are subordinate legislation and
in case of conflict between the provisions of the said Rules and
the RTI Act, the RTI Act will hold the field and has to be applied.
However, Section 22 of the RTI Act is triggered and is applicable if
there is a conflict between REP Act, the Election Rules and the RTI
Act. Albeit, where there is no conflict between the two statutory
enactments, Section 22 of the RTI Act is not applicable.
20. Section 2(f) and (j) of the RTI Act read as under:
“2(f). “information” means any material in any form,
including records, documents, memos, e-mails,
opinions, advices, press releases, circulars, orders,
logbooks, contracts, reports, papers, samples,
models, data material held in any electronic form
and information relating to any private body which
can be accessed by a public authority under any other
law for the time being in force;”
(j) “right to information” means the right to
information accessible under this Act which is held
by or under the control of any public authority and
includes the right to-

i) inspection of work, documents, records;
ii) taking notes, extracts, or certified copies of
documents or records;
iii) taking certified samples of material;
iv) obtaining information in the form of diskettes,
floppies, tapes, video cassettes or in any other
electronic mode or through printouts where such
information is stored in a computer or in any other
device;”
(emphasis supplied)
21. Section 2(f) of the RTI Act defines information as material in any
form accessible to a public authority under any other law i.e. an
enactment other than the RTI Act. Section 2(j) defines “right to
information” as “information accessible under the RTI Act which
is held by or under the control of the public authority”. The words
“information accessible under this Act” used in Section 2(j) can
cause ambiguity, if read in isolation. But on a harmonious reading
of the two definition clauses, the words “accessible under this
Act” have reference to Section 2(f) of the RTI Act otherwise the
two definition clauses will be mutually contradictory. The term
“Right to information” should be defined with reference to the
term “information”. The words “information accessible under this
Act” in Section 2(j) will mean information which is accessible
to a public authority and not information to which the public
authority is denied access. The “right to information” is subject
to the provisions and exemptions under the RTI Act and therefore
legislature has used the words “information accessible under this
Act” while defining “right to information” under Section 2(j).
22. The words “under the control of a public authority” as per their
natural meaning imply right and power of the public authority
to have access to the said information. Wharton’s Law Lexicon
(15th edition) defines the word “held” as “to have the ownership
or use of: keep as one’s own”. In Stroud’s Judicial Dictionary (4th

edition) it is observed that in legal parlance the word “held” means
to possess “legal title”.
The words “held by” in section 2(j) in the context of the RTI
Act will include not only information under the legal control of
the public authority but also all information which is otherwise
available with them. The public authority should have dominion
over the information or semblance of the right to the material
which constitutes information. The words “held by or under the
control of an public authority” are to be given a broad and wide
meaning but at the same time cannot include information to which
access is denied to a public authority itself under any other statutory
enactment. If there is a prohibition or bar under an enactment and
the public authority is disabled and prevented access to material
or information, the bar or prohibition is not undone or erased by
the RTI Act. Similarly, if there is a pre-condition before a public
authority can access information under any other enactment, the
said pre-condition should be satisfied. Right to information from a
public authority requires the public authority’s corresponding right
to access the said information. If there is an absolute or complete
bar on the public authority’s right to access information then
such information cannot be supplied and if there is a partial bar
or pre-condition, then the pre-condition should be satisfied before
information is furnished.
23. Thus, to word it differently, material/details to which the public
authority has access must be furnished, subject to the exemptions
under the RTI Act. However, if the public authority is denied
access or cannot have access to due to any limitation or restriction
under a statute, the material does not constitute „ information
under the RTI Act. Once statutory precondition for access by the
public authority to material/details is satisfied, the material/details
are “information” within the meaning of section 2(f) and a citizen
has a right to access “information”. The requirement is that the
public authority should have right to access information which is
“held by or under the control of any public authority”.
24. Any other interpretation of the foregoing sections of the RTI Act,
will lead to incongruous and unacceptable results, with a statutory

protection or prohibition in another enactment being nullified
by filing an application under the RTI Act. The legislature has
therefore in Section 2 (f) of the RTI Act, carefully used the words
“accessed by a public authority under any other law” before a
right to information accrues and information is “held by or under
the control of any public authority.” Where a public authority
is disabled till satisfaction of certain conditions or is prohibited
from having access to any information, the provisions of the third
enactment continue to apply and are not re-written or over-written
by the RTI Act.
25. When information is accessible to a public authority and is held
or under its control, then the information must be furnished to the
information seeker under the RTI Act, even if there are conditions
or prohibitions under another statute already in force or under the
Official Secrets Act that restricts or prohibits access to information
to public. Prohibition or conditions which prevent a citizen from
having access to information in view of the non obstante clause
in Section 22 of the RTI Act do not apply. Restriction on rights
of citizens is erased. However, when access to information by
a public authority itself is prohibited or is accessible subject to
conditions, then the prohibition is not obliterated and the pre-
conditions are not erased. Section 22 of the RTI Act is a key which
unlocks prohibitions/limitations in any prior enactment on right of
a citizen to access information accessible to a public authority. It
is not a key with the public authority that can be used to undo and
erase prohibitions/limitations on the right of public authority to
access information.
26. Interpreted in this manner there is no conflict between the provisions
of the RTI Act and the REP Act and the Election Rules framed
thereunder. As per the Election Rules, once the ballot papers or
control unit or EVMs is sealed, no one can have any access to the
same except on an order passed by a competent court. The Election
Commission does not have right to access the control unit of the
EVMs, to encode or download and re-examine the data without
permission of the competent court. There is a prohibition and/or
restriction on the right of the public authority to have access to the

information. It cannot be said that information in respect of queries
which can be answered only after examining and downloading the
data stored in the EVMs is “information accessible” as it is “held
by” or “under the control of” the Election Commission of India
unless the conditions specified in the Election Rules are satisfied.
Satisfaction of the conditions for encoding and downloading
of data stored in the control unit is mandatory before the said
information is said to be “held by” or “under the control” of the
Election Commission of India- the petitioner herein.
27. Right to information is an important right. At the same time,
maintaining secrecy and confidentiality of the ballot papers, etc.
is also an equally valuable right. The Supreme Court has balanced
the two rights when it dealt with the question of re-examination
and inspection of ballot papers in its decision in Bhabhi (supra),
V.S.Achuthanandan (supra) and Ram Sewak Yadav (supra).
Enactment of RTI Act has not undone or negated the aforesaid
principles and occasioned an absolute right to citizen of India
to ask for full details of electronic data relating to ballot papers
stored in the control unit of the EVMs. The Supreme Court in the
aforesaid decisions has interpreted the two conflicting rights both
of which are relevant to uphold democracy and Right to Freedom
of Speech and Expression.
28. The CIC in its impugned order has observed that since no public
disclosure of information held in confidence is contemplated there
is no necessity for verification by the Election Commission of third
parties to whom the information relates as per Section 11 (1) and
Section 11(2) of RTI. On this basis, CIC has directed the Election
Commission to confirm the information to respondent no. 2. Learned
counselfor the respondent no.2 had submitted that furnishing
information in respect of queries 4, 5 and 6 would not violate the
secrecy of an individual voter and details of voting pattern, etc.
cannot be inferred or gathered by supply of the said information. It
was pointed out that information is already available in the Form
no.17(C), Part I and II and the petitioner only seeks reaffirmation
or confirmation of the said information which is already available.
The argument though attractive, does not merit acceptance on

deeper consideration. In the absence of power vested with the
Election Commission, the difference if any, between confirmation
and Information itself fades away. It is clear that an application
under the RTI may lie only with respect to information which the
public authority can access. No confirmation of information can
be made unless the data stored in the control units is encoded and
downloaded. This is prohibited in the Election Rules. The Election
Commission would be acting contrary to the express provisions of
the Election Rules. Insisting for the information on the basis that
it is mere confirmation and not information would only amount
to indirectly achieving something which is directly prohibited. It
is well settled that if the law requires a particular act to be done
in a particular way and on fulfilling necessary pre-conditions, it
cannot be by-passed and violated by adopting an indirect method
to achieve the same purpose. A different interpretation will lead
to anomalous situation whereby taking recourse to the RTI Act,
secrecy of the data stored in the control unit of the EVMs will be
obliterated and will be open to verification and examination inspite
of strict and stringent provisions to the contrary in the REP Act and
the Rules. Further, the distinction drawn by the CIC and submitted
by the respondent no.2, viz. confidential data and confirmation
of data available by downloading data from the control unit, has
to be rejected as it in actual practice amounts to re-verification.
There is always a possibility that once the control unit of EVMs is
operationalised and the data is downloaded, the data with regard
to the ballot papers, voting pattern, etc. can also be examined
and downloaded. Once the EVMs are sealed it is no longer open
to the Election Commission to de-seal them and re-examine the
data stored in the control unit except when the pre-conditions
mentioned in the relevant rules are satisfied. This requires an
order of a competent court/tribunal which is passed only when the
stringent conditions laid down by the Supreme Court are satisfied.
29. On legal interpretation of Section 2(j) of the RTI Act, information
must be accessible and held by or under the control of any public
authority. If this plea of the respondent no.2 is to be accepted then
no distinction can be made between queries relating to information

accessible to a public authority and information which is not
accessible to a public authority or accessible on satisfaction of
pre- conditions. Further, all information including confidential
information relating to voting will be covered by the Right to
Information and over written in view of Section 22 of the RTI Act
(whether the said queries are exempted under Section 8(1) of the
RTI Act is a separate aspect). Lastly, it is not as if an aggrieved
party is remediless. In case a election petition has been filed, the
competent court can always direct furnishing of information on
being satisfied that the parameters specified by the Supreme Court
for furnishing of information and re- examination of data stored in
the EVMs are met.
30. In view of the aforesaid discussion, the Writ Petition is allowed
and the impugned Order dated 13th February, 2008 passed by CIC
is quashed and set aside.
In the facts and circumstances of the case, there will be no order as
to costs.

14. ELECTION COMMISSION OF INDIA vs. CENTRAL
INFORMATION COMMISSION
W.P.(C) 2679/2019 Delhi High Court
CASE
17.12.2019
DETAILS
Jayant Nath, J
ISSUES Supply of EVM by the way of RTI Application
The Hon’ble Court held that an RTI application
seeking an EVM is actually an application for supply
DECISIONS
of a product and not any information and, therefore,
is beyond the scope of the RTI Act
SUMMARY
In the instant petition, the respondent seeks the entire EVM that is used
by the petitioner for conducting elections under Section 2(f) of the RTI
Act.
The Hon’ble Court held that an EVM which is sought for by this RTI
application is not miniature/replica and hence cannot be said to be
a model. It cannot be termed to be information within the meaning
of Section 2(f) of the Act. Section 3 of the RTI Act gives a citizen
only the right to access information and not any other consequential
relief. Therefore, the aforesaid application seeking an EVM is actually
an application for supply of a product and not any information and is
beyond the scope of the RTI Act.
Accordingly, the Hon’ble Court held that an RTI application seeking
an EVM is actually an application for supply of a product and not any
information and, therefore, is beyond the scope of the RTI Act.
ORDER
Jayant Nath, J.
1. This writ petition is filed by the petitioner seeking to impugn the
order of the CIC dated 12.02.2019.
2. I may note that despite service, none is appearing for the
respondents.

3. On 20.04.2018, respondent No.2 moved an application under
the RTI Act, 2005 seeking information. The relevant information
sought was as follows:-
“Information Sought:
In the sequence of above provisions being the
model or material of electronic voting machines
under Section 6 (1) make available electronic voting
machine. For which, according to the rules, I am
ready to pay the actual cost of a EVM Machine. (See
Rule 4 (C)”
4. The CPIO on 02.05.2018 sent a communication to respondent
No.2 stating that an electronic voting machine cannot be given to
any person or a citizen because it is not covered under the term
“model” and “material”. The appellate authority also upheld the
aforesaid order.
5. The CIC overruled the order of the CPIO and the appellate authority
stating that Electronic Voting Machine (EVM) is an information
under the RTI Act. Relevant portion of the impugned order reads
as follows:
“7. Thus, the EVM which is available with the
respondent in a material form and also as samples,
as admitted by the respondent during the hearing, is
an information under the RTI Act. The Commission
also notes that as per the respondent, the software
installed in the EVM is an intellectual property of a
third party, the disclosure of which would harm the
competitive position of the third party concerned.
However, the respondent had denied the information
sought for, erroneously, under Section 6(1) of the
RTI Act. The Commission, therefore, directs the
respondent to provide an appropriate reply, as per
the provisions of the RTI Act, to the appellant within
four weeks from the date of receipt of a copy of this
order under intimation to the Commission.”
6. I have heard learned counsel for the petitioner.

7. Section 2(f) and 2(i) of the RTI Act read as follows:-
“2. Definitions:
xxx
(f) “information” means any material in any form, including
records, documents, memos, e-mails, opinions, advices, press
releases, circulars, orders, logbooks, contracts, reports, papers,
samples, models, data material held in any electronic form and
information relating to any private body which can be accessed by
a public authority under any other law for the time being in force;
xxx
(i): “Record” includes:
(a) Any document, manuscript and file;
(b) Any microfilm, microfiche and facsimile copy of a

document;
(c) Any reproduction of image or images embodied in such
microfilm (whether enlarged or not); and
(d) Any other material produced by a computer or any other
device.”
Section 3 of the Act reads as follows:-
“3. Right to Information- Subject to the provisions of this Act,
all Indian citizens shall have the Right to Information.”
8. Hence, from the above provisions it is manifest that all citizens
have been given a right to information. Information is defined
under Section 2(f) of the RTI Act. It is clear from a reading of
Section 2(f) that it deals with records, document, memo, etc. The
respondent seeks the entire EVM that is used by the petitioner for
conducting elections. Can such a request be termed to be a request
under section 2(f) of the Act?
9. In my opinion, the attempt of the petitioner to only rely upon the
word ‘models’ used in section 2(f) of the Act and to claim that
an EVM be provide to him is a misplaced act. A model usually

represents a three dimensional representation of a thing or
proposed structure, typically on a smaller scale than the original.
The shorter Oxford English Dictionary, 5th Edition defines the
model as follows:-
“Draw a plan of; produce a preliminary version of.
Also, give an outline or synopsis of.; Frame a model
or miniature replica of.”
10. Clearly, an EVM which is sought for by this RTI application is not
miniature/replica and hence cannot said to be a model. It cannot
be termed to be information within the meaning of Section 2(f) of
the Act.
11. Reference may be had to the judgment of the Supreme Court in the
case of Central Board of Secondary Education & Anr. v. Aditya
Bandhopadhyay & Ors., (2011) 8 SCC 497. The Court held as
follows:-
“13. Chapter II of the Act containing Sections 3 to
11 deals with the right to information and obligations
of public authorities. Section 3 provides for the
right to information and reads thus: “Subject to the
provisions of this Act, all citizens shall have the
right to information.” This section makes it clear that
the RTI Act gives a right to a citizen to only access
information, but not to seek any consequential relief
based on such information.”
12. It is manifest that Section 3 of the RTI Act gives a citizen only the
right to access information and not any other consequential relief.
13. Clearly, the aforesaid application seeking an EVM is actually an
application for supply of a product and not any information. It is
beyond the scope of the RTI Act. In my opinion, the impugned
order of CIC suffers from manifest error. The same is set aside.
14. The petition stands disposed of. Pending application also stands
disposed of.

15. GIRISH M. DAS vs. CHIEF ELECTION COMMISSIONER
& ORS.
Writ Petition (PIL) No. 164 of 2012 [2012 SCC
OnLine Guj 4916]
CASE
30.08.2012.
DETAILS
BHASKAR BHATTACHARYA, C.J AND J.B.
PARDIWALA, J.
To secure to the voters that the EVMs are kept hack-
proof, tamper-proof and irrigable and also for passing
ISSUES a direction upon the Election Commission not to hold
any election in the State of Gujarat or in Centre till
the voters are secured.
The Hon’ble Court held that the prayers made in this
writ-application are not tenable within the limited
scope of Article 226 of the Constitution of India and
DECISIONS
that the courts do not and cannot act as appellate
authorities examining the correctness, suitability and
appropriateness of a policy.
SUMMARY
The Petitioner filed this PIL seeking direction upon the Commission
to secure to the voters that the EVMs are kept hack-proof, tamper-
proof and irrigable and also for passing a direction upon the Election
Commission not to hold any election in the State of Gujarat or in
Centre till the voters are secured and the Court is assured with regard to
functioning of the EVMs. It was also prayed that Election Commission
be directed to introduce and install camera and clock in EVMs so that
any fraudulent voting can be ascertained and the offending voters as
well as the polling staff.
The Hon’ble Court observed that the writ petitioner has failed to point
out any action or inaction of any authority that has interfered, infringed
or impeded with any of the rights of the petitioner so as to interfere in
exercise of the writ jurisdiction under Article 226 of the Constitution of
India. It was held that merely because the election can be conducted in
a wiser way or a fairer way, for that reason, Court is not competent to
pass any directions upon the Election Commission.

It was held that the courts do not and cannot act as appellate authorities
examining the correctness, suitability and appropriateness of a policy.
Courts cannot lose sight of the fact that they are not advisers to the
other constitutional authorities on the matters of policy, which such
competent authorities are entitled to formulate. The Writ-Courts cannot
interfere with the policy either on the ground that it is erroneous or that
a better, fairer or wiser alternative policy is available.
Expressing the above view, the court held that the prayers made in this
writ-application were not tenable within the limited scope of Article
226 of the Constitution of India, and found no reason to entertain this
writ-application. The application was, therefore, summarily dismissed
on the above ground alone.
ORDER
Bhaskar Bhattacharya, C.J and J.B. Pardiwala, J.
1. By this Public Interest Litigation, the writ-petitioner, a practising
lawyer of this Court, has prayed for a direction upon the Election
Commission of India and the Chief Electoral Officer, Gandhinagar,
the respondents No.1 and 2 respectively, to secure to the voters
that the Electronic Voting Machines (EVM) are kept hack-proof,
tamper-proof and irrigable and also for passing a direction upon
the Election Commission of India not to hold any election in
the State of Gujarat or in Center till the voters are secured and
this Court is assured with regard to functioning of the EVMs as
mentioned in the body of the writ-petition. The writ-petitioner has
further prayed for a direction upon the Election Commission of
India to introduce and install camera and clock in EVMs so that
any fraudulent voting can be ascertained and the offending voters
as well as the polling staff, if any, can be booked.
2. The case made out by the writ-petitioner may be summed up thus:
2.1 By referring to the decision of the Supreme Court in the case of
Mohinder Singh vs. Chief Election Officer reported in AIR
1978 SC 851, the petitioner contends that the international
standard that an election has to attain, must be considered free
and fair and comprehends:

[i]. The individuals have to be accurately identified as eligible
voters who have not already voted;
[ii]. The voters are allowed only one anonymous ballot each,
which they can mark in privacy;
[iii]. The ballot box is secure, observed and, during the election,
only able to have votes added to it by voters and votes cannot
be removed;
[iv]. When the election ends, the ballot box is opened and counted
in the presence of observers from all competing parties,
without such process revealing how individual voters cast
their ballots;
[v]. If the results are in doubt, the ballots can be checked and
counted again by a different set of people/machines; and,
[vi]. As far as the individual voter is concerned, he must be
assured that the candidate he casts his vote for, actually gets
that vote.
2.2 According to the petitioner, the object of the present writ-
application is to fill up the void in the absence of notification
by the Election Commission permitting live video recording
by the contestant of the whole election process and for the
above purpose, this Court should exercise its jurisdiction
under Article 226 of the Constitution of India and direct the
Election Commission to permit live video recording to have
secured and assured result of the election which otherwise is
insecure and unsafe.
2.3 The petitioner further submits that when the Election
Commission has not, and even cannot, direct that no one will
come with Mobile Phone and no electronic devices will be
permitted to be used during election near or inside the polling
booths, then the only way out for the assured and secured result
of election through EVMs is to permit live videography of the
entire process of election and as such, Election Commission
should not oppose this PIL in the interest of the nation.

2.4 It is further submitted that even the EVMs can be tampered
with by electronic waives through some devices, and as such,
it is the duty of the Election Commission to introduce and
launch jammers surrounding the polling booths.
2.5 Various other suggestions have also been given in this Public
Interest Litigation.
3. The first and the foremost question that arises for determination in
this Public Interest Litigation is whether this Court should entertain
this writ-application for the purpose of passing various directions
upon the Election Commission as prayed for by the writ-petitioner.
4. After hearing Mr. Das, the petitioner-party-in-person and after going
through the provisions contained in Part XV of the Constitution of
India starting from Article 324 and ending with Article 329, we
find that specific provisions have been made in the Constitution
thereby vesting power upon the Election Commission relating to
conduct of election. Those provisions are quoted below:
“324. Superintendence, direction and control of elections to be
vested in an Election Commission.—
(1) The superintendence, direction and control of the preparation of
the electoral rolls for, and the conduct of, all elections to Parliament
and to the Legislature of every State and of elections to the offices
of President and Vice- President held under this Constitution shall
be vested in a Commission (referred to in this Constitution as the
Election Commission).
(2) The Election Commission shall consist of the Chief Election
Commissioner and such number of other Election Commissioners,
if any, as the President may from time to time fix and the
appointment of the Chief Election Commissioner and other
Election Commissioners shall, subject to the provisions of any law
made in that behalf by Parliament, be made by the President.
(3) When any other Election Commissioner is so appointed the
Chief Election Commissioner shall act as the Chairman of the

(4) Before each general election to the House of the People and
to the Legislative Assembly of each State, and before the first
general election and thereafter before each biennial election to
the Legislative Council of each State having such Council, the
President may also appoint after consultation with the Election
Commission such Regional Commissioners as he may consider
necessary to assist the Election Commission in the performance of
the functions conferred on the Commission by clause (1).
(5) Subject to the provisions of any law made by Parliament,
the conditions of service and tenure of office of the Election
Commissioners and the Regional Commissioners shall be such as
the President may by rule determine:
Provided that the Chief Election Commissioner shall not be
removed from his office except in like manner and on the like
grounds as a Judge of the Supreme Court and the conditions of
service of the Chief Election Commissioner shall not be varied to
his disadvantage after his appointment:
Provided further that any other Election Commissioner or a
Regional Commissioner shall not be removed from office except
on the recommendation of the Chief Election Commissioner.
(6) The President, or the Governor of a State, shall, when so
requested by the Election Commission, make available to the
Election Commission or to a Regional Commissioner such staff as
may be necessary for the discharge of the functions conferred on
the Election Commission by clause (1).
325. No person to be ineligible for inclusion in, or to claim to
be included in a special, electoral roll on grounds of religion,
race, caste or sex.—
There shall be one general electoral roll for every territorial
constituency for election to either House of Parliament or to the
House or either House of the Legislature of a State and no person
shall be ineligible for inclusion in any such roll or claim to be
included in any special electoral roll for any such constituency on
grounds only of religion, race, caste, sex or any of them.

326. Elections to the House of the People and to the Legislative
Assemblies of States to be on the basis of adult suffrage.—
The elections to the House of the People and to the Legislative
Assembly of every State shall be on the basis of adult suffrage;
that is to say, every person who is a citizen of India and who is not
less than eighteen years of age on such date as may be fixed in that
behalf by or under any law made by the appropriate Legislature
and is not otherwise disqualified under this Constitution or any
law made by the appropriate Legislature on the ground of non-
residence, unsoundness of mind, crime or corrupt or illegal
practice, shall be entitled to be registered as a voter at any such
election.
327. Power of Parliament to make provision with respect to
elections to Legislatures.—
Subject to the provisions of this Constitution, Parliament may
from time to time by law make provision with respect to all matters
relating to, or in connection with, elections to either House of
Parliament or to the House or either House of the Legislature of a
State including the preparation of electoral rolls, the delimitation
of constituencies and all other matters necessary for securing the
due constitution of such House or Houses.
328. Power of Legislature of a State to make provision with
respect to elections to such Legislature.—
Subject to the provisions of this Constitution and in so far as
provision in that behalf is not made by Parliament, the Legislature
of a State may from time to time by law make provision with respect
to all matters relating to, or in connection with, the elections to the
House or either House of the Legislature of the State including the
preparation of electoral rolls and all other matters necessary for
securing the due constitution of such House or Houses.
329. Bar to interference by courts in electoral matters.—
Notwithstanding anything in this Constitution—
(a) the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such constituencies,

made or purporting to be made under article 327 or article 328,
shall not be called in question in any court;
(b) no election to either House of Parliament or to the House or
either House of the Legislature of a State shall be called in question
except by an election petition presented to such authority and in
such manner as may be provided for by or under any law made by
the appropriate Legislature.”
5. It is now well-settled law that a person can approach a writ- court
for enforcement of any right conferred upon such citizen either by
Constitution or by any law, if the same is infringed or impeded
by the illegal action or inaction of a ‘State’ within the meaning of
Article 12 of the Constitution of India. This Court, sitting in writ-
jurisdiction, has no authority to advise a constitutional authority in
the matter of its duty cast upon it by the Constitution. If the writ-
petitioner has any suggestions, he can make such suggestions before
the Election Commission for consideration but by taking recourse
to Article 226 of the Constitution of India, a citizen cannot ask this
Court to pass directions upon a constitutional authority in a matter
over which it has the exclusive control. As pointed out in Article
329 (b) of the Constitution, election to either House of Parliament
or to the House or either House of the Legislature of a State can be
called into question only by way of an Election Petition presented
to such authority and in such manner as may be provided for by or
under any law made by the appropriate legislature.
6. We, therefore, find that in the case before us, the writ-petitioner
has failed to point out to us that any action or inaction of any
authority has interfered, infringed or impeded with any of the rights
of the petitioner so as to interfere in exercise of the writ-jurisdiction
of this Court under Article 226 of the Constitution of India. Merely
because the election can be conducted in a more wiser way or a
more fairer way, for that reason, this Court is not competent to pass
any directions upon the Election Commission. What the petitioner
wants in this writ-application is a direction upon a constitutional
authority, as according to the petitioner, the suggestions given
by him is more effective than the procedure adopted by the said

constitutional authority. Such course is not permissible within the
limited scope of Article 226 of the Constitution of India.
7. The scope of judicial review of a policy taken by a constitutional
authority is now well defined. The courts do not and cannot act
as appellate authorities examining the correctness, suitability and
appropriateness of a policy. The Courts cannot lose sight of the fact
that they are not advisers to the other constitutional authorities on
the matters of policy, which such competent authorities are entitled
to formulate. The scope of judicial review, when examining a
policy of the constitutional authority, is to scrutinize whether it
violates the fundamental rights of the citizens or is opposed to
the provisions of the Constitution of India or to any statutory
provisions or is manifestly arbitrary. The Writ-Courts cannot
interfere with the policy either on the ground that it is erroneous
or that a better, fairer or wiser alternative policy is available. The
legality of the policy and not wisdom or soundness of the policy is
the subject of judicial review [vide: Asif Hameed v. State of J&K,
reported in [1989] Supp. [2] SCC 364; Shri Sitaram Sugar Co.
Ltd., v. Union of India, reported in [1990] 3 SCC 223; Khoday
Distilleries v. State of Karnataka, reported in [1996] 10 SCC
304; Balko Employees Union v. Union of India, reported in
[2002] 2 SCC 333; State of Orissa v. Gopinath Dash, reported
in [2005] 13 SCC 495 and; Akhil Bharat Goseva Sangh v. State
of Andhra Pradesh, reported in [2006] 4 SCC 164.]
8. We, therefore, find that the prayers made in this writ-application
are not tenable within the limited scope of Article 226 of the
Constitution of India, and as such, we do not find any reason
to entertain this writ-application. The application is, therefore,
summarily dismissed on the above ground alone.

16. GOPAL SETH vs. ELECTION COMMISSION OF INDIA &
ORS.
W.P.A. No. 2607 of 2021 [(2021) SCC On Line
CASE CAL 303]
DETAILS 11.02.2021
Sabyasachi Bhattacharyya, J.
Discrepancy in vote counting; Efficiency and
ISSUES
integrity of EVM mechanism
The Hon’ble Court vide its order recorded
appreciation on the efficiency and integrity of EVM
DECISIONS mechanism and the same was upheld by Hon’ble
Supreme Court in order dated 10.04.2003 in Civil
Appeal Nos.3531-32 of 2002.
SUMMARY
This writ petition was filed seeking certain reforms to the present
system of conduct of election. The petitioner gave a representation to
the Chief Election Commissioner of India on November 15, 2020. The
suggestions were that after the process of casting of each individual
poll, the EVM 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. Also, while counting votes,
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.
The Hon’ble Court observed that since the Election Commission of
India 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.

Also, the Court held that the reply of the Election Commission to the
petitioner’s representation 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.
Expressing the above view, the Court held that there is no scope of
interference in the present writ petition and accordingly, WPA was
dismissed on contest without any order as to costs.
ORDER
Sabyasachi Bhattacharyya, J.
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.

17. HANS RAJ JAIN vs. ELECTION COMMISSION OF INDIA
Writ Petition (C) No. 12163 of 2019 [(2020) SCC
OnLine Del 149]
CASE
DETAILS 13.01.2020
D.N. Patel, C.J. and C. Hari Shankar, J.
PIL is filed praying for direction to make certain
ISSUES
changes in the EVM-VVPAT system of voting.
The Hon’ble Court disposed of the petition and
directed the Election Commission to consider
the grievances ventilated by the petitioner in the
DECISIONS
representations and decide those representations
in accordance with law, rules, regulations and
Government policies.
SUMMARY
This Petition was filed with prayers seeking directions to the Election
Commission to inspect record of the printed paper slips in the drop box
of the printer of VVPAT electronic device, one by one in respect of all
Parliamentary Constituencies alleging that there is a great discrepancy,
mismatching in EVM vote polled and counting vote in large scale in
the 2019 general elections.
Directions were also sought for usage of an appropriate prototype of the
VVPAT system in future, in which the printer is kept open. The printed
ballot will get cut and fall in a tray in front of the printer. The voter will
pick it up from the tray, verify it, fold it and bring it out of the voting
compartment and drop the same in a sealed box kept for this purpose in
front of the presiding officer before leaving the polling station.
The Petitioner also prayed that the Commission be directed to manually
count the printed paper slips in the drop box of the printer in respect of
any polling station or polling stations in all future Legislative Assembly
elections and/or Parliamentary elections where paper trail has been
introduced. The Election Commission denied the discrepancy alleged
by the Petitioner.

The Hon’ble Court directed the Election Commission to consider the
grievances ventilated by the petitioner especially in the representations
and decide those representations in accordance with law, rules,
regulations and Government policies applicable to the facts of the case
after keeping in mind the various decisions rendered by the Hon’ble
Supreme Court in this regard. In view of the above, the Writ Petition
was disposed off.
ORDER
D.N. Patel, C.J. and C. Hari Shankar, J.
1. This so called Public Interest Litigation has been preferred with
the following prayers :
“i) pass appropriate writ, order of directions directing the
respondent ECI for inspection of record of the printed paper
slips in the drop box of the printer of WPAT electronic device,
one by one in respect of all Parliamentary Constituencies
because there is a great discrepancy, mismatching in EVM
Vote polled and counting vote in large scale approx. 373
Sabha Constituencies 2019 elections.
ii) pass appropriate writ, order of directions directing the
respondent ECI to use appropriate prototype of VVPAT system
in future, in which the printer is kept open. The printed ballot
will get cut and fall in a tray in front of the printer. The voter
will pick it up from the tray, verify it fold it and bring it out of
voting compartment and drop the same in a sealed box kept
for this purpose in front of the presiding officer before leaving
the polling station.
iii) pass appropriate writ, order or direction directing the
respondent to manually count the printed paper slips in the
dropbox of the printer in respect of any polling station or
polling stations in all future Legislative Assembly elections
and/or Parliamentary elections were paper trail has been
introduced.
iv) pass any other of order (s) relief (s) which this Hon’ble Court
deems fit and proper be passed in favour of large scale of
people.”
2. Having heard the petitioner in person and learned counsel for the
respondent and looking to the facts and circumstances of the case,
it appears that the representations preferred by this petitioner which
are annexed as Annexures P-18, P-19 and P-20 in the memo of the
writ petition, are yet to be decided by the respondent as submitted
by petitioner in person.
3. In view of this submission, we hereby direct the respondent to
consider the grievances ventilated by the petitioner especially
in the representations as stated hereinabove and decide those
representations in accordance with law, rules, regulations and
Government policies applicable to the facts of the present case
after keeping in mind the various decisions rendered by Hon’ble
the Supreme Court of India in this regard.
4. With these observations, this writ petition is hereby disposed of.
CM No.49754/2019
1. In view of the disposal of the writ petition, this application stands
disposed of.

18. KHEMCHAND RAJARAM KOSHTI vs. ELECTION
COMMISSION OF INDIA & ANR.
Writ Petition (PIL) No. 36 of 2019 [MANU/
GJ/0381/2019]
CASE
DETAILS 19.03.2019
Anant S. Dave, ACJ and Biren Vaishnav, J
To use appropriate technology by which the VVPAT/
ISSUES paper trail can be preserved for at least a period of 02
years from the date of election.
The Hon’ble dismissed the W.P. and observed that the
DECISIONS petition was based on the unjustified apprehension of
a malfunction and tamperability of the EVMs.
SUMMARY
The Public Interest Litigation was filed seeking directions to use
appropriate technology by which the VVPAT/ paper trail can be
preserved for at least a period of 02 years from the date of election.
It was held that the EVMs are more auditable, accurate, and
transparent, reducing human error. It was observed that the
Commission conducted several field trials and involved all
stakeholders and political parties in evolving an error free EVM.
It was held that as evident from the extensive reproduction of the Status
Report on EVMs/VVPATs, the system of registering the vote of the voter
and reflection of his vote has become more transparent and apparent to
regain the voter’s confidence in the system. What essentially was the
object of introduction of the VVPATs was the restoring of the voter’s
confidence by the logging and registering of his vote correctly in the
EVM. The Voter Verifier Audit Trail as the name suggests assures the
voter of his vote having been correctly recorded in the system. Once the
object of the audit of the voter’s vote, from his perception is achieved,
who is the end consumer of the franchise, the mere apprehension voiced
by the candidate pales into insignificance. Expressing the above view,
the WP PIL was dismissed.

ORDER
Anant S. Dave, ACJ and Biren Vaishnav, J.
1. This Public Interest Litigation is filed by the petitioner - a practicing
advocate of this Court who has come forward with the following
prayers:
“12. In the facts and circumstances of the above case,
the petitioner prays that:-
a) Your Lordships may be pleased to allow the
present writ petition (P.I.L.);
b) pass appropriate Writ, Order or direction declaring
and/or striking down the Rule 56(D)(2) as ultra vires
Articles 14, 19 and 21 of the Constitution insofar
as it vests discretion in the Returning Officer to
reject an application made under Rule 56(D)(2) for
counting of the printed paper slips in the dropbox of
the Printer;
c) pass appropriate Writ, Order or direction directing
the Respondent No 1 to mandatorily count the printed
paper slips in the dropbox of the Printer in respect of
any polling station or polling stations in all future
Legislative Assembly elections and/or Parliamentary
elections were paper trail has been introduced;
d) pass appropriate Writ, Order or direction directing
Respondent No. 1 to use appropriate technology by
which the paper used in the Voter Verifiable Paper
Audit Trails (“VVPAT/paper trail”) can be preserved
for at least a period of 2 years from the date of
election;
e) pass suitable order/writ/direction and direct the
respondent No. 1 to procure the adequate quantities of
EVMs with VVPAT machines which are compatible
with each other since respondent no. 1 is unable to
procure the adequate quantity of VVPAT machines
as per their reply to the RTI application and as per

statement made by respondent no. 1 in Contempt
Petition (Civil) No. 303/2016 before the Hon’ble
Supreme Court;
2. The introductory facts, as narrated in the present petition, are as
under:
2.1 The Election Commission of India is an autonomous body
carrying out elections to the Lok Sabha, Rajya Sabha,
State Legislative Assemblies in India and the offices of the
President and Vice President of the country. Reliance is
placed on a circular dated 19.09.2017 by which the Election
Commission of India directed all the State Commissions to
ensure that Voter Verifiable Paper Audit Trails (hereinafter
referred to as ‘VVPATS’) shall be used with the Electronic
Voting Machines (hereinafter referred to as ‘EVMs’) in all
polling stations during the general and the bye elections to the
State Legislative Assemblies and the Lok Sabha. According
to the petitioner, suitable amendments have been made in The
Conduct Of Election Rules, 1961 (hereinafter referred to as
‘the Rules’) which were notified in the Gazette of India on
14.08.2013.
2.2 According to the petitioner, in an all party meeting on
04.10.2017, there was a broad consensus amongst all political
parties for the continued use of EVMs. It was also suggested in
the meeting that there should be a possibility of incorporating
VVPAT in this system. The Election Commission of India,
acting on the suggestion, referred the matter to the Technical
Expert Committee to examine the possibility of paper trail.
The Bharat Electronics Limited, Bengaluru and the Electronics
Corporation of India Ltd., Hyderabad were requested to
develop a prototype of the VVPAT system. The prototype was
created and was tested in the field in extreme environmental
conditions in order to get an effective assessment. According
to the petitioner, the trial was to take place in real election
like conditions. The field trials were conducted as averred in
paragraph no. 4.4 of the petition in Thiruvananthapuram, Delhi,
Jaisalmer, Cherapunji and Leh in the presence and participation

of all stake holders including general voters, National and
State political parties, Civil Society Organizations and the
media. Improvements were suggested in the VVPAT system
and after such necessary changes as suggested were carried
out, a second trial was conducted.
2.3 According to the petitioner, the Election Commission of India
vide a letter dated 28.03.2013, addressed to the Ministry
of Law and Justice requested that in order to ensure proper
execution of the VVPAT system, it was necessary to carry out
ground work to amend The Conduct of Election Rules, 1961.
Pursuant to such letter by the Election Commission of India,
the Ministry of Law And Justice notified the amendments to
the Rules in the official gazette on 14.08.2013 paving the way
for the use of VVPAT system with EVMs. The amended rule
66A which contains Rule 56(D)(2) is quoted by the petitioner
in the petition. The said rule reads as under:
“56(D)(2) On such application being made, the
returning officer shall, subject to such general
or special guidelines, as may be issued by the
Election Commission, decide the matter and
may allow the application in whole or in part
or may reject in whole, if it appears to him to
be frivolous or unreasonable.”
2.4 In the petition, reliance is placed on a decision of the Apex
Court in the case of Dr. Subramanian Swamy vs. Election
Commission of India reported in (2013) 10 SCC 500.
According to the petitioner, while holding that the VVPAT
system was an indispensable requirement to conduct free and
fair elections, the Apex Court while disposing of the petition
and directing phase-wise manner of introduction of VVPAT
system recognized that the VVPAT system was an indispensable
requirement for free and fair elections. According to the
petitioner, it was relevant to reproduce paragraph no. 29 of the
judgement in the case of Dr. Subramanian Swamy which the
petitioner has thought it fit to reproduce in the petition which
we also reproduce hereunder:

“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.”
2.5 The petitioner, thereafter, relies on a newspaper cutting which
appeared in ‘The Hindu’ on 16.08.2015 on the question of
vulnerability of use of thermal printing and thermal paper for
VVPAT. According to the petitioner, inspite of technological
advances, the legibility of the thermally printed paper text
lasts only for a period of 50 days which would result in a loss
of the records beyond a period of time and preservation of
votes would therefore become negatory.
2.6 According to the petitioner, for the first time VVPAT system
was introduced in the Kancheepuram Assembly Elections.
The issue of mismatch between votes entered in Form 17C
of the polling booth and the total number of votes recorded
in the control unit of that booth will be resolved only as a
result of the VVPAT system because when the control unit
showed that 554 votes had been recorded, when the VVPAT
was opened it was found that the number of votes entered
in form no. 17C was correct. According to the petitioner,
there are reports of malfunctioning of the EVMs which has
generally left the public questioning on the vulnerability
of EVMs and therefore it is in the background of such
vulnerability apprehensions, that the VVPAT was introduced
and the discretion vested in the Returning Officer in Rule
56(D)(2) in the Rules is under challenge. The petitioner in the
petition has extensively referred to various communications

exchanged between one Mr. Dinesh Chavda and the Election
Commission on the introduction of VVPAT system and has
submitted that the Election Commission has spent substantial
amount on the manufacture of VVPATs and therefore even
thereafter it was announced in the All Party Meeting that the
Election Commission would endeavour to see that there is
100% coverage of VVPATs in all future elections of the Lok
Sabha.
2.7 The petition further goes on to plead that the Commission
vide a letter dated 19.09.2017 directed all State Election
Commissions to ensure that VVPAT system shall be used
with the EVMs at all polling stations. The circular dated
19.09.2017 has been annexed by the petitioner at Annexure
‘L’ to the petition. The petitioner has voiced concern over the
shortfalls of the VVPAT systems.
2.8 In paragraph no. 4.0 of the petition, the petitioner has brought
to the notice of this Court that one Mr. Manubhai Chavda had
filed a writ petition no. 1012 of 2017 for challenging the vires
of Rule 56(D)(2) of the Rules. According to the learned counsel
as averred in the petition, the writ petition was dismissed on
the ground since the Code of Conduct was in operation, the
Apex Court did not examine the matter on the above grounds.
The order of the Apex Court dismissing the SLP is annexed to
the petition.
2.9 It may also be clarified at this stage that the learned counsel
who has appeared as party-in-person has even tendered a
copy of the petition which was filed before the Apex Court.
Perusal of the memo of the petition together with the prayers
so made would indicate that the prayers in the present petition
are identical to the prayers as set out in the writ petition before
the Apex Court. The prayers in the petition before the Apex
Court are set out as under:
a) pass appropriate Writ, Order or direction
declaring and/or striking down the Rule 56(D)
(2) as ultra vires Articles 14, 19 and 21 of the
Constitution insofar as it vests discretion in

the Returning Officer to reject an application
made under Rule 56(D)(2) for counting of
the printed paper slips in the dropbox of the
Printer;
b) pass appropriate Writ, Order or direction
directing the Respondent No 1 to mandatorily
count the printed paper slips in the dropbox
of the Printer in respect of any polling station
or polling stations in all future Legislative
Assembly elections and/or Parliamentary
elections were paper trail has been introduced;
c) pass appropriate Writ, Order or direction
directing Respondent No. 1 to use appropriate
technology by which the paper used in the
Voter Verifiable Paper Audit Trails (“VVPAT/
paper trail”) can be preserved for at least a
period of 2 years from the date of election;
2.10 The bone of contention, by filing the present Public Interest
Litigation by the petitioner, in short, is that Rule 56(D)
(2) of the Rules when read suggests that on an application
made to the Returning Officer, for counting/recounting of
votes, the Returning Officer will decide the matter or may
allow the application in whole or in part or may reject the
application in whole or in part if it appears to him to be
frivolous and unreasonable. In the grounds raised in the
petition, according to the petitioner, such refusal to count
the paper trail is bad and is violative of Articles 14, 19 and
21 of the Constitution of India.
3. According to Mr. Koshti, learned advocate/party-in-person,
introduction of the VVPAT system was found to be indispensable
requirement for free and fair elections and therefore the discretion
vested in the Returning Officer to reject an application for recount
is uncanalized and would be contrary to the imperative use of the
paper trail introduced in the EVM. Vesting such a discretion which
is unguided, in the submission of Mr. Koshti, would jeopardize the

transparency and will be dangerous for the confidence of the voter,
the sole purpose for which the VVPAT was introduced.
3.1 Mr. Koshti further submitted that the entire purpose of the
introduction of VVPAT was to ensure that the electoral verdict
is the true representation of the votes cast by the voter. In the
event of any discrepancy between the results shown by the
EVM and by the VVPAT, the VVPAT is supposed to be the
barometer of reflecting the choice and therefore the Returning
Officer should have a mandate to count the votes displayed
on the VVPAT in the event of a dispute. Refusal to count such
votes would amount to the destruction of the spirit behind
introduction of VVPATs.
3.2 Mr. Koshti relying on Sections 82 & 100 of The
Representation of People Act, 1951 (hereinafter referred to as
‘the Act’) submitted that discretion vested under Rule 56(D)
(2) cannot be challenged by a candidate or a voter as it is not
one of the grounds specified under Section 100 for filing an
Election Petition. The only remedy therefore of a recount can
be by issuing a mandate to the Returning Officer that in an
event of a dispute the Returning Officer ought to count the
votes. The discretion to consider the application and the words
‘may grant’ or ‘may not grant’ invests discretion vested in the
Returning Officer which is bound to be abused.
3.3 Mr. Koshti further submitted that the very vesting of the
discretion under Rule 56(D) with the Returning Officer
enabling him to reject an application on the alleged ground
that ‘it appears to him to be frivolous or unreasonable’ is a
complete affront to the rule of law, tainted with the vice of
arbitrariness under Article 14 and effaces the very purpose for
which the paper trail was introduced.
3.4 Mr. Koshti therefore relying extensively on the decision in
the case of Dr. Subramanian Swamy (supra), submitted
that since the Apex Court has held that the paper trail was
an indispensable requirement for the conduct of free and fair
elections, it was mandatory that the counting of VVPAT votes

ought to be carried out in every election where the VVPAT
is used and the discretion vested in the Returning Officer to
reject such applications was unconstitutional and contrary
to the pronouncement of the Apex Court in the case of Dr.
Subramanian Swamy (supra).
3.5 Mr. Koshti further submitted that the order of rejection of
a request for counting of VVPATs could not be challenged
in any Court and such stringent provisions of the Act when
read, even the election cannot be questioned on such rejection
and therefore if the results of the VVPATs do not match with
the EVM results, on a request being made, prima facie Rule
56(D)(2) of the Rules is a stumbling block to the goal of
transparency in the election process.
4. It is in the background of these pleadings that the petitioner has
approached this Court for the prayers reproduced hereinabove
and prayed that Rule 56(D)(2) of the Rules be held as ultra vires
Articles 14, 19 & 21 of the Constitution of India insofar as it vests
discretion in the Returning Office to reject an application made
under Rule 56(D)(2) for counting of printed paper slips in the drop
box of the printer.
5. Before we advert to the issue on hand, it will be relevant and in the
fitness of things to reproduce the relevant provisions of the Act,
1951 and the Rules.
80. Election petitions.—No election shall be called
in question except by an election petition presented
in accordance with the provisions of this Part.
80A. High Court to try election petitions.— (1) The
Court having jurisdiction to try an election petition
shall be the High Court.
(2) Such jurisdiction shall be exercised ordinarily
by a single Judge of the High Court and the Chief
Justice, shall, from time to time, assign one or more
Judges for that purpose: Provided that where the
High Court consists only of one Judge, he shall try
all election petitions presented to that Court.

(3) The High Court in its discretion may, in the
interests of justice or convenience, try an election
petition, wholly or partly, at a place other than the
place of seat of the High Court.]
81. Presentation of petitions.— (1) An election
petition calling in question any election may be
presented on one or more of the grounds specified in
[sub-section (1)] of section 100 and section 101 to the
[High Court] by any candidate at such election or any
elector [within forty-five days from, but not earlier
than the date of election of the returned candidate or
if there are more than one returned candidate at the
election and dates of their election are different, the
later of those two dates].
Explanation.—In this sub-section, “elector” means
a person who was entitled to vote at the election to
which the election petition relates, whether he has
voted at such election or not.
[(3) Every election petition shall be accompanied
by as many copies thereof as there are respondents
mentioned in the petition and every such copy shall
be attested by the petitioner under his own signature
to be a true copy of the petition.]
82. Parties to the petition.—A petitioner shall join
as respondents to his petition—
(a) where the petitioner, in addition to claiming
declaration that the election of all or any of the
returned candidates is void, claims a further
declaration that he himself or any other candidate
has been duly elected, all the contesting
candidates other than the petitioner, and where
no such further declaration is claimed, all the
returned candidates; and
(b) any other candidate against whom allegations
of any corrupt practice are made in the petition.]

83. Contents of petition.— (1) An election petition—
a) shall contain a concise statement of the
material facts on which the petitioner relies;
b) shall set forth full particulars of any corrupt
practice that the petitioner alleges including as
full a statement as possible of the names of the
parties alleged to have committed such corrupt
practice and the date and place of the commission
of each such practice; and
c) shall be signed by the petitioner and verified
in the manner laid down in the Code of Civil
Procedure, 1908 (5 of 1908) for the verification
of pleadings:
[Provided that where the petitioner alleges any corrupt
practice, the petition shall also be accompanied by
an affidavit in the prescribed form in support of the
allegation of such corrupt practice and the particulars
thereof.]
(2) Any schedule or annexure to the petition shall
also be signed by the petitioner and verified in the
same manner as the petition.]
86. Trial of election petitions.—(1) The High Court
shall dismiss an election petition which does not
comply with the provisions of section 81 or section
82 or section 117.
Explanation.—An order of the High Court dismissing
an election petition under this sub-section shall be
deemed to be an order made under clause (a) of
section 98.
(2) As soon as may be after an election petition has
been presented to the High Court, it shall be referred
to the Judge or one of the Judges who has or have
been assigned by the Chief Justice for the trial of

election petitions under sub-section (2) of section
80A.
(3) Where more election petitions than one are
presented to the High Court in respect of the same
election, all of them shall be referred for trial to the
same Judge who may, in his discretion, try them
separately or in one or more groups.
(4) Any candidate not already a respondent shall,
upon application made by him to the High Court
within fourteen days from the date of commencement
of the trial and subject to any order as to security
for costs which may be made by the High Court, be
entitled to be joined as a respondent.
(5) Explanation.—For the purposes of this sub-
section and of section 97, the trial of a petition shall
be deemed to commence on the date fixed for the
respondents to appear before the High Court and
answer the claim or claims made in the petition.
(6) The High Court may, upon such terms as to
costs and otherwise as it may deem fit, allow the
particulars of any corrupt practice alleged in the
petition to be amended or amplified in such manner
as may in its opinion be necessary for ensuring a fair
and effective trial of the petition, but shall not allow
any amendment of the petition which will have the
effect of introducing particulars of a corrupt practice
not previously alleged in the petition.
(7) The trial of an election petition shall, so far as is
practicable consistently with the interests of justice
in respect of the trial, be continued from day to day
until its conclusion, unless the High Court finds the
adjournment of the trial beyond the following day to
be necessary for reasons to be recorded.
(8) Every election petition shall be tried as
expeditiously as possible and endeavour shall be

made to conclude the trial within six months from
the date on which the election petition is presented to
the High Court for trial.]
100. Grounds for declaring election to be void.—
[(1) Subject to the provisions of sub-section (2)
if [the High Court] is of opinion—
(a) that on the date of his election a returned
candidate was not qualified, or was disqualified,
to be chosen to fill the seat under the Constitution
or this Act [***] [or the Government of Union
Territories Act, 1963 (20 of 1963)]; or
(b) that any corrupt practice has been committed
by a returned candidate or his election agent
or by any other person with the consent of a
returned candidate or his election agent; or
(c) that any nomination has been improperly
rejected; or
(d) that the result of the election, in so far as
it concerns a returned candidate, has been
materially affected—
(i) by the improper acceptance or any
nomination, or
(ii) by any corrupt practice committed in
the interests of the returned candidate [by
an agent other than his election agent], or
(iii) by the improper reception, refusal or
rejection of any vote or the reception of any
vote which is void, or
(iv) by any non-compliance with the
provisions of the Constitution or of this
Act or of any rules or orders made under
this Act, [the High Court] shall declare the
election of the returned candidate to be void.]

[(2)] If in the opinion of [the High Court], a returned
candidate has been guilty by an agent other than his
election agent, of any corrupt practice [***] but [the
High Court] is satisfied—
(a) that no such corrupt practice was committed
at the election by the candidate or his election
agent, and every such corrupt practice was
committed contrary to the orders, and [without
the consent], of the candidate or his election
agent; [***]
(c) that the candidate and his election agent
took all reasonable means for preventing the
commission of corrupt [***] practices at the
election; and
(c) that in all other respects the election was
free from any corrupt [***] practice on the part
of the candidate or any of his agents, then [the
High Court] may decide that the election of the
returned candidate is not void.”
PART V OF THE CONDUCT OF ELECTIONS RULES,
1961 COUNTING OF VOTES IN PARLIAMENTARY
AND ASSEMBLY CONSTITUENCIES
“50. Definitions.—In this Part, unless the context
otherwise requires,—
(a) “candidate” means a contesting candidate;
(b) “constituency” means a parliamentary or
assembly constituency;
(c) “counting agent” means a counting agent duly
appointed under section 47 and includes a candidate
and the election agent of a candidate when present at
the counting;
(d) “notified polling station” means a polling station
notified under rule 49;

(e) “polling station” means a polling station provided
under section 25 other than a notified polling station.
51. Time and place for counting of votes.—The
returning officer shall, at least one week before the
date, or the first of the dates, fixed for the poll, appoint
the place or places where the counting of votes will
be done and the date and time at which the counting
will commence and shall give notice of the same in
writing to each candidate or his election agent:
Provided that if for any reason the returning officer
finds it necessary so to do, he may alter the date, time
and place or places so fixed, or any of them, after
giving notice of the same in writing to each candidate
or his election agent.
52. Appointment of counting agents and revocation
of such appointments.—
(1) The number of counting agents that a candidate
may appoint under section 47 shall, subject to
such general or special direction as the Election
Commission may issue in this behalf, not exceed
sixteen at the place or each of the places, fixed for
counting under rule 51.
(2) Every such appointment shall be made in Form
18 in duplicate, one copy of which shall be forwarded
to the returning officer while the other copy shall
be made over to the counting agent for production
before the returning officer [not later than one hour
before the time fixed] for counting under rule 51.
(3) No counting agent shall be admitted into the place
fixed for counting unless he has delivered to the
returning officer the second copy of his appointment
under sub-rule (2) after duly completing and signing
the declaration contained therein and receiving from
the returning officer an authority for entry into the
place fixed for counting.

(4) The revocation of appointment of a counting agent
under sub-section (2) of section 48 shall be made in
Form 19 and lodged with the returning officer.
(5) In the event of any such revocation before
the commencement of the counting of votes, the
candidate or his election agent may make a fresh
appointment in accordance with sub-rule (2).
53. Admission to the place fixed for counting.—
(1) The returning officer shall exclude from the place
fixed for counting of votes all persons except—
(a) [such persons (to be known as counting
supervisors and counting assistants)] as he
may appoint to assist him in the counting;
(b) persons authorised by the Election
Commission;
(c) public servants on duty in connection with
the election; and
(d) candidates, their election agents and
counting agents.
(2) No person who has been employed by or on behalf
of, or has been otherwise working for, a candidate in
or about the election shall be appointed under clause
(a) of sub-rule (1).
(3) The returning officer shall decide which counting
agent or agents shall watch the counting at any
particular counting table or group of counting tables.
(4) Any person who during the counting of votes
misconducts himself or fails to obey the lawful
directions of the returning officer may be removed
from the place where the votes are being counted
by the returning officer or by any police officer on
duty or by any person authorised in this behalf by the
returning officer.

54. Maintenance of secrecy of voting. — The
returning officer shall, before he commences the
counting, read out the provisions of section 128 to
such persons as may be present.
54A. Counting of votes received by post.—
(1) The returning officer shall first deal with the postal
ballot papers in the manner hereinafter provided.
(2) No cover in Form 13C received by the returning
officer after the expiry of the time fixed in that behalf
shall be opened and no vote contained in any such
cover shall be counted.
(3) The other covers shall be opened one after
another and as each cover is opened, the returning
officer shall first scrutinise the declaration in Form
13A contained therein.
(4) If the said declaration is not found, or has not
been duly signed and attested, or is otherwise
substantially defective, or if the serial number of
the ballot paper as entered in it differs from the
serial number endorsed on the cover in Form 13B,
that cover shall not be opened, and after making
an appropriate endorsement thereon, the returning
officer shall reject the ballot paper therein contained.
(5) Each cover so endorsed and the declaration
received with it shall be replaced in the cover in Form
13C and all such covers in Form 13C shall be kept in
a separate packet which shall be sealed and on which
shall be recorded the name of the constituency, the
date of counting and a brief description of its content.
(6) The returning officer shall then place all the
declarations in Form 13A which he has found to be
in order in a separate packet which shall be sealed
before any cover in Form 13B is opened and on

which shall be recorded the particulars referred to in
sub-rule (5).
(7) The covers in Form 13B not already dealt with
under the foregoing provisions of this rule shall then
be opened one after another and the returning officer
shall scrutinise each ballot paper and decide the
validity of the vote recorded thereon.
(8) A postal ballot paper shall be rejected—
[(a) if it bears any mark (other than the mark
to record the vote) or writing by which the
elector can be identified; or] 3[(aa)] if no vote is
recorded thereon; or
(b) if notes are given on it in favour of more
candidates than one; or
(c) if it is a spurious ballot paper; or
(d) if it is so damaged or mutilated that its
identity as a genuine ballot paper cannot be
established; or
(e) if it is not returned in the cover sent along
with it to the elector by the returning officer.
(9) A vote recorded on a postal ballot paper shall be
rejected if the mark indicating the vote is placed on
the ballot paper in such manner as to make it doubtful
to which candidate the vote has been given.
(10) A vote recorded on a postal ballot paper shall
not be rejected merely on the ground that the mark
indicating the vote is indistinct or made more than
once, if the intention that the vote shall be for a
particular candidate clearly appears from the way the
paper is marked.
(11) The returning officer shall count all the valid
votes given by postal ballot in favour of each

candidates, record the total thereof in the result sheet
in Form 20 and announce the same.
(12) Thereafter, all the valid ballot papers and all
the rejected ballot papers shall be separately bundled
and kept together in a packet which shall be sealed
with the seals of the returning officer and of such
of the candidates, their election agents or counting
agents as may desire to affix their seals thereon and
on the packet so sealed shall be recorded the name
of the constituency, the date of counting and a brief
description of its contents.]
55. Scrutiny and opening of ballot boxes.—[(1)
The returning officer may have the ballot box or
boxes used at more than one polling station opened
and the ballot papers found in such box or boxes
counted simultaneously.]
[***]
(2) Before any ballot box is opened at a counting
table, the counting agents present at that table shall
be allowed to inspect the paper seal or such other
seal as might have been affixed thereon and to satisfy
themselves that it is intact.
(3) The returning officer shall satisfy himself that
none of the ballot boxes has in fact been tampered
with.
(4) If the returning officer is satisfied that any ballot
box has in fact been tampered with, he shall not
count the ballot papers contained in that box and
shall follow the procedure laid down in section 58 in
respect of that polling station.
56. [Counting of votes].—[(1) The ballot papers
taken out of each ballot box shall be arranged in
convenient bundles and scrutinized.]

(2) The returning officer shall reject a ballot paper—
(a) if it bears any mark or writing by which the
elector can be identified, or
[(b) if it bears no mark at all or, to indicate the
vote, it bears a mark elsewhere than on or near
the symbol of one of the candidates on the face
of the ballot paper or, it bears a mark made
otherwise than with the instrument supplied for
the purpose, or]
(c) if votes are given on it in favour of more than
one candidates, or
(d) if the mark indicating the vote thereon is
placed in such manner as to make it doubtful to
which candidate the vote has been given, or
(e) if it is a spurious ballot paper, or
(f) if it is so damaged or mutilated that its identity
as a genuine ballot paper cannot be established,
or
(g) if it bears a serial number, or is of a design,
different from the serial numbers, or, as the case
may be, design, of the ballot authorised for use
at the particular polling station, or
(h) if it does not bear 3[both the mark and the
signature] which it should have borne under the
provisions of sub-rule (l) of rule 38:
Provided that where the returning officer is satisfied
that any such defect as is mentioned in clause (g) or
clause (h) has been caused by any mistake or failure
on the part of a presiding officer or polling officer,
the ballot paper shall not be rejected merely on the
ground of such defect:
Provided further that a ballot paper shall not be
rejected merely on the ground that the mark indicating

the vote is indistinct or made more than once, if
the intention that the vote shall be for a particular
candidate clearly appears from the way the paper is
marked.
(3) Before rejecting any ballot paper under sub-rule (2),
the returning officer shall allow each counting agent
present a reasonable opportunity to inspect the ballot
paper but shall not allow him to handle it or any other
ballot paper.
(4) The returning officer shall endorse on every ballot
paper which he rejects the word “Rejected” and the
grounds of rejection in abbreviated form either in his
own hand or by means of a rubber stamp and shall
initial such endorsement.
(5) All ballot papers rejected under this rule shall be
bundled together.
(6) Every ballot paper which is not rejected under
this rule shall be counted as one valid vote:
Provided that no cover containing tendered ballot
papers shall be opened and no such paper shall be
counted.
(7) After the counting of all ballot papers contained in
all the ballot boxes used at a polling station has been
completed,—
(a) the counting supervisor shall fill in and sign Part
II—Result of Counting, in Form 16, which shall
also be signed by the returning officer; and
(b) the returning officer shall make the entries in a result
sheet in Form 20 and announce the particulars.]]
[***]
[57. Sealing of used ballot papers.—The valid
ballot papers of each candidate and the rejected ballot
papers shall thereafter be bundled separately and

the several bundles made up into a separate packet
which shall be sealed with the seals of the returning
officer and of such of the candidates, their election
agents or counting agents as may desire to affix their
seals thereon; and on the packets so sealed shall be
recorded the following particulars, namely:—
[(b) the particulars of the polling station where
the ballot papers have been used; and]
[(c) the date of counting.]
58. Counting of ballot papers transferred to bags
or covers under rule 44.—The provisions of rules
55, 56 and 57 shall apply so far as may be in relation
to counting of ballot papers and votes, if any, which
have been transferred from ballot boxes to cloth bags
or cloth-lined covers under sub-rule (5) of rule 44:
Provided that every reference in the said rules to a
ballot box shall be construed as a reference to a bag
or cover to which the contents of a ballot box have
been transferred.
59. Counting of votes at notified polling stations.—
In relation to the counting of ballot papers found in
ballot boxes used at notified polling stations, 1[rules
50 to 54] and, in lieu of rules 55, 56 and 57, the
following rules shall apply, namely:—
“55A. Scrutiny and opening of ballot boxes.—
(1) All ballot boxes used at a notified polling
station shall be opened at the same time but
every ballot box shall be dealt with in such
manner that its contents do not get mixed up
with the contents of any other ballot box.
(2) Subject to the provisions of sub-rule (1),
the returning officer may have the ballot

boxes used at more notified polling stations
than one opened and their contents counted
simultaneously.
(3) Before any ballot box is opened, the counting
agents present shall be allowed to inspect the
paper seal or any other seal that might have
been affixed thereon and to satisfy themselves
that it is intact.
(4) The returning officer shall satisfy himself
that none of the ballot boxes has in fact been
tampered with.
(5) If the returning officer is satisfied that any of
the ballot boxes has in fact been tampered with,
he shall not count the ballot papers contained
in any of the ballot boxes used at the polling
station at which such box was used and shall
proceed as laid down in section 58 in respect
of that polling station.
(6) After each ballot box is opened, the counting
agents present shall be allowed to inspect the
ballot box and satisfy themselves that it bears
the proper symbol inside and has been duly
marked in accordance with the provisions of
sub-rule (6) of rule 33 as modified by clause
(c) of sub-rule (3) of rule 49.
(7) If any question arises as to the candidates to
whom a particular ballot box was allotted at
the poll, the returning officer shall decide such
question by a reference to the symbol inside
the box:
Provided that—
(a) if there is no symbol inside the box, or
(b) if the symbol inside the box has been damaged
or mutilated beyond recognition, or

(c) if the same symbol is found on two or more
boxes used at the same polling station, the
returning officer, shall, wherever possible,
decide the question by reference to all relevant
circumstances including the distinguishing
marks on the ballot box, and where he does
not consider it possible to decide the question,
he shall immediately refer it to the Election
Commission for its decision
(56A) [Counting of votes].—(1) The ballot papers
taken out of each ballot box shall be arranged in
convenient bundles and scrutinised.
elector can be identified; or
(b) if it is a spurious ballot paper; or
(c) if it is so damaged or mutilated that its identity
as a genuine ballot paper cannot be established;
or
(d) if it bears a serial number, or is of a design,
different from the serial numbers or, as the case
may be, design, of the ballot papers authorised
for use at the particular polling station; or
(e) if it does not bear [both the mark and the
signature] which it should have borne under the
provisions of sub-rule (1) of rule 38:
that any such defect as is mentioned in clause (d) or
clause (e) has been caused by any mistake or failure
ground of such defect.

(3) Before rejecting any ballot paper under sub- rule
(2), the returning officer shall allow the counting
agents present a reasonable opportunity to
inspect the ballot paper but shall not allow them
to handle it or any other ballot paper.
(4) The returning officer shall record on every ballot
paper which he rejects the letter ‘R’ and the
grounds of rejection in abbreviated form either
in his own hand or by means of a rubber stamp.
(5) All ballot papers taken out of any one ballot box
and rejected under this rule shall be made into a
separate bundle.
Provided that no cover containing tendered
ballot papers shall be opened and no such ballot
paper shall be counted.]
(7) After the counting of all ballot papers contained
in all the ballot boxes used at a polling station
has been completed,—
(a) the counting supervisor shall fill in and sign Part
II—Result of Counting in Form 16 which shall
also be signed by the returning officer; and
(b) the returning officer shall make the entries in
a result sheet in Form 20 and announce the
particulars.
57A. Sealing of used ballot papers.—(1) The
valid ballot papers found in each ballot box, shall
thereafter be bundled together and kept along with
the bundle of rejected ballot papers, if any found in
that box in a separate packet which shall be sealed
with the seals of the returning officer and of such
of the candidates, their election agents or counting
agents as may desire to affix their seals thereon and

on the packet so sealed there shall be recorded the
following particulars, namely:—
(a) the name of the constituency,
(b) the particulars of the polling station where the
ballot papers have been used,
(c) the name of the candidate to whom the ballot
box was allotted, and
(d) the date of counting.
(2) The returning officer shall then place together all
the packets made up under sub-rule (1) in respect of
each candidate in a separate container which shall
be sealed with the seals of the returning officer and
of such of the candidates, their election agents or
their counting agents as may desire to affix their
seals thereon and on the container so sealed shall be
recorded the following particulars, namely:—
(a) the name of the constituency,
(b) the names of the candidates, and
(c) the date of counting.
59A. [Counting of votes in specified constituencies:
Where the Election Commission apprehends
intimidation and victimisation of electors in
any constituency and it is of the opinion that it is
absolutely necessary that the ballot papers taken out
of all boxes used in that constituency should be mixed
before counting, it may, by notification in the Official
Gazette, specify such constituency and for counting
of such ballot papers, in lieu of rules 55, 56, 57 and
59, the following rules shall apply], namely:—
‘55B. Scrutiny and opening of ballot boxes
(1) The returning officer shall open, or cause to be
opened, simultaneously the ballot box or boxes

used at more than one polling station and shall
have the total number of ballot papers found in
such box or boxes counted and recorded in Part
II of Form 16.
Provided that discrepancy, if any, between the
total number of such ballot papers recorded as
aforesaid and the total number of ballot papers
shown against item No. 5 of Part I shall also be
recorded in Part II of Form 16.
(2) Before any ballot box is opened at a counting
table, the counting agents present at that table
shall be allowed to inspect the paper seal or such
other seal as might have been affixed thereon
and to satisfy themselves that it is intact.
(3) The returning officer shall satisfy himself
that none of the ballot boxes has in fact been
tampered with.
(4) If the returning officer is satisfied that any ballot
box has in fact been tampered with, he shall not
count the ballot papers contained in that box and
shall follow the procedure laid down in section
58 in respect of that polling station.
(56B) Counting of votes.—
(1) Subject to such general or special directions, if
any, as may be given by the Election Commission
in this behalf, the ballot papers taken out of all
boxes [used at more than one polling station in a
constituency,] shall be mixed together and then
arranged in convenient bundles and scrutinised.
elector can be identified, or
(b) if it bears no mark at all or, to indicate the

vote, it bears a mark elsewhere than on or
near the symbol of one of the candidates on
the face of the ballot paper or, it bears a mark
made otherwise than with the instrument
supplied for the purpose, or
(c) if votes are given on it in favour of more
than one candidate, or
(d) if the mark indicating the vote thereon is
placed in such manner as to make it doubtful
to which candidate the vote has been given,
or
(e) if it is a spurious ballot paper, or
(f) if it is so damaged or mutilated that its
identity as a genuine ballot paper cannot be
established, or
(g) if it bears a serial number, or is of a design,
different from the serial numbers, or, as the
case may be, design, of the ballot papers
authorised for use at the particular polling
station, or
(h) if it does not bear both the mark and the
signature which it should have borne under
the provisions of sub-rule (1) of rule 38:
that any such defect as is mentioned in clause (g) or
clause (h) has been caused by any mistake or failure
ground of such defect: Provided further that a ballot
paper shall not be rejected merely on the ground that
the mark indicating the vote is indistinct or made
more than once, if the intention that the vote shall
be for a particular candidate clearly appears from the
way the paper is marked.

(1) Before rejecting any ballot paper under sub-
rule (2), the returning officer shall allow each
counting agent present a reasonable opportunity
to inspect the ballot paper but shall not allow
him to handle it or any other ballot paper.
(2) The returning officer shall endorse on every
ballot paper which he rejects the word “Rejected”
and the grounds of rejection in abbreviated form
either in his own hand or by means of a rubber
stamp and shall initial such endorsement.
(3) All ballot papers rejected under this rule shall be
bundled together.
Provided that no cover containing tendered
ballot shall be opened and no such paper shall
be counted.
(5) After the counting of all ballot papers contained
in all the ballot boxes used in a constituency
has been completed, the returning officer shall
make the entries in a result sheet in From 20A
and announce the particulars. Explanation.—
For the purpose of this rule, the expression
“constituency” shall, in relation to an election
from a parliamentary constituency, mean the
assembly constituency comprised therein.
57B. Sealing of used ballot papers.—
The valid ballot papers of each candidate and the
rejected ballot papers shall thereafter be bundled
separately and the several bundles made up into a
separate packet which shall be sealed with the seals
of the returning officer and of such of the candidates,
their election agents or counting agents as may
desire to affix their seals thereon and on the packets

so sealed shall be recorded the following particulars,
namely:—
(a) the name of the constituency; and
(b) the date of counting.’
60. Counting to be continuous.— The returning
officer shall, as far as practicable proceed continuously
with the counting and shall, during any intervals
when the counting has to be suspended, keep the
ballot papers, packets and all other papers relating
to the election sealed with his own seal and the seals
of such candidates or election agents as may desire
to affix their seals and take sufficient precaution for
their safe custody during such intervals.
61. Recommencement of counting after fresh poll.
(1) If a fresh poll is held under section 58, the
returning officer shall, after completion of that
poll, recommence the counting of votes on the
date and at the time and place which have been
fixed by him in that behalf and of which notice
has been previously given to the candidates and
their election agents.
(2) The provisions of rules 56 and 57 shall apply so
far as may be to such further counting.
[***]
63. Re-count of votes.— (1) After the completion
of the counting, the returning officer shall record in
the result sheet in Form 20 the total number of votes
polled by each candidate and announce the same.
[(2) After such announcement has been made, a
candidate or, in his absence, his election agent or any
of his counting agents may apply in writing to the
returning officer to re-count the votes either wholly

or in part stating the grounds on which he demands
such re-count.]
(3) On such an application being made the returning
officer shall decide the matter and may allow the
application in whole or in part or may reject it in toto
if it appears to him to be frivolous or unreasonable.
(4) Every decision of the returning officer under sub-
rule (3) shall be in writing and contain the reasons
therefor.
[(5) If the returning officer decides under sub-rule (3)
to allow a re-count of the votes either wholly or in
part, he shall—
(a) do the re-counting in accordance with [rule 54A,]
rule 56 or rule 56A, as the case may be;
(b) amend the result sheet in Form 20 to the extent
necessary after such re-count; and
(c) announce the amendments so made by him.]
(6) After the total number of votes polled by each
candidate has been announced under sub-rule (1) or
sub-rule (5), the returning officer shall complete and
sign the result sheet in Form 20 and no application
for a re-count shall be entertained thereafter:
Provided that no step under this sub-rule shall be taken
on the completion of the counting until the candidates
and election agents present at the completion thereof
have been given a reasonable opportunity to exercise
the right conferred by sub-rule (2).
64. Declaration of result of election and return of
election.—The returning officer shall, subject to the
provisions of section 65 if and so far as they apply to
any particular case, then—
(a) declare in Form 21C or Form 21D, as may be
appropriate, the candidate to whom the largest

number of valid votes have been given, to be elected
under section 66 and send signed copies thereof to
the appropriate authority, the Election Commission
and the chief electoral officer; and
(b) complete and certify the return of election in Form
21E, and send signed copies thereof to the Election
Commission and the chief electoral officer.
65. Counting at two or more places.—If ballot
papers are counted at more places than one, the
provisions of [rules 53, 54 and 55 to 60] shall apply
to the counting at each such place, but the provisions
of [rules 54A, 63 and 64] shall apply only to the
counting at the last of such places.
66. Grant of certificate of election to returned
candidate.—As soon as may be after a candidate
has been declared by the returning officer under
the provisions of section 53, or section 66, to be
elected, the returning officer shall grant to such
candidate a certificate of election in Form 22 and
obtain from the candidate an acknowledgment of its
receipt duly signed by him and immediately send the
acknowledgment by registered post to the Secretary
of the House of the People or, as the case may be, the
Secretary of the Legislative Assembly.
66A. Counting of votes where electronic voting
machines have been used.—In relation to the
counting of votes cast at a polling station, where
voting machine has been used,—
(i) the provisions of rules 50 to 54 and in lieu of rules
55, 56 and 57, the following rules shall respectively
apply, namely:—
“55C. Scrutiny and inspection of voting
machines.—(1) The returning officer may have the
control units of the voting machines used at more
than one polling station taken up for scrutiny and

inspection and votes recorded in such units counted
simultaneously.
(2) Before the votes recorded in any control unit
of voting machine are counted under sub-rule (1),
the candidate or his election agent or his counting
agent present at the counting table shall be allowed
to inspect the paper seal and such other vital seals
as might have been affixed on the unit and to satisfy
themselves that the seals are intact.
(3) The returning officer shall satisfy himself that
none of the voting machines has in fact been tampered
with.
(4) If the returning officer is satisfied that any voting
machine has in fact been tampered with he shall not
count the votes recorded in that machine and shall
follow the procedure laid down in section 58, or
section 58A or section 64A, as may be applicable in
respect of the polling station or stations where that
machine was used.
56C. Counting of votes.— (1) After the returning
officer is satisfied that a voting machine has in fact
not been tempered with, he shall have the votes
recorded therein counted by pressing the appropriate
button marked “Result” provided in the control unit
whereby the total votes polled and votes polled by
each candidate shall be displayed in respect of each
such candidate on the display panel provided for the
purpose in the unit.
(2) As the votes polled by each candidate are
displayed on the control unit, the returning officer
shall have,—
(a) the number of such votes recorded separately in
respect of each candidate in Part II of Form 17C;
(b) Part II of Form 17C completed in other respects

and signed by the counting supervisor and also by the
candidates or their election agents or their counting
agents present; and
(c) corresponding entries made in a result sheet in
Form 20 and the particulars so entered in the result
sheet announced.
57C. Sealing of voting machines.— (1) After the
result of voting recorded in a control unit has been
ascertained candidate-wise and entered in Part II of
Form 17C and Form 20 under rule 56C, the returning
officer shall reseal the unit with his seal and the seals
of such of the candidates or their election agents
present who may desire to affix their seals thereon so
however that the result of voting recorded in the unit
is not obliterated and the unit retains the memory of
such result.
(2) The control unit so sealed shall be kept in specially
prepared boxes on which the returning officer shall
record the following particulars, namely:—
(b) the particulars of polling station or stations where
the control unit has been used;
(c) serial number of the control unit;
(e) date of counting.”
(ii) the provisions of rules 60 to 66 shall, so far as may
be, apply in relation to voting by voting machines
and any reference in those rules to,—
(a) ballot paper shall be construed as including a
reference to such voting machine;
(b) any rule shall be construed as a reference to the
corresponding rule in Chapter II of Part IV or, as the
case may be, to rule 55C or 56C or 57C.
94. Disposal of election papers.—Subject to any
direction to the contrary given by the Election
Commission or by a competent court or tribunal—
(a) the packets of unused ballot papers shall be
retained for a period of six months and shall
thereafter be destroyed in such manner as the Election
Commission may direct;]
[(aa) the voting machines kept in the custody of the
district election officer under sub-rule (1A) of rule 92
shall be retained intact for such period as the Election
Commission may direct and shall not be used at any
subsequent election without the previous approval of
the Election Commission;]”
6. At the outset, let us appreciate the issue that was raised before the
Apex Court in the case of Dr. Subramanian Swamy (supra). In
the said case, the appeal was directed against a judgement and order
dated 17.01.2012 passed by the Division Bench of the High Court
of Delhi. The Delhi High Court disposed of the petition disallowing
the prayer of the appellant, for issuing a writ of mandamus to the
Election Commission of India to incorporate the system of paper
trails in the EVMs. After the contentions which were raised by the
learned advocate appearing on behalf of the petitioner therein, the
Apex Court, after charting out the course of history that had gone
into the introduction of the VVPATs and the EVMs held as under:
“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.”

6.1 Reading of the aforesaid judgment would indicate that looking to
the fact that the general elections in India are a large scale exercise,
the Apex Court permitted the Election Commission of India to
introduce VVPATs in gradual stages or geographical wise in the
ensuing general elections. The Apex Court further observed that
the area, the State or the actual booths are to be decided by the
Election Commission of India and that the Election Commission
of India is free to implement the same in a phased manner. The
Apex Court, for such implementation in a phased manner, directed
the Government of India to give the required financial assistance.
In other words, pursuant to the directions given by the Apex Court
in the case of Dr. Subramanian Swamy (supra), the Election
Commission of India has sought to introduce Voter Verifiable
Paper Trails in the general elections held in the country.
7. We have extensively reproduced, the relevant prayers and the
contentions of the Party in Person in context of the prayer to
challenge and declare Rule 56(D)(2) of the Conduct of Election
Rules,1961 as ultra vires Article 14, 19 and 21 of the Constitution
Of India. The apprehension voiced is insofar as it vests discretion
in the Returning Officer to reject an application made under Rule
56(D)(2) for counting of the printed paper slips in the drop box
of the Printer. Such discretion appears to be based on a concern
that the discretion will be used by the Returning Officer in not
entertaining an application for recount at all.
8. We would have expected the Party-In-Person- who in fact is a
practicing lawyer of this Court and not an ordinary uninformed
litigant acting at the instructions and briefs of his advocate, to have
taken us through the Status Paper to demonstrate the justification
of the apprehension of the discretion under Rule 56(D)(2) being
capable of being abused. We are afraid that except reiterating the
submissions from the pleadings and reading out the provisions of
the Representation Of People Act, 1951, the paper was not read
though it was part of the letter, annexed to the petition and therefore
can be safely presumed to be part of the record.
9. We have therefore undertaken the task of reading the paper and
from the contents which we extensively reproduce hereinafter, we

are assured that the firm conviction about the integrity and non-
tamperability and credibility of the EVMs and the confidence
in the robustness of the procedural safeguards as voiced in the
communication dated 10.01.2019 by the Election Commission Of
India, make the decision- making process of the Returning Officer
and the discretion so vested in him, under Rule 56(D)(2) beyond
reproach.
10. It has to be borne in mind that the foundation and the basis of the
allegation is a lurking fear repeatedly voiced and demonstrated by
the Election Commission Of India that the EVMs are tamperproof.
From what we will reproduce hereinafter, the material which
was available to the petitioner, a practicing lawyer, as is evident
from the communication dated 10.01.2019 addressed to him, a
reference has been made to the Commission’s ‘Status Paper on
EVM/ VVPAT’ which has comprehensively addressed and cleared
all doubts and queries regarding the credibility of EVMs used by
the Election Commission of India. The letter unequivocally states
that the Commission has firm conviction about the integrity,
non-tamperability and credibility of the EVMs and is confident
of its robustness and reliability in view of its technical security
features,comprehensive administrative protocols and robust
procedural safeguards that protect the EVMs and VVPATs
against any sort of manipulation at any stage, before, during or
after the polls including manufacture, transportation, storage,
polling and counting process.
(emphasis supplied)
10.1 Once an autonomous constitutional authority like the
Election Commission Of India, which has till date, fulfilled
the avowed object of conducting free and fair elections in the
largest democracy of the world makes such a statement, in
its letter addressed to the petitioner assuring the robustness
of the procedural safeguards, this Court shall be loath to
sit in judgement over the assurance of a constitutional
authority like the Election Commission Of India and show
the zealousness to overstep its jurisdiction vested in it under
Article 226 of the Constitution Of India, on mere uncharted

reservations and apprehensions voiced by the petitioner.
11. It would also be fruitful to reproduce the information about
introduction, present status and the conclusion about EVMs/
VVPATs as per the aforesaid Commission’s ‘Status Paper on EVM/
VVPAT’ for ready reference and which has been requested by the
Election Commission of India to be referred in the communication
dated 10.01.2019 addressed to the petitioner. This will also help us
to trace the EVMs/VVPATs’ journey into the election process of
this country through the Status Paper.
“Introduction:
India is the largest Participatory Democracy of the
world, with about 850 million registered voters. The
Constitutional mandate of superintendence, direction
and control of Elections to the Parliament and the
State Legislative Assemblies has been conferred on
The Election Commission of India is an independent
Constitutional entity, which has successfully
conducted regular elections to the Parliament and
various State Legislative Assemblies for the past
66 years in a free, fair, participative, informed
and credible manner. The Commission is widely
acknowledged as a ‘’Global Gold Standard’’ in
Election Management across the World, setting ever-
higher standards of efficient and professional conduct
of Elections.
The Commission has been at the forefront of
embracing, adopting and implementing the latest
technological advancements in improving and fine-
tuning the election processes and systems. The
Commission has taken the pioneering initiative of
introducing Electronic Voting Machine (EVM) for
recording, storing and counting of votes across the
length and breadth of the Country in a transparent,
credible and secure manner, backed by appropriate

legal support. The use of EVM demonstrates the
Commission’s unflinching resolve to continually
improve, upgrade and strengthen the Electoral
Process in the country.
The Commission has successfully used EVMs
in conducting 113 General Elections to the State
Legislative Assemblies and 3 Lok Sabha Elections
over the last 23 years. The List of States, along with
the years in which 100% EVMs were used in the
Assembly Elections is placed at ANNEXURE - 1.
55.41 crore (554 million) voters exercised their
franchise in 2014 Lok Sabha elections using EVMs.
Since the very inception of the EVMs in 1982, as
a positive electoral reform on the electoral scene
in India, blames and aspersions have been cast on
the EVMs from various quarters including political.
Recently, after the announcement of the results of the
five State Assembly Elections in March 2017, again
certain allegations have been levelled against the
EVMs. A group of thirteen political parties met the
Commission on 10 April 2017 and expressed certain
reservations about the use of EVMs.
It needs to be emphasized that the wide range of
technical security, administrative protocols and
procedural safeguards mandated by the Commission
robustly ensures the integrity, non-tamperability and
credibility of the EVMs. The stringent procedures
and well-defined poll processes prescribed by the
Commission protect the EVMs against any sort of
manipulation.
It is also significant to highlight that the Commission
is committed to the 100% coverage of VVPATs in all
future elections to the Parliament and State Assembly
Elections. The requisite funds for the procurement of
adequate number of VVPATs and latest generation

(M3) EVMs have been sanctioned by the Government
and machines are expected to be manufactured and
delivered by BEL and ECIL to the ECI by November
2018 as committed by the manufacturers.
At the present juncture, when EVMs are once again
encumbered with yet another debate on its efficacy
and robustness, it is imperative to hold consultations
with stakeholders.
VOTER VERIFIABLE PAPER AUDIT TRAIL
(VVPAT)
In a meeting of all political parties held on 4th
October, 2010, the parties expressed satisfaction with
the EVM but some parties requested the Commission
to consider introducing Voter Verifiable Paper Audit
Trail for further transparency and verifiability in poll
process. In India, the demand of VVPAT to increase
transparency was floating in the air for some time
after such a tool was first demonstrated in New York
City in March 2001 and first used in Sacramento,
California in 2002. The demand was referred to the
Technical Expert Committee (TEC) by the ECI.
Introduction of VVPAT implied that a paper slip is
generated bearing name and symbol of the candidate
along with recording of vote in Control Unit, so that
in case of any dispute, paper slip could be counted
to verify the result being shown on the EVM. Under
VVPAT, a printer is attached to the balloting Unit
and kept in the voting compartment. The paper slip
remains visible on VVPAT for 07 seconds through
a transparent window. The Commission referred the
matter to its Technical Expert Committee (TEC) on
EVMs for examining and making a recommendation
in this regard. The Expert Committee had several
rounds of meetings with the manufacturers of EVM,
namely, BEL & ECIL, on this issue and then had met

the political parties and other civil society members
to explore the design requirement of the VVPAT
system with the EVM. On the direction of the Expert
Committee, the BEL and ECIL made a prototype
and demonstrated before the Committee and the
Commission in 2011. On the recommendation of
the Expert Committee on EVM & VVPAT system,
the Commission conducted simulated election
for the field trial of VVPAT system in Ladakh
(Jammu&Kashmir), Thiruvananthapuram (Kerala),
Cherrapunjee (Meghalaya), East Delhi District (NCT
of Delhi) and Jaisalmer (Rajasthan) in July 2011. All
stake holders including senior leaders of political
parties and civil society members participated and
witnessed enthusiastically in the field trial. After 1st
field trial of the VVPAT system, Commission made
a detailed reassessment of the VVPAT system to
further fine tune the VVPAT system. Accordingly,
the manufacturers developed 2nd version of VVPAT
prototype.
The same was again subjected to 2nd field trial in the
said five locations in July- August 2012.
In the meeting of the Technical Expert Committee held
on 19th February, 2013, the Committee approved
the design of VVPAT and also recommended the
Commission to take action on amendment of the
rules for using VVPAT. The model was demonstrated
to all the political parties in an all-party meeting on
10th May, 2013. The Government of India notified
the amended Conduct of Elections Rules, 1961 on
14th August, 2013, enabling the Commission to use
VVPAT with EVMs. On 4th September, 2013, the
Commission used VVPAT with EVMs first time
in bye-election from 51-Noksen (ST) Assembly
Constituency of Nagaland.
On 8th October, 2013, the Hon’ble Supreme Court

ordered introduction of VVPAT in phases in its
judgment on a PIL and asked Government to
sanction funds for procurement. As directed by the
Hon’ble Supreme Court of India, the ECI introduced
the VVPAT system in a phased manner so that full
implementation could be achieved by 2019. In 2013,
the ECI procured 20000 VVPATs. On 25th November,
2013, VVPATs were used in 10 ACs in Mizoram; on
4th December 2013, it was used in one AC in Delhi;
and thereafter in subsequent elections.
The following table gives us the journey of VVPAT
in India at a glance:
Date Chronology of Events
4th Oct 2010 An all-party meeting held.
Agreement on incorporation of
VVPATs along with EVMs.
7 Jan 2011
th
Field trial conducted after the
prototype was manufactured, in
Thiruvananthapuram (Kerala),
Delhi, Cherapunjee (Meghalaya),
Jaisalmer (Rajasthan) and Leh
(Jammu & Kashmir).
July-Aug 2012 A second field trial was conducted
19th Feb 2013 Final model was approved by TEC
10th May 2013 The Model was demonstrated to all
political parties
14 Aug 2013 The conduct of Election Rules
th
1961 was amended and notified

8 Oct 2013
th
Hon’ble Supreme Court directed
ECI to introduce the VVPAT
system in a phased manner. full
implementation to be achieved by
2019
25th Nov VVPATS were used in 10 ACs of
2013 Mizoram 4th Dec 2013 VVPAT
was used in one AC in Delhi and
thereafter in subsequent elections

Feb-Mar 2017 52000 VVPATs were used in 33 ACs
in Punjab, 6 ACs in Manipur, 3 ACs
in Uttarakhand, 30 ACs in Uttar
Pradesh and 40 ACs in Goa
4th Jan 2017 Approval of Government received
for purchase of 16,15,000 VVPATs a
t a total estimated cost of Rs. 3173.47
Crores**.
**Cost of 16,15,000 VVPATs
reduced to Rs. 2616.30 Cr. After
fixation of price by the Price
Negotiation Committee.
12 May 2017 All Political Parties Meeting held. The
th
Commission decided to use 100%

VVPATs at every polling station in
all future elections to Parliamentary
and Assembly constituencies.
19 Sept.,
th
The Commission directed to use
2017 100% VVPATs at every polling
station was formally communicated
to all Chief Electoral Officers to
ensure compliance.
11 Oct, 2017 The Commission decoded to conduct
th
mandatory verification of VVPAT

slips of randomly selected 01 Polling
Station per AC. Subsequently,
mandatory verification of VVPAT
slips has been further extended
to 01 randomly selected Polling
Station of each Assembly segment of
Parliamentary Constituency also.
So, far, VVPATs have been used in 933

Assembly Constituencies and 18 Parliamentary
Constituencies. Till date, VVPAT slip verification
has been undertaken for 792 polling stations
and in all the cases, the results tallied with the
electronic result in the CU.

Present Status:
Hon’ble Supreme Court in its order dated 8 Oct
2013 has observed that EVMs with VVPAT system
ensures 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 systems because vote is
nothing but an act of expression which has immense
importance in democratic system. The apex court
appreciated the efforts and good gesture made by the
ECI in introducing VVPATs and permitted the ECI to
introduce the same in a gradual stages or geographical
wise in the ensuing general elections. The Court also
directed the Government of India to provide required
financial assistance for the procurement of units of
VVPATs for the implementation of VVPAT system
in a phased manner.
Amidst the ongoing debate on the EVM, the ECI
not only reaffirmed its faith on the transparency,
credibility, non-tamperability and robustness of
the machines, but also stressed on the immediate
deployment of VVPATs for safeguarding the integrity
of the voting system as well as strengthening
confidence of the voters. In order to ensure the
compliance of Hon’ble Supreme Court order The
Chief Election Commissioner of India vigorously
pursued the allocation of funds to the manufacturers
for the timely manufacture and supply of required
quantity of VVPATs to the ECI for ensuring 100%
VVPAT coverage at all polling stations. The
Election Commission also vigorously reviewed the
production capacity of the manufacturers impressing
upon them the need to strictly adhere to the schedule
by enhancing their manufacturing capacity.
Based on Commission’s continuous follow up the
funds have since been allocated on 19th April 2017

amounting to Rs. 2,616.30 crore for purchase of
16,15,000 VVPATs and orders have been issued to
the manufacturers. It is pertinent to mention that Rs
1939.95 crore has been sanctioned and released by
the Government for the manufacture of M3 EVMs.
The manufacturers have committed to manufacture
the EVMs and VVPATs and supply to ECI by Sep
2018.
The Commission is committed to using VVPAT
machines along with EVMs in all future elections to
be conducted under its superintendence and direction
for the Parliament and State Legislative Assemblies.
In the All Political Parties Meeting held on 12th May,
2017, the Commission decided to use 100% VVPATs
in all future elections. The above decision of the
Commission was formally communicated to Chief
Electoral Officers of all States and Union Territories
on 19th September, 2017.
The Commission mandated verification of VVPAT
paper slips of randomly selected 01 polling station in
addition to the provisions of Rule 56D of the Conduct
of Elections Rules, 1961, as under:
(a) In case of General and Bye-elections to State
Legislative Assemblies, verification of VVPAT paper
slips of randomly selected 01 polling station per
Assembly Constituency.
(b) In case of General and Bye-elections to the
House of the People, verification of VVPAT paper
slips of randomly selected 01 polling station of
each Assembly Segment of the Parliamentary
Constituency concerned. Mandatory verification of
VVPAT paper slips has been conducted so far in
792 polling stations and no discrepancy was found
in electronic result and paper count.

Conclusion:
As is evident, the EVM used in Indian elections
have gone through a long journey of evolution
amidst challenges and has emerged as an effective
machine of electoral reform over the years since its
introduction. It has enhanced public confidence as
well as legitimacy of Indian elections in the eyes of
the world.
The Indian EVM stands as one of the most credible,
non-tamperable and transparent machine amongst
all such machines used in other parts of the world.
Indian EVMs have attracted the attention of many
Afro-Asian countries also. Till date, no one could
actually demonstrate that EVMs in possession of ECI
and used by it, can be tampered with or manipulated.
What has been demonstrated or claimed to have been
demonstrated is on a privately assembled “look-alike
of ECI-EVMs” and not the actual ECI-EVM used by
ECI. Recently, on an allegation of EVMs yielding
votes for only one political party in Bhind (Madhya
Pradesh) and Dholpur (Rajasthan), the ECI promptly
conducted an enquiry which found out that such
allegations were found to be baseless.
Today, the ECI once again completely reaffirms its
faith in the non-tamperability of the EVMs of ECI
in view of the technical security features and the
stringent administrative protocols and procedural
safeguards which are mandatorily to be followed
during and after the polls. In conclusion, it will be
pertinent to refer to the verdict of the Karnataka High
Court in this respect, which observed that EVM in
India is a “national pride” and the fact that Indian
elections are widely internationally acknowledged as
the “Global Gold Standard”.
The Commission and electoral system stakeholders
have taken a conscious decision that EVM is the

right answer to the formidable task of election
management and the huge logistical challenges it
throws. The ECI hopes that once the VVPATs cover
all the polling booths in the country, the confidence
and transparency will be further enhanced.
The Commission firmly believes that the introduction
of VVPAT machines with the EVMs in all future
elections will bring utmost transparency and
credibility in the EVM-based voting system in our
country and conclusively put to rest all misinformed
doubts and misgivings regarding these machines.
The Commission will launch a comprehensive,
concerted and nation-wide voter education and
awareness programme under its flagship SVEEP
initiative, to educate, orient and inform the voters about
the functioning, usage and advantages of the VVPAT
machines and their immense utility in reinforcing
the transparency, credibility and authenticity if the
voting process. The Commission earnestly solicits
the cooperation and collaboration of all the vital
stakeholders, particularly the political parties, to join
hands in spreading awareness about the advantages
of VVPAT machines. The Commission is confident
that the collaborative efforts of all the stakeholders
in the electoral process will lead to continuous
improvements in the electoral management and make
our system more transparent, participative, informed
and credible. The Commission firmly believes in
an open, constructive and comprehensive dialogue
with all crucial stakeholders in the electoral process
and the political parties are a critical stakeholder of
the democratic edifice in the country. Considering
the recent issues regarding use of EVMs, the
Commission convened an All Party Meeting on 12th
May 2017. The objective behind the said meeting
was to facilitate threadbare discussions and detailed

deliberations amongst the important players in the
electoral arena on this vital issue, so that all views
and counter-views were placed on the table and
thrashed out transparently and cogently.
In All Political Parties Meeting the Commission
assured 100% coverage of VVPATs in all future
election to the Parliament and State Assembly
Elections. In the said meeting the representatives of
political parties were informed that the Commission
would hold a challenge and offered opportunity to
political parties to demonstrate that EVMs used in
the recently concluded Assemblies elections were
tampered OR that EVMs could be tampered even
under the laid down Technical and Administrative
Safeguards.
Subsequently, 20th May 2017, the Commission
announced the EVM Challenge and sent invitation
to all National and State Recognized Political Parties
to participate in the Challenge from 3rd June 2017
onwards. Only two Political Parties, namely NCP and
CPI(M) submitted their interest in participating the
EVM Challenge. However, they did not participate
in the Challenge but only expressed their interest in
understanding the EVM process. They interacted
extensively with TEC of the Commission to clear
their doubts. The EVM Challenge concluded on 3rd
July 2017.
Since 12th May 2017, every election to the Parliament
and State Assembly Elections has been conducted
using VVPAT with EVM and the Commission is
committed to 100% deployment of VVPATs in all
future elections to Parliament and State Legislative
Assemblies.
The Commission requests all citizens and
stakeholders to remain aware, vigilant and alert

about our electoral processes and facilitate the
Commission in discharging its Constitutional
mandate of conducting free and fair elections in the
country.”
[Emphasis Supplied]
12. In fact the Election Commission of India has also published a
Manual (3rd Edition) on EVMs and VVPATs in view of the 100%
use of VVPATs with EVMs and to familiarize the readers with
the genesis of the EVM, Process of its development, Procurement,
Storage and Legal provisions. It also contains all important
instructions on use of EVM and VVPAT making it a useful
handbook on the subject for the electoral machinery handling the
EVM, and VVPAT. The relevant portions of the said manual are
reproduced hereunder.
“169. Power to make rules. —
(1) The Central Government may, after consulting
the Election Commission, by notification in the
Official Gazette, make rules for carrying out the
purposes of this Act.
(2) In particular, and without prejudice to the
generality of the foregoing power, such rules
may provide for all or any of the following
matters, namely:
[(a) the form of affidavit under sub-section (2) of
section 33A;]
[(aa)] the duties of presiding officers and polling
officers at polling stations;
[(aaa) the form of contribution report;]
(b) the checking of voters by reference to the
electoral roll;
[(bb) the manner of allocation of equitable sharing of
time on the cable television network and other
electronic media;];

(c) the manner in which votes are to be given both
generally and in the case of illiterate voters or
voters under physical or other disability ;
(d) the manner in which votes are to be given by
a presiding officer, polling officer, polling agent
or any other person, who being an elector for a
constituency is authorised or appointed for duty
at a polling station at which he is not entitled to
vote;
(e) the procedure to be followed in respect of the
tender of vote by a person representing himself
to be an elector after another person has voted as
such elector;
[(ee) the manner of giving and recording of votes
by means of voting machines and the procedure
as to voting to be followed at polling stations
where such machines are used;]
(f) the procedure as to voting to be followed at
elections held in accordance with the system
of proportional representation by means of the
single transferable vote;
(g) the scrutiny and counting of votes including
cases in which a recount of the votes may be
made before the declaration of the result of the
election;
[(gg) the procedure as to counting of votes recorded
by means of voting machines;]
(h) the safe custody of [ballot boxes, voting
machines], ballot papers and other election
papers, the period for which such papers shall
be preserved and the inspection and production
of such papers;
[(hh) the material to be supplied by the Government
to the candidates of recognised political parties

at any election to be held for the purposes of
constituting the House of the People or the
Legislative Assembly of a State;]
(i) any other matter required to be prescribed by
this Act.
[(3) Every rule made under this Act shall be laid
as soon as may be after it is made before each
House of Parliament while it is in session for
a total period of thirty days which may be
comprised in one session or [in two or more
successive sessions, and if, before the expiry of
the session immediately following the session or
the successive sessions aforesaid, both Houses
agree in making any modification in the rule or
both Houses agree that the rule should not be
made,] the rule shall thereafter have effect only in
such modified form or be of no effect, as the case
may be; so, however, that any such modification
or annulment shall be without prejudice to the
validity of anything previously done under that
rule.].
2. Under rule 94(aa) of the Conduct of Elections
Rules 1961, the guidelines of the Commission
on retention period of the EVMs after using in
election and for using the same in the subsequent
elections, are as under:
A. Every Voting Machine (EVM) and VVPATs
used in an election and kept in the custody of the
District Election Officer shall be kept untouched,
under the standard protocol of security, till
confirmation of Election petition position from
the High Court concerned after the completion
of the period for filing Election Petition i.e. 45
days from the date of declaration of the result.

B. In the case of elections, where no election
petition has been filed or no other court cases are
pending, after the aforesaid period,the EVMs
may be allowed to be used by the Election
Commission for any future election or any other
purpose like movement, physical verification of
EVMs and VVPATs, etc.
C. In case of any election where election petition
has been filed, the following action shall be
taken:-
i) If the EVMs are the subject of the election
petition, the EVMs used at all Polling Stations in
the constituency concerned shall continue to be
kept in the safe custody of the District Election
Officer, till such time the Election Petition is
finally disposed of by the Courts.
ii) If the EVMs are not the subject of the election
petition, an application may be moved to
the concerned Court for allowing the EVMs
concerned to be taken out of the strong room
for any future election or any other purpose like
movement, physical verification of EVMs etc.
iii) In case EVMs not involved in any Election
Petition/Court Case are stored with the EVMs
involved in Election Petition/Court Case, the
following procedure shall be followed for
segregating the EVMs not involved in any
election petition/court case form the EVMs
involved in EP/Court case:-
a) A Notice informing the opening of Strong Room
having EVMsinvolved in EP/Court Case shall
be given to the petitioners/respondents of the
EP/Court Case and the representatives of all
political partiesin writing at least 72 hours in

advance, requesting them to remain present at
the time of opening of strong room.
b) The strong room shall be opened in the presence
of the District Election Officer, Petitioners/
respondents of the EP/Court case and
representatives of Political Parties.
c) The EVMs not involved in any EP/Court Case
shall be segregated from the EVMs involved
in EP/Court Case for taking out of the strong
room. A list of EVMs being so taken out from
the strong room shall be prepared.
d) The EVMs, which are not involved in any EP/
Court Case, should alone be taken out of the
Strong room.
e) The entire process shall be videographed.
f) A copy of the list of EVMs being taken out from
the strong room and copy of videography shall
be given to the petitioner/respondent of the EP/
court case and acknowledgement taken.
D. If any other Court Case is pending, like, booth
capturing, etc., in which any EVM is involved,
the EVM concerned or the EVM(s) used at such
Polling Station(s) concerned may also be kept till
the final disposal of the said case. After the final
disposal of the election petitions or other court
cases, as the case may be, referred to above, the
EVMs can be used for subsequent elections.
16.5. APPLICATION FOR VVPAT PAPER
SLIPS COUNTING
After announcement of result sheet entries, any
candidate, their election agent or their counting
agents may apply in writing to the RO to count the
printed VVPAT paper slips in any or all polling

stations. If such application is made, the RO shall
pass a speaking order on whether the VVPAT paper
slips should be counted. If the RO decides to allow
the counting of the VVPAT paper slips of any or all
polling stations, such decision of the RO must be
recorded in writing along with the reasons thereof.
The RO shall give due consideration to the following:
Whether the total number of votes polled in that
polling station is greater or lesser than the margin
of votes between winning candidate and candidate
making the application
Whether EVM had a problem and was replaced at
that polling station during poll Whether there was
any complaint about VVPAT not printing or 76
complaints by any voter under Rule 49MA in that
polling station during the poll.
16.6. MANDATORY VERIFICATION OF VVPAT
PAPER SLIPS:
Mandatory verification of VVPAT paper slips of
randomly selected 01 (one) polling station shall be
conducted in all future General and Bye Elections
to the House of the People and State Legislative
Assemblies, in addition to the provisions of Rule
56D of the Conduct of Elections Rules, 1961, after
the completion of the last round of counting of votes
recorded in the EVMs, as under:
a) In case of General and Bye elections to State
Legislative Assemblies, verification of VVPAT
paperslips ofrandomly selected 01 (one) polling
station per Assembly Constituency.
b) In case of General and Bye elections to the House
of the People, verification of VVPAT paperslips
ofrandomly selected 01 (one) polling station of
Constituency concerned.

For this mandatory verification of VVPAT paper
slips, the following procedure shall be followed:
16.6.1. The verification of VVPAT paper slips of
randomly selected 01 (one) polling station for each
Assembly Constituency/Segment shall be taken up
after the completion of the last round of counting of
votes recorded in the EVMs.
16.6.2. The random selection of 01 (one) polling
station per Assembly Constituency/Segmentshall
be done by Draw of lots, by the Returning Officer
concerned, in the presence of candidates/their
agents and the General Observer appointed by the
Commission for that Constituency.
16.6.3. The draw of lots must be conducted
immediately afterthe completion of the last round
of counting of votes recorded in the EVMs (Control
Units) in the designated Counting Hall for the
particular Assembly Constituency / Assembly
Segment.
16.6.4. A written intimation regarding the conduct
of draw of lots for the random selection of 01 (one)
polling station for verification of VVPAT Slips shall
be given by the Returning Officer to the Candidates/
their election agents well in advance.
16.6.5. The following procedure shall be followed
for the conduct of draw of lots:
a) White colour paper cards of postcard size shall be
used for conducting the draw of lots.
b) Total number of such paper cards should be equal
to total number of polling stations in the Assembly
Constituency.
c) The paper cards shall have pre-printed Assembly
Constituency/ Assembly Segment number, AC/AS
name and date of polling on the top, and the polling

station number in the centre. Each digit of the polling
station number shall be atleast 1” x 1”(1 inch by 1
inch) size and printed in black ink.
d) The paper cards to be used for draw of lots should
be four-folded in such a way that polling station
number is not visible.
e) Each paper card shall be shown to the candidates/
their agents before folding and dropping in the
container.
f) The paper cardsshall be kept in the big container
and must be shaken before picking up 01 (one) slip
by the Returning Officer.
16.6.6. The verification of VVPAT paperslipsshall be
done in a ‘VVPAT Counting Booth’ (VCB), specially
prepared for this purpose inside the Counting Hall.
The booth shall be enclosed in a wire mesh just like
a bank cashier’s cabin so that no VVPAT paper slip
can be accessed by any unauthorized person. One
of the Counting tables in the Counting Hall can be
converted into the VCB and can be used for normal
counting of round-wise EVM votes before the count
of VVPAT slips as per random selection after the
completion of roundwise EVM counting.
16.6.7. The Verification count of the VVPAT paper
slips of the randomly selected 01 (one) polling
station shall be conducted strictly in accordance with
the instructions of the Commission on counting of
printed paper slips.
16.6.8. The Returning Officer and Assistant Returning
Officer, asthe case may be, shall personally supervise
the counting of VVPAT paper slips at this booth. The
General Observer concerned shall ensure close and
careful observation ofthe entire exercise and ensure
strict compliance of the Commission’s instructions.

16.6.9. The above process shall be fully video
graphed.
16.6.10. After completion of the above process,
the Returning Officer shall give a certificate in the
annexed format(Annexure-30).
16.7. ARRANGEMENTS FOR COUNTING OF
VVPAT PAPER SLIPS:
One of the Counting Tables inside the Counting
Hall shall be earmarked by the Returning Officer
as VVPAT Counting Booth (VCB) for Counting of
VVPAT Paper Slips.
VCB shall be enclosed in a wire-mesh just like a
Bank Cashier C abin, so that no VVPAT paper slip
can be accessed by any unauthorised person.
16.8. PROCEDURE TO COUNT VVPAT PAPER
SLIPS:
If the RO decides to count the printed paper slips of
any polling station(s) on an appeal for recounting of
any polling station(s), the following procedures shall
be strictly followed:
Step-1:
a) For keeping VVPAT Paper Slips taken out from
the Drop Box of the VVPAT, a sufficiently sized
container with lid, of dimensions 14 inch X 10
inch X 5 inch (length x breadth x height), to easily
accommodate around 1400 Printed Paper Slips,shall
be kept on the table of VCB. This Container should
be made of sturdy transparent material like plastic
etc. Sample images of the Container are available in
Annexure-27.
b) For keeping VVPAT paper slips of the respective
candidates, a Pigeonhole Framework shall be
prepared in advance according to the number of

candidates including NOTA, with one additional
pigeonhole for keeping self-test slips of the VVPAT,
and shall be kept on the table of VCB.
i) The minimum number of Pigeonholes in the
Framework must be equal to the number of
candidates plus 2 (two).
ii) The size of each compartment (Pigeonhole) must
be atleast 6 inch X 4 inch X 4 inch (length x breadth
x height).
iii) The pigeonhole structure should be made of
sturdy transparent material like plastic etc, having
a fixed base, to prevent any VVPAT paper slip from
slipping underneath.
iv) The symbol of each contesting candidate as per
the Ballot Paper should be affixed on the wall of the
pigeonhole allotted to the particular candidates. The
symbol should be printed in black and white on a
plain paper of minimum size 4inch X 3 inch. Sample
images of the Pigeonhole Framework are placed in
Annexure-27.
c) At least 100 Rubber bands for making bundles of
25 VVPAT paper slips.
Step-2:
The VVPAT unit(s) of the respective polling
station(s) should be brought to the VCB one by one,
as the case may be.
In case a VVPAT unit was replaced during poll at
that polling station, all the VVPAT units used at that
polling station should be brought to the VCB.
Step-3:
The printed paper slips shall be taken out from
all the VVPATs used at the polling station, before

beginning the counting of VVPAT paper slips for
that polling station.
Before taking out the VVPAT Paper Slips from the
drop box, the address tag(s) of the drop box shall be
crosschecked to ascertain that the VVPAT pertains to
the respective polling station.
a) The VVPAT Paper Slips taken out from the Drop
Box of the VVPAT shall be first kept in the container
as per specification at step-1 (i).
b) After taking out the VVPAT paper slips from Drop
Box, the Counting Supervisor shall ensure that no
VVPAT paper slip is left inside the VVPAT drop box
and show the empty drop box to the counting agents.
c) In case a VVPAT unit was replaced, it may so
happen that an uncut fully or partially VVPAT paper
slip is hanging and has not got cut and dropped in
the drop box and still connected to the paper roll.
This uncut VVPAT paperslip should not be torn
and should not be counted because the vote is not
recorded electronically in the CU unless the VVPAT
paper slip is cut. In such an event, the last voter
whose VVPAT paper slip was not cut would have
been given an opportunity to cast his vote after
replacement of VVPAT and the VVPAT paper slip of
the vote cast by him shall be in the next VVPAT used
in that polling station.
d) The drop box of the VVPAT will also have VVPAT
slips of self-test report. These are easily identified,
as they do not have either the name or the symbol of
any candidate. These self-test report slips are to be
preserved along with the VVPAT paperslips as part
of the record but they are not to be counted.
Step-4:

i) The VVPAT paper slips should be segregated
one by one and put in respective pigeon holes after
showing each slip to the Counting Agents. The paper
slips bearing self-tests report shall also be segregated
and put in a separate pigeonhole provided for the
purpose.
ii) Bundles of 25VVPAT paper slips of respective
candidates shall be prepared for counting purpose.
iii) VVPAT Paper Slips shall then be counted by the
counting staff.
iv) Result of the VVPAT paper slips count shall
be prepared in the format as per Annexure-28 and
attached to Part-II of Form 17-C(Annexure-29).
v) The result of the count of VVPAT paper slips shall
be announced loudly in the counting hall and shown
to the counting agents.
vi) As per Rule 56D (4) (b) of the Conduct of
Elections Rules 1961, if there is any discrepancy
between EVM count and paper slip count, the paper
slip count shall prevail. Hence, if there is discrepancy
between the count of votes displayed on the Control
Unit and the count of printed-paper slips in respect of
that Polling Station, the result sheet will be amended
as per the printed-paper slips count.
Step-5:
After completion of counting of VVPAT paper slips,
the bundles of all the VVPAT Paper Slips shall be
kept back in the Drop Box of the respective VVPAT
and door of the Drop Box shall be sealed using
address tags.
The candidate(s)/their agents may also be allowed to
affix their signature with party abbreviation on the
Address Tags.

16.9. Sealing of EVMs after counting of votes
After completion of counting, all such Control Units
whether result has been retrieved from it or not, the
Control Unit should be kept back inside its carrying
case. The carrying cases should then be sealed once
again. The Returning Officer and Observer should
put their signatures on the seal. All candidates and
their election agents should also be allowed to put
their signature on the seal. The Control Unit should
be then kept in the strong room(s).
16.10. STORAGE of EVMs & VVPATs after
counting of votes:
After completion of counting of votes, EVMs and
VVPATs containing printed paper slips in its Drop
box, shall be kept in the same strong room without
removing Power Packs of Control Units and Power
Packs and Paper Rolls of VVPATs.
The Strong room shall not be opened till completion
of Election Petition (EP) period i.e. till EP list is
received from respective High Court.
After completion of Election Petition Period, the
exact EP position should be ascertained from High
Court concerned before opening the strong room.
16.11. STORAGE OF VVPAT PAPER SLIPS
AFTER EXPIRY OF PERIOD OF FILING OF
ELECTION PETITIONS:
After expiry of the period of filing of Election
Petitions(EPs) i.e. 45 days from the date of
declaration of result, District Election Officers shall
ascertain the position of EP from the concerned High
Court. After obtaining the status of EP from the High
Court concerned, the following action shall be taken:
Every VVPAT used in an election and kept in the
custody of the District Election Officershall be kept

untouched, under the standard protocol ofsecurity,
till confirmation of Election petition position from
the High Court concerned after the completion of the
period for filing Election Petition i.e. 45 days from
the date of declaration of the result.
In the case of elections, where no election petition
has been filed or no other court cases are pending,
after the aforesaid period, the VVPATs shall be
available for use in any future election or any
other purpose like training, awareness, movement,
physical verification etc.
Before moving any VVPAT, printed paper slips shall
be taken out from Drop-box of the VVPATs as per
procedure mentioned below:
A Notice informing the opening of Strong Room
having VVPATs shall be given to the representatives
of all political parties in writing at least 48 hours in
advance, requesting them to remain present at the
time of opening of strong room.
The strong room shall be opened in the presence of
the District Election Officer and representatives of
Political Parties.
Remove the Power Packs of Control Units and
Power Packs and Paper Rolls of VVPATs.
The VVPAT paper slips shall be taken out from the
Drop Box of VVPAT and kept in a paper envelope
made of thick black paper, sealed using red wax
under the seal of DEO. Name of election, number
and name of assembly constituency, particulars of
polling station, unique serial number of the VVPAT
unit, date of poll and date of counting shall be
mentioned on the envelope containing printed paper
slips.

The envelopes containing VVPAT paper slips shall
be kept with all other statutory documents relating
to that election till the statutory time limit. Thorough
checking of officials deputed for the removal of
VVPAT paper slips and their sealing must be ensured.
All pockets need to be emptied before entering the
Sealing Room/Strong Room and thorough checking
of officials leaving the sealing room should be done
in addition to DFMD/Metal Detector Checking.
Once the VVPAT paper slips have been taken out, the
VVPATs must be kept in their separate designated
warehouse. VVPAT should not be kept in the same
warehouse where EVMs are stored.
To ensure there is no deliberate attempt to remove
any paperslips from sealing room/strong room,
the entire process should be conducted under high
quality CCTV recording/videography. In case of any
election where election petition has been filed, the
following action shall be taken:-
If the EVMs or Counting of Votes are the subject of
the election petition, the EVMs and VVPATs used
at all Polling Stations in the constituency concerned
shall continue to be kept in the safe custody of the
District Election Officer, till such time the Election
Petition is finally disposed of by the Courts. 83
If the EVMs or counting of votes are not the subject
of the election petition, an application may be moved
to the concerned Court for allowing the EVMs &
VVPATs concerned to be taken out of the strong
room for any future election or any other purpose
like movement, physical verification etc.
In case VVPATs not involved in any Election Petition/
Court Case are stored with the VVPATs involved in
Election Petition/Court Case, the following procedure
shall be followed for segregating the VVPATs not

involved in any election petition/court case from the
VVPATs involved in EP/Court case:-
A Notice informing the opening of Strong Room
having VVPATs involved in EP/Court Case as
well as non-EP VVPATs, shall be given to the
petitioners/respondents of the EP/Court Case and the
representatives of all political parties in writing at
least 72 hours in advance, requesting them to remain
present at the time of opening of strong room.
The strong room shall be opened in the presence of
the District Election Officer, Petitioners/respondents
of the EP/Court case and representatives of Political
Parties.
The VVPATs not involved in any EP/Court Case
shall be segregated from the VVPATsinvolved in EP/
Court Case for taking out of the strong room. A list
of VVPATs being so taken out from the strong room
shall be prepared.
The VVPATs, which are not involved in any EP/
Court Case, should only be taken out of the Strong
room.
The procedure mentioned above shall be followed
for taking-out power packs, paper rolls and the
printed paper slips from all such VVPATs, following
which the VVPATs are available for any subsequent
deployment/use.
The entire process shall be videographed and
videography must be preserved for record.

DO’s AND DON’Ts ON USE OF VVPAT
DO’s DON’Ts
Ensure paper roll knob
is locked (horizontal
position) before
transportation.
In Polling Station, unlock Don’t switch ON CU
the paper roll knob before VVPAT paper
(vertical position). roll knob is in unlocked
condition (vertical
position).
Position BU and VVPAT
in Voting Compartment.
Position CU and VSDU
on PO’s Table
Establish right connection Don’t allow direct light or
by following the color high power illumination
scheme. over VVPAT.
Ensure the connectors are Don’t insert/remove cables
inserted properly. without pressing the clips
on the connectors.
Don’t insert/remove cables Don’t switch OFF CU
without pressing the clips unless all 7 slips are
on the connectors. printed and cut.
Check for any “PRINTER Don’t start polling in case
ERROR” message on of “PRINTER ERROR”
VSDU. Inform Sectoral message on VSDU.
Officer (SO) in such case.
Always switch OFF Don’t operate the paper
CU before making roll knob till the end of the
any connection or poll.
disconnection including
change of battery.
NOTE: In M3 VVPAT there is no VSDU. VVPAT
related messages are displayed on the CU’s Display.
13. In the earlier part of the Judgement we have reproduced the

relevant provisions of the Representation Of People Act, 1951
and the provisions of the Conduct Of Election Rules, 1961. The
perusal of the Conduct of Election Rules and the amendments made
therein on the advent of the EVMs reveal that all the procedural
safeguards as to counting and recounting of votes, as were part
of the rule, the pre-EVM era in the time of use of Ballot Boxes,
have been verbatim kept in place for the purposes of count/recount
post Ballot Box voting, in the EVM/VVPAT, voting regime. This
is notwithstanding the tested technological advancement in the
manner and the method of voting and counting of votes, which
especially in the context of voting, counting has become more
error-free.
13.1 The discretion of the Returning Officer under Rule 56(D) (2) is
nothing new, added as a result of the VVPATs. Rule 63 dealing with
re-counts, even pre-EVMs had a provision which exists, which is
worded the same. Rule 63(3) also provides that on an application
made to the Returning Officer to recount votes, the returning officer
shall decide the matter and may allow the application in whole or
in part or may reject it in toto if it appears to him to be frivolous or
unreasonable.
Therefore, it is not a case of introducing an element of discretion
in the subjective satisfaction of the Returning Officer, merely on
the advent of the VVPATs by the Election Commission. At this
juncture, it shall also be relevant to peruse the guidelines as per
the Handbook of Instructions to the Returning Officers, Chapter –
XV which pertains to Counting of Votes. The same is reproduced
hereunder:
“15.30. RECOUNT
15.30.1 Normally, there will be no question of recount
of votes recorded in the voting machines. Every vote
recorded by the voting machines is a valid vote and
no dispute will arise as to its validity or otherwise.
At the most, some candidates or their agents may
not have noted down the result of voting at any
particular polling station properly when the control
unit displayed that information. If necessity arises
for re-verification, the Result Button can preseed,
whereupon the result of voting at that polling station
will again be displayed in the Display Panels of that
control unit.

15.30.2 Despite the necessity for recount being
totally eliminated by the use of voting machines, the
provisions relating to recount contained in Rule 63
of the Conduct of Election Rules, 1961, still apply
in relation to your constituency. Accordingly, when
the counting is completed and the Final Result Sheet
in Form 20 has been prepared, you should announce
the total number of votes polled by each candidate
as entered in the Final Result Sheet. You should then
pause for a minute or two. If during this period any
candidate or, in his absence, his election agent or any
of the counting agents, asks for a recount, you should
ascertain from him regarding the time required
by him for applying for recount in writing. If you
consider that the time applied for is reasonable,
allow it and announce the exact hour and minute
up to which you will wait for receiving the written
application for recount. You should not sign the Final
Result Sheet in Form 20 until after the expiry of the
time so announced.
15.30.3 When an application for recount is made, you
should consider the grounds urged and decide the
matter. You may allow the application in whole or in
part if it is reasonable or you may reject it in toto, if it
appears to you to be frivolous or unreasonable. Your
decision will be final, but in every case you should
record a brief statement of your reasons for your
decision. A candidate has option to make request for
recount of polled ballot papers and/or polled EVMs
of all or some of the polling stations
15.30.4 If in any case, you allow an application
for recount either wholly or in part, you shall have
the votes recorded in the voting machines counted
over again in accordance with your decision. The
postal ballot papers will also be counted over again
if so decided by you. After the recount, correct the
final result sheet to the extent necessary. Announce

the amendments so made, if any, by you. After the
total number of votes polled by each candidate after
recount has been announced by you, complete and
sign the Result Sheet. No candidate has a right to
demand a recount after you have completed and
signed the Final Result Sheet. Reject any demand for
any recount of votes after you have completed and
signed the Final Result Sheet.
15.30.5 Where printer for paper trail is used, any
candidate or in his absence his election agent or
any of his counting agents may apply in writing to
the RO to count the printed paper slips in the drop
box of the printer in respect of any polling station
or polling stations after the entries made in the
result sheet is announced. If such an application is
received, the returning officer shall, subject to such
general or special guidelines as may be issued by the
ECI, decide the matter and may allow in whole or
in part or may reject in whole, if it appears to him
as frivolous or unreasonable. Every decision of the
RO shall be in writing and shall contain the reasons
thereof. If the RO decides the counting of paper slips
either wholly or in part or parts, he shall –
a. do the counting in the manner as may be directed
by the Commission,
b. amend the result sheet in form 20 as per the paper
slips count if there is discrepancy between the votes
displayed on the Control Unit and the counting of
Paper Slips,.
c. announce the amendment so made by him and,
d. complete and sign the result sheet (ECI NO
3/1/2013 VVPAT/SDR dated 15.10.2013.)
15.30.6 As the Returning Officer, your duty is to count
accurately the votes and you have therefore always
the right to order your staff to recount the votes. But

the right of a candidate to demand a recount under
Rule 63 does not mean that recount can be granted
for the mere asking. The party demanding recount
has to make out a prima facie case that the counting
was not accurate and recount is necessary in the
interest of justice.
15.30.7 It would be unreasonable to demand second
recount if the first recount showed only minor
variations from the first count and at the same time
showed a very substantial majority in favour of one
candidate. On the contrary, it would be reasonable to
demand further recount where the margin between
first two candidates is close and where previous
recount has shown differing results.
15.30.8 But you would be justified in refusing a
further recount when the previous recount showed
the same result even if the difference between the
contesting candidates may be very small.
15.30.9 The Commission has decided that where
the result of an election is going to be decided by
difference of postal ballot received by the first
two candidates, then there shall be mandatory and
comprehensive recount of postal ballot papers, even
though no candidate ask for it.
15.30.10 If votes are counted at more places than
one, according to rule 65 of the Conduct of Elections
Rules, 1961, the demand for recount of votes can be
made only at the end of counting in the last place fixed
for the purpose. Thus, in the case of Parliamentary
Constituency, the recount can be demanded only at
the place where the Returning Officer counts the
postal ballot papers and completes Part II of the Final
Result Sheet in Form 20 and not at the places where
the votes have been counted Assembly segment-
wise.

15.30.11 As mentioned above, if votes are counted at
more than one places, the recount can be demanded
at the last place fixed for the purpose. This would
be very inconvenient as the voting machines and all
relevant papers would have to be taken to the last
place of counting and in that way it will defeat the
entire effort and the whole purpose of spreading out
the counting at different places.
Though generally it is intended that a recount of
votes of a particular polling station should be done
only after the counting for the entire constituency
is over, if any doubt is expressed by any candidate
immediately after the counting of votes at any polling
station is over, it is desirable that you check up again.
This is strictly not a recount but a check, which will
satisfy all the candidates.
14. On the contrary, as will be evident from the extensive reproduction
of the Status Report on EVMs/VVPATs, the system of registering
the vote of the voter and reflection of his vote has become more
transparent and apparent to regain the voter’s confidence in the
system. What essentially was the object of introduction of the
VVPATs was the restoring of the voter’s confidence by the logging
and registering of his vote correctly in the EVM. The Voter Verifier
Audit Trail as the name suggests assures the voter of his vote having
been correctly recorded in the system. Once the object of the audit
of the voter’s vote, from his perception is achieved, who is the end
consumer of the franchise, the mere apprehension voiced by the
candidate, pales into insignificance.
15. We have also gone through the press notes released by the
Commission from time to time. The same read as under:

“ELECTION COMMISSION OF INDIA
Nirvachan Sadan, Ashoka Road, New Delhi
PRESS NOTE
No.ECI/PN/39/2017 Dated: 12th May, 2017
Subject: Meeting of all Political Parties on issues
related to EVM/VVPAT and other Electoral reforms
The Election Commission held a meeting with all
recognised National and State Political parties today
at Constitution Club, New Delhi to discuss the
following issues:
(i) EVMs and VVPATs.
(ii) Making Bribery in Elections a Cognizable
Offence.
(iii) Disqualification on Framing of Charges for the
Offence of Bribery in Elections
(iv) Suggestions on VVPAT Recount Rules.
07 National Parties and 35 State Parties attended the
meeting.
In his inaugural address, the Chief Election
Commissioner Dr. Nasim Zaidi, underlined the
contribution of all political parties and stated that
systemic improvements and progressive measures
aimed at improving the electoral processes and
systems have been evolved by the Commission in
cooperation with all political parties.
CEC referred the queries raised by some political
parties about the incidents of alleged EVM
manipulation at Bhind and Dholpur during the
recently concluded Bye-elections, and reiterated
that baseless perceptions were generated about these
incidents and there was no case of biased vote results.
Commission highlighted the wide range of technical,
administrative protocol and procedural safeguards

that fortify the EVMs and VVPATs against any sort of
manipulation or tampering. He said that Commission
is open to hear suggestions on how to further improve
integrity and credibility of EVMs.
CEC also informed the political representatives
that the Commission will hold a challenge and offer
opportunity to political parties to demonstrate that
EVMs used in the recently concluded Assemblies
elections were tampered OR that EVMs can be
tampered even under the laid down Technical &
Administrative Safeguards.
CEC stated that the Commission will ensure 100%
coverage of VVPATs in all future election to the
Parliament and State Assembly Elections. That
VVPATs slips of a percentage of EVMs to be
determined by ECI will be counted. ECI will soon
evolve a framework in this regard. To make the
election process more transparent, the Commission
has made proposal for electoral reforms on misuse
of money power and bribery during elections. The
Commission has also made proposal for amendments
in the Income Tax Act and in the RP Act, 1951, for
enhancing transparency in the funding of political
parties.
Dr. Nasim Zaidi urged the political parties to ensure
their continuous and qualitative participation at all
crucial preparatory steps for elections like FLC,
Randomization of EVM/VVPAT/Polling personnel,
EVM Preparation/candidate setting, Mock Poll,
EVM Sealing etc. CEC also stressed that continuous
involvement is the shared responsibility of all the
stakeholders including the political parties.
CEC conveyed neutral stand and equidistance of ECI
from all political parties as it has no favourite which
has enhanced India’s reputation in the eyes of Global
Community.

A detailed presentation on EVM was presented by
Shri. Sudeep Jain, Director General of ECI explaining
therein its secured design feature, development
process, stakeholders’ participation at various levels,
and administrative processes making the EVMs
secure.
Representatives of the political parties presented their
views & suggestions on each of the agenda items.
Commission assured the political parties that their
concerns & apprehensions regarding EVMs have
been taken note of and would be duly considered &
addressed through forthcoming challenge and further
necessary actions. In respect of other Electoral
Reforms, their views/suggestions would be examined
and further action would be initiated appropriately.
sd/-
(Dhirendra Ojha)
Director
ELECTION COMMISSION OF INDIA
Nirvachan Sadan, Ashoka Road, New
Delhi-110001
No. ECI/PN/42/2017
Dated:20th May 2017
PRESS NOTE
Sub: EVM Challenge by Election Commission of
India
1. The Election Commission of India is globally
acknowledged as a ‘’Gold Standard’’ in conduct of
free and fair elections with integrity in India. It has
set ever-higher standards of efficient, smooth and
professional conduct of Elections and has been at the
forefront of embracing, adopting and implementing
the latest technological advancements in improving
and fine-tuning the election processes and systems.
2. The Commission has taken the pioneering
initiative of introducing Electronic Voting Machine
(EVM) for recording, storing and counting of votes
across the length and breadth of this country in a
transparent, credible and secure manner, duly backed
by appropriate legal support.
3. Over the last twenty years, the Commission
has successfully conducted 107 State Legislative
Assembly elections and 03 Lok Sabha elections
using EVMs. Since September 2013, Voter Verifiable
Paper Audit Trail (VVPAT) machines have also been
used in various State Assembly and Parliamentary
constituencies for enhanced transparency and
credibility in the voting process.
4. The introduction of EVMs in 90’s was a positive
electoral reform by the Commission. Some doubts
have been raised on the functioning of the EVMs
from time to time and from some quarters.
5. After the announcement of the results of the five
State Assembly Elections (UP, Uttarakhand, Punjab,
Goa and Manipur), in March 2017, again certain
doubts have been raised on the functioning of EVMs.
Some complaints and suggestions were received by
Commission after declaration of results of five State
Assembly elections. The Commission duly examined
these complaints and asked for evidence and credible
material information supporting the claims, but so
far no evidence has been provided by complainants
to ECI.
6. A group of thirteen political parties met the
Commission on 10th April, 2017 and expressed
certain reservations about the use of EVMs. Some
political parties also raised queries about incidents
relating to VVPATs used on 31/3/17 during
demonstration (NOT in actual poll) at Bhind (M.P)

and Dholpur (Rajasthan) Bye-elections held in the
first week of April, 2017.
7. To understand the concerns of political parties,
Commission convened an all party meeting on 12th
May. A press statement was also issued by ECI the
same day to the following effects.
(i) The Commission stated before political parties
that all future elections will be mandatorily held with
VVPATs. The Commission firmly believes that use of
VVPAT machines along with the EVMs in all polling
stations, in all future elections, will bring utmost
transparency and credibility in the EVM based voting
system. This will enable each voter to see for himself
in VVPAT whether his or her vote has gone to the
right candidate. After press of button on BU, name
and symbol the concerned candidate will appear on
the screen of VVPAT machine and paper slip bearing
name and symbol will be dropped in a sealed box
connected with VVPAT. These slips will serve as
audit trial of the vote cast by voter on EVM. Audit
trail will enhance confidence and trust of voters. Use
of VVPATs with EVMs must conclusively put to rest
all misinformed doubts and misgivings regarding
EVMs. It will also be a matter of pride that India will
become the first country to deploy 100% VVPATs or
paper trail in the world, an element that was missing in
many countries including Netherland, Germany and
Ireland. Funds for procuring the required VVPATs
for 100% deployment have already been sanctioned
and production is to begin in August, 2017 and will
be completed by September, 2018.
(ii) It was also stated that the Commission has also
taken into account suggestions made by various
political parties regarding counting of VVPAT lips.
The Commission will count VVPAT slips up to a

definite percentage, which will be determined by
the Commission. The ECI will shortly evolve an
appropriate framework in this regard.
(iii) The Commission will hold a challenge and offer
opportunity to political parties to demonstrate that
EVMs used in the recently concluded Assembly
elections were tampered or that EVMs can be
tampered even under the laid down technical and
administrative safeguards of ECI.
(iv) Commission also urged all parties to ensure
their continuous and qualitative participation in all
crucial steps during elections such as First Level
Checking (FLC), randomisation of EVMs/VVPATs/
polling personnel, EVM preparation and candidate
setting, mock poll, EVM sealing and storage.
The Commission also invited more suggestions
from political parties on how to further increase
their participation, so that absolute transparency is
maintained at all times.
(v) Commission, further, urged political parties that
improving integrity of election process is a shared
responsibility of all the stake holders. We solicited
their suggestions to fill up gaps, if any, during election
and non election period. The Commission made it
clear that ECI want total transparency and have
nothing to hide from people and other stakeholders.
Commission will always receive suggestions from
its stakeholders for improvement of its processes.
(vi)The Commission also emphasised that
Commission is committed and it maintains
equidistance from all parties and groups. The
Commission further emphasised that ECI has no
favourites. Further, this equidistance by ECI has
enhanced India’s reputation in the eyes of the global
community.

8. The Commission has already issued detailed
Press releases on Credibility of Electronic Voting
Machines on 16th March, 2017, on alleged VVPAT
incident during mock EVM demonstration on 31st
March 2017 (and not in actual poll as alleged) at
Bhind (Madhya Pradesh) on 07th April, 2017 and
also regarding EVMs in Dholpur (Rajasthan) on 11th
April, 2017. In Bhind, a wrong notion was created
that for any key pressed on the Ballot Unit, only one
symbol was printed by VVPAT.
Commission’s thorough enquiry clearly established
that during the EVM demo held on 31.03.2017 in
DEOs office the 4 buttons were pressed during the
demo and not the actual poll and every time the correct
corresponding symbol was printed. A Status Paper
on EVMs has also been circulated to all stakeholders
on 12th May, 2017elaborating various aspects about
EVMs and VVPATs for information and awareness.
(All these documents are available on ECI website).
9. Certain complaints of alleged tampering of EVMs
during the recently held Municipal elections in
Maharashtra and elsewhere also generated wrong
perception about EVMs of ECI. It was noted that
confusion exists in the minds of many about the
jurisdiction of ECI. We would like to clarify once
again on this occasion that ECI is not responsible
for the conduct of local body elections by the
State Govts in the country and consequently about
various protocols and procedures adopted by the
concerned State Election Commissions. Election to
local bodies, both urban and rural, are conducted
by separate constitutional authorities State Election
Commissions constituted by the State Govts. Under
Article 243 of the Constitution. Moreover, a particular
complaint of some candidate receiving zero vote in
Mumbai Municipal elections has been found to be
totally false by SEC Maharashtra.

10. The Commission is confident and has firm
conviction about the integrity, non- tamperability
and credibility of the EVMs. The basis of
confidence of the Commission flows from a wide
range of technical and administrative protocols
and procedural safeguards that protects our EVMs
and VVPATs against any sort of tampering during
manufacture, transportation, storage, polling and
counting process. Still, the Commission is open to
receiving from all stakeholders’ suggestions on how
to further improve the integrity and credibility of our
EVMs and VVPATs. The Commission will not allow
even a shade of doubt about EVM operations.
11. The Commission would like to address some of
the important issues that have been raised from time
to time in past two months:
A. ECI- EVMs are not hackable as these, are stand
alone machines and not connected to the internet and
/or any other network at any point of time during
polling. Hence, there is no chance of hacking. The
ECI-EVMs do not have any frequency receiver or
data decoder for wireless and hence cannot receive
any coded signal by wireless.
Hence, no tampering can be carried out through
external hardware Wireless, Wi-Fi or Bluetooth
device. Moreover, machines a re always in the
custody of ECI and its election authorities.
B. Manipulation at manufacturing stage is ruled out
as there is very stringent security protocol regarding
the security of software. Further, the Machines
have been manufactured in different years starting
from 1989. After manufacturing, EVMs are sent
by ECI to State and district within a State. The m
anufacturers are in no position to know several
years ahead which candidate will be contesting
from a particular constituency and what will be the

sequence of the candidates on the BU and, therefore,
cannot manipulate EVMs in a predetermined manner
at manufacturing stage.
C. Results cannot be altered by activating a Trojan
Horse through a sequence of key presses because
1. Trojan Horse cannot be inserted into the software
code of ECI EVM burnt into the Microcontroller
Chip since the chip is one time Programmable only.
2. The stringent security measures by ECI make it
impossible to access the EVMs which is an essential
prerequisite for attempting to change the Micro-
controller for inserting a Trojan Horse.
3. Control Unit activates Ballot Unit for only one key
press at a time. Any additional key pressed on the
Ballot Unit is not sensed by the Control Unit making
it impossible to send signals by pressing a sequence
of keys or secret codes. Once a ballot key is pressed
in CU, the CU enables BU for registering the vote
and waits for the key pressing in the BU. During this
period, all keys in the CU become inactive till the
entire sequence of casting of that vote is complete.
Once any of the keys (candidates vote button) is
pressed by a voter in BU, the BU transmits the key
information to CU in dynamically encrypted form.
The CU gets the data and acknowledges it by glowing
the corresponding red LED lamps in BU. After the
enabling of ballot in CU, only the ‘first key press’ is
sensed and accepted by CU.
After this, even if a voter keeps on pressing the
other buttons, that is of no use as there will not be
any communication between CU and BU of those
subsequent key presses, nor will BU register any key
press. To put it in other words, there can be only one
valid key press (the first key press)for every ballot

enabled using CU. Once a valid key press (voting
process) is complete, until another ballot enabling
key press is made there will not be any activity
between the CU and the BU. Hence, sending of any
malicious signal, by way of so called ‘sequenced
key presses’, is impossible in the Electronic Voting
Machines being used in the country.
D. ECI-EVMs cannot be Physically Tampered with
nor their components be changed without anyone
noticing. It is clarified that replacement of micro
controller/chip and the motherboard in earlier
generations of machines like M1 and M2 is ruled out
due to robust administrative and technical safeguards.
Further, the new M3 EVM produced after 2013 have
additional features like Tamper Detection and Self
Diagnostics. The tamper detection feature makes an
EVM inoperative the moment anyone tries to open
the machine. The Self diagnostic feature checks
the EVM fully every time it is switched on. Any
change in its hardware or software will be detected.
Rs. 1900 Crore have already been sanctioned to the
manufacturers for production of 13.95 Lakh BU and
9.30 Lakh CU of M3 generation. Also, 16.15 Lakh
VVPATs are also under production and Rs. 3173
Crore have been sanctioned for the same.
E. The latest technological features make ECIEVMs
tamper proof. The ECI- EVMs use some of the most
sophisticated technological features like one time
programmable (OTP) microcontrollers, dynamic
coding of key codes, date and time stamping of
each and every key press, a dvanced encryption
technology and EVM-tracking software to handle
EVM logistics, among others to make the machine
100% tamper proof.

In addition to these, new model M3 EVMs also
have tamper detection and self- diagnostics as added
features.OTP software implies that the programme in
the EVM cannot be altered, re-written or re-read by
anyone under safe custody of ECI. This makes EVM
tamper proof. If anyone makes an unauthorized
attempt, the machine will become inoperative.
F. Contrary to misinformation spread and alleged
by some, ECI does not use any EVMs produced
abroad. EVMs are produced indigenously by two
PSU manufacturers viz. Bharat Electronics Ltd.,
Bengaluru and Electronics Corporation of India Ltd.,
Hyderabad. The Software Program Code is written
in-house by these two companies and not outsourced
and approved by TEC of ECI and subjected to strict
security procedures at factory level to maintain the
highest levels of integrity.
The software programme is converted into machine
code by manufacturers and only then given to the
chip manufacturer abroad. (We don’t have the
adequate capability of producing semi-conductor
microchips within the country). Every microchip
has an identification number embedded into memory
and the producers have their digital signatures on
them. So, the question of their replacement does
not a rise at all because microchips brought back
to manufacturers are subjected to functional tests
with regard to the software. Any attempt to replace
microchip is detectable and can make EVM in-
operative. Thus, both changing existing program and
introducing new one are detectable making EVM in-
operative because EVMs are tamper detect. Also the
technological advancement now permits fusing of
the software on the chip at BEL and ECIL itself and
hence, in M3 the software is fused on the chip inside
BEL and ECIL.

G. There are no possibilities of manipulation in EVM
during transportation or at the place of storage. At
the district headquarters, EVMs are kept in a double-
lock system under appropriate security. Their safety
is periodically checked. The election authorities do
not open the strong room, and they only regularly
check whether it’s fully protected and whether the
lock is in proper condition or not. No Unauthorized
person can get access to the EVMs at any point of
time. During the non election period, annual physical
verification of all EVMs is done by DEOs and report
sent to ECI.
Further, strong rooms are always opened in the
presence of representative of political parties.
H. There are different levels of checks and balances
ensuring tamper proofing of ECI-EVMs which are
as follows:
-First Level Checking: Authorized BEL/ECIL
engineers certify originality of components
after technical and physical examination of each
EVM, which is undertaken in the presence of
representatives of political parties. Defective
EVMs are sent back to the factory. The FLC Hall is
sanitized, entry is restricted and no camera, mobile
phone or spy pen is allowed inside. The Mock Poll
is conducted on EACH EVM by election officials in
the presence of representatives of political parties.
The Mock poll of at least 1000 votes is conducted
on 5% EVMs selected randomly by representatives
of political parties and the result shown to them. The
entire process is video graphed.
- Candidate Setting: Yet another significant safeguard
is the process of candidate setting, which is done
after the finalization of contesting candidates. A
ballot paper is inserted in the Ballot Unit, which is

then sealed with Pink Paper Seal. BU is sealed at this
stage. Where VVPATs are used, candidates’ symbols
are loaded in each VVPAT at this stage. Once again,
every EVM is subjected to mock poll and 5% EVMs
are randomly picked up for 1000 mock poll.
- Randomization: EVMs are randomized twice while
being allocated to an Assembly and then to a polling
booth ruling out any fixed allocation. As you can
appreciate, tillfirst randomization no-one knows
the sequence of names on the ballot paper till the
finalization of list of contesting candidates, the names
of contesting candidates are placed alphabetically on
the ballot paper first for National and State Parties,
followed by other Registered Parties, followed by
independents and NOTA. Thus the Serial no. of any
political party, candidate on the BU would be variable
from constituency to constituency. It is therefore
clear that serial no. of any political party candidate
is not fixed or predetermined in all the constituencies
of the state.
Hence, till candidate setting, none, not even RO or
DEO or CEO or the Commission could know which
button on which BU will be assigned to which
candidate.
- Mock Poll of at least 50 votes at the polling station
is also conducted in front of polling agents of
candidates on the poll day, before poll begins.
- After Poll, EVMs are sealed and polling agents put
their signature on the seal. Polling agents can travel
up to strong room during transportation of polled
EVMs from the polling station to the EVM Strong
room.
- Strong Rooms: Candidates or their representatives
can put their own seals on the rooms, where polled
EVMs are stored after the poll and also camp in front

of the strong room. These strong rooms are guarded
24x7 in multilayers, with CCTV facilities.
- Counting Centres: The polled EVMs are brought to
the Counting Centres under security and in presence
of candidates and Unique IDs of the seals, signature
of polling agents on CU are shown to representatives
of candidates before the start of counting.
12. Looking at the above series of fool-proof checks
and balances that are undertaken by the ECI to make
EVMs tamper proof, it is evident that neither the
machines can be tampered-withnor they can leave
the ECI-EVM system. Further, neither defective
machines nor Non-ECI-EVM can get reinducted/
inducted into the polling process at any point of
time. Non ECIEVMs will get detected by the above
process due to mismatch of BU & CU.
13. Some people argue that why have Developed
Nations like the US and the European Union not
adopted EVMs and some have even discontinued?
ECI EVMs are far superior to any EVMs worldwide.
EVM, used in the Netherlands, Ireland and Germany
were privately manufactured and had no independent
certification system unlike a very robust verification
and certification system through independent TEC
or an ECI approved third party in case of ECI
EVMs. Also, voting data in these NEDAP EVMs in
the Netherlands was transferred using CDs, unlike
our EVMs where it is stored internally and never
transferred. Also these countries lacked full end to
end administrative and security safeguards as well as
legal framework.
Finally their EVMs also lacked auditability. A point
is raised from time to time that several foreign
countries have discontinued the use of voting
machines and why India is using EVMs. With the
rapid advances in technology over the years, Election

Management Bodies, professionals, experts, and
activists (particularly Green Activists) have mooted
the idea of using paperless electronic voting methods
in different parts of the world in order to overcome the
disadvantages of manual marking of paper ballots.
The marriage between technology and election
management goes back to at least 1892, when the
first ‘lever voting machine’ was used in New York,
after using the paper ballot for a long time. In the
1960s, punch-card machines were introduced in the
USA, and the first EVM was introduced there in
1975. Electronic Voting has moved quite ahead since
then.
Types of Electronic Voting:
The process of electronic voting can be of three
types:
(i) Direct Recording Machines placed at
designated polling station,
(ii) Internet Voting
• Remote Online Voting
• At Designated Polling Stations
(iii) Optical Scanners
• Stand-alone
• Networked for centralized counting of results
EVMs used in India f all under the first type o f stand-
alone direct recording machines with no possibility
of any kind of network connectivity where voters
cast their votes at an assigned polling station on the
day of election under strict administrative security
ensured by the ECI.
Even though ECI EVMs a real so direct recording
machines ECI EVMs are completely different from

any of the EVMs used internationally either for direct
recording or for internet voting or for optical scanning.
This is clearly highlighted in the comparative analysis
of ECI EVMs with theDRMsused in countries like
Germany,Netherland,Ireland, and USA as follows:
The Netherlands
Electronic Voting was used in The Netherlands in
between 1990-2007. The voting machines were
manufactured by a private Dutch-company called
NEDAP (Nederlandse Apparaten Fabriek NV). In
2006, the government ordered an independent testing of
the voting machines. Two independent commissions,
The Voting Machines Decisionmaking Commission
and the Election Process Advisory Commission
(EPAC) were also established on December 19, 2006
and January 18, 2007, respectively, to review the
security and reliability features of NEDAP machines.
Following the observations of the two Commissions,
the use of NEDAP machines and electronic voting
was discontinued in 2007 on the following grounds:
• The Ministry of Interior and Kingdom Relations
(MOIKR) of The Netherlands lacked adequate
technical knowledge vis-à-vis the NEDAP machines,
leading officials to depend on external actors for the
conduct of elections.
• Technology vendors became part of the decision
making process and the ministry was not in a
position to exercise effective oversight.
• The Dutch Organization for Applied Scientific
Research (Toegepast Natuurwetenschappelijk
Onderzoek, TNO) certified and tested these machines
following “outdated standards” which were not
immune to modern IT and security threats.
• Moreover, the certification and testing reports were

not made public depriving independent experts to
verify the analysis.
• The legal framework, particularly the necessary
security requirements, was inadequate to deal with
the specificities of the electronic voting process.
(For a comprehensive report on electronic voting in
The Netherlands, see link: https://www.ndi.org/sites/
default/files/5_Netherlands.pdf)
Germany:
In Germany, the e-voting machines manufactured by
NEDAP were used in between 2005 – 2009 before
it came under criticism and finally discontinued.
The Bundesverfassungsgericht (the Federal
Constitutional Court of Germany) ordered the
discontinuation of the use of NEDAP machines in
2009 because of the below-mentioned reasons:
• The use of Nedap electronic voting machines
violated the principle of the public nature of elections
(Article 38 in conjunction with Article 20.1 and 20.2
of the Basic Law) that requires that all essential steps
in the elections are subject to public examinability
unless other constitutional interests justify an
exception.
• It also observed that “it must be possible for the
citizen to check the essential steps in the election act
and in the ascertainment of the results reliably and
without special expert knowledge”.
(See the judgment in the following link:
http://www.bundesverfassungsgericht. de/
SharedDocs/Entscheidungen/EN/2009/03/cs200
90303_2bvc000307en.html;jsessionid=FEA71E86E
2CEE030FF7AAAC905 72279C.2_cid383)

Ireland:
NEDAP machines were used in Ireland in between
2002 – 2004. The use of these machines was
questioned following which two independent
commissions were set up. The two Commissions
on the Secrecy, Accuracy and Testing of the Chosen
Electronic Voting System, concluded the NEDAP
machines could not be used in elections in Ireland on
the following grounds:
• Inadequate technological safeguards
• Insecure transfer of data by the use of CDs
• Absence of a comprehensive independent end-
toend testing, verification and certification by a
single accredited body
• Inconsistencies in physical security of machines
across constituencies
• Absence of a clear policy guideline via-a-vis
storage, transport, set-up, use and disposal of voting
equipment; and
• Absence of comprehensive electronic register to
record the identity, location and movement of the
electronic voting devices.
(Seelinks:http://www.umic.pt/images/stories/
publicacoes1/00Index.pdf;http://www.umic.pt/
images/stories/publicacoes1/Part200%20Index.pdf)
United States of America:
In 2000, after the dispute on the voting method in the
USA presidential elections, the voting method was
reviewed (Esteve, Goldsmith, & Turner, 2012:185).
Accordingly, Direct Recording Electronic (DRE)
Systems (like the widely used AccuVote TS
developed by Premier Election Solutions, commonly
called Diebold) were introduced. DRE Systems

uses “one of three basic interfaces (pushbutton,
touchscreen or dial)” through which “voters record
their votes directly into computer memory. The
voter’s choices are stored in DREs via a memory
cartridge, diskette or smart card...Some DREs can
be equipped with Voter Verified Paper Audit Trail
(VVPAT) printers...” Currently, in the USA, the
Direct Recording Machines are used in 27 states,
among which paper audit trails are used in 15 states.
The other voting methods include: Optical Scan
Paper Ballot Systems, Ballot Marking Devices, and
the Punch Card Ballot.
(See link: https://www.verifiedvoting.org/resources/
votingequipment/)
Other countries:
In Brazil, the machines used in elections are called
‘electronic ballot boxes’ which are stand-alone direct
electronic recording systems. In Venezuela, SATIS
(Smartmatic Auditable Election Systems) voting
machines are used which were fully implemented
across the nation in 2004. (Esteve, Goldsmith, &
Turner, 2012: 185)
India:
Indian EVMs are truly unique compared to the
evoting machines used in other parts of the world for
the following reasons:
• ECI-EVMs are stand-alone non-networked
machines
• The ECI-EVMs a re manufactured in two PSUs
namely ECIL and BEL, unlike machines used in
other countries, which were manufactured entirely
by private entities. Hence there is no chance of
involvement of vested interest of private players or
technology vendors in decision making or production

of the ECI-EVMs.
• ECI-EVMs have been time and again successfully
verified and certified by an independent Technical
Experts Committee after an end-to-end testing
process. STQC under Ministry of Information and
Technology, an accredited third party entity, conducts
standardization and certification of ECI EVMs
produced by manufacturers, unlike the machines
used in Netherlands
• In ECI EVMs data is stored internally and not
transferrable by any device, unlike other countries
where voting data recorded in the DRM is transferred
by means of CD, etc.
• Commission has evolved full end to end security
protocol and administrative safeguards for the use,
storage, transportation and tracking of ECI EVMs,
unlike in other countries where NEDAP machines
were used.
• Unlike MOIKR of Netherlands, the Commission
is fully backed by a Technical Expert Committee
comprising of eminent professors.
• Every EVM has a unique number attached to it,
which is recorded in the Election Commission’s
database through EVM Tracking Software. This
number of the EVM can always be cross-checked
against the database.
• The software used in these EVMs is One Time
Programmable (OTP), which can’t be re-written
after manufacture.
• The ECI-EVMs are always under strict, uniform,
high profile administrative and physical security as
per legal framework across the country.
• Section 61 A of the Representation of the Peoples
Act 1951 allows the use of EVMs by ECI. The

different High Courts across the country have also
upheld the use of EVMs time and again in various
judgments and the Karnataka High Court in 2004
declared ECI-EVMs as “national pride” because of
its transparency and robustness.
• Following the direction of the Hon’ble Supreme
Court, the ECI has introduced the technology of
VVPAT in order to ensure public verifiability. The
Commission is committed to implement VVPATs
nation-wide by 2019. Thus there will be 100%
voter verifiability and auditability of every vote cast
as opposed to lack of such facility in the NEDAP
machines, which was struck down by the German
Supreme Court as un-Constitutional, whereas Indian
Supreme Court has upheld the validity of use of
EVM for conducting elections in the country.
• Thus any comparison of ECI-EVMs with machines
used elsewhere is misplaced. The Commission has
always worked in an open and transparent manner
and always welcome questions, doubts and
constructive and decent criticism of our processes
so that we can further strengthen electoral processes.
During political party meeting on 12 May 2017,
Commission had promised to organise an open
challenge to give an opportunity to political parties
to demonstrate that EVMs used in five States
were tampered or EVMs even under technical
and administrative safeguards can be tampered.
Accordingly, ECI now proposed to open a challenge
on 3rd June 2017 onwards to all political parties.
Framework of the challenge:
Election Commission of India invites the nominees
of National and State Recognized political parties
who contested and claimed that the EVM machines
held under the ownership of Election Commission
of India and used in the recently held General

Assembly Elections of five states namely Punjab,
Goa, Manipur, Uttarakhand and Uttar Pradesh in
Feb-Mar 2017 were tampered or that these could be
tampered even under technical and administrative
safeguards of ECI, to demonstrate their claims at the
ECI Headquarters within the framework of the extant
administrative and security protocols prescribed by
the Commission.
Salient features of the EVM Challenge of the
Commission are as follows:
Challenge Statement I:
That the EVMs used in the General Elections to five
States-2017 were tampered to favour a particular
candidate/political party by altering the results stored
in the EVMs after the polls. The claimants will hence
have to alter the results in the Control Units used
during these polls in exactly the same scenario as the
EVMs remain within the technical and administrative
safeguards of ECI after the poll, i.e. during the
storage in strong rooms or during counting, through
a. using press of combination of keys on CU or BU
or BOTH, or
b. By communication to CU or BU or Both via
external wireless/Bluetooth/mobile phone etc.
Challenge Statement II
That the EVMs used in the General Elections to the
five States-2017 were tampered before or during
the poll day. The claimants will hence have to alter
the results in the EVMs used during these polls in
exactly the same scenario as the EVMs remain
within the technical and administrative safeguards of
ECI before the poll, i.e. during the storage in strong
rooms or during the poll, through

c. using press of combination of keys of CU or BU
or Both, or
d. by communication to CU or BU or Both via
external wireless/Bluetooth/mobile phone etc.
Common Procedure for Challenge I and Challenge II
1. The EVM Challenge is open for participation
from the National and State Recognized Political
Parties only which participated in the five States’
Assemblies Elections viz. Goa, Punjab, Manipur,
Uttarakhand and Uttar Pradesh.
2. Each National and State Recognized Party
intending to participate may nominate a maximum of
3 persons only to participate in the EVM Challenge.
Each Party shall intimate the names of maximum 3
authorized persons, if any, who wish to accompany
the chosen EVMs from the Warehouses to the
Commission at New Delhi during transportation at
their own cost.
3. The Political Parties willing to participate in the
EVM Challenge must mandatorily confirm their
interest to ECI by 5.00 pm on 26th May, 2017 through
the email (evmchallenge@eci.gov.in), wherein the
details of the Nominated members must be furnished
as per the prescribed Performa.
Only those Political Parties, which respond by 5.00
pm on 26th May, 2017 to the ECI, shall be allowed
to participate in the EVM Challenge. The response
of the political parties shall mandatorily be made on
the official letter-head of the party duly signed by the
President or General Secretary of the political party
concerned, which shall be scanned and emailed to
the email id mentioned above.
4. Further, if the Nominees of any Political Party, to
whom a Challenge date-time Slot has been allotted,

fail to report at the designated time and venue without
prior intimation or approval, shall forfeit their right
to participation in the EVM Challenge.
5. Each Political Party will be allowed to choose a
maximum of 4 EVMs of their choice from any 4
polling stations out of the Five poll-gone States.
Examples; Maximum of 4 EVMs only form 4 polling
stations can be chosen, either from one AC or from
multiple ACs in a State or from any of the five
States. It is clarified that any EVMs involved in EP
(Election Petition) or those under any sealing by the
orders of a competent Court, shall not be part of this
EVM Challenge. If a Political Party does not wish to
specify a particular EVM but wants ECI to provide
any EVM of Commission’s choice, then the same
should be intimated by 26th May, 2017.
6. The choice of the EVMs shall be emailed
(evmchallenge@eci.gov.in) in the prescribed
proforma by 5.00 pm on 26th May, 2017.
7. The chosen EVM machines, including Control
Units (CU), Ballot Units (BU) (one or more as
deployed) and VVPAT (wherever deployed) shall be
brought to the ECI at New Delhi, on as-is-where basis,
in compliance of the extent of established protocol
of ECI regarding opening of EVM strongrooms/
warehouse and EVM transportation.
8. The representatives of the Political Parties at State
Level are at liberty to witness the opening of EVM
Strong-rooms at the District/AC level where the
EVMs are presently stored, inspect the machines for
the various seals (as in protocol) and accompany the
machines during their transportation to ECI in sealed
trunks, if they so desire.
9. As these EVMs were used in the recently held
elections and were stored post counting, the EVMs

would still have the candidate setting and the result
of the said election.
10. The results of the machines as recorded during the
counting in the previous elections shall be available
in paper form also, having details like total votes
polled and votes casted for each candidates etc.
11. A Challenge Slot of 4 Hours shall be allotted
to each participating Political Party, wherein their
registered nominees shall be given access to one of
their chosen EVMs (CU+BU + VVPAT if deployed)
for the purpose of PROVING the Challenge
Statement 1 and 2. In case the first chosen EVM
is in-operative as a result of transportation, then
the second of the chosen EVM shall be allowed to
be used for the challenge and soon. However, if a
Political Party desires to avail of more time, the
request shall be made in writing to the Commission,
which shall decide the issue on merits and demands
of reasonability.
12. The nominees may before proceeding for
challenge if they want, check the result of previous
election already stored in CU and verify that these
are same as given by ECI in item 10 above as per
ECI protocol of declaring results from CU. This step
is optional and will be recorded if they opt for it in
writing.
The result of recount also will be recorded.
13. The Nominees of the participating Political
Parties shall be allowed the following methods onthe
Challenge EVMs to prove the challenge:
a. Pressing any sequence of buttons on the CU or BU
or Both.
b. The use of any external wireless/Bluetooth/Mobile
Phone device/Transmitter.

14. All Key Presses made by the Challenger shall
be declared prior to the actual execution of key
presses and these will manually be recorded by the
ECI Counter Staff for keeping a “written record of
exact process of conduct” of the “challenge proving”
poll. In case the challenger wishes to use mobile or
blue tooth during poll, he should inform the Election
officials and this should also be recorded. This is
especially relevant, in case the Challenger wishes to
conduct any mock poll or full poll by either use of
key presses or mobile phone / bluetooth during his
tamper attempt to prove the Challenge Statements.
15. All Key Presses shall be made in clear and
unhindered view of the ECI Counter Staff and the
recording Cameras and made with a Specially
Designed Presser, so as to avoid any confusion or
ambiguity in the key presses made by the Challenger
using his fingers.
16. EVMs can be opened and only visually inspected
during Challenge-II as this is allowed during First
Level Check (FLC). However, EVMs cannot be
opened during Challenge-I as EVMs are always
kept sealed after the Poll till counting in actual poll
scenario.
17. During the Challenge period, with regard to any
written representation or any dispute or interpretation
issues, the decision of the ECI Officer In-charge shall
be final.
18. The EVM challenge shall be organised from
03.06.2017 onwards at Nirvachan Sadan, Ashoka
Road, New Delhi.
Challenge Conclusion:
1. The Challenger under Challenge I shall be deemed
to have ‘’FAILED’’ if:

a. The EVM becomes non-functional after the
tamper attempt made by the Challenger. (Reason:
ECI EVMs are designed to go into error mode if
any unwarranted technical operations are conducted
rather than recording any wrong results).
b. The EVM is functional and results displayed on
the CU after conduct of challenge attempt are the
same as ECI declared results stored on the chosen
CU (prior to the pressing of CLEAR Button).
c. If the Challenger violates any of the guidelines
prescribed for the EVM Challenge.
d. The challenger withdraws from current challenge.
2. The Challenger under Challenge II shall be deemed
to have ‘’FAILED’’ if:
a. The EVM becomes non-functional after the
tamper attempt made by the Challenger. (Reason:
ECI EVMs are designed to go into error mode if
any unwarranted technical operations are conducted
rather than recording any wrong results).
b. The EVM remains functional and after erasing
the earlier stored result, a mock poll or full poll is
conducted by the Challenger along with his challenge
attempt and manually recorded votes(by ECI staff)
are the same as that stored on the chosen CU after the
said mock/full poll.
c. If the Challenger violates any of the guidelines
prescribed for the EVM Challenge.
d. The challenger withdraws from current challenge.
10. Certain naysayers have demanded that ECI
should either permit them to take the EVMs with
them for tampering or allow changing of internal
circuit etc of the EVM. This is like saying that they

should be permitted to manufacture a new machine
and introduce their new EVMs in our system.
Further, it is common knowledge that changing the
‘internal circuit’ of any electronic device is like
changing the whole device itself, after which it
is no longer the same device. As any person with
common sense will be able to appreciate, a non-ECI
EVM or an EVM with a different ‘internal circuit’
is simply a different machine or look alike of ECI
EVM hence can never be guaranteed by ECI to give
correct results. Such a scenario is completely ruled
out within our administrative safeguards and that’s
why it is not proposed in the Challenge.
11. The Commission is thankful to all the citizens,
voters, political parties and all stakeholders for their
unwavering faith in the Commission for more than 67
years. The Commission would further like to thank
all political parties for showing their continuous
trust and confidence in the Election Commission of
India as expressed during interventions of political
parties on 12th May in the All Party Meeting. The
Commission would like to reassure the people of
the country that the Commission would leave no
stone unturned in preserving the purity, integrity and
credibility of the Elections and reinforcing the faith
and trust of the people in the electoral democracy of
our country. I wish to reassure that citizens of the
country that the Commission will never ever allow
the faith of the people in the integrity of the election
process to be shaken. The Commission desire all
citizens and stakeholders to remain aware, vigilant
and alert about our electoral processes so that conduct
of free and fair election by Commission is further
strengthened.
(Dhirendra Ojha)
Director

ANNEXURE-6
NIRVACHAN SADAN, ASHOKA ROAD, NEW
DELHI-110001
No. ECI/PN/47/2017 Dated: 3rd June, 2017
Press Note
Subject- EVM Challenge concludes.
At the outset ECI thanks all the stakeholders
for reaffirming their faith and confidence in the
EVMs whether by participation or otherwise in the
whole exercise of EVM Challenge. The Election
Commission of India had, in an extraordinary
measure, invited all national and state recognized
political parties to come and participate in the EVM
challenge announced by it on 20th May, 2017 as per
the framework of the challenge. Only two political
parties namely, NCP and CPI(M) submitted their
interest in participating the EVM challenge till 5.00
PM on 26th May, 2017.
Since none of the two political parties specified their
choices for EVMs to be chosen from five poll gone
states, the Commission brought 14 EVMs randomly
in sealed condition kept in strong rooms from 12
Assembly Constituencies of Punjab, Uttarakhand
and Uttar Pradesh for the EVM challenge scheduled
for 3rd June, 2017.
Earlier, Commission had a meeting with all National
and State Political Parties on 12 May 2017 in which
42 parties participated. While majority expressed full
confidence on the integrity of EVMs, a few continued
to raise doubts on functioning of the ECI-EVM.
Commission held a press conference on 20 May
2017 and explained in great detail why it has absolute
confidence on non-tamperability of ECI-EVMs

working within the technical and administrative
safeguards. Commission then announced an EVM
Challenge and spelt out a complete framework
and send to all political parties on 20th May, 2017
alongwith invitation.
Today both the parties (NCP and CPI-M) reported
to the Challenge Venue on the 7th floor. However
CPI(M)told they do not wish to participate in the
challenge but only want to understand the EVM
process. A detailed demonstration of the entire
process was given to them by our technical team.
They also expressed desire to interact with the TEC
and had a detailed doubt clearing session in which in
depth technical doubts were clarified by TEC of the
Commission. CPI(M) team then expressed complete
satisfaction and suggested that to allay any such
doubts Commission should hold such demonstrations
and awareness sessions with technical community
proactively. Commission welcomes their very
constructive suggestion.
NCP team led by Mrs Vandana Chavan, MP,
informed that they too do not want to participate in
any challenge but were only interested to participate
in an academic exercise. She referred to her earlier
request to provided them the memory number and
battery number of the EVM four days in advance.
The Director General Mr Sudeep Jain informed
her that Commission had already replied to their
request mentioning that the EVMs have to be kept
under sealed conditions it is not possible for the
Commission to open the EVMs to take out the
memory and battery numbers in the absence of party
representatives in the Commission.
Commission had accordingly informed that the party
can access these numbers at the time of the Challenge
by opening themselves the sealed EVMs which is

provided as per Challenge Framework. DG again
informed her that they can choose an EVM and open
the same to access these memory numbers. However
NCP representative submitted a letter saying they
cannot participate in the challenge because of non-
provision of this information. In the letter NCP
representative also raised an objection of last minute
change in the EVM selection protocol by asking
them to select an EVM out of the list of 14 EVMs.
Commission then offered her to have all her technical
doubts clarified by interacting with TEC. NCP team
then had a detailed discussion with TEC which
clarified all their issues, including the 8 issues listed
by them in their letter submitted today to which the
response would be sent separately.
NCP team again met the Commission where the
Commission reiterated their offer that they can still
participate in the Challenge or by way of academic
exercise by selecting the EVM and then accessing
the memory and battery numbers by opening the
machines themselves. Commission also offered them
that they can come back, as they had demanded, to
prove their point.
However NCP representative mentioned that
the source of all their doubt had been alleged
problems with EVMs during Municipal Elections
in Maharashtra. Commission clarified that EVMs
used by SEC, Maharashtra for urban local bodies
elections do not belong to ECI. The NCP team then
expressed their willingness to opt out requesting that
Commission should evolve a system which clearly
distinguishes ECI-EVMs form SEC-EVMs.
Commission has taken note of NCPs suggestion.
The Commission has already stated publicly and
before political parties that all future elections will
be mandatorily held with VVPATs. The Commission

firmly believes that use of VVPAT machines along
with the EVMs in all polling stations, in all future
elections, will bring utmost transparency and
credibility in the EVM-based voting system. Audit
trail will enhance confidence and trust of voters.
Use of VVPATs with EVMs must conclusively put to
rest all misinformed doubts and misgivings regarding
EVMs.
Honourable Uttarakhand High Court in its judgement
yesterday said “Prima facie, it is evident from a
combined reading of the entire press release of ECI that
this system is seal proof. The EVMs are not hackable.
There cannot be any manipulation at manufacturing
stage. The results cannot be altered by activating a
Trojan Horse through a sequence of key presses. The
ECI-EVMs cannot be physically tampered with. The
EVMs use some of the microcontrollers, dynamic
coding of key codes, date and time stamping of each
and every key press etc. These EVMs also cannot be
tampered with during the course of transportation or
at the place of storage. There are checks and balances
to ensure tamper-proofing of EVMs”.
It is clarified that for visual Inspection EVMs can be
opened and visually inspected during Challenge-II as
this is allowed during First Level Check (FLC).
The Commission is thankful to all the citizens,
voters, political parties and all stakeholders for their
unwavering faith in the Commission for more than 67
years. The Commission would further like to thank
all political parties for showing their continuous
trust and confidence in the Election Commission of
India as expressed during interventions of political
parties on 12th May in the All Party Meeting. The
Commission would like to reassure the people of
the country that the Commission would leave no
stone unturned in preserving the purity, integrity and

credibility of the Elections and reinforcing the faith
and trust of the people in the electoral democracy of
our country. I wish to reassure that citizens of the
country that the Commission will never ever allow
the faith of the people in the integrity of the election
process to be shaken. The Commission desire all
citizens and stakeholders to remain aware, vigilant
and alert about our electoral processes so that
Commission can further strengthen the conduct of
free and fair elections in the country.
Sd/-
(Suman Kumar Das)
Under Secretary”
16. From the reproduction of the contents hereinabove, the salient
features of the EVM/VVPATs mode used in the election process of
the country when appreciated, can be enumerated as under:
A) The Election Commission Of India, an autonomous
constitutional authority has the constitutional mandate of
superintendence, direction and control of elections to the
Parliament and the State Legislature. Article 324 of the
Constitution Of India vests the Commission with such power
to conduct elections. The introductory Chapter to the Status
Report is self-explanatory of the role of the Commission
and its responsibilities, which we no further re-iterate and
elaborate. Judicial notice can be taken of the fact that the
Indian Democracy has seen multiple elections in the vast
geographical expanse, without a murmur of the elections
not being conducted in a free and fair manner at the hands
of the Commission. This is notwithstanding the voices of the
disgruntled candidate who has voiced unfounded allegations
on the tamperability of the EVMs, which have to be nipped in
light of the Election Commission’s conviction in its letter of
10.01.2019 coupled with the action so taken as demonstrated
in the Status Report regarding the unjustified apprehensions.
B) The voting system in India has gone through multiple
changes. The use of ballot paper was time consuming, prone

to malpractices booth-capturing and ballot box stuffing. There
was a recognizable possibility of casting of votes and large
number of invalid votes due to wrong/incorrect marking,
subject to prolonged counting drills, more disputes and
delayed result announcements.
C) The introduction of EVMs has made voting, from the
perception of the voter, much more simpler and voter-
friendly. The voter has to merely press a button on the
Balloting Unit. Under the EVM system, there is no invalid
vote unlike the ballot system where there were large number
of invalid votes to an extent that in some cases the number
of invalid ballot papers were more than the winning margin
of the elected candidate. The EVMs are more auditable,
accurate, transparent reducing human error. The Commission
conducted several field trials and involved all stake holders
and political parties in evolving a error free EVM.
D) The addition of the Voter Verifiable Paper Trail (VVPAT)
which was introduced in 2013 brought in additional
transparency.
E) The status report has in detail, highlighted in a separate
chapter - LEGAL INTERVENTION AND COURT CASES
eliciting decisions of various Courts where the election mode
and manner has successfully stood up when the credibility of
the technology was at stake.
F) The Voter Verifiable Paper Trail is an additional unit attached
to the EVMs. It prints a small slip of paper that carries the
symbol, name and serial number of the candidate voted by
the Voter, which is visible for some seconds in the viewing
machine in the viewing window. The voter after pressing
the button on the Balloting Unit can view the printed slip
on the VVPAT through the window. The paper slips are then
automatically cut and stored in the sealed compartment of
VVPAT to be used later to cross check the votes in the Control
Unit. This is an additional verification to the voter. Therefore,
the mechanism has been introduced to be more voter-centric
and not with a view to address the apprehensions of a losing

candidate or for that matter a contesting candidate.
G) The report has highlighted the safety and security features of
the EVMs which indicate that the technological safeguards
that contribute to the non-tamperability of the EVMs are :
* They are stand-alone non-networked machine which
are neither computer controlled nor connected to any
network and hence cannot be hacked. In fact, as the Press
Notes reproduced earlier the exercise to see whether it
was “hackable” were undertaken and it has stood the test.
* The machine is electronically protected. The software is
developed in-house and tested.
* The software is so designed that it allows the voter to
cast the vote only once. The vote can be recorded by a
voter from the ballot unit only after the Presiding Officer
enables the ballot on the Controlling Unit. The machine
does not receive any signal from outside at any time. The
next vote can be recorded only after the Presiding Officer
enables the ballot on the Control Unit. In between, the
machine becomes dead to any signal from outside( except
from the Control Unit).
H) The administrative procedures as highlighted by the Report
for handling EVMs are also stringent. They are :
Before every election, a first level checking is done for every
EVM to be used in the election by the engineers in the presence
of political parties.
The manufacturers certify at the time of first level checking
that all components in the EVM are original. After this, the
plastic cabinet of Control Unit of the EVM is sealed using a
Pink Slip which is signed by the representatives of the political
parties and stored in strong rooms.
A mock poll is conducted with a few votes at the time of first
level checking using EVMs and VVPATs and after the poll
printed VVPATs slips are counted and the result is tallied with

the electronic result of the Control Unit.
Representatives of the political parties are allowed to do
mock poll themselves. Such a mock poll by casting 50 votes
is conducted at every polling station on the poll day in the
presence of the representative of the candidates and the polling
agents and a mock poll certificate is obtained from a Presiding
Officer.
The entire EVM is then sealed and the candidates and their
agents are allowed to put their signature.
I) Reading the extract in the Status Report at Pages 46-49 (of
which the table at page 47 is reproduced herein below at the
cost of repetition) reveal from the chronology of events that so
far VVPATs have been used in 933 Assembly Constituencies
and 18 Parliamentary Constituencies. Till date, VVPAT slip
verification has been undertaken for 792 polling stations and
in all cases, the results tallied with the electronic result in the
CU. This gives no manner of room for the petitioner to contend
that the discretion vested in the Returning Officer under Rule
56(D)(2) is wrought with the fears expressed by the Petitioner.
Date Chronology of Events
4th Oct 2010 An all-party meeting held. Agreement on
incorporation of VVPATs along with EVMs.
07/01/11 Field trial conducted after the prototype
was manufactured, in Thiruvananthapuram
(Kerala), Delhi, Cherapunjee (Meghalaya),
Jaisalmer (Rajasthan) and Leh (Jammu &
Kashmir).
July-Aug 2012 A second field trial was conducted
19th Feb 2013 Final model was approved by TEC
10th May 2013 The Model was demonstrated to all political
parties
14th Aug 2013 The conduct of Election Rules 1961 was
amended and notified
J) Reading of the Status Report indicates that on 12.05.2017, a

meeting with all political parties was organized by the Election

Commission of India. The Election Commission highlighted
the wide range of technical, administrative protocol and
procedural safeguards that fortify the EVMs and VVPATs
against any sort of tampering or manipulation. The Commission
informed the political representatives that an opportunity will
be offered to the political parties to demonstrate that EVMs
can be tampered with. The Commission has assured 100%
coverage of VVPATs in all future elections to the Parliament
and State Assembly Elections. A Press Conference was held on
20.05.2017 to announce the EVM Challenge and invitation was
sent to all National and State Recognized Political Parties to
participate in the EVM Challenge from June 3, 2017 onwards.
Only two political parties reported for the challenge. They
reported for the challenge but they did not wish to participate
in the challenge and instead only expressed their interest in
understanding the EVM Process. They interacted extensively
with the Technical Expert Committee of the Commission to
clear their doubts. The Press Notes of 12.05.2017, 20.05.2017
and 03.06.2017 are self-explanatory
K) The Election Commission of India had issued instructions
to all Chief Electoral Officers on 13.02.2018 for mandatory
verification of VVPAT paper slips-Pilot Testing.
Evident it is, on reading the August Edition of the Status Report, that
there has been no complaint as to the defect on the VVPAT’s credibility.
The same is reproduced hereunder:
“ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN, ASHOKA ROAD, NEW
DELI I I - l 10001
No.51/8/VVPAT-INST/2018-LMS
Dated: 13th February, 2018
To
The Chief Electoral Officers of All States and Union
Territories.

Subject: Mandatory verification of VVPAT paper
slips - Pilot Testing - regarding.
Sir.
I am directed to state that the Commission has already
mandated that VVPATs will be used with EVMs at all
polling stations in all future General/Bye-Elections to
the Parliament and the State Legislative Assemblies.
The Commission conducted mandatory verification
of VVPAT paper slips of randomly selected 01
(one) polling station per Assembly Constituency
on a ‘pilot’ basis in the recently concluded General
Elections to State Legislative Assemblies of Gujarat
and Himachal Pradesh, in addition to the provisions
of Rule 56D of the Conduct of Elections Rules,
1961, and the same has been extended to the ongoing
General Elections to the State Legislative Assemblies
of Meghalaya, Nagaland and Tripura. on ‘pilot’ basis.
The Commission has further, directed that henceforth,
mandatory verification of VVPAT paper slips of
56D of the Conduct of Elections Rules, 1961, after
(a) In case of General and Bye elections to State
Legislative Assemblies, verification of VVPAT
paper slips of randomly selected 01 (one) polling
(b) In case of General and Bye elections to the House
of the People, verification of VVPAT paper slips
of randomly selected 01 (one) polling station of
each .Assembly Segment of the Parliamentary

For this mandatory verification of VVPAT paper
slips, the following procedure shall be followed:
1. The verification of VVPAT paper slips of
randomly selected 01 (one) polling station for
each Assembly Constituency/Segment shall be
taken up after the completion of the last round
of counting of votes recorded in the EVMs.
2. The random selection of 01 (one) polling station
per Assembly Constituency/Segment shall be
done by Draw of lots, by the Returning Officer
agents and the General Observer appointed by
the Commission for that Constituency.
3. The draw of lots must be conducted immediately
after the completion of the last round of counting
of votes recorded in the EVMs (Control Units)
in the designated Counting Hall for the particular
Assembly Constituency/Assembly Segment.
4. A written intimation regarding the conduct of
draw of lots for the random selection of 01 (one)
polling station for verification of VVPAT Slips
shall be given by the Returning Officer to the
Candidates/their election agents well in advance.
The following procedure shall be followed for
the conduct of draw of lots:
a. White colour paper cards of postcard size shall
be used for conducting the draw of lots.
b. Total number of such paper cards should be
equal to total number of polling stations in the
c. The paper cards shall have pre-printed Assembly
Constituency/Assembly Segment number, AC/
AS name and date of polling on the top. and the
polling station number in the centre. Each digit

of the polling station number shall be atleast
1” x 1“ ( 1 inch by 1 inch) size and printed in
black ink.
d. The paper cards to be used for draw; of lots
should be four- folded in such a way that polling
station number is not visible.
e. Each paper card shall be shown to the candidates/
container.
f. The paper cards shall be kept in the big container
and must be shaken before picking up 01 (one)
slip by the Returning Officer.
The verification of VVPAT paper slips shall be
done in a ‘VVPAT Counting Booth’ (VCR),
specially prepared for this purpose inside the
Counting Hall. The booth shall be enclosed in a
wire mesh just like a bank cashier’s cabin so that
no VVPAT paper slip can be accessed by any
unauthorized person. One of the Counting tables
in the Counting Hall can be converted into the
VCB and can be used for normal counting of
round-wise EVM votes before the count of
VVPAT slips as per random selection after the
completion of round-wise EVM counting.
The Verification count of the VVPAT paper slips
of the randomly selected 01 (one) polling station
shall be conducted strictly in accordance with
the instructions of the Commission on counting
of printed paper slips.
8. The Returning Officer and Assistant Returning
Officer, as the case may be shall personally
supervise the counting of VVPAT paper slips
at this booth. The General Observer concerned
shall ensure close and careful observation of the

entire exercise and ensure strict compliance of
the Commission’s instructions.
9. The above process shall be fully videographed.
10. After completion of the above process, the
Returning Officer shall give a certificate in the
annexed format.
The above direction of the Commission shall be
brought to the notice of all concerned.
17. Keeping the aforesaid facts on hand and collectively appreciating
the purpose of the introduction of the VVPAT, in exercise of powers
under Section 169 of the Representative of People Act, 1951, the
Central Government has the powers to make Rules in consultation
of the Election Commission for carrying out the purposes of the
Act. Amendments have been made in the Conduct Of Election
Rules, 1961 looking to the technological advancement in the
method of voting i.e. through EVMs rather than casting of votes
in a Ballot Box through a Ballot Paper. The Rules as existing for
the method of voting through a Ballot Paper and counting of such
votes, have been added and renumbered as new Rules by virtue of
introduction of VVPATs. The language and the spirit of the Rules
which erstwhile existed when the franchise was exercised through
the Ballot Paper has remained the same for the EVMs too, though
notwithstanding the fact that from the perception of the Voter, who
is the prime consumer of the institution of democracy has had the
benefit of the voting becoming more easier and transparent through
the concept of EVMs and VVPATs.
17.1 The entire step-wise procedural safeguards that the Election
Commission undertakes in the manner of the conduct of elections
through the EVMs and VVPATS, in exercise of its constitutional
obligation under Article 324 of the Constitution Of India coupled
with the technology, leaves no room of doubt for the petitioner to
contend that the discretion of the Returning Officer to entertain
an application under Rule 56(D)(2) of the Rules can be said to
be an unguided discretion when they are qualified with the words
that the rejection will only be on the ground of the application

being frivolous or unreasonable. Such a rule existed even when the
voting was carried out through the Ballot Box. The apprehension
of the petitioner seems to be based on the unjustified apprehension
of a malfunction and tamperability of the EVMs, which claims
have been rendered completely unfounded and unjustified.
17.2 It is required to be noted that the provisions of law
reproduced hereinabove and the guidelines laid down by the
Election Commission of India specifically ensure demonstration
of transparency in the conduct of elections. In fact the provisions
of Rule 56D(2) allows the Returning Officer to address cases of
genuine complaints and there is no reason why the prayers prayed
for by the petitioner should be granted. The communication
dated 10.01.2019 addressd by the Election Commission of India
to the petitioner and the conviction of the Election Commission,
a constitutional authority more an autonomous body, assures of
the fact that the discretion so vested in the Returning Officer will
be exercised with due care and in accordance with law. Reading
of the provisions of Section 100(d)(iv) of the Representation Of
People Act, 1951 indicates that in the event such an application is
rejected, the aggrieved candidate or the elector has a remedy which
is inbuilt to file an Election Petition. On these counts, therefore, we
see no reason to entertain the Public Interest Petition and grant the
prayers therein.
18. Before parting, we may just make a reference to the fact that the
petitioner has with his petition, annexed a copy of the order of the
Supreme Court rendered in Writ Petition (Civil) No.1012/2017. By
the order dated 20.11.2017, the Apex Court dismissed the petition
filed by Mr. Manubhai Chavda against the Election Commission. In
the pleadings in the PIL before this Court, a reference is made that
the Writ Petition before the Supreme Court was filed challenging
Rule 56(D)(2) of the Conduct of Election Rules, 1961 by the writ
petitioner therein. Mr. Koshti, Party-In-Person has furnished a
copy of the Writ Petition so filed. The grounds and particularly the
prayers of the Writ Petition before the Apex Court and this Court
are identical. When Mr. Koshti was confronted with the question
whether it was appropriate for the petitioner to file the present
petition, when the Supreme Court had dismissed the petition with

similar prayers, Mr. Koshti relied on several decisions of the Apex
Court, namely in the cases of DM Wayanad Institute f Medical
Sciences versus Union Of India and Anr. (Writ Petition (C)
No.448 of 2015) : Indian Oil Corporation versus State Of Bihar
1986(4) SCC 146 to submit that merely because Article 32 of the
Constitution of India is invoked, there is no bar to a subsequent
petition under Article 226 of the Constitution of India. Since we
have extensively dealt with the issue on merits, we are not going
into the said question of maintainability of this Petition.
19. The Writ Petition PIL is therefore dismissed with no orders as to to
costs.

19. KRISHNA KUMAR GUPTA vs. RAJENDRA SHUKLA &
ORS.
Election Petition. No. 21 of 2014 [(2014) SCC
OnLine MP 8785]
CASE
DETAILS 07.08.2014
G.S. Solanki, J.
Contentions were raised relating to irregulates
ISSUES in EVMs concerned, which were opposed by the
The EVMs are full proof devices for counting,
therefore, the allegation made in the petition in regard
DECISIONS
to malfunctioning and tampering of EVMs used in
counting of votes are baseless.
SUMMARY
In this Election Petition, the petitioner made allegation that the EVM
machines which were packed in a brief case were opened while
depositing in a strong room after polling. Also, the petitioner has raised
doubts in regard to fairness or impartiality of the officials engaged in
the counting process.
The Hon’ble Court held that all doubts and queries regarding EVMs
have already been answered in FAQs on the website of ECI wherein it
has been specifically shown that there is no possibility to vote more than
once by pressing button again and again. It was also held that EVMs
are full proof device for counting, therefore, the allegation made in the
petition in regard to mal-functioning and tampering of EVMs used in
counting of votes are baseless. With respect to the doubts raised by the
Petitioner in regard to fairness or impartiality of the officials engaged
in the counting process, the court held that the Petitioner is under an
obligation to demonstrate as to how the EVMs could be tampered with
to get the desired result.
ORDER
G.S. Solanki, J.
1. This order shall govern disposal of I.A. No. 39/2009, which is an

application under Order 7 Rule 11 of the CPC for rejection of the
election petition inter-alia on the following grounds :-
(i) The petition is not accompanied by an affidavit as required
under the proviso to sub-section (1) of Section 83 of the R.P.
Act in support of allegation of corrupt practice and particulars
thereof.
(ii) The petition is not only lacking compliance of mandatory
provisions contained in Representation of People Act, 1951
(for short R.P.Act) but same also does not disclose any triable
cause of action because the petition does not contain concise
statement of the material facts and particulars on which the
petitioner relies. If the averments made in the petition, are
accepted to be true on the face value, they do not close any
triable cause of action. The petitioner has alleged corrupt
practice but necessary facts constituting such corrupt practice
have not been disclosed in the petition.
(iii) It has not been pleaded that how the election of respondent
No. 1 has been materially affected on account of alleged
improper reception, refusal or rejection of the votes. It is
further submitted that a bare perusal of Paragraphs 15(i) to
(xix) clearly shows that the petitioner has not disclosed the
particulars of the persons from whom he derived information
required for filing the petition. It is also submitted that the
petitioner has made defective pleadings in the relief clause,
because the petitioner has firstly prayed for order direction
reelection or repolling of votes in 74 Rewa Constituency and
based on result of such re-polling has prayed for setting aside
the election of respondent No. 1. On the basis of aforesaid
submission, respondent No. 1 has prayed for dismissal of this
election petition under Order 7 Rule 11 of the CPC read with
Section 86 of the R.P. Act.
2. Learned counsel for respondent No. 1 has further submitted that
the pleadings in regard to corrupt practice is vague and do not spell
out as to how election results have been materially affected because
of the facts stated in the petition. In this way the facts stated in the
petition do not formulate complete cause of action. Counsel has

placed reliance on a decision of the Apex Court in Anil Vasudev
Salgaonkar Vs. Naresh Kushali Shigaonkar – 2009(9) SCC 310
and Ram Sukh Vs. Dinesh Aggarwal - (2009) 10 SCC 541.
3. The petitioner has filed reply to the aforesaid application denying
the grounds raised by respondent No. 1 for rejection of the petition.
It is submitted that the petitioner has specifically pleaded the
facts in regard to corruption and source of his information. It is
further submitted that the petitioner has already filed an affidavit
in compliance of Section 83(1) of the R.P. Act. Learned counsel
for the petitioner has further submitted that all the necessary facts
have already been pleaded in the election petition and to find out
the existence of cause of action, the Court can not devide the
pleadings in several parts, rather the petition will have to be read as
a whole. Counsel has placed reliance on a decision of Apex Court
in Govind Singh Vs. Harchand Kaur – (2011) 2 SCC 621 and
Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy and others
– (2012) 7 SCC 788.
4. I have heard the learned counsel for the parties at length and gone
through the law laid down by the Apex Court in the aforesaid cases.
It is true that if there are any contradictions or some averments are
lacking in verification or affidavit filed in support of the pleadings,
same can be amended after providing the opportunity by the Court
as held by the Apex Court in Ponnala Lakshmaiah Vs. Kommuri
Pratap Reddy and others (supra) and in such circumstances, the
petition cannot be dismissed in limine on ground No. (I).
5. So far as aforesaid ground Nos. (ii) and (iii) are concerned, the
petitioner has pleaded in Paragraphs 9 and 10 of the petition that
respondent No. 1 has not disclosed exact number of pending criminal
case before High Court. On perusal of Annexure filed along with
the petition, it reveals that instead of writing ‘M.Cr.C’ respondent
No. 1 has written ‘Revision’ but the number 11950/2009 is same.
In Paragraph 12, there is vague pleading in regard to Electronic
Voting Machine. Now, I consider the pleadings made in Paragraph
15 of the election petition. The pleadings made in Paragraph 15 are
reproduced below for ready reference:-

15. That petitioner submits that the election was not
contested by the respondent no. 1 in free and fair
manner and voting as well as counting was not done
in accordance with rules and it has been done in large
scales in whole constituency, hence petitioner was
declared defeated otherwise he would have victorious
candidate. The fact is that there is manipulation in
voting, preparation of account and counting of votes
etc. in following manner “:-
(i) EVM machines which were packed in brief case
were opened while depositing in strong room after
polling.
(ii) In Lohi Polling Booth (Booth No. 186) one
woman was trying to cast vote in favour of B.S.P. But
the Presiding Officer himself casted vote in favour of
Bhartiya Janta Party. The said news was published
in Video City Cable on 25.11.2013 and News Paper
published the news on 26.11.2013.
(iii) The details submitted in nomination formas
pasted on the notice board reflects one criminal
case against BJP candidate, whereas after election-
they mentioned 3 numbers of criminal cases in the
original nomination form.
(iv) City Cable, Rewa and Akashwani Rewa
published news on 23rd, 24th and 25th of Nobember,
2013 that independent candidates have supported the
B.J.P. Candidate.
(v) As per oral version of Abhishekh Tiwari
(9669600045), a candidate of Rashtriya Kisan Vikas
Party – received a mobile call from Akash Tiwari
(94246066799) seeking information as to whether
Abhisheikh supported the B.J.P.
(vi) Satya Narayan Gupta (9425874740) who
was B.S.P. Additional Agent of the petitioner also
received a telephone in Mobile No. 9826649619

on 24.11.2013 between 9-10 hrs. from Ram Raj
Patel r/o Rathora that BJP candidates supporters are
distributing liquor and blanket in area (Rani Talab)
Nai Basti and Akola.
(vii) Polling Booth 42 (Boda Bag), Machine No.
52545, there was no green paper currency was
fixed. Only strip seal number was mentioned which
is C-00-9732642973266. As per Presiding Officer
C-00-973264, C-00-973265, C-00-9266. P.O. has
informed that remaining two green strips were
returned where as no such information in Form 17-
Ga. mentioned.
(viii) Rule 49 (Dha) & 56 (Ga)(2)-Form No. 17- Ga.
There is no signature – on form of returning Officer
in respect of Polling Booth No. 42.
(ix) As per P.O. In Polling Booth No. 42-only 497
votes were cast but in counting it comes 499 in which
B.J.P. Candidate received 272 votes and petitioner
received 88 votes only, and it has been done in large
scale.
(x) All the documents which has been supplied to
the petitioner is shown as amended and it shows that
there was manipulation done in the documents and
while supplying the documents to the petitioner the
returning officer had given amended document to the
petitioner. The election agent submitted objection to
collector (R.O.) and S.P. Closed his door and make
correct/caste two votes in the EVM machine about
such discrepancies. This incident was published in
newspaper. Two votes have been put in NOTA and
total votes have been mentioned as 499, though the
same is 497. A copy of form No. 17 – Ga of polling
Booth No. 42 is annexed herewith as Annexure P/8 .
And in this regard petitioner election agent submitted
his objection to the returning officer but without
deciding the objection of the petitioner agent the

counting was regularly going on. A copy of objection
is annexed herewith as Annexure P/8-A, P/8-B and
P/8-C.
(xi) In polling booth No. 42 Green paper currency
was not mentioned, But in the diary number of P.O. It
is mentioned. But, green paper currency is not placed
in its original place.
(xii) The returning officer and presiding officer,
district election officer had taken mobile in counting
room, whereas the election agent and candidates
were stopped from carrying mobiles on the ground
that the same affects the EVM machines. However,
rule in this regard is to be brought and place it on
record. As Annexure P/9.
(xiii) In Samachar Patrika Good Morning dt.
26.11.2013 at Page No. 3 published a news with
regard to irregularities in EVM machines.
(xiv) The news with regard to disturbance during
counting and stopped the media. And thereby changed
two votes after closing doors and stoppage media
from coverage. The voice raised by candidates was
subsided by police force such news was published in
news papers on 09.12.2013.
(xv) The B.J.P. Candidates installed flex hoarding
at Sirmour Chowk on Anupam Building that he has
won thrice and the opposite party clean bold at 2.30
p.m. On 08.12.2013 whereas the elections result
were declared on 7.30 p.m. On 8.12.13. This has also
been published in newspapers.
(xvi) The Collector called meeting of election
agents and counting agents of all 8 on 06.12.2013 in
APS University Hall with regard to management in
the counting rrom to be made on 08.12.2013 and the
instructions with regard to procedure to be followed
in respect of election agent. However, there was ill

management which created chaos which facilitated
the authorities to manipulate things.
Even there were no cameras as per instructions.
The Video person was also only one whereas there
were two rooms in which counting. When ever any
dispute or objection with regard to counting, the
camera persons were asked to shift to another room
so that no recording of disputes can be made. There
was no proper arrangement for even standing. This
averments is supported the news paper cuttings datd.
9.12.2013 published in “Star Samachar” daily under
the caption/heading Rewa Ki Dedh Ghnate Ruki
Rahi Matgadana. A copy of such news paper cutting
page no. 4 dtd. 9.12.2013 is annexed herewith as
Annexure P/10.
(xvii) The District President of Bahujan Samaj party,
District Rewa has raised objection to the Chief
Election Commissioner, Election Commission of
India, New Delhi and requested for independent and
fair counting of votes in 8 constituency elections areas
in Rewa and pointing out irregularities and undue
influence of ruling party over the state authorities.
The apprehension of irregularities in counting was
already expressed prior of counting. There is direct
fight in election between Minister Rajendra Shukla
and B.S.P. Candidate making specific allegation that
there is possibility that authorities would result in
defeat of B.S.P.
Candidate by committing irregularities in counting.
Neither action was taken in this regard nor response
has been received. A copy of the representation
dtd. 30.11.2013 submitted by the BSP President in
this regard is annexed herewith as Annexure P/11
and copy of the fax receipt is annex herewith as
Annexure P/11-A.

(xviii) The petitioner submitted an application
02.12.2013 seeking the certified copies of relevant
documents but non cooperation has been shown
b Returning Officer, District Election Officer and
Collector in receiving such application. Therefore,
the aforesaid application has been sent through
registered post. A copy of the same with endorsement
is annexed herewith as Annexure P/12. And copy of
postal receipt dtd. 4.12.2013 is annexed hereiwth as
Annexure P/12-A.
(xix) That, before counting of the votes i.e. 8.12.2013
the District President BSP, Rewa submitted his
apprehension to the Election Commission of India
on 6.12.13 there is possibility of mismanagement,
hence there is need of new observers which comes
from Delhi.
But no action has been taken in this regard. A copy of
the letter written to the election commission of India
with copy of the receipt of Fax is annexed herewith
as Annexure P/13 and P/13-A respectively.
6. It reveals from a bare perusal from the aforesaid pleadings that the
petitioner has raised various grounds on the basis of newspaper
and information received by someone else. It is well established
principle of law that to prove the allegation of corrupt practice,
it should be specifically pleaded as to how and from whom the
petitioner has got the information but the petition is lacking of
such specific pleading.
7. In Para 15(i) it is pleaded that EVM machines which were
packed in brief case were opened while depositing in strong room
after polling, but who has witnessed this incident, has not been
specifically pleaded.
8. In Para 15(ii) it is pleaded that in Lohi Polling Booth (Booth
No. 186) one woman was trying to cast vote in favour of B.S.P.
But the Presiding Officer himself cast vote in favour of Bhartiya
Janta Party. The said news was published in Video City Cable on

25.11.2013 and News Paper published the news on 26.11.2013. In
this paragraph also nothing has been specifically pleaded that who
was that woman and who has witnessed this incident. It appears
that this pleading is based on news published in the newspaper and
Video of City Cable, which are second had informations.
9. In Para 15(iii) it is pleaded that the details submitted in nomination
form-as pasted on the notice board reflects one criminal case against
BJP candidate, whereas after election- they mentioned 3 numbers
of criminal cases in the original nomination form. This pleading
itself is contradictory to Para 10 of the petition wherein it was
pleaded that respondent No. 1 has not disclosed all criminal cases
pending against him. In this paragraph it has not been specifically
pleaded as to how the same has materially affected the election of
the petitioner.
10. In Para 15(iv) it is pleaded that City Cable, Rewa and Akashwani
Rewa published news on 23rd, 24th and 25th of Nobember, 2013
that independent candidates have supported the B.J.P. Candidate,
however, firstly it has not been pleaded as to who was the
independent candidate and secondly how it has materially affected
the election of the petitioner if someone has supported the BJP
candidate.
11. The pleadings made in Paras 15 (v) and (vi) are based on the facts
that one Abhishek Tiwari received a mobile call from Aakash
Tiwari seeking information as to whether Abhishek supported
the BJP and second one Satya Narayan Gupta, who was B.S.P.
Additional agent of the petitioner also received a telephone in
his mobile from Ramraj Patel that BJP candidates supporters are
distributing liquor and blanket in area (Rani Talab) Nai Basti and
Akola, but the name of supporters of BJP candidate has not been
specifically pleaded who are alleged to have distributed the liquor
and blankets. Further it has not been disclosed that the to whom the
aforesaid articles have been distributed.
12. The pleadings made in Paras 15 (vii), (viii) and (ix) pertain to the
procedure followed at the time of voting. Certainly the polling
agents of the petitioner were present there at that time and the said
proceedings took place in their presence but names of such polling

agents have not been disclosed. Further there was dispute of two
votes in counting. It has also not been specifically pleaded that if
respondent No. 1 received 272 votes and the petitioner received 88
votes, how the difference of two votes has materially affected the
election of the petitioner.
13. The pleadings made in Para 15(x) relates to manipulation in
the documents and amended documents are stated to have been
supplied to the election agent. This pleading is again based on
a news published in the news paper, which shows that if any
discrepancy was found during the counting, same was ratified
before the agents of the petitioner and the counting was continued.
14. The pleading made in Paras 15 (xi) and (xii) are absolutely
superfluous. The petitioner has not pleaded that if the returning
officer or presiding officer had taken mobile in the counting room,
how the election of the petitioner has been materially affected
and further it has not been pleaded as to who has witnessed the
aforesaid fact.
15. The pleadings made in Paras 15 (xiii) and (xiv) are based on news
published in Samachar Patrika ‘Good Morning’ and other news
papers.
16. In Para 15(xv) it is pleaded that on the date of counting i.e. on
8.12.2013, the BJP candidates installed flex hoarding at Sirmour
Chowk on Anupam Building that he has won thrice and the
opposite party clean bold at 2.30 p.m. whereas the election results
were declared on 7.30 p.m. Firstly, this pleading is also based on
news published in the news paper and secondly it has not been
pleaded specifically that if on the date of counting, someone has
installed flex hoarding that he is going to win the election, how it
has materially affected the election results, thus these pleadings do
not constitute any ground to allege corrupt practice.
17. The pleadings made in Para (xvi) are with respect to mismanagement
during counting. This pleading is also based on the news published
in the news paper ‘Star Samachar’.
18. In Paras 15 (xvii) and (xix), the pleadings have been made on the
basis of the fact that the President of BSP has raised objection

the Chief Election Commissioner, Election Commission of India,
New Delhi in regard to independent and fair counting and this
apprehension was expressed prior to counting but neither any
action was taken in this regard nor any response has been received.
Here also it has not been pleaded specifically that who was the
District President of BSP and if such objection was raised by him,
how it has materially affected the election results it same was not
responded by the Election Commission of India.
19. In Para 15(xviii), the petitioner has pleaded that he filed an
application seeking certified copies of the documents but there
was non-cooperation of the returning officer, therefore, he filed
application by registered post, but nothing has been pleaded as to
how it has materially affected the election results.
20. The non filing of the affidavit in Form 25 as prescribed under Rule
94-A of the Conduct of Election Rules, 1961 is a curable defect and
on the basis of said defect, the petition cannot be rejected. So far as
pleading in regard to corrupt practice is concerned, when the same
is considered in its entirety, I find that the petition is absolutely
lacking the material facts in regard to corrupt practice.
21. So far as objection raised in regard to irregularities in EVMs is
concerned, all doubts and queries regarding EVMs have already
been answered in FAQs on the website of Election Commission
of India wherein it has been specifically shown that there is no
possibility to vote more than once by pressing button again and
again. Since the petitioner has raised doubts in regard to fairness
or impartiality of the officials engaged in the counting process, he
is under an obligation to demonstrate as to how the EVMs could
be tampered with to get the desired result.
However, no expert opinion has been placed on record regarding
the chances of misalignment of EVMs. On the other hand,
correctness of all the technical aspects of the matter, as reflected
as FAQs and the Press Note issued and uploaded on its website by
Election Commission of India, has already been verified on the
judicial site in Michael B. Fernandes Vs. C.K. Jaffer Sharief,
AIR 2004 Karnataka 289. Thus, the EVMs are full proof device
for counting, therefore, the allegation made in the petition in regard

to mal-functioning and tampering of EVMs used in counting of
votes are baseless.
22. In view of the above discussion, even if the averments made in the
election petition are taken on their face value and accepted in the
entirety, no triable cause of action arises in the absence of specific,
precise and complete pleading in respect of alleged irregularities as
well as corrupt practice alleged to have been adopted by respondent
No. 1 or his agent during the election.
23. In these circumstances, I.A. No. 39/2014 filed by respondent
No. 1 under Order 7 Rule 11 of the CPC is hereby allowed. As a
consequence thereof, the election petition filed by the petition is
hereby dismissed for want of any cause of action. Parties to bear
their own costs as incurred of this petition.
A copy of this order be forwarded to the State Election Commission
as well as to the Speaker, Legislative Assembly.

20. LAKHAN GHANGHORIYA vs. ANCHAL SONKER & ORS.
Election Petition No. 12 of 2014 [(2014) SCC
OnLine MP 5165]
CASE
DETAILS 20.11.2014
G.S. Solanki, J.
The Petitioner in this E.P. inter-alia made an
ISSUES
allegation of irregularities in EVMs.
Hon’ble Court declined to entertain such aspersions
and held that EVMs are full proof devices for
DECISIONS counting, therefore, the allegation in regard to
malfunctioning and tampering of EVMs used in
counting of votes, are baseless and unnecessary.
SUMMARY
In this Election Petition, contentions were raised relating to irregularities
in EVMs.
The Hon’ble Court held that all doubts and queries regarding EVMs
have already been answered in FAQs on the website of ECI wherein
it has been specifically shown that there is no possibility to vote more
than once by pressing button again and again. It was also held that since
the petitioner has raised doubts in regard to fairness or impartiality of
the officials engaged in the counting process, he is under an obligation
to demonstrate as to how the EVMs Could be tampered with to get
the desired result. However, no expert opinion has been placed on
record regarding the changes of misalignment of EVMs. On the other
hand, correctness of all the technical aspects of the matter, as reflected
as FAQs and the Press Note issued and uploaded on its website by
Election Commission of India, has already been verified on the judicial
site in Michael B. Frnandes v. C. K. Jaffer Sharief, AIR 2004 Karnataka
289. Thus, the EVMs are full proof devices for counting, therefore,
the allegation made in the petition in regard to malfunctioning and
tampering of EVMs used in counting of votes, are baseless and
unnecessary, therefore, they are liable to be struck out.
ORDER
G.S. Solanki, J.

1. This order shall govern disposal of I.A. No. 2/2014, which is an
application under Order VI Rule 16 of the CPC , I .A. No. 3/2014,
which is an application under Order VII Rule 11 of the CPC and
I.A. No. 18/2014, which is an application under Order VI Rule 17
and Order XXIII Rule 1 read with Section 151 of the CPC.
2. I.A. No. 2/2014 has been filed under Order VI Rule 16 of the CPC
by respondent No. 1. It is submitted in the application that the
petitioner has called in question the election of respondent No. 1
from Assembly Constituency No. 97, Jabalpur (East) mainly on
the following grounds :-
(i) The polling booths close to the house of respondent No. 1
were not changed as a result of which certain voters could not
exercise their franchise.
(ii) There were undue changes in the voters list resulting in
exclusion of certain voters who would have voted for the
petitioner.
(iii) The EVM machines, not functioning properly were replaced
and in one such EVM machine 340 votes were found as against
the total 520 votes polled as per the Presiding Officer.
(iv) The returned candidate resorted to corrupt practices by
distributing saries, T-shirt with BJP colours.
3. It is further submitted that the pleadings relating to changes in
the voters list as contained in Paragraphs 9, 10, 11 and 16 of the
election petition being unnecessary, scandalous and frivolous, are
liable to be struck out. The work of addition and deletion of names
in the voters list is carried out by statutory authorities and any
change i n the voters list is not a ground enumerated in Section 100
of the R.P. Act, 1951 for declaring election to be void. It is further
submitted that the pleadings contained in Paragraph 12 of the
election petition with regard to setting up of Polling booth near the
house of respondent No. 1, are also unnecessary, scandalous and
frivolous, therefore, liable to be struck out. The pleadings made in
Para 13 and 14 of the Election Petition in regard to replacement
of EVMs is totally unnecessary and frivolous. Pleadings of
Paragraph 15 are scandalous and frivolous. It is further submitted

that the impleadment of respondent Nos. 2 and 3 is with the
object of creating undue pressure on the election machinery and
for prejudicing fair trial of the election petition. It is settled law
that the officials of Election Commission cannot be impleaded as
respondents in an election petition.
4. On the basis of aforesaid contentions, it is submitted that the
pleadings contained in Paragraphs 9, 10, 11, 12, 13, 14, 15 and 16
of the election petition be struck out.
5. The petitioner, in the reply, has denied the allegations made by
respondent No. 1 in the application and submitted that the pleadings
of Paragraphs 9, 10, 11, 12 of the election petition have been made
in strict compliance of the provisions of the Representation of
People Act, 1951 (hereinafter referred to as the Act of 1951) and
are duly covered under the grounds enumerated under Section 100
of the Act of 1951. So far as pleadings made in Paragraphs 13 and
14 of the election petition are concerned, they have been made
with concise statement of material facts and grounds with full
particulars thereof, therefore, it cannot be said that the aforesaid
pleadings are unnecessary or frivolous. Further the pleadings of
Paragraph 15 of the election petition are in regard to committing
corrupt practice by respondent No. 1 by distributing T-shirts and
Saries among the voters of Assembly Constituency No. 97 and
the petitioner has specifically made concise statements of material
facts with full particulars thereof by mentioning the names of the
parties, alleged to have committed such corrupt practice.
6. On the basis of aforesaid contentions, the petitioner has prayed for
dismissal of I.A. No. 2/2014.
7. I have gone through the pleadings made in Paragraphs 9, 10, 11 of
the election petition, wherein the petitioner has specifically pleaded
that the names of 9746 voters, belonging to Muslim community,
were illegally deleted from the voters list.
They were residing across different wards of Assembly
Constituency No. 97. It is further pleaded that their names found
place in the previous voters list of Assembly Elections held in the
year 2008. The petitioner made representation before the Election

Officer for addition of the names of the aforesaid voters in the
voters list, but the same was not considered, then the petitioner
filed W.P. No. 17120/2013 wherein this Court directed respondent
No. 2 and 3 to look into the grievance of the petitioner but the
names of the aforesaid voters were not added in the final voters
list. It is further pleaded that since the names of the aforesaid voters
were illegally deleted, the result of the election has been materially
affected. Certainly, this pleading is covered under Section 100(1)
(d)(iv) of the Act of 1951, which pertains to non-compliance of the
provisions of the Act of 1951 or of rules or orders made under the
same Act.
8. So far as the pleadings made in Paragraph 12 and 16 of the election
petition are concerned, they also pertain to noncompliance of
Section 130 of the Act of 1951. It is specifically pleaded against
respondent Nos. 2 and 3 that despite representation made by the
petitioner, they have not complied with the provisions of Section
130 of the Act of 1951 and this pleading is covered under Section
Section 100(i)(d)(iv) of the Act of 1951 and cannot be said to be
unnecessary or frivolous.
9. So far as objection raised in Paragraphs 13 and 14 in regard to
irregularities in EVMs is concerned, all doubts and queries
regarding EVMs have already been answered in FAQs on the
website of Election Commission of India wherein it has been
specifically shown that there is no possibility to vote more than
once by pressing button again and again. Since the petitioner has
raised doubts in regard to fairness or impartiality of the officials
engaged in the counting process, he is under an obligation to
demonstrate as to how the EVMs could be tampered with to get
the desired result. However, no expert opinion has been placed on
record regarding the chances of misalignment of EVMs. On the
other hand, correctness of all the technical aspects of the matter,
as reflected as FAQs and the Press Note issued and uploaded on
its website by Election Commission of India, has already been
verified on the judicial site in Michael B. Fernandes Vs. C.K.
Jaffer Sharief, AIR 2004 Karnataka 289. Thus, the EVMs are
full proof device for counting, therefore, the allegation made in the
petition in regard to mal-functioning and tampering of EVMs used

in counting of votes, are baseless and unnecessary, therefore, they
are liable to be struck out.
10. Coming to the pleadings made in Paragraph 15 of the election
petition, which relate to corrupt practice committed by respondent
No. 1 by distributing Saries and T-shirts to the voters within
the constituency; in Paragraph 15 of the election petition, the
petitioner has specifically pleaded the names of the persons, who
distributed the aforesaid articles and the names of the persons
to whom the aforesaid articles have been distributed along with
particular date and time, therefore, these pleadings cannot be said
to be unnecessary, frivolous or scandalous.
11. In view of the a foresaid discussion, I.A. No. 2 /2014 is partly
allowed. The pleadings of Paragraphs 13 and 14 of the election
petition are liable to be struck out.
12. I.A. No. 18/2014 has been filed by the petitioner under Order
VI Rule 17 and order XXIII Rule 1 read with Section 151 of the
CPC. It is submitted in the application that the petitioner by way
of instant election petition has called in question the election of
respondent No. 1 and has prayed for the following reliefs:-
A. Declare the election of respondent No. 1 as null and void
and consequently the notification dated 8.12.2013 declaring
respondent No. 1 as returned candidate.
B. Declare the petitioner as returned candidate.C. Award suitable
punishment to those found to be involved in irregularities.
D. Award appropriate and suitable cost to the petitioner.
13. It is submitted by the petitioner in the application that duecto some
inadvertent mistake the petitioner, in Clause B of the prayer clause,
has made a prayer to declare him as returned candidate. It is further
submitted that as per Section 98 of the Act of 1951, the High
Court can declare the petitioner or any other candidate to have
been duly elected, if so prayed but the High Court cannot declare
him as returned candidate, as prayed in the election petition. It is
further submitted that as per definition of the returned candidate,
the returned candidate means the candidate whose name has been

published under Section 67 of the Act of 1951 as duly elected,
therefore, the petitioner may be permitted to delete the relief clause
(B) from the prayer clause.
14. In reply of aforesaid application, respondent No. 1 has submitted
that no amendment in an election petition is permissible beyond
the period of limitation i.e. 45 days, which is over long ago on
22.1.2014, therefore, now the election petition can neither be
amended nor any relief claimed thereunder can be abandoned or
deleted. It is further submitted that there is clear foundation in the
election petition on the basis of which prayer clause (B) is sought
for, therefore, the plea of inadvertent mistake is an after-thought,
thus, this application is liable to be dismissed.
15. I have gone through the election petition, specially the prayer
clause, which reads as under :-
A. Declare that, the election of respondent No. 1 as null and void
B. Declare the petitioner as returned candidate.
C. Award suitable punishment to those found to be involved in
irregularities.
16. A bare perusal of Section 84 of the Act of 1951 makes it clear
that a petitioner may, in addition to claiming a declaration that
the election of all or any of the returned candidates is void, claim
a further declaration that he himself or any other candidate has
been duly elected. In the instant election petition, the petitioner
has claimed for the relief to declare him as ‘returned candidate’ in
place of ‘duly elected candidate’. As per Section 79 of the Act of
1951, returned candidate means a candidate whose name has been
published under Section 67 as duly elected. Section 67 of the Act of
1951 is nothing but procedure of sending the report of the result of
the election wherein the returning officer shall report the result to
the appropriate authority and the Election Commission, and in the
case of an election to a House of Parliament or of the Legislature

of a State also to the Secretary of that House, and the appropriate
authority shall cause to be published in the Official Gazette the
declarations containing the names of the elected candidates.
It is clear from the aforesaid provisions that an elected candidate
becomes the returned candidate after publication of his name in
the Official Gazette and one cannot become the returned candidate
until and unless he has been declared as duly elected candidate.
In the instant petition, the petitioner has prayed for the relief to
declare him as the returned candidate, in which the prayer for
declaring him elected candidate is implied.
Since the relief clause is based on the pleadings made in the election
petition, therefore, same cannot be said to be an inadvertent mistake.
Further, this relief is concerned with non-compliance of Section
82 of the Act of 1951 and defect of non-compliance of Section
82 of the Act of 1951 cannot be cured by way of amendment of
the petition. This question has been elaborately considered by
the Apex Court in Mallappa Basappa Vs. Basavaraj Ayyappa
– AIR 1958 SC 698 wherein it has been observed by the Apex
Court that the Court has no power to allow such amendment after
the election petition was presented under the Act. In view of the
aforesaid legal position, I am of the view that this application for
amendment in the prayer clause, cannot be allowed. Consequently,
I.A. No. 18/2014 is hereby dismissed.
17. I.A. No. 3/2014 has been filed by respondent No. 1 under Order
VII Rule 11 of the CPC. It is submitted in the application that the
petitioner has called in question the election of respondent No. 1
from Assembly Constituency No. 97, Jabalpur (East) mainly on
the following grounds :-
(i) The polling booths close to the house of respondent No. 1
were not changed as a result of which certain voters could not
exercise their franchise.
(ii) There were undue changes in the voters list resulting in
exclusion of certain voters who would have voted for the
petitioner.

(iii) The EVM machines, not functioning properly were replaced
and in one such EVM machine 340 votes were found as against
the total 520 votes polled as per the Presiding Officer.
(iv) The returned candidate resorted to corrupt practices by
distributing saries, T-shirt with BJP colours.
18. It is further submitted in the application that the pleadings
contained in Paragraphs 9, 10 and 16, relating to alleged changes
in the voters list, is not a ground under Section 100 of the Act of
1951 for declaring the election void. It is further submitted that
the pleadings of Paragraph 12 with regard to location of polling
booths also does not give rise to any cause of action. The pleadings
of Paragraphs 13 and 14 relating to replacement of EVMs also do
not disclose any cause of action for challenging the election of
respondent No. 1. The pleadings of Paragraph 15 of the election
petition relating to commission of corrupt practices are vague,
scandalous and without material particulars, as such there is non-
compliance of Section 83(1)(b) of the Act of , 1951.
19. On the basis of aforesaid contentions, it is submitted that no cause
of a ction a rises from the pleadings made by the petitioner in the
election petition. It is further submitted that on the ground of non-
compliance of Section 81 and 82 of the Act of 1951, the instant
election petition is liable to be dismissed under Section 86 of the
Act of 1951.
20. In the reply, the petitioner has denied the contentions raised in the
application and submitted that the petitioner has specifically made
concise statements of material facts with full particulars thereof by
mentioning the names of the parties, alleged to have committed
such corrupt practice. It has been specifically pleaded that the
T-shirts and Saries were distributed by r espondent N o. 1 a nd his
a gents t o s pecific p ersons on a specific date and time. It is further
submitted that the petitioner has specifically pleaded in regard to
non-compliance of the provisions of the Act or any rule or order
made under this Act whereby the election of respondent No. 1 has
been materially affected. It is further submitted that though the
petitioner has inadvertently prayed in relief clause (B) that he be

declared as returned candidate but he has not claimed any relief
in regard to declaring him as elected candidate. The petitioner has
not taken any ground under Section 101 in his petition and has not
pleaded that he has received a majority of valid votes or that for the
votes obtained by the returned candidate by corrupt practice, the
petitioner would have obtained majority of valid votes, therefore,
the petition does not fall under non-compliance of Section 82 of
the Act of 1951. On the basis of aforesaid contention, the petitioner
has prayed for dismissal of this application.
21. I have gone through the entire pleadings made in the election
petition by the petitioner. It is true that the petitioner has
specifically pleaded in Paragraph 15 that respondent No. 1 has
resorted to corrupt practice with full particulars of the names of the
persons by whom and to whom the T-Shirts and Saries have been
distributed on a specific date and time. There is specific pleading
in regard to non-compliance of Section 130 of the Act of 1951 and
the non-compliance of the rules and orders made under the Act of
1951 has materially affected the election of respondent No. 1. In
these circumstances, it is not the case wherein no cause of action is
disclosed but when the prayer clause is perused the petitioner has
prayed for the following reliefs :
A. Declare that, the election of respondent No. 1 as null and void
B. Declare the petitioner as returned candidate.
C. Award suitable punishment to those found to be involved in
irregularities.
22. Since the relief clause is based on the pleadings made in the election
petition, when the pleadings made in paragraph 10 of the election
petition is considered, the petitioner has specifically pleaded that
the votes which were to be casted in favour of the petitioner,
were deliberately deleted ignoring the fact that, these voters are
still residing in their respective houses and since decades they are
voters from the same constituency and also casted their votes in the

previous Assembly elections in the year 2008. It is further pleaded
that names of these voters were not added in the final voters list.
The margin by which the petitioner lost the election was 1051
votes whereas 9746 names were illegally deleted and thereby this
illegal deletion of names materially affected the elections, which
shows that the petitioner has made pleading for declaring him as
elected candidate. Mere non-mentioning of Section 101 of the Act
of 1951 in the grounds of petition, do not absolve the controversy.
Thus, in my opinion, the petitioner has prayed to declare him as
elected candidate under the garb of claiming the relief to declare
him as returned candidate, which cannot be done without declaring
him as elected candidate.
23. It is undisputed that the petitioner has not impleaded all the
contesting candidates as respondents in the election petition as
provided under Section 82 of the Act of 1951. Section 82 and the
relevant extracts of Section 86 of the Act of 1951 read thus :-
“82. Parties to the petition. - A petitioner shall join
as respondents to his petition -
(a) where the petitioner, in addition to claiming a
declaration that the election of all or any of the returned
candidates is void claims a further declaration that he
himself or any other candidate has been duly elected,
all the contesting candidates other than the petitioner,
and where no such further declaration is claimed, all
the returned candidates; and
(b) any other candidate against whom allegations of
any corrupt practice are made in the petition.
86. Trial of election petition. - (1) The High Court
shall dismiss an election petition which does not
comply with the provisions of section 81 or section
82 or section 117.”
24. Section 82 of the Act provides that where the petitioner, in addition
to claiming a declaration that the election of all or any of the
returned candidate is void, claims a further declaration that he
himself or any other candidate has been duly elected then he must

join as respondents to his petition all the contesting candidates.
If the provisions of Section 82 are not complied with, this Court
is directed by Section 86 to dismiss the election petition. In K.
Kamaraja Nadar Vs. Kunju Thevar and others – AIR 1958 SC
687, the Supreme Court held that when the provisions of Section
82 were not complied with, the Election Tribunal, enjoined under
Section 90(3) to dismiss such an election petition, was bound to
dismiss the same as Section 90(3) was mandatory. Section 90(3)
has been substituted by Section 86 of the Amendment Act, 1966
with the same mandatory obligation to dismiss such an election
petition. As the petitioner admittedly did not join all the contesting
candidates as respondents in the petition wherein he has prayed
for a further declaration that he be declared as returned candidate,
in which the prayer to declare him as elected candidate is implied,
his petition is bound to be dismissed under Section 86, which is
mandatory. In these circumstances, the petition is barred by the
law under Order VII Rule 11(d) of the CPC.
Accordingly, I.A. No. 3/2014 is allowed, as a consequence thereof,
this election petition is dismissed.
No order as to costs.

21. MADHYA PRADESH JAN VIKASH PARTY vs. ELECTION
COMMISSION OF INDIA
Special Leave Petition (Civil) 16870 of 2022
CASE
DETAILS 30.09.2022
Sanjay Kishan Kaul, J. and Abhay S. Oka, J.
ISSUES Allegation of discrepancies in the EVMs..
The court was of the view that a party which may
not have got much recognition from the electorate
DECISIONS
sought recognition by filing such frivolous petitions.
Thus, the SLP was dismissed.
SUMMARY
The SLP arose out of the decision dated December 14, 2021 passed
by the Hon’ble High Court of Madhya Pradesh, Principal Bench at
Jabalpur in Writ Petition 26671/2021. The Writ Petition was filed
seeking directions for ruling out discrepancies in the Electronic Voting
Machines (EVM). Before the Hon’ble High Court, the Petitioner sought
inter-alia with the gist of prayers as under:
• To command the respondents to take effective measures to rule
out the discrepancies in the Electronic Voting Machines, stated in
the petition to conduct the free and fair upcoming assembly and
general elections with the purity of the electoral process or may be
directed to conduct the election with the other alternative mode in
accordance with law;
• To command the respondents to take effective measures to comply
the rule 49E (2), wherein it is mandatory to show the storage empty
and to ascertain the polling agents that there is no prior voting
recorded earlier;
• To command the respondents to disclose the approved hardware
configuration of the electronic voting machines and approved size,
shape, colour and number of components, before the representatives
of the candidates of the political parties;

• To issue a writ in the nature of mandamus commanding respondents
to allow the technical experts/engineers of the petitioner political
party with necessary equipment at the time of first level checking,
commissioning, candidate setting randomization and at the time of
symbol loading to check and examine the fairness of all the stages
of electoral process;
• To direct the respondent to demonstrate the source code/
programming/ software to examine that there is not such a
programming which benefits the particular candidates or to the
candidates of a particular party;
• To direct the respondent to permit the petitioner on the polling
day, to examine the EVMs with its technical experts/engineers
in respect of software/ source code/programming or microchip
as well as any bluetooth or wireless device, may not be available
in the machines which benefits the special candidate or particular
political party as per rule 49 (E)(2) of the election conduct rule
1961;
• To direct the respondent to certify each and every machine that it
is original and there is no tempering or manipulation;
• To direct the respondent to conduct the examination from their
own regular employee/technical engineer or expert at the time of
FLC/ commissioning/ randomization/ symbol loading just after
the EVMs come into the possession of election commission;
• Even otherwise without the aforesaid measured & reliefs claimed
hereinabove in the EVM and VVPAT, respondent shall kindly be
restrained from using electronic voting machines & VVPAT in the
upcoming elections going to be conducted in future or Electronic
voting machines be banned in the conduct of elections, due to the
large scale discrepancies available in the machines as mentioned in
the petition.
The Hon’ble Supreme Court observed that EVMs have been utilized
in the country for decades now but periodically issues are sought to
be raised. This is one such endeavor in the abstract. It appears that a
party which may not have got much recognition from the electorate

now seeks recognition by filing petitions. Thus, the SLP was dismissed
with costs Rs.50,000/-.
ORDER
Sanjay Kishan Kaul, J. and Abhay S. Oka, J.
The election process under the representation of the People Act, 1951
is monitored by a Constitutional Authority like Election Commission.
Electronic Voting Machines (EVM) process has been utilized in our
Country for decades now but periodically issues are sought to be raised.
This is one such endeavor in the abstract. It appears that party which
may not have got much recognition from the electorate now seeks
recognition by filing petitions!
We are of the view that such petitions must be deterred and thus dismiss
this petition with costs of Rs.50,000/- to be deposited with Supreme
Court Group-C (Non-Clerical) Employees Welfare Association within
a period of four weeks from today.
Pending applications stand disposed of.

22. MANORANJAN SANTOSH ROY vs. UNION OF INDIA &
ORS.
WP(C) No. 482 of 2023(Supreme Court of India)
04.05.2023
CASE
DETAILS Hon'ble The Chief Justice
Hon'ble Mr. Justice Pamidighantam Sri Narasimha
Hon'ble Mr. Justice J.b. Pardiwala
ISSUES Investigation into all the aspects of EVMs
The Hon’ble Court refused to entertain the matter
DECISIONS under Article 32 of the Constitution of India and
accordingly dismissed the petition.
SUMMARY
The petitioner had prayed for investigation into all the aspects of the
manufacture, maintenance and use of EVMs by an independent agency.
Further, the petitioner had raised the issue of large expenditure being
incurred on acquiring new EVMs by the Commission. The Hon’ble
Court refused to entertain the matter and dismissed the petition.
ORDER
Hon’ble The Chief Justice, Hon’ble Mr. Justice Pamidighantam Sri
Narasimha And Hon’ble Mr. Justice J.b. Pardiwala
1. We are not inclined to entertain the Petition under Article 32 of the
Constitution of India.
2. The Petition is accordingly dismissed.
3. Pending applications, if any, stand disposed of.

23. M. VARALAKSHMI vs. K. PANDURANGAN & ORS.
EP No. 01 of 2006 [2010 SCC OnLine Mad 5322]
CASE
22.10.2010
DETAILS
R. Banumathi, J.
ISSUES Allegations on unreliability of EVMs
The Hon’ble Court dismissed the Election Petition
and held that mere allegation that EVM pertaining
to No. 13, Chinnapallikuppam was erased is
unsustainable. Even though the EVM pertaining to
No. 8, Gururajapalayam was kept in the additional
DECISIONS storage room, when it was brought from the additional
storage room, the seals were found intact. Since all
safety features are available in the EVM, there is no
question of tampering the votes polled and recorded
in the Controlling Unit. Interchange of EVM has not
in any way materially affected the election.
SUMMARY
In this Election Petition, allegations of unreliability of EVMs were
raised, which were refuted by the Election Commission.
The Court held that mere allegation that EVM pertaining to No. 13,
Chinnapallikuppam was erased is unsustainable. Even though the EVM
pertaining to No. 8, Gururajapalayam was kept in the additional storage
room, when it was brought from the additional storage room, the seals
were found intact. Since all safety features are available in the EVM,
there is no question of tampering the votes polled and recorded in the
Controlling Unit. Interchange of EVM has not in any way materially
affected the election
The Hon’ble Court observed that Electronic Voting Machine is a simple
and reliable equipment for use in electing a candidate from among many
candidates. Voting by EVMs is simpler compared to the conventional
system, where one has to put the voting mark on or near the symbol of
the candidate of his choice, fold it vertically and then horizontally and
thereafter put it into the ballot box. In EVMs, the voter has to simply
press the blue button against the candidate and symbol of his choice
and the vote is recorded. Rural and illiterate people had no difficulty in
recording their votes and, in fact they have welcomed the use of EVMs.
ORDER
R. Banumathi, J.

1. Petitioner seeks to (i) declare the election of the Returned
candidate, viz., the 1st Respondent from No. 47, Anaicut Assembly
Constituency (Tamil Nadu) in the election held on 08.05.2006 in
which results have been declared on 11.05.2006 as void and set aside
the same; (ii) pass an order directing fresh poll in Polling Station No.
13, Chinnapallikuppam in No. 47, Anaicut Assembly Constituency
(Tamilnadu) as per the provision of Representation of People Act,
1951 and Conduct of Election Rules, 1961 and order consequential
counting and declaration of results; (iii) declare the Petitioner as
duly elected as a member of the Tamilnadu Legislative Assembly
from No. 47, Anaicut Assembly Constituency (Tamilnadu) in the
election held on 08.05.2006.
2. Petitioner-Varalakshmi contested in the Tamilnadu Legislative
Assembly Election 2006 as Pattali Makkal Katchi [PMK] candidate
from No. 47, Anaicut Assembly Constituency. Polling took place
in 221 Polling Stations on 08.05.2006. Electronic Voting Machines
[EVMs) have been used for polling of votes in those 221 Polling
Stations and the polling was closed at 5.00 P.M. on 08.05.2006
and the EVMs were sent to Thanthai Periyar Polytechnic, Vellore
on 08.05.2006 itself and kept in a strong room. Counting of votes
polled took place on 11.05.2006 from 8.00 A.M. onwards. 1st
Respondent-Pandurangan was declared as elected on 11.05.2006
with a margin of “53” votes.
3. The averments in the Election Petition are that EVM from Polling
Station No. 13, Chinnapallikuppam was counted in Round No.
2 in Table No. 1. The said EVM was verified and found that it
was pertaining to Polling Station No. 13, Chinnapallikuppam.
The seals were removed, but when the button was pressed, there
was some problem. One Ms. Geetha, technician was sent for and
she came and verified and told that by mishandling of EVM, the
result got erased. The said EVM for No. 13, Chinnapallikuppam
was counted in Round No. 2 in Table No. 1 showed against each
candidate “0-0-0” as the result. The result was also written in the
black board which was noted by the Petitioner’s counting agent
Mr. Parthasarathy [PW4]. Petitioner gave objection to the Election
Observer at 12.10 P.M. on 11.05.2006 seeking re-polling. According
to Petitioner, everyone reconciled to the position that there will

be re-polling in Polling Station No. 13, Chinnapallikuppam and
hence, the Petitioner and her Chief Election Agent and also the
Counting Agents rushed to Chinnapallikuppam which was 35 to
40 km away from the place of counting.
4. At about 5.30 P.M., the Chief Election Agent of the Petitioner Mr.
N.T. Shanmugam [PW2] received a call from the Collector asking
them to come to the place of counting. When they came to the
place of counting, 1st Respondent who was the then Minister was
with the District Collector. The Returning Officer and the District
Collector told the Petitioner and her Chief Election Agent that
some mistake has happened and that the votes polled in Polling
Station No. 8, Gururajapalayam have not been counted and that
the EVM pertaining to Polling Station No. 8, Gururajapalayam
was kept in the adjoining room and that the votes polled in the
EVM pertaining to Polling Station No.13, Chinnapallikuppam was
already counted and it has been mistakenly taken into account as
Gururajapalayam. Petitioner and her Chief Election Agent made it
clear that the votes polled in No. 8, Gururajapalayam have already
been counted and that the new version is an afterthought and that
the EVM pertaining to No. 8, Gururajapalayam has already been
counted and the votes polled have been entered in the black board
and filled up in Form-20. Further case of Petitioner is that before
12.00 noon, the counting in all the EVMs was over and in so
far as Polling Station No. 13, Chinnapallikuppam, the votes got
erased because of mishandling and it showed “0-0-0” against each
candidate. Insofar as the votes polled in Polling Station No. 13,
Chinnapallikuppam, fresh poll was the only remedy and the results
should not have been declared. According to the Petitioner, EVM
pertaining to Polling Station No. 8, Gururajapalayam was already
counted in the morning of 11.05.2006 in Table No. 10 in Round
No. 1. After 5 sign hours, it was stated that the EVM pertaining to
Polling Station No. 8, Gururajapalayam was not counted and that it
is not permissible in law. For his own convenience, the Returning
Officer cannot set aside the earlier proceedings followed in counting
of votes polled in EVMs followed in Rule 55(C), 56(C) and 57(C)
in Rule 66(A) of Conduct of Election Rules, 1961 and adopt a new
procedure and this has materially affected the election.

5. As far as Polling Station No. 13, Chinnapallikuppam is concerned,
in the result sheet, the Returning Officer has made an entry that
413 votes have been polled infavour of the 1st Respondent while
EVM showed “0-0-0” against each candidate and Part-II of Form
17-C is illegal and void. The said 413 votes has to be eschewed
from consideration in which event the Petitioner is entitled to
be declared since the margin of difference of votes is only “53”
votes. Mishandling of EVM has materially affected the results
of the election in so far as the Returned candidate is concerned.
Petitioner seeks declaration of the election of Returned candidate
as void and seeks for a direction for fresh poll in Polling Station
No. 13, Chinnapallikuppam and declare the Petitioner as duly
elected candidate as a member of Tamilnadu Legislative Assembly
from No. 47, Anaicut Assembly Constituency.
6. Stating that he has learnt that there was interchange of EVMs, 1st
Respondent has filed counter contending that at no point of time,
re-poll was ordered for No. 13, Chinnapallikuppam. Allegations
of irregularities and illegalities in the counting of votes have
been subsequently invented as an afterthought. Electronic Voting
Machines for Polling Station Nos. 8 and 13 were transmitted to
the strong room of the counting centre with seals intact. Insofar
as EVM of Polling Station No. 8, Gururajapalayam, it was placed
in the additional storage room and the Election Commission had
been informed by the developments and that there was no illegality
in the counting process.
As mandated under Sec. 83(1)(a) of R.P. Act, material facts have
not been pleaded and the Election Petition is lack of material
facts and the Petition is liable to be rejected. According to 1st
Respondent, the final work of counting has been carried out as
per law and neither the Petitioner nor any of her counting agents
raised objection either orally or in writing about the details which
is now being sought to be made belatedly in the Election Petition.
The votes polled in Polling Station No. 13, Chinnapallikuppam
was properly counted and Petitioner cannot seek for fresh poll in
respect of Polling Station No. 13, Chinnapallikuppam. Case of 1st
Respondent is that Election Petition has been filed with a vague

and indefinite allegation on flimsy grounds and that the Petition is
liable to be dismissed.
7. Respondent Nos. 2 to 8 remained exparte. 9th Respondent-
Veerasami entered appearance, but has not filed any counter. The
10th Respondent-Returning Officer of No. 47, Anaicut Assembly
Constituency was struck down as per the order made in O.A. No.
916/2007 dated 18.08.2007.
8. On the above pleadings, the following Issues were framed. (1)
Whether there is compliance of Rules 55(c), 56(c) and 57(c) in
Rule 66(A) of the Conduct of Election Rules, 1961 which has
materially affected the result of the Returned candidate?
(2) Whether the Election Petition discloses material facts as
required under Sec. 83(1) (a) of R.P. Act, 1951?
(3) Whether the averments in the Election Petition discloses the
grounds for declaring the election as void under Sec. 100(1)
(d)(iii) and (iv) of R.P. Act?
(4) Whether the Election Commission ordered re-polling in
Polling Station No. 13, Chinnapallikuppam on 11.5.2006?
(5) Whether the Petitioner is entitled to the relief of declaration
that the election held on 8.5.2006 pertaining to 47, Anaicut
Assembly Constituency is void?
9. Issue Nos. 1 and 4 were re-cast as follows:-
(1) Whether there was compliance of Rules 55(C), 56(C) and
57(C) in Rule 66(A) of the Conduct of Election Rules, 1961?
(4) Whether re-polling in Polling Station No. 13,
Chinnapallikuppam was contemplated/declared as contended
by the Election Petitioner?
10. The following Additional Issues are framed for consideration:-
1. Whether the votes polled in the EVM of Polling Station No. 13,
Chinnapallikuppam was mishandled which resulted in erasing
of votes polled and consequently showing “0-0-0” against
each candidate as contended by the Election Petitioner?

2. Whether there was non-compliance of Rules 55(C), 56(C)
and 57(C) in Rule 66(a) of the Conduct of Election Rules,
1961 which has materially affected the result of the Returned
candidate?
3. Whether the interchange of EVM has materially affected the
election?
11. Election Petitioner-Varalakshmi examined herself as PW1. The
Chief Election Agent for the Petitioner viz., N.T. Shanmugam
[former Minister] and the Counting Agents for the Petitioner viz.,
Prahalathan and A. Parthasarathy were examined as PWs.2 to 4
respectively. Mr. Narayanamoorthy, the then Returning Officer of
47, Anaicut Assembly Constituency was examined as PW5. Exs.
P1 to P5 were marked on the side of the Election Petitioner. M.Os.
1 to 5 were also marked. On the side of contesting 1st Respondent,
no oral evidence was adduced. Exs.R1 to R15 were marked.
12. Issue Nos. 2 and 3:- In No. 47, Anaicut Assembly Constituency,
there were 221 Polling Stations. Election Petitioner-Varalakshmi
secured 59167 votes. 1st Respondent -Pandurangan secured 59220
votes and the 1st Respondent got declared elected by “53” votes.
There is no dispute on facts.
13. In the counter-affidavit of 1st Respondent, it is alleged that the
averments in Paragraphs (9) and (10) of Election Petition are not
bonafide, lacks minimum material facts and material particulars to
maintain the Election Petition. It is further averred that widen facts
and issues leading to material particulars have not been averred
by the Election Petitioner and hence non-disclosure of material
facts and withholding of material particulars are contrary to the
very continuation of the Election Petition. 1st Respondent has
further alleged that the Election Petition should contain adequate
statement of material facts and there shall be no vague pleas made
in the Petition in support of material fact and it is the duty of the
Petitioner to plead with full particulars, how the counting was not
done in proper manner and how the facts were wrongly accepted
infavour of the Returned candidate. Contention of 1st Respondent
is that the allegation of irregularities and illegalities in the counting

of votes have been subsequently invented as an afterthought and
the pleadings are not clear and precise on vital aspects and the
Election Petition does not disclose the material facts which must
be pleaded and failure to plead even a single material fact amounts
to disobedience of mandate of Sec. 83(1)(a) of R.P. Act.
14. Section 83 of the Representation of the People Act, 1951 deals
with contents of a petition and Rule 94-A of the Conduct of
Elections Rules, 1961 deals with Form of affidavit to be filed along
with Election Petition. Section 83 of the Act and Rule 94-A of the
Conduct of Elections Rules read as under:
83. Contents of petition : (1) An election petition - (a) shall contain
a concise statement of the material facts on which the petitioner
relies; (b) shall set forth full particulars of any corrupt practice
that the petitioner alleges including as full a statement as possible
of the names of the parties alleged to have committed such corrupt
practice and the date and place of the commission of each such
practice; and (c) shall be signed by the petitioner and verified in the
manner laid down in the Code of Civil Procedure, 1908 (5 of 1908)
for the verification of pleadings:
[Provided that where the petitioner alleges any corrupt practice, the
petition shall also be accompanied by an affidavit in the prescribed
form in support of the allegation of such corrupt practice and the
particulars thereof.]
(2) Any schedule or annexure to the petition shall also be signed
by the petitioner and verified in the same manner as the
petition.
94-A. Form of affidavit to be filed with election petition: The
affidavit referred to in the proviso to sub-section (1) of section 83
shall be sworn before a magistrate of the first class or a notary or a
commissioner of oaths and shall be in Form 25.”
15. In (1969) 3 SCC 238 [Samant N. Balakrishna and another
v. George Fernandez and others], the mandatory nature of the
provisions contained in Section 83 was dealt with and consequences
flowing from any breach of provision were set out. It was held by
the Supreme Court that Section 83 is mandatory and requires the

election petition to contain first a concise statement of material
facts and then requires the fullest possible particulars. The word
‘material’ shows that the facts necessary to formulate a complete
cause of action must be stated. Omission of a single material fact
leads to an incomplete cause of action and the statement of claim
becomes bad. The function of particulars is to present as full a
picture of the cause of action with such further information in detail
as to make the opposite party understand the case he will have to
meet. There may be some overlapping between material facts and
particulars but the two are quite distinct. The material facts will
show the ground of corrupt practice and the complete cause of
action and the particulars will give the necessary information to
present a full picture of the cause of action.
16. In (2004) 11 SCC 196 [SARDAR HARCHARAN SINGH
BRAR v. SUKH DARSHAN SINGH AND OTHERS], the
Supreme Court held as under:
“11. The principles have been reiterated recently in H.D. Revanna
v. G. Puttaswamy Gowda and ors. (1999) 2 SCC 217, V.S.
Achuthanandan v. P.J. Francis and anr.(1999) 3 SCC 737
and Mahendra Pal v. Ram Dass Malander and ors. (2000)
1 SCC 261. We are tempted to quote the following passage
from the three-Judge Bench decision in Mahendra Pal’s case
(supra) wherein the learned Chief Justice has summed up the
statement of law in the following words:
“Section 83(1)(a) of the Act mandates that in order to
constitute a cause of action, all material facts, that is, the basic
and preliminary facts which the petitioner is bound under the
law to substantiate in order to succeed, have to be pleaded
in an election petition. Whether in an election petition, a
particular fact is material or not and as such required to be
pleaded is a question which depends upon the nature of the
charge levelled and the facts and circumstances of each case.
The distinction between “material facts” and “particulars” has
been explained by this Court in a large number of cases and
we need not refer to all those decided cases. Facts which are
essential to disclose a complete cause of action are material

facts and are essentially required to be pleaded. On the other
hand “particulars” are details of the case set up by the party
and are such pleas which are necessary to amplify, refine or
explain material facts. The function of particulars is, thus,
to present a full picture of the cause of action to make the
opposite party understand the case that has been set up against
him and which he is required to meet. The distinction between
“material facts” and “material particulars” is indeed important
because different consequences follow from a deficiency of
such facts or particulars in the pleadings. Failure to plead
even a single material fact leads to an incomplete cause of
action and incomplete allegations of such a charge are liable
to be struck off under Order 6 Rule 16 of the Code of Civil
Procedure. In the case of a petition suffering from a deficiency
of material particulars the court has the discretion to allow
the petitioner to supply the required particulars even after the
expiry of limitation. Thus, whereas it may be permissible for
a party to furnish particulars even after the period of limitation
for filing an election petition has expired, with the permission
of the court, no material fact unless already pleaded, can be
permitted to be introduced, after the expiry of the period of
limitation.”
[See also (1999) 1 SCC 666 [L.R. Shivaramagowda etc. v. T.M.
Chandrashekar etc.]; (1999) 3 SCC 737 [V.S. Achuthanandan
v. P.J. Francis and another] and (2001) 8 SCC 233 [Hari
Shanker Jain v. Sonia Gandhi].
17. In a catena of decisions, it is well settled that Election Petition
must set out all material facts where from inferences vital to the
success of the Election Petition and enabling the Court to grant
the relief prayed for by the Petitioner can be drawn subject to the
averments being substantiated by cogent evidence. Concise and
specific pleadings, setting out of material facts and then cogent
affirmative evidence being adduced in support of such averments
are indispensable to the success of the Election Petition. Ofcourse,
it is absolutely essential that all basic and primary facts which
must be proved at the trial by the parties to establish the existence
of cause of action or defence must be averred in the pleadings.

18. In the light of the above well settled principles, let us examine the
averments and consider whether the material facts have been set
out in the Election Petition. In the Election Petition, Petitioner has
alleged that EVM from Polling Station No. 13, Chinnapallikuppam
was brought in the morning itself and counted. The specific case
of Election Petitioner is that the votes pertaining to Polling Station
No. 8, Gururajapalayam were counted in Table No. 10 in Round
No. 1 by opening the seal of the Electronic Voting Machine and
everyone noted the same; but suddenly in the evening a new version
was sought to be put that what was counted in the morning was in
respect of Polling Station No. 13, Chinnapallikuppam and that it
has been wrongly taken as Polling Station No. 8, Gururajapalayam.
19. In the Petition, the Election Petitioner further averred that the EVM
was brought from the additional storage room which according to
the Returning Officer [PW5] was due to interchange of EVMs.
When the Election Petitioner has alleged that the EVM was
brought “not from the strong room”, it is for the Returning Officer
to explain the same.
Therefore, it cannot be said that the Election Petitioner has not
averred the material facts. The facts which are alleged are material
facts which are all the matters for adjudication. It cannot be said
that the material facts are not pleaded. Earlier, 1st Respondent-
Pandurangan has filed O.A. No. 54/2007 to reject the Election
Petition filed by the Election Petitioner-Varalakshmi for want
of maintainability inasmuch as the material facts and material
particulars as warranted in Secs.80, 81, 82, 83, 100(1)(d)(iii) 8(iv)
and 101 of R.P. Act have not been pleaded. Election Petitioner has
filed a detailed counter-affidavit referring to the material particulars
averred in the Election Petition. The said Application O.A. No.
54/2007 was later withdrawn and the same was dismissed. There
is no force in the contention of 1st Respondent that the averments
in the Election Petition does not disclose the material facts and this
Issue is answered infavour of the Election Petitioner.
20. Issue No. 1 (re-cast); Additional Issues 1 to 3 and Issue No. 4
(re-cast):- In order to understand and appreciate the evidence
and allegations in the Election Petition, it is necessary to have

an understanding of functioning of EVM and as to how it is
functioning as different from conventional system of voting.
21. Electronic Voting Machine is a simple and reliable equipment for
use in electing a candidate from among many candidates. EVM
consists of two Units viz., (i) Control Unit; (ii) Balloting Unit
joined by a five-meter cable. The Control Unit is with the Presiding
Officer or a Polling Officer and the Balloting Unit is placed inside
the voting compartment. Each Controlling Unit has a unique I.D.
Number which is written on the Control Unit with a permanent
marker. Instead of issuing a ballot paper, the Polling Officer in-
charge of the Control Unit will press the Ballot button. This will
enable the voter to cast his vote by pressing the blue button on the
Balloting Unit against the candidate and symbol of his choice.
22. Voting by EVMs is simpler compared to the conventional system,
where one has to put the voting mark on or near the symbol of
the candidate of his choice, fold it vertically and then horizontally
and thereafter put it into the ballot box. In EVMs, the voter has
to simply press the blue button against the candidate and symbol
of his choice and the vote is recorded. Rural and illiterate people
had no difficulty in recording their votes and, in fact they have
welcomed the use of EVMs.
23. A special tag is prescribed to seal the inner door of “Result Section”
in Control Unit. Each special tag shall have a unique serial number.
That apart each Control Unit will have two pink tags. Regarding
user of pink tags, P.W.5 has stated that the first pink tag on the
top of the Control Unit which is a battery section is intended to
protect the system ensuring that the batteries in the system are not
removed. The second tag at the bottom will be prepared by the
Returning Officer and put in the carrying case of the Control Unit
and sent to the respective polling stations. In the polling stations,
the respective Presiding Officers after demonstration of the Unit
will put the paper seal and put the second pink tag at the bottom of
the Control Unit. That apart, two extra pink tags will be prepared
by the office of the Returning Officer to be put in each carrying
case of the Control Unit.

24. Distribution of EVMs including Reserve EVMs - An Officer is
put on duty to cover about 10 Polling Stations on the date of poll.
In his evidence, P.W.5-Narayanamurthy [Returning Officer] has
stated that 221 Polling Stations were divided into 14 Zones. In each
Zone, there was a Zonal Officer in the rank of Tahsildar/Deputy
Tahsildar. Returning Officer maintains a Register of allocation of
EVMs to Polling Stations. P.W.5 has further stated that the day
prior to the polling day, the concerned Zonal Officer was entrusted
with the EVMs for the Polling Stations in his Zone. The Zonal
Officer will go to the respective Polling Stations in his Zone and
hand over the concerned EVM to the Presiding Officer of each
Polling Station in his Zone on the day prior to the election. Like
any other Constituency, this exercise was carried out in No. 47,
Anaicut Assembly Constituency also.
25. Voting - Before the commencement of polling, the Presiding Officer
will demonstrate to all the Polling Booth Agents the EVMs and also
demonstrate before them that previously no votes are recorded in
the EVMs. After this process, the Control Unit will be sealed and
made ready for actual polling. Before the commencement of poll,
the Presiding Officer demonstrates to the Polling Agents present
that there are no hidden votes already recorded in the machine by
pressing the result button. Thereafter, he will conduct a mock poll
by asking the polling agents to record their votes and will take the
result to satisfy them that the result shown is strictly according to
the choice recorded by them. Thereafter, the Presiding Officer will
press the “clear button” to clear the result of the mock poll before
commencing the actual poll. As soon as the voter presses the ‘blue
button’ against the candidate and symbol of his choice, a tiny lamp
on the left side of the symbol glows red and simultaneously a
long beep sound is heard. The polling booth agent of respective
candidates will be allowed to sit in the Polling Station throughout
the poll.
26. As soon as the last voter has voted, the Polling Officer in-charge of
the Control Unit will press the ‘Close’ button. Thereafter, the EVM
will not accept any vote. Further, after the close of poll, the Balloting
Unit is disconnected from the Control Unit and kept separately. The
Presiding Officer shall at the close of the poll prepare an Account

of Votes recorded in Form 17-C (Part-I) and enclose it in a separate
cover with the words “Account of Votes Recorded” superscribed
thereon [Rule 49S of Conduct of Elections Rules, 1961]. Again
the Presiding officer, at the close of the poll, will hand over to each
Polling Agent present an account of votes recorded. At the time of
counting of votes, the total will be tallied with this account and if
there is any discrepancy, this will be pointed out by the Counting
Agents.
27. Sealing of EVM/Storage in strong room - At the close of poll and
sealing of EVMs, the Presiding Officer will put the Control Unit
and Balloting Units in their carrying cases and seal the carrying
cases and fix address tags and hand it over to the concerned Zonal
Officer with polled records and the Zonal Officer in turn will hand
over the same safely to the storage room at the counting hall and
other materials to the additional storage room including Reserve
EVMs. In each counting hall, there will be one storage room
exclusively for polled EVMs and vote of accounts in Form 17-C
and one additional storage room for storing Reserve EVMs and
other polled materials. Each EVM will have address tag containing
the number and name of the Polling Station and the date of polling,
which will be affixed by the Presiding Officer. It is the duty of the
Returning Officer to supervise the verification and collection of all
the polled EVMs by the Storage Officer and his Assistants. The
Returning Officer is in overall control of the working of Reception
Staff and Storage Officer. As per the instruction contained in 18.1
of Hand Book for Returning Officers, the EVMs including the
“Reserve EVMs” should be kept and preserved in safe custody
in strong room. Though the Hand Book contemplates one strong
room, in practice EVMs are kept in additional storage room. They
got permission from the District Election Officer to have one
additional storage room even when they submitted the proposal
for approval of counting hall and storage room.
28. Counting - On the date of counting, each EVM is brought to the
counting table. Part-I of Form 17-C will also accompany and after
verifying the seal on the EVM and Part-I of Form 17-C, votes will
be counted. The counting agents will be shown that the seals are
intact and after they are satisfied, the counting will begin.

29. Control Unit has Balloting section, Result section, Candidates
set section, Display section and Power ‘ON’ lamp. At the time of
counting, bottom compartment is opened. Inside, we find socket for
interconnecting the cable of battery unit. At the time of counting,
the second pink tag at the bottom of the EVM will be taken away
and the outer lid of the result section will be opened to know the
result by pressing the result button. The result section contains
“Result button”.
30. In her evidence, PW1 has stated that on 11.5.2006 votes polled
in No. 8, Gururajapalayam were counted in Table No. 10 in
the presence of PW3-Prahalathan [Counting Agent of Election
Petitioner] and that PW1 secured 377 votes and 1st Respondent
secured 391 votes. P.W.1 has further stated that EVM pertaining to
Polling Station No. 9, Gururajapalayam was counted in Table No.
11 in Round No. 1. PW1 secured 155 votes and 1st Respondent
secured 278 votes. In her evidence PW1 has further stated that at
8.30 A.M. the votes polled in Polling Station Nos. 11 and 12 of
Chinnapallikuppam were brought to the counting table and votes
were counted.
Thereafter, the votes polled in No. 13, Chinnapallikuppam
was brought to the counting Table in Round No. 2 and PW4-
Parthasarathy was her counting agent. She has further stated that
the total number of votes polled mentioned on the cover of EVM
was 667 and that when the EVM was opened and polled votes
were counted, it was found only “000” as against each candidate
in the EVM. PW1 has further stated that the officials called for one
Geetha who is said to be a technician of EVM and the said Geetha
checked the EVM and she has reported that EVM was not handled
properly and all the votes polled therein got erased. According
to the Election Petitioner, the result of Polling Station No. 13,
Chinnapallikuppam was written on the black board as “000” and
therefore, P.W.4-Parthasarathy left blank as against Polling Station
No. 13, Chinnapallikuppam in Ex.P1 [Note Book]. PW1 has
further stated that EVM of No. 13, Chinnapallikuppam was kept
aside and other EVMs were counted and the counting process was
completed at about 12.30 noon and she gave representation [Ex.

P2], requesting for conducting re-polling in Polling Station No. 13,
Chinnapallikuppam. PW1 has also stated that the result was not
declared at 12.30 noon and that since the District Election Officer
announced re-polling can be held at Chinnapallikuppam, she along
with her Chief Election Agent [PW2-N.T. Shanmugam] went to
Chinnapallikuppam which is at a distance of 40 kms away from the
counting place. PW1 has also stated that on the same day evening
at about 5.30 P.M., the District Election Officer called her and her
Chief Election Agent [PW2] and asked them to come to the counting
place and when she and her Chief Election Agent came back to
the counting place at about 7.00 P.M., she saw 1st Respondent
was present with the District Election Officer in the counting hall
itself. PW1 has further stated that the District Election Officer told
them that counting of votes in No. 13, Chinnapallikuppam was
already over in the morning and that only the votes counted in
Polling Station No. 8, Gururajapalayam was not counted and that
the EVM pertaining to No. 8, Gururajapalayam was kept in the
adjacent room and the District Election Officer asked all of them
to come forward for counting of votes of No. 8, Gururajapalayam
and the Election Petitioner raised objection for counting of votes
polled in Polling Station No. 8, Gururajapalayam stating that
counting for that Polling Station was already over in the morning.
PW1 has further stated that they did not go to the adjacent room
to bring the EVM pertaining to No. 8, Gururajapalayam and she
does not know whether the votes polled for Polling Station No. 8,
Gururajapalayam was counted or not and that next day morning
she came to know from the newspaper that 1st Respondent was
declared elected for No. 47, Anaicut Assembly Constituency by a
margin of “53” votes.
31. Case of PW1 is that for Polling Station No. 13, Chinnapallikuppam,
the votes polled got erased and the EVM showed only “000”. PW1
would admit that for Polling Station No. 13, Chinnapallikuppam,
the total number of votes polled is 667. But in Form-20, for Polling
Station No. 13, Chinnapallikuppam the officials themselves appear
to have written the number of votes casted infavour of each
candidate and entries shown against each candidate are not correct.

32. PW2-Mr. N.T. Shanmugam, a former Minister in Central
Government was the Chief Election Agent of the Election
Petitioner. In his evidence PW2 has stated that the EVMs pertaining
to Polling Station Nos. 8 & 9 of Gururajapalayam were brought to
the counting Table Nos. 10 & 11 and in the EVM of Polling Station
No. 8, Gururajapalayam, total number of votes polled were shown
to be 774 votes and the same were counted for each candidate and
the Counting Agent Prahalathan [PW3] was present at Table No.
10. The votes polled in the EVM brought to the counting Table
No. 11 were counted in respect of each candidate. PW2 has further
stated that the EVM of Polling Station No. 13, Chinnapallikuppam
was brought to the counting Table No. 1 at 8.30 A.M. for counting
and the seal of EVM was verified by the officials and it was seen
that the display only shown “000” and the officials called for
technician Geetha to check the EVM and the said Geetha informed
the officials that since the EVM was not handled properly, the total
shows “000” and the technician has also stated that the votes polled
therein have been erased due to mishandling of EVM.
33. Reiterating the version of PW1, PW2 has also stated that Election
Petitioner has submitted a representation to the Election Observer
requesting for re-poll in Polling Station No. 13, Chinnapallikuppam
and on coming to know about the problem, the District Election
Officer came to the counting hall and stated that due to problem in
the EVM pertaining to No. 13, Chinnapallikuppam, re-poll has to be
conducted and since re-poll was intended to be conducted, Election
Petitioner, PW2 and their party men left for Chinnapallikuppam.
PW2 has also stated that when they reached Chinnapallikuppam at
about 5.30 P.M., the District Election officer called him over his cell
phone and asked to come to the counting place at Thanthai Periyar
Polytechnic, Vellore and when they reached the counting place,
the 1st Respondent and District Election Officer were present.
PW2 would further state that the District Election Officer told that
the votes polled in No. 13, Chinnapallikuppam were already been
counted in the morning itself and that the votes polled in No. 8,
Gururajapalayam are to be counted and he further told that the
EVM pertaining to No. 8, Gururajapalayam is in the additional
strong room and the same has to be brought for counting. PW2

would further state that they did not agree and objected for the
same and submitted a representation forwarding a copy to the
Election Commission, New Delhi and that they did not go to the
counting hall and came out and on the next day, they saw the
newspapers that the result was declared and 1st Respondent was
declared elected. In his evidence, PW2 has further stated that as
per the Rules, the polled EVMs should be kept in the strong room
and only those EVMs have to be taken for counting. Since the
EVM was brought from the additional storage room which has no
safety measures, it amounts to violation of election rules and the
same cannot be taken up for counting. As the votes polled thereon
would have been manipulated or tampered with, the votes polled
in respect of No. 8, Gururajapalayam is not correct.
34. PW3-Prahalathan who was the Counting Agent of the Election
Petitioner for Table No. 10 has stated that EVM of No. 8,
Gururajapalayam was brought to the counting table No. 10 and
it was verified and the seals were checked and the votes were
counted and number of votes against each candidate were recorded
and the Counting Agents’ signatures were obtained for each EVM.
The gist of evidence of PW3 is that the votes pertaining to No. 8,
Gururajapalayam were counted in the morning itself.
35. Gist of evidence of PWs.1 to 3 is that:-
Votes polled in EVM pertaining to No. 8, Gururajapalayam was
counted in Table No. 10 in the first round in the presence of PW3-
Prahalathan, Counting Agent of Election Petitioner.
There is no grievance about the number of votes polled and
counted in espect of No. 8, Gururajapalayam and that there is no
grievance about the number of votes counted in the morning in
respect of No. 8, Gururajapalayam and that the Election Petitioner
got 377 votes and 1st Respondent got 391 votes respectively.
EVM pertaining to No. 13, Chinnapallikuppam was counted in
Table No. 1 of round No. 1 in the presence of PW4-Parthasarathy,
Counting Agent of Election Petitioner and the said EVM showed
“000”. Re-election was ordered by the Returning Officer for
No. 13, Chinnapallikuppam on the same day for which Election
Petitioner and her party men had gone to Chinnapallikuppam. On

the evening of 11.5.2006, the District Collector/District Election
Officer told the Election Petitioner and her Chief Election Agent
(PW2) that No. 13, Chinnapallikuppam was already counted in the
morning and No. 8, Gururajapalayam remains to be counted.
36. Even though, Pws.1 and 2 have stated that the votes polled in EVM
pertaining to No. 8, Gururajapalayam was counted in the morning
itself, it emerges from the evidence and other circumstances that
the votes polled in respect of No. 8, Gururajapalayam were counted
only in the evening; whereas votes polled in EVMs pertaining to
No. 13, Chinnapallikuppam were counted in the morning.
37. In continuation of functioning of EVMs, we may refer to the
evidence of PW5- Returning Officer. In his evidence, PW5 has
stated that 221 Polling Stations have been divided into 14 Zones.
An officer was put on duty to cover about 10 Polling Stations for
one Zone. One or Two EVMs will be provided as “Reserve EVM”
which will be in the custody of the Zonal Officer. The Zonal Officer
will be having “Reserve EVM” and in case any EVMs is out of
order, the said EVMs can be replaced with “Reserve EVM”.
38. As pointed out earlier, each Control Unit and Balloting Unit has
unique I.D. Number (Label) pasted by the manufacturer on the
back. At the time when EVMs are prepared for Polling Stations,
the said unique I.D. Number is written on the front cover of each
Unit with permanent marker. The said I.D. Numbers are to be
noted in the Registers/Address tags and Form 17-C (Part-I) etc.
The Returning Officer maintains the Register of allocation of
EVMs to Polling Stations with the following particulars:-
General/Bye-Election to ………………………………………………..
1. NO. & NAME OF LOK SABHA CONSTITUENCY .……….
2. NO. & NAME OF ASSEMBLY CONSTITUENCY .………..
3. DATE OF POLL .…………………………………………….
SL. NO.
No. & NAME OF POLLING STATION
UNIQUE ID NOs. OF UNITS ALLOCATED TO POLLING STN.

CONTROL UNIT
BALLOTING UNIT
REMARKS
39. In his evidence, PW5 has categorically stated that there was
interchange of EVMs and that the same was noticed only on the
date of counting. Interchange of EVMs are as under:-
Control Unit No.
Originally intended for
Handed over to
Used for
Counted for
D 1843
[M.O.3]
P.S. No. 13, Chinnapallikuppam
Kept as Reserve by Zonal Officer
--
Showed “000”
D 3208
[M.O.4]
Reserve EVM
P.S. No. 8, Gururajapalayam
D 11920
[M.O.5]

Since the Returning Officer (PW5) is in-charge of preparation of EVMs
and allocation of EVMs to Polling Stations, much weight has to be
attached to his evidence as to the interchange of EVMs.
40. The points to be determined are whether the votes polled in
EVM pertaining to No. 13, Chinnapallikuppam got erased due to
mishandling and whether the interchange of EVMs has materially
affected the election to declare it as void.
41. Sec. 49E of Conduct of Election Rules deals with preparation of
EVM for polling which reads as under:-
Sec.49-E - Preparation of voting machine for poll. -
(1) The control unit and balloting unit of every voting machine
used at polling station shall bear a label market with -
(a) the serial number, if any, and the name of the constituency;
(b) the serial number and name of the polling station or
stations as the case may be;
other persons present that o voter has been already recorded
in the voting machine and it bears the label referred to in sub-
rule (4).
(3) A paper seal shall be used for securing the control unit of the
voting machine, and the presiding officer shall affix his own
signature on the paper seal and obtain thereon the signature of
such of the polling agents present as are desirous of affixing
the same.

(4) The presiding officer shall thereafter fix the paper seal so
signed in the space meant therefor in the control unit of the
voting machine and shall secure and seal the same.
(5) The seal used for securing the control unit shall be fixed
in such manner that after the unit has been sealed, it is not
possible to press the “result button” without breaking the seal.
(6) The control unit shall be closed and secured and placed in full
view of the presiding officer and the polling agents and the
balloting unit placed in the voting compartment.
As pointed out earlier, case of Election Petitioner is that
EVM for No. 13, Chinnapallikuppam was counted in Table
No. 1 in the presence of PW4-Parthasarathy and the EVM
showed “000” and that technician Geetha was called who on
checking of EVM has stated that the votes polled in No. 13,
Chinnapallikuppam got erased due to mishandling of EVM.
As pointed out earlier, due to interchange of EVM (MO3)
intended for Polling Station No. 13, Chinnapallikuppam was
kept as “Reserve EVM” by the Zonal Officer. The said Control
Unit was not put in use and evidently, the same showed “000”.
Ofcourse, PW5-Returning Officer has stated that technician
Miss. Geetha was called and on checking up the EVM, it
showed “000”.
42. The vital point for determination is whether the votes polled in
EVM pertaining to No. 13, Chinnapallikuppam could have been
erased allegedly said by the technician Miss. Geetha as stated by
PWs.1 to 5?
43. The Returning Officer who is in-charge of EVMs prepares
Balloting Unit, Control Unit as per the Manual of Instructions.
Returning Officer seals the inner door of “candidates set section”
and also outer door of “candidates set section” with address tag.
After preparation of Balloting Unit and Control Unit and only after
“test check”, the Control Unit is made ready for distribution to the
Polling Stations. After preparation of Control Unit and Balloting
Unit, they are packed in their carrying cases. Address tag on the
carrying cases are tied with threads and sent to the Polling Stations

through the Zonal Officer. Presiding Officer check the Returning
Officer’s seals and the Presiding Officer check the Balloting Unit.
Both the seals of Control Unit and Balloting Unit should not be
opened by the Presiding Officer at any point of time.
44. As pointed out earlier, after the demonstration to the Polling
Agents, Presiding Officer clear the EVM by pressing “clear
button”. Thereafter, Presiding Officer fixes paper seals and closes
the inner compartment. After sealing with outer door strip seal, the
Control Unit is ready for conducting poll. During or after the poll
is over, paper strip seal is not removed. After the poll, the Control
Unit with the seals intact is returned to the Returning Officer. When
EVMs are brought to the counting table, the paper seal is pierced
to know the results.
45. As pointed out earlier, in each of the Polling Stations before the
commencement of polling, the Presiding Officer will conduct
the “Mock Polling”. Only those EVMs used for “Mock Polling”
will be the ones used for actual polling on the polling day, after
clearing the Mock Polls. Hence hardly, there are any possibilities
for mishandling of EVM and the votes polled getting erased.
46. As pointed out earlier, the EVM D 18543 (MO3) with tag pertaining
to No. 13, Chinnapallikuppam was kept as “Reserve EVM’ by
the Zonal Officer. Since (M.O.3), Control Unit intended for
Chinnapallikuppam was actually kept as “Reserve EVM” which
was not used for polling, natually, it showed “000”. The version
of Election Petitioner that the votes polled in EVM pertaining to
No. 13, Chinnapallikuppam got erased is not correct. From the
evidence of PW5 and by demonstration of EVM in the open
Court, what we find is the EVM has been specifically designed to
collect, record, store, count and display voting data accurately. All
mechanical, electronic, software security features are provided to
ensure the accuracy of the voting data. After the poll, the Control
Unit with the seals intact is returned to the Returning Officer. With
much of safety measures taken, hardly, there any possibilities of
being “mishandling” and polled votes getting erased.
47. Ex.P5 is the Form 17-C used for No. 13, Chinnapallikuppam. In
Part-I of Ex.P5 [Form 17-C], the Control Unit is clearly mentioned

as D 11920. As is seen from Part-I of Ex.P5 Form 17-C, the total
number of votes polled in No. 13, Chinnapallikuppam is stated as
“667” and all the Polling Booth Agents and the Presiding Officer
have signed in Part-I of Form 17-C. As is seen from Part-II of
Ex.P5 [Form 17-C), out of 667 votes polled, the candidates secured
the votes as under:-
Sl. No.
Name of the Candidate
No. of votes recorded
1.
KUMARESAN.J
12
2.
SIVAM.C
4
3.
PANDURANGAN.K
413
4.
VARALAKSHMI.M
194
5.
VENKATESAN.M
19
6.
KALAISELVAN.V
2

7.
DEIVASIGAMANI.B
6
8.
NATARAJAN.T
4
9.
PANNERSELVAM.S
4
10.
VEERAMANI.G
9
Total
667
In his evidence, PW5-Returning Officer has categorically spoken about
Part-I of Ex.P5 [Form 17-C] and the number of votes polled thereon
[667] and that the Polling Booth Agents and Presiding Officer have
signed in Part-I of Ex.P5. The total number of votes polled actually
tallied with the number of votes in the Control Unit, M.O.5 D11920 as
is clear from Part-II of Ex.P5 Form 17-C.
48. As per Section 46 of R.P. Act read with Rule 13 of the Conduct of
Election Rules, a contesting candidate or his election agent may
appoint in the prescribed manner such number of polling agents
as may be prescribed to act as polling agents of such candidate
at each polling station provided under Section 25 or at the place
fixed under sub-section (1) of Section 29 for the poll. As per Rule
13, every such appointment shall be made in Form 10 and shall be
made over to the polling agent for production at the polling station
or the place fixed for the poll, as the case may be. As stipulated
under Section 49 read with Rule 13, the Election Petitioner/his

Chief Election Agent would have nominated persons as Polling
Agents for Polling Station No. 13, Chinnapallikuppam.
49. When PWs.1 and 2 were questioned as to the name of Polling
Agents of Election Petitioner in No. 13, Chinnapallikuppam, they
were evasive. PW2-Chief Election Agent of the Election Petitioner
feigned ignorance about the name of Polling Booth Agent for No.
13, Chinnapallikuppam. As is seen from the evidence of PW5, at
the end of poll, the EVM will be sealed in the presence of all the
Polling Booth Agents and the seals of respective Polling Booth
Agents will be affixed on the EVM and the Presiding Officer will
give the true copy of Part-I of Form 17-C to each of the Polling
Booth Agents. If Part-I of Ex.P5 Form 17-C does not pertain to No.
13, Chinnapallikuppam, the Election Petitioner could have very
well produced the copy of Part-I of Form 17-C given to her Polling
Booth Agents, but that was not to be so.
50. In his evidence, PW5-Returning Officer has clearly stated that
M.O.5 Control Unit No. D 11920 was actually used in Polling
Station No. 13, Chinnapallikuppam and in M.O.5 in the first pink
tag on the top, three signatures of Polling Booth Agents are found
and the signatures of Polling Booth Agents found in the first pink
tag on M.O.5 [D11920] tallies with the signatures of Polling Booth
Agents in Part-I of Ex.P5 Form 17-C. It was suggested to PW5
that Part-I of Form 17-C [Ex.P5] was prepared by the Returning
Officer himself without any signature of Polling Booth Agents.
But to substantiate the said suggestion, the Election Petitioner
had not chosen to examine her Polling Booth Agents of No. 13,
Chinnapallikuppam.
51. In his evidence, PW4-Parthasarathy has stated that upto
12.30 P.M. the votes polled in the EVM pertaining to No. 13,
Chinnapallikuppam was not counted and that when the EVM
of No. 13, Chinnapallikuppam was brought and when the result
button was pressed, it showed “000”. PW3-Prahalathan has stated
that EVM pertaining to No. 8, Gururajapalayam was brought to the
counting Table No. 10 (in which he was the Counting Agent) and
number of votes polled against each candidate were counted.

52. From the evidence of PW5, it is made clear that the EVM pertaining
to No. 13, Chinnapallikuppam was counted in Table No. 10 in the
morning itself. As pointed out earlier, Part-I of Ex.P5 [Form 17-C]
contains Control Unit No. D11920. Part-II of Form 17-C contains
votes polled against each candidate and the total number of votes
polled as stated in Part-I. It is pertinent to note that in Part-II of
Form 17-C [Ex.P5], PW3 Counting Agent of Election Petitioner
has signed as Counting Agent. But during his evidence, PW3 has
denied his signature in Ex.P5 and PW3 has stated that in Table
No. 10, only the EVM pertaining to NO. 8, Gururajapalayam was
counted but not No. 13, Chinnapallikuppam. Absolutely, there is
no truth in the evidence of PW3 denying his signature in Part-II of
Ex.P5 Form 17-C. In my considered view, the denial of signature
in Part-II of Form 17-C [Ex.P5] is clearly an afterthought.
53. As pointed out earlier, after each round of counting, Part II of
Form 17-C will be prepared in which the respective Counting
Agents would sign in Part-II. To discredit P.W.3’s evidence, Form
17-Cs of various Polling Stations counted in Table No. 1 to 10
were summoned. Ex.R1 to R15 are the Part-II of Form 17-Cs
pertaining to Polling Station No. 22-F, Government Boys Higher
Secondary School, Pallikondan; No. 32 A (W), Vettuvanam; No. 44,
Virinjipuram; No. 55(M), Ilavampadi; No. 65, Government Boys
Higher Secondary School, Anaikattu; No. 77(M), Thattankuttai;
No. 87, Kilkothur; No. 99 KG Eriyur; No. 109, Athikuppam;
No. 121, Abdullapuram PUM School; No. 134 (M), Athiyur; No.
144M; No. 47/154; No. 164, PU School, Baghayam and Arcoton
Kudirai, Minjurpet respectively. Except Ex.R14 From 17-C, all
Form 17-Cs from Ex.R1 to R13 and R15 and also Ex.P5 [Form
17-C of EVM counted in Table No. 10 in Round No. 1] contained
the signature of PW3-Prahalathan. On being recalled, PW3 had
also admitted his signature in Form 17-Cs i.e. Exs.R1 to R13 and
R15. But PW3 denies his signature in Ex.P5. In his evidence PW5
has stated that at the time when the votes polled were entered in
Ex.R14, PW3 might not have been available.
54. As Counting Agent of Election Petitioner in Table No. 10, PW3
has signed. Admittedly, in Exs.R1 to R13 and R15 the signature of
PW3 was obtained in Part-II of Form 17-C in the official course.

In the ordinary course of conduct of official work in Part-II in
Ex.P5 [Form 17-C] of No. 13, Chinnapallkuppam, the signature
of PW3 must have been obtained. As per Sec. 114 - illustration (e)
of Evidence Act, all the official and judicial acts are presumed to
have been rightly and regularly done. Presumption under Sec. 114
will come into aid where it is proved that the judicial or official
act has been in effect done or performed. When the signature of
PW3 in Exs.R1 to R13 and R15 is admitted, the presumption arises
that Part-II of Ex.P5 Form 17-C was also performed in the official
course of business, then the presumption under Sec. 114, illustration
(e) arises. Denial of his signature in Part-II of Ex.P5 Form 17-C is
clearly an afterthought and no weight could be attached for such
denial. Part-II of Ex.P5 Form 17 -C clearly shows that the votes
polled in EVM pertaining to No. 13, Chinnapallikuppam was
counted in the morning itself at Table No. 10.
55. Case of Election Petitioner is that re-polling in No. 13,
Chinnapallikuppam was ordered and therefore, she and her
Chief Election Agent [PW2-N.T. Shanmugam] and their party
men went to Chinnapallikuppam for re-polling. PW5-Returning
Officer has categorically denied the suggestion that there was lot
of discussion about re-polling in No. 13, Chinnapallikuppam.
Only the Election Commission of India has power to order re-poll.
PW5 has categorically stated that even on the date of counting
itself, re-polling cannot be ordered because the Electorate have
to be informed in advance about the re -polling. When only the
Election Commission of India has power to order re-polling, it
is highly improbable that PW5-Returning Officer would have
contemplated about repolling in No. 13, Chinnapallikuppam. As
soon as EVM showed “000”, they must have noticed the mistake,
since Part-I of Ex.P5 Form 17-C, 667 votes were polled in No.
13, Chinnapallikuppam after checking up with Number of Control
Unit, interchange of EVM came to light. The contention of
Election Petitioner that re-polling of No. 13, Chinnapallikuppam
was contemplated/declared is not acceptable and Issue No. 4 is
answered accordingly.
56. M.O.4 - D53208 which was intended to be kept as “Reserve
EVM” was used for polling in No. 8, Gururajapalayam. As seen

from Part-I of Ex.P4 [Form 17-C], 1035 votes were polled in No.
8, Gururajapalayam. Since the pink tag contained label “Reserve
EVM”, even though M.O.4 was used in No. 8, Gururajapalayam as
it was “Reserve EVM”, the same was kept in the additional storage
room. In his evidence, PW5 has stated that after noticing the
interchange of EVM, M.O.4 was brought and found that the seals
were intact. PW5 has further stated that in Part-II of Form 17-C in
Ex.P4, Control Unit No. D53208 is written which tallies with the
Control Unit number entered in Part-I of Form 17-C. Explaining
upon the circumstances under which M.O.4 EVM pertaining to
No. 8, Gururajapalayam was brought for counting, PW5 has stated
as under:-
“… The interchange of EVMs was noticed in the afternoon and
the process was going on and after taking videograph, the Reserve
Control Unit NO. D53208 was brought to the counting table
and the votes polled in Polling Station No. 8, Gururajapalayam
was counted in the presence of all political parties including the
contesting candidates, who were present at that time. The minutes
of the said process was recorded by me as the Returning Officer.
All these facts with regard to interchange of EVMs was explained
to the political parties and the contesting candidates and they have
also agreed for the same and they have also signed in the minutes.
Only after the minutes, the EVM Control Unit No. D53208 was
brought from the additional storage room to the counting hall. I
verified and satisfied that the seal was in tact and showed to all of
them and only thereafter the votes were counted.”
57. As per the evidence of PW5, M.O.4 EVM pertaining to No. 8,
Gururajapalayam was counted only in the evening. When PW5 was
asked about the time gap from 12.00 noon to evening for counting
of votes pertaining to No. 8, Gururajapalayam, PW5 has explained
the time gap. PW5 has stated that he sent a report to the Chief
Electoral Officer, Chennai explaining the hardship faced by him for
declaring the result when Control Unit D18543 showed “000” and
after ascertaining the interchange of EVM, the above process was
taken and another report was sent to the Chief Electoral Officer,
Chennai explaining in detail and seeking clearance for declaration

of result. PW5 would further state that the Chief Electoral Officer
orally asked him to verify the Presiding Officer’s diary and Vote
of Accounts in Form 17-C and pursue further. PW5 has made it
clear that interchange of EVM was explained to all the candidates
and their Counting Agents and M.O.4 EVM was brought from
the additional storage room to the counting hall and counted. Out
of 1035 votes polled in No. 8, Gururajapalayam, the candidates
secured the votes as under:-
Sl. No.
Name of the Candidate
No. of votes recorded
1.
KUMARESAN. J
18
2.
SIVAM.C
01
3.
PANDURANGAN. K
391
4.
VARALAKSHMI. M
377
5.
VENKATESAN. M
195
6.
KALAISELVAN. V

08
7.
DEIVASIGAMANI. B
06
8.
NATARAJAN. T
07
9.
PANNERSELVAM. S
09
10.
VEERAMANI. G
23
Total
1035
Total number of votes in M.O.4 Control Unit D53208 tallied with
the total number of votes shown in Part-I. All the Counting Agents
have not signed in Part-II of Ex.P4 [Form 17-C] with regard to No.
8, Gururajapalayam. PW5 has stated that if any one of the Counting
Agent refuses to sign in Part-II in Form 17-C, it is not mandatory for
the Returning Officer to get his signature. The non affixture of signature
of other candidates would not in any way invalidate the election.
58. Grievance of the Election Petitioner is that EVM pertaining to
No. 8, Gururajapalayam was brought from additional storage
room which would have no security measures and bringing the
EVM from the additional storage room has materially affected the
election insofar as the Returned candidate is concerned. It is the
further case of Election Petitioner that No. 8, Gururajapalayam
was already counted in the morning of 11.5.2006 in Table No.
10 in Round No. 1 and while so, bringing EVM from additional

storage room on the ground that No. 8, Gururajapalayam was not
counted is nothing but manipulation. The contention that No. 8,
Gururajapalayam was counted in the morning itself does not hold
a ground. Ex.P1 is the note book maintained by PW4-Counting
Agent. After each round of counting, total number of votes polled
against each candidate round wise would be written in the black
board. The particulars in Page No. 32 of Ex.P1 were written by
PW4 by seeing the particulars written on the board in the counting
hall. In the black board, the Returning Officer has written 3207 and
4367 as the votes polled in the first round by the Election Petitioner
and the 1st Respondent which has been noted by P.W.4. The total
votes secured by each in the first round are as under:-
S. No.
1
2
3
4
5
6
7
8
9
10
1
153
41
4367
3207
486

30
55
59
58
123
As pointed out earlier, votes pertaining to No. 8, Gururajapalayam
was not counted in the morning and therefore, the total number of
votes polled in the above rounds were without inclusion of No. 8,
Gururajapalayam.
59. In her evidence, PW1 herself has stated that the total votes polled
by her in the first round excluding the votes polled in No. 8,
Gururajapalayam and No. 13, Chinnapallikuppam will be 3013.
To that if 377 votes polled in her favour in No. 8, Gururajapalayam
are added, it will be only 3390 [3013+377]. Whereas in Page 32
of Ex.P1, PW4-Parthasarathy, Counting Agent of PW1 noted it as
3207. 3207 votes will come only if 194 votes polled by the Election
Petitioner in No. 13, Chinnapallikuppam are added to 3013 (3013
+ 194 = 3207). This is the same case with the votes polled by the
first Respondent also. As pointed out earlier, the votes 3207 and
4367 polled in the first round will come only if the votes polled
in No. 13, Chinnapallikuppam are added and not the votes polled
in No. 8, Gururajapalayam, because No. 8, Gururajapalayam was
not counted in the morning; but was counted in the evening by
the Returning Officer himself. As rightly stated by PW5-Returning
Officer, that is why in Form 17-C of No. 8, Gururajapalayam
[Ex.P4], the signature of PW3-Prahalathan is not available. It is
pertinent to note that PW3 has not produced the note book that
was maintained by him during counting. Had he produced the
note book, it would have been made clear that it was No. 13,
Chinnapallikuppam EVM [MO5] that was counted in Table No.
10 in the first round.
60. Mere allegation that EVM pertaining to No. 13, Chinnapallikuppam
was erased is unsustainable. Even though the EVM pertaining to
No. 8, Gururajapalayam was kept in the additional storage room,

when it was brought from the additional storage room, the seals
were found intact. Since all safety features are available in the
EVM, there is no question of tampering the votes polled and
recorded in the Controlling Unit. Interchange of EVM has not in
any way materially affected the election and Issue Nos. 1 and 4
(re-cast) and Additional Issue Nos. 1 to 3 are answered against the
Election Petitioner.
61. Issue No. 5:- Election Petitioner has not established reasonable
ground or made it to declare the election of the 1st Respondent
as void. In the light of the above said discussions in the aforesaid
Issues, the Election Petitioner is not entitled for any declaration as
sought for by her.
62. In the result, the Election Petition is dismissed. Consequently,
connected O.A. is also dismissed. However, there is no order as to
costs.
22.10.2010
Index: Yes
Internet: Yes bbr
List of Documents and Witnesses:-
Petitioner’s side:
Ex.P1/- - Note Book maintained during counting in Table No. 1.
Ex.P2/11.05.2006 - Representation given by Petitioner to the Election
Petition.
Ex.P3/- - Form-20.
Ex.P4/08.05.2006 - Form 17-C of No. 8, Gururajapalayam.
Ex.P5/08.05.2006 - Form 17-C of No. 13, Chinnapallikuppam.
Ex.P6/08.05.2006 - Form 17-C pertaining to Table No. 1 for 15 rounds.
Respondents’ side exhibits:
Ex.R1/08.05.2006 - Form 17-C pertaining to P.S. No. 22-F in Table No.
10 for Round No. 2 [Pallikonda].

Ex.R2/“- Form 17-C pertaining to P.S. No. 32-A in for Round No. 3
[Vettuvanam].
Ex.R3/“- Form 17-C pertaining to P.S. No. 44 for Round No. 4
[Virinjipuram].
Ex.R4/“- Form 17-C pertaining to P.S. No. 55(M) for Round No. 5
[Ilavampadi].
[Anaikattu].
[Thattankuttai].
[Kilkothur].
Ex.R8/“- Form 17-C pertaining to P.S. No. 99 for Round No. 9 [KG
Eriyur].
[Athikuppam].
[Abdullapuram].
[Athiyur].
Ex.R12/“- Form 17-C pertaining to P.S. No. 144M for Round No. 13.
Ex.R13/“- Form 17-C pertaining to P.S. No. 47/154 for Round No. 14.
[Baghayam].
Ex.R15/“- Form 17-C pertaining to Polling Station of Arcotton Kudirai
for Round No. 16.
Petitioner’s side witnesses:
P.W.1/Tmt.M. Varalakshmi - Election Petitioner.
P.W.2/Thiru.N.T. Shanmugam - Chief Election Agent of Petitioner.

P.W.3/Thiru.A.S. Prahalathan - Counting Agent of Petitioner.
P.W.4/Thiru.A. Parthasarathy - Counting Agent of Petitioner.
P.W.5/Thiru.A. Narayanamoorthy - Returning Officer.
Respondents’ side witnesses: - Nil
Material Objects:
M.O.1 - Video Cassette produced by Returning Officer.
M.O.2 - Video Cassette produced by Returning Officer.
M.O.3 - EVM D18543.
M.O.4 - EVM D53208.
M.O.5 - EVM D11920.

24. MICHAEL B. FERNANDES vs. C.K. JAFFER SHARIEF
EP No. 29 of 1999 [2004 SCC OnLine Kar 7]

CASE
05.02.2004
DETAILS
K. Sreedhar Rao, J.
ISSUES Challenging the efficacy and integrity of the EVMs.
The Hon’ble Court examined the evidence of one
of the scientists of the Bharat Electronic Limited
in relation to functional efficacy of EVMs and
DECISIONS
held that the EVMs are tamper proof and there is
no possibility of manipulation of mischief at the
instance of anyone.
SUMMARY
In this election petition, efficacy and integrity of the EVM was
challenged. It was contended that EVM is vulnerable to tampering. It
was further contended that an election conducted with the aid of EVM
does not ensure the free and fair polling and counting, in view of the
inherent defects in the EVMs.
The Hon’ble Court observed that there has been a tremendous
advancement in electronic technology. A scientist who is one of the co-
designer of the electronic voting machine was also examined as a court
witness and his evidence unflinchingly supports the feasibility of use of
electronic voting machines in the election. The evidence fully inspires
the confidence of the Court that the EVMs are fully tamper proof and
there is no possibility of manipulation of mischief at the instance of
anyone.
ORDER
K. Sreedhar Rao, J.
This section petition filed under section 81 of the Representation of
People Act, 1951, by the Petitioner/candidate at 1999 General Election
to the house of People from N0.12, Bangalore North parliamentary
Constituency held on 11.9.1199 through his advocates Smt. Pramila
Nesargi, MS. Geetha Menon and S Balaji with a prayer to (a) Declare

that the declaration of result of Respondent N0.1 from No. 12 Bangalore
North parliamentary constituency as null and void (b) direct repoll of
the No.12, Bangalore North parliamentary constituency (c) declare
that the section 61 (A) of the Representation of Peoples Act and
consequent rules under chapter 2 of the conduct of election Rules, 1961
as unconstitutional (d) declare that the election under Electronic Voting
Machine held in No. 12, Bangalore North parliamentary constituency
as null and void . (e) Award costs of the petition to the petitioner and (f)
grant such other reliefs as the Hon’ble court deems fit under the facts
and circumstances of the case.
This petition coming on for hearing this day, the court made the
following:
1. This Election Petition does not only challenge the integrity of the
election of the first respondent but also the afficacy and integrity
of the electronic voting machine used in the election of Yelahanka
parliamentary constituency. The Petitioner is unsuccessful
contestant at the 13th Loksabha Parliamentary Election held on
6-10-1999. The first respondent is the successful candidate. The
respondents 2 to 5 are the other contesting candidates. Respondents
6 to 8 are Election commission and its officers. The court deleted
respondents 6 to 8 as not necessary parties. The supreme court
confirmed the order.
2. The gist of the objections raised by the petitioner in the Election
petition disclose that the amendment to Representation of People
Act by incorporating section 61A and making provision for use
of electronic voting machine and the consequent amendment to
Rules is bad in law as it permits arbitrariness and ultra vires the
constitution. An election conducted with the aid of electronic voting
machine. Does not ensure the free and fair polling and counting,
in view of the inherent defects in the electronic voting machine.
It is also contended that electronic voting machine is vulnerable
to tampering. Besides it is alleged that on account of the inherent
errors in the electronic voting machine, there has been no proper
counting of the votes.
3. The first respondent ha denied the allegations made in the petition.
The following issues were framed by my predecessor.

1. Whether the petitioner proves that there has been
non-compliance of the provisions of the constitutions,
Act, rules of orders mad under the Act from the
time of polling to counting resulting in materially
affecting the result of the election in so far as the first
respondent is concerned?
2. Whether s.61 of the Representation of peoples Act
and consequent rules under Chapter 2 of the conduct
of Election Rules, 1961 is ultra-vires the constitution?
3. Whether the petitioner proves that elections held to
No.12, Bangalore North parliamentary constituency
by using the Electronic voting machines is null and
void?
4. Consequently, whether the petitioner is entitled for
a declaration the result of the 1st respondent electing
him from No.12 Bangalore North parliamentary
Constituency is liable to be declared as null and void?
5. Whether the petitioner has made out a case for re-
poll?
4. In view of the disputed contentions, and additional issue is framed
in the following manner:
Whether the electronic voting machines used in the
conduct of the election is vulnerable to mischief or
whether the electronic voting machine has in-built
safeguards of tamper proof?
5. This case as usual of the civil litigations does not stand out as
an exception for expeditious disposal. By the time evidence is
commenced and concluded, the political scenario of the country has
undergone a thorough change, threatening a premature dissolution
of Loksabha. In view of the changed context, the counsel for the
petitioner submits that factual contentions regarding impropriety
and illegality of election canvassed in the petition are given up and
cofine to challenge only on the legal aspects and feasibility of the
use of electronic voting machines in the election process.

6. The Supreme Court in Mohinder Singh Gill V. Chief Election
commissioner, New Delhi (1978)2 SCR 272, (AIR 1978 SC 851)
with lucidity has explained the scope and power of the Election
Commission while interpreting article 324 of the constitution.
Primarily the Legislature has to frame Rule regarding the
superintendence, control and conduct of elections. Any gray area
not covered by the rules, the Election Commission is empowered
to regulate with the approval of the Government. The Election
Commission cannot conduct itself over riding the provisions of
the Act and the Rules.
7. In A.C. Jose V Sivan Pillai and other, AIR 1984 SC 921, for the
first time the legitimacy of user of electronic voting machine in
an election came in question. The Supreme Court held that in the
existing structure of Act and Rules, there is no provision for using
electronic voting machine without necessary amendment and such
a user was held to be bad in law. The supreme Court further in
para 36 listed out the serious faults in the use of electronic voting
machine and found that with such defects it would not be advisable
to use the electronic voting machine in the election.
8. Much water had flown under the bridge. There has been a
tremendous advancement in the electronic technology. The
electronic voting machine used in the election during 1982 is an
obsolete model. The scientist who is one of the co-designer of the
electronic voting machine is examined as a court witness and his
evidence unflinchingly supports the feasibility of use of electronic
voting machines in the election. The defects of the machine pointed
out in A.C. Jose’s case no longer remain relevant. The present
improved version of E.V.M. takes care of all those defects. The
amendment to the people Representation Act and Rules is carried
out pursuant to the observations of the Supreme Court. Therefore,
it is untenable to contend that the amendment of the Act and Rules
is ultra vires and bad in law.
9. About the functional efficacy of E.V.M., one of the scientists of the
Bharat Electronic Limited(in short B.E.L.), who is the co-designer
of the machine is examined as a court witness . The following is
the gist of his evidence:

Voting machine has two major units: one is control unit and other
is balloting unit. control unit is handled by the Presiding officer,
who is in-charge of the Polling Booth. The control unit has all the
intelligence in-built. The ballot unit is a dummy unit or otherwise
called non-intelligence unit. The ballot unit has buttons and a lamp
for each candidate arrange in a line. The ballot unit is kept in the
polling compartment, 5 meters away from the control unit. The
ballot unit has a cable permanently attached. At the time of polling,
the cable is connected to the control unit, when the voter press
the button casting the vote to a candidate, the lamp by the side
of the button will glow to indicate theat the voting done is proper
and simultaneously in the control unit a beep sound is heard to a
range of 30ft. The control unit function in a non-reversible cycle of
voting process.
After the publication of the list of the candidates, the returning
officer sets the number of contesting candidates in the control
unit, which functions on a battery specially manufactured and
supplied by B.E.L. The effective life of the battery is 48 hours
of continuous functioning. In the balloting unit the printed ballot
sheet is put behind the transparent screen. The balloting unit is
capable of handling the ballot sheet containing 16 contestants
and on the whole EVM is designed to handle a maximum of 64
contestants at an election. The balloting unit has got 16 buttons
operatable through a panel cut out. After inserting the balloting
paper in the ballot unit, the Returning Officer closes the lid and
put a seal provided by the election commission in presence of
the candidates/their agents. The lid and the flaps once closed and
sealed cannot be opened without tampering the seal. The Returning
Officer simultaneously will set the control unit to receive the
information about the number of candidates contesting in the
election. By pressing the last “Cand set” button in the control unit,
the number of contesting candidates is recorded. The candidate
set compartment of the control unit is closed and sealed in the
presence of the candidates/their agents. Thereafter the control unit
and the balloting unit are put separately in a carrying cases and are
sealed by the Returning Officer candidates/agents. The in presence
of the carrying cases containing control unit and balloting Unit

are delivered to the Presiding officers on the previous day to the
election and would be carried to the polling booth.
The polling Officer will verify the seals of the carrying саses, take
out the control unit and balloting unit, verify the correctness of the
seals. An hour before the polling time, mock poll is conducted to
verify the functional capacity. The agents/ candidates are asked to
press the button in the balloting unit to cast their votes. Later on
the “result button” in the micro controller is pressed which display
the number of votes polled. After demonstration of the correctness
of the function, the ‘clear button’ is pressed which will erase all the
data of the mock poll. After the mock poll, the Presiding Officer
will close the result compartment by putting the seal provided by
the election commission by which the voting machine is ready for
polling.
The voter presents before the Presiding Officer, after verifying the
identity, the Presiding Officer will press the ‘balloting button’ in
the control unit and send the voter to the polling catkin. When
the voter press the balloting button casting vote to the candidate
of his choice, the lamp by the side of the button will glow
indicating the correctness of voting. The control unit will give
a beep sound to indicate that the vote casted is registered in the
control unit. For the next vote to be casted, again it is necessary
that the balloting button in the control unit is to be pressed by
the Presiding Officer, otherwise, mere pressing of button in the
balloting unit by the voter will be of no consequence. For every
next vote to be casted, it is necessary that the balloting button’
in the control unit is to be pressed by the Presiding Officer. After
polling time is over close button in the control unit is pressed by
the Presiding Officer by which the machine locked. Thereafter,
the balloting unit disconnected from the control unit, they gets is
separately packed in the carrying cases and sealed in presence of
the agents by the Presiding Officer. Later on they are transported
to the counting centers and ballot unit and control unit are kept in
a strong room before they are taken to the counting centers. At the
time of counting, seals put by the Presiding Officer to the control
unit is verified to ensure that no tampering has taken place. When

the result button’ is pressed, machine will display the number of
votes polled against each candidates sequentially.
Control unit has two main devices: one is micro controller and
another is memory. Micro controller is one time programmable
component. Micro controller once fused with program code and
data is unchangeable and irreversible. The memory device is
functionally efficient and retain the voting data without the aid of
a battery. The micro controller will record and register the voting
data by cross checking with the memory for every vote. The
programme code is encrypted and stored in the memory. It is not
possible to replace the memory device in order to play mischief.
If the Memory device is removed, micro controller will detect and
declare that the machine is in error state. The memory device and
one time programmable micro controller are the pivotal devices. of
the EVM and they act as tamper proof device for the programme
code and poll data.
If a voter damages the button of the balloting unit 0 for accidental
reason the button of the balloting unit gets struck. Such errors are
indicated in the control unit. In such cases, a spare balloting unit is
used. The sound of error message is heard in the control unit like
a alert sound, simultaneously the display panel will show letters
“PR” indicating that balloting unit has gone out of order. If the
connecting cable s damaged or out, letter ‘LE in displayed in the
display panel of the control unit with an alert sound and these are
the possible errors that can happen during use of machine during
polling. If there is any error in the memory device, the machine is
declared dead. The weak battery can also lead to error and the panel
display will indicate by six dash marks. The presiding Officer will
change the battery and continue polling. The defect in the battery
is a rare phenomenon. If the machine is not functioning, there will
be no battery consumption.
The Micro controller manufactured with a given programs code is
only useful for EVMS made for the elections by the B.E.L. company
and cannot be used for any other purpose. The programme code is
encrypted by out-source agency in the presence of the responsible
official of the BEL and the programme code is a business secret.

Out-source agency would keep the encrypted data as utmost
secrecy. It is further stated that the encrypted code and data is
unchangeable and indelible by anybody, even by the manufacturer.
Any attempt to tamper with the encrypted code would only result
in damage to the machine. But the micro controller and memory
cannot be manipulated by anybody. It is also stated that the EVM
is tested to the temperature condition of -20 degree C to + 55
degree C. and electromagnetic radiation also would not affect the
functioning of the machine. The witness categorically states that
either by manipulation or by accident there is no possibility of
transfer of votes from one candidate to another and the machine
designed is fully tamper proof.
10. The witness is cross-examined at length by the counsel for the
petitioner and nothing is elicited in the cross-examination from
the witnesses about the vulnerability of the machine. The evidence
on the other hand fully inspires the confidence of the court that
the EVMs are fully tamper proof. There is no possibility of
manipulation of mischief at the instance of anyone. The Supreme
Court in T.A. Ahammed Kabeer V A.A. Azeez and others, AIR
2003, 2271, has approved the fact that in the present version of
EVM used in the 1999 general election, it is possible to get at the
disputed impersonated votes by decoding. However, not possible
to identify the impersonator, that short coming is well with the
manual ballet system also.
11. The evidence further discloses that the EVM has seeming advantage
over the traditional manual ballot method. In the manual method,
there is possibility of swift rigging at the end of polling time. But
when the votes are cast through EVM there has to be necessary
minimum time lag between one vote and the next vote. Therefore,
when the EVMs are used, te mal-practice of rigging swiftly and
quickly at the closing hours of the polling time stands avoided.
12. The EVMs have been put in use in the last general elections and in
the last assembly elections in U.P. and other States. The practical
wealth of experience has dispelled abundantly the theoretical
unfounded apprehensions of the possible misuse. Cost-wise also,
use of EVMs is economical. Traditional manual method involves

huge cost towards printing charges and counting expenses. The said
expenses will almost account to 30-40% of the election expenses.
one time investment by purchasing required EVMs, the cost of
general elections to parliament and assembly and by-elections
would get largely reduced. The life span of EVM is 15 years.
13. The invention of EVM has an interesting history. According to the
evidence of the witness CW.1, the scientists of Bharath Electronics
Limited developed electronic voting machine to handle the trade
union elections. The election commission grasping the utility and
its relevance to the country’s general elections approached the
B.E.L. for manufacturing a EVM suitable for the general elections.
Scientists got The involved themselves personally including
C.W.1 in the general elections to study the nunances of the
pattern and procedures of the elections. After thorough practical
experimentation and research the present version of ZVM is
designed. This invention is undoubtedly a great achievement in
the electronic and computer technology and a national pride. It has
come in the evidence of the witness that country like Singapore,
Malasiya and U.S.A. are interacting with BEZ for supply of EVMs
suitable for their election requirements.
14. For the reasons and discussions made above, Issue No.2 and
Additional Issue is answered in Affirmative. Issues No. 1 and 2
and 4 pertain to the factual aspects of the election. In view of the
imminent premature dissolution of Lok Sabha the Counsel has
given up those issues. Accordingly, they are answered in Negative
and the election petition is dismissed. In the circumstances, no
order as to costs.
The Registry is directed to furnish the copy of this judgment to the
counsel appearing fer the petitioner, to enable to her to submit the
same to the election commission.

25. MOHINDER SINGH GILL vs. THE CHIEF ELECTION
COMMISSIONER
Civil Appeal No. 1297/1977 [ (1978) 1 SCC 405]

CASE 02.12.1977
DETAILS M.H. Beg, C.J., P.N. Bhagwati, J., V.R. Krishna
Iyer, J., P.K. Goswami, J. and P.N. Shinghal, J.
Whether Article 329(b) is a blanket ban on all
ISSUES manner of questions which may have impacted the
ultimate result of the election.
Article 329 (b) operates as a complete bar to
challenges to steps in election including that by a
writ petition under Article 226. Writ application
DECISIONS
challenging the cancellation coupled with re-poll,
amounts to calling in question a step in the election
and is therefore barred by Article 329(b).
SUMMARY
The instant petition pertains to the elections to parliament held
from 13-Ferozepur Constituency in Punjab wherein counting at the
constituency headquarters was aborted by mob violence at the final
hour when postal ballots were being counted. The Commission issued
an order canceling the whole poll and later gave a direction to have
a fresh poll for the whole constituency. The appellant filed a petition
under Article 226 in the High Court. Holding that it had no jurisdiction
to entertain the Writ Petition, the High Court dismissed the Petition. On
appeal to the Supreme Court, the Hon’ble Supreme Court Considered
whether Article 329(b) is a blanket ban on all manner of questions
which may have impacted the ultimate result of the election. Also,
can the Election Commission cancel the whole poll of a constituency
cancel the whole poll of a constituency after it has been held but, before
formal declaration of the result has been made and direct for fresh poll?
The Court held that Article 329(b) is a blanket ban on litigative
challenges to electoral steps taken by the Election Commission and its
officers for carrying forward the process of election to its culmination
in the formal declaration of the result. If a regular poll for some reason
has failed to reach the goal of choosing the returned candidate, and
to achieve the object a fresh poll is needed, it may still be a step in
the election. Hence, the Writ application challenging the cancellation
coupled with re-poll, amounts to calling in question a step in election
and is therefore barred by Article 329(b).
It was held that Article 329 (b) operates as a complete bar to challenges
to steps in election including that by a writ petition under Article 226.
Also, the Court held that the aggrieved party had all along a statutory
right to call the entire election in question, including the Commission’s
order, by an election petition under Section 80 of the RP Act, for the
trial of which an elaborate procedure has been laid down in the Act.
The court has further held that, not being adequately informed of all the
facts and circumstances, it will not make the task of the election court
difficult and embarrassing by suggesting guidelines in a rather twilight
zone. The court stated that it did not find any merit in the appeal and
dismissed it.
ORDER
M.H. Beg, C.J., P.N. Bhagwati, J., V.R. Krishna Iyer, J., P.K. Goswami,
J. and P.N. Shinghal, J.
Per Beg, C. J., Bhagwati and Krishna Iyer, JJ.
1. (a) Election has a very wide connotation commencing from the
Presidential notification calling upon the electorate to elect a
candidate culminating in the final declaration of the returned
candidate. Every step from start to finish of the total process
constitutes ‘election’ not merely the conclusion or culmination.
The rainbow of operations covered by the compendious expression
‘election’ commences from the initial notification and culminates
in the declaration of the returned candidate.
(b) Article 329(b) is a blanket ban on litigate challenges to electoral
steps taken by the Election Commission and its officers for carrying
forward the process of election to its culmination in the formal
declaration of the result. The conspectus of provisions bearing on
the subject of elections in the Constitution and the Representation
of the People Act clearly expresses the rule that there is a remedy
for every wrong done during the election in progress although it is
postponed to the post-election stage and procedure as predicated
in Article 329(b) and the 1951-Act. The Election Court has,
under various provisions of the Act, large enough powers to give
relief to the injured candidate if he makes out a case and such
processual amplitude of power extends to directions to the Election
Commission or other appropriate agency to hold a poll to bring up
the ballots or do other things necessary for the fulfilment of the
jurisdiction to undo illegality and injustice and do complete justice
within the parameters set by the existing law.
Under Article 329(b) the sole remedy for an aggrieved party, if
he wants to challenge any election, is an election petition and this
exclusion of all other remedies mcludes constitutional remedies
like Article 226 because of the non-obstante clause. If what is
impugned is an election the ban operates provided the proceeding
“calls it in question” or puts it in issue, not otherwise. The
paramount policy of the Constitution-makers in declaring that no
election shall be called in question except the way it is provided
for in Article 329(b) and the Representation of the People Act,
1951, shows that the Constitution and the Act should be read as
an integrated scheme. The reason for postponement of election
litigation to the post-election stage is that elections shall not
unduly be protracted or obstructed. The speed and promptitude in
getting due representation for the electors in the legislative bodies
is the real reason. It is not every decision sought and rendered that
will amount to “calling in question” an election. There are two
types of decisions and two types of challenges. The first relates
to proceedings which interfere with the process of election and
the second accelerates the completion of the election and acts in
furtherance of an election. Anything done towards the completion
of the election proceedings, such as a decision by a returning
officer on objections made to any nomination, can by no stretch
of reasoning be described as questioning the election. The plenary
bar of Article 329(b) rests on two principles: (i) the peremptory
urgency and prompt engineering of the whole election process
without intermediate interruptions by way of legal proceedings
challenging the steps and stages in between the commencement
and the conclusion; and (ii) the provision of the special jurisdiction
which can be invoked by an aggrieved party at the end of the
election excludes the other forms, the right and remedy being
creatures of the statute and controlled by the Constitution. The
conclusion is, therefore, irresistible that jurisdiction under Article
226 cannot consider the correctness, legality or otherwise of the
direction for cancellation integrated with the re-poll because the
prima facie purpose of such a re-poll was to restore a detailed poll
process and to complete it through the salvationary effect of a
re-poll. Whether in fact or in law the order is validly made by
the Election Commission or is violative can be examined later by
the High Court as the Election Tribunal. It the regular poll, for
some reason, has failed to reach the goal of choosing the returned
candidate and to achieve this object a fresh poll (not a new
election) is needed, it may still be a step in the election. Hence, the
writ application, challenging the cancellation coupled with re-poll,
amounts question a to calling in step in election and is, therefore,
barred by Article 329(b). (if no re-poll had been ordered here the
legal perspective would have been different.)
This conclusion is fortified by reading Section 100 of the 1951-Act
so as to give a substanial assurance of justice and as covering the
whole basket of grievances, of candidates. Knowing the supreme
significance of speedy elections, the framers of the Constitution
have, by implication, postponed all election disputes to election
petitions and tribunals. In harmony with this scheme Section 100
of the Act has been designedly drafted to embrace all conceivable
infirmities which may be urged. The Section is exhaustive of all
grievances regarding an election.
An election ripens into the electors’ choice only when processed,
screened and sanctified, every step upto the formalised finish
being unified in purpose, forward in movement, fair and free in its
temper. Article 329(b) halts judicial intervention during this period
provided the act possesses the prerequisites of “election” in its
semantic sweep. Under Section 98 of the Act, the High Court has
three options by way of conclusive determinations. If the second
poll here is set aside as invalid by the High Court in the election
petition for any good reason then it falls and the third respondent
too with it. The question of the soundness of cancellation of the
entire poll is within the court’s power under Section 98. Everything
necessary to resurrect, reconstruct and lead on to a consummation
of the original process and to give effective relief by way of
completion of the proper election are within the court’s power.

2. The Constitution contemplates a free and fair election and vests
comprehensive responsibility of superintendence, direction and
control of the conduct. of elections in the Election Commission.
This responsibility may cover powers, duties and functions of many
sorts, administrative or other, depending on the circumstances. It is
true that Article 324 has to be read in the light of the Constitutional
scheme and the Representation of the People Acts of 1950 and
1951. The Article, however, opcrates in areas left unoccupied by
legislation and the words “superintendence, direction and control”
as well as “conduct of all elections” are in the broadest terms. But
the Commission cannot defy the law armed by Article 324 nor act
arbitrarily. Its orders are subject to review. So ordering a re-poll for
the whole constituency under compulsion of circumstances may
be a direction for the conduct of elections and can be saved by
Article 324 provided it is bona fide necessary for the vindication
of the free verdict of the electorate and the abandonment of the
previous poll because it failed to achieve the goal. The Article is
wide enough to supplement the powers under the Acts. It is true
that there may be sorne guidelines in Sections 58 and 64A of the
1951 Act and they may be applicable to an order for constituency-
wide re-poll. But though it may be wholesome to be guided it is not
illegal not to do so provided homage to natural justice is otherwise
paid.
3. Two limitations at least are laid on the plenary character of the
power of the Election Commissioner in the exercise thereof. First,
when Parliament or any State Legislature has made a valid law
relating to or in connection with the elections, the Commission
shall act in conformity with and not in violation of such provisions.
But where such law is silent, Article 324 is a reservoir of power to
act for the avowed purpose of not divorced from, pushing forward
a free and fair election with expedition. Secondly, the Commission
shall be responsible to the rule of law, to act bona fide and be
amenable to the norms of natural justice in so far as conformance
to such canons can reasonably and realistically be required of it,
as fairplay-in-action in a most important area of the constitutional
order, namely, elections. Fairness does import an obligation to
see that no wrong- doer candidate benefits by his own wrong.
Natural justice enlivens and applies to the specific case of total
re-poll although not in full panoply but in flexible practicability.
Whether it has been complied with is left open for the Tribunal’s
adjudication. Article 324 is geared to the accomplishment of free
and fair elections expeditiously. If it is misused certainly the Court
has power to strike down the particular action.
Article 324, on the face of it, vests vast functions which may be
powers or duties essentially administrative and marginally even
adjudicative or legislative.
But assuming that the cancellation of the poll were only an
administrative act, even then it does not repel the application of the
natural justice principle. Good administration demands fairplay in
action and this simple desideratum is the fount of natural justice.
Classification of functions as “judicial” or “administrative” is a
stultifying shibboleth discarded in India as well as in England.
When a statutory functionary makes an order based on certain
grounds, its validity must be judged by the reasons so mentioned
therein:
(a) The fact that the Election Commission is a high constitutional
functionary charged with conducting elections with celerity to
bring the new House into being, does not imply that the process
of notice and hearing would thwart this imperative and delay
the process. It is true that once the process of election has
started it should not be interrupted since the temporary slow-
down may halt the early constitution of All elected Parliament.
Discretion is vested in the Election Commissioner and he will
ordinarily use it wisely and not rashly. Yet wide discretion
is fraught with tyrannical potential even in high personages.
Natural justice is one kind of check on wide power.
(b) Merely because there was no final determination to the prejudice
of any party by directing a re-poll and since the High Court as
Election Tribunal is the last word on every objectionable order,
it does not mean that the Election Commission is not bound
by rules of natural justice. The Election Court can exercise
only a limited power of review and must give regard to the
Commission’s discretion. The trouble and cost of instituting
such proceedings would deter all but the most determined

of parties aggrieved and even the latter could derive no help
from legal principles in predicting whether at the end of the
day the Court would not condone their summary treatment
on a subjective appraisal of the demerits of the case they had
been denied the opportunity to present. The public interest
would be ill-served by judicially fostered uncertainty as to the
value to be set upon procedural fair-play as a canon of good
administration.
(c) It is not correct to say that no candidate could claim anything
more than expectation and hence has no crystalised right till
official declaration of the result and, therefore, he cannot
complain of civil consequences. Every candidate has an
interest or right to fair and free and legally run election. A
vested interest in the prescribed process is a processual
right actionable if breached, the Constitution permitting.
The appellant has a right to have the election conducted
not according to humour or hubris but according to law and
justice. It is true the Election Commissioner in this case was
met by the appellant but the hearing was a vacuous one where
nothing was disclosed and the appellant was summarily told
off.
(d) The application of the rule of natural justice would not end in
a far- flung futility on the ground that hearing will have to be
given to every member of the constituency. The candidates
have set themselves up as nominated candidates, organised
the campaign and galvanised the electorate for the crowning
event of polling and counting. Their interest and claim are
not indifferent but immediate, not weak but vital. They are
more than members of the public. In this sense they stand on
a better footing and cannot be denied the right to be heard or
noticed and it is not necessary that notice should be given to
all the members of the public. In electoral situations if the
Election Commission cancels a poll because it is satisfied that
the procedure adopted has gone awry on a wholesale basis in
such a case no doubt notice need not be given to any member
of the constituency. It all depends on the circumstances and
the matter is incapable of generalisations. In a situation like

the present it is a far cry from natural justice to argue that
the whole constituency may have to be given a hearing. It
is sufficient if notice is given to the parties to the electoral
dispute.
It cannot be argued that since hearing is provided for in certain
matters, that Parliament when it intended that hearing should
be given said so in the Act and the Rules and inferentially
where it has not so specified it is not necessary to give any
hearing. The silence of a statute has no exclusionary effect
except where it flows from necessary unplicat1on. Article 324
vests a wide power and where some direct consequences on
candidates emanate from its exercise, this functional obligation
of following the rule of natural Justice must be read into it.
[Any observations made by the Delhi High Court in dismissing
the writ petition or by the Supreme Court in disposing of the
present matter in appeal from that decision, on merits of the
case, would not bind the High Court as an Election Tribunal
in disposing of the election petition.]
Per Goswami and Shinghal, JJ. (concurring)
(1) Article 329(b) rules out the maintainability of the writ application.
An election can be challenged only under the provisions of the
Representation of the People Act, 1951. Indeed, Section 80 of that
Act provides that no election shall be called in question except by
an election petition presented in accordance with the provisions of
Part IV of the Act. All the substantial reliefs which the appellant
seeks in the writ application including the declaration of the election
to be void and a declaration of appellant to be duly elected, can be
claimed in the election petition. It will be within the power of the
High Court as an election court to give all appropriate reliefs and
to do complete justice between the parties. In doing so, it will be
open to the High Court to pass any ancillary or consequential order
to enable it to grant the necessary relief provided under the Act.
One of the prayers of the appellant is for a declaration of the result
on the basis of poll which has been cancelled. This is nothing short
of seeking to establish the validity of a very important stage in
the election process, namely, the poll which has taken place and

which is countermanded by the impugned order. If the appellant
succeeds the result may be declared if possible on the basis of
that poll or some other suitable orders may be passed. If he fails,
a fresh poll will take place and the election will be declared on
the basis of the fresh poll. This is, in fact, a vital issue which
relates to the questioning of the election since the election will
be complete only after the fresh poll on the basis of which the
declaration of the result will be made. That is, there are no two
elections and there is only one continuous process of election. If,
therefore, during the process of election at an intermediate or final
stage, the entire poll has been wrongly cancelled and a fresh poll
has been wrongly ordered. that is a matter which may be agitated
after declaration of the result on the basis of the fresh poll, by
questioning the election in the appropriate forum by means of an
election petition in accordance with law. The appellant is thus not
without a remedy to question every step in the electoral process
and every order that has been passed in the process of the election
including the countermanding of the earlier poll and the whole
matter will be at large. There is, therefore, no foundation for the
grievance that the appellant will be without remedy if the writ
application is dismissed. The High Court was, therefore, right in
dismissing the writ petition.
(2) Article 324(1) is couched in wide terms. When appropriate laws
are made under Article 327 by Parliament or under Article 328 by
State Legislatures the Election Commission has to act in conformity
with those laws and the other legal provisions made thereunder.
Even so, both the Articles Articles 327 and 328 - are subject to the
provisions of the Constitution which include Articles 324 and 329.
The framers of the Constitution took care to leave scope for the
exercise of the residuary power by the Commission in its own right
as a creature of the Constitution in the infinite variety of situations
that may emerge from time to time in our large democracy. The
Commission may be required to cope with some situations which
may not have been provided for in the enacted laws and rules The
Election Commission is a high-powered and independent body
and its objective cannot be achieved unless it has an amplitude of
powers in the conduct of elections of course in accordance with
the existing laws. But where they - are absent, and yet a situation
has to be tackled, the Election Commissioner has the power to
deal with the situation. The Election Commissioner must lawfully
exercise his power independently in all matters relating to the
conduct of elections and see that the election process is completed.
The express statutory grant of power or the imposition of a definite
duty carries with it by implication, in the absence of limitation, the
authority to employ all the means that are usually employed and
that are necessary to the exercise of the power or the performance
of the duty. The Chief Election Commissioner has thus to pass
appropriate orders on receipt of reports from the returning officer
with regard to any situation arising in the course of an election,
and power cannot be denied to him to pass such appropriate orders.
Moreover, such power has to be exercised with promptitude.
Whether an order passed is wrong, arbitrary or otherwise invalid,
relates to the mode of exercising the power under Article 324.
Sections 58 and 64(A) envisage the necessity for the cancellation
of poll and ordering of re-poll in particular polling stations where
the situation may warrant such a course. When provision is made
in the Act it cannot be said that if a general situation arises whereby
numerous polling stations may witness serious mal-practices the
power should be denied to the Election Commission to take an
appropriate decision. The fact that a particular Chief Election
Commissioner may take certain decisions unlawfully or arbitrarily
is not the test in such a case.
Under both the sections poll that was taken at a particular situation
can be voided and a fresh poll can be ordered by the Commission.
These provisions cannot, therefore, be said to rule out the making
of an order to deal with a similar situation in a substantially large
area or the whole constituency.
The contention that the President can revoke, alter or amend the
notification under section 14 of the Act or that he promulgates an
Ordinance in an appropriate case does not touch the question of the
power of the Election Commissioner. That question will have to be
decided on the scope of Article 324(1). It is true that in exercising
the powers under the article the Election Commission cannot
do something impinging upon the power of the President; but
after the notification has been issued by the President, the entire
electoral process is in the charge of the Election Commission, and
the Commission is exclusively responsible for the conduct of the
election without reference to any outside agency. When a poll that
has already taken place has been cancelled and a fresh poll bas been
ordered, the order with the amended date is passed as an integral
part of the electoral process. It, therefore, necessarily follows that
if there is any illegality in the exercise of the power under Article
324 or under any provisions of the Act, there is no reason why
Section lOO(l)(d)(iv) of the Act should not be attracted.
(3) In view of the conclusion that the High Court had no jurisdiction to
entertain the writ petition under Article 226 it would not be correct
for the Supreme Court in an appeal against the order of the High
Court to enter into any other controversy on the merits either on
law or on facts and to pronounce finally on the same. Any view
expressed by the High Court or the Supreme Court would not bind
the High Court as an Election Tribunal in disposing of the election
petition. Being not altogether certain of all the facts that may be
made available in the appropriate forum it may be a premature
exercise by the Supreme Court even to lay down guidelines when
there is no hide-bound formula or rule of natural justice to operate
in all cases and at all times when a decision has to be made. Justice
and fair-play have often to be harmonised to the exigencies of the
situation in the light of accumulated totality of circumstances in a
given case having regard to the question of prejudice, not to the
mere combatants in the electoral contest, but the real and larger
issue of the completion of a free and fair election with rigorous
promptitude. This Court will not, therefore, make the task of the
election court difficult and embarrassing by suggesting guidelines
in a rather twilight zone.
The Judgment of the Court was delivered by:
KRISHNA IYER, J. (for himself, Beg. C.J. and Bhagwati, J.)-What
troubles us in this appeal, coming before a Bench of 5 Judges on a
reference under Article 145(3) of the Constitution, is not the profusion
of controversial facts nor the thorny bunch of lesser law, but the possible
confusion about a few constitutional fundamentals, finer administrative
normae and jurisdictional limitations bearing upon elections. What
are those fundamentals and limitations? We will state them, after

mentioning briefly what the writ petition, from which this appeal, by
special leave, has arisen, is about.
THE BASICS
2. Every significant case has an unwritten legend and indelible
lesson. This appeal is no exception, whatever its formal result. The
message, as we will see at the end of the decision, relates to the
pervasive philosophy ,,if democratic elections which Sir Winston
Churchill vivified in matchless word :
At the bottom of all tributes paid an democracy is the little man,
walking into a little booth, with a little pencil, making a little cross
on a little bit of paper - no amount of rhetoric or voluminous,
discussion can possibly diminish the overwhelming importance of
the point.
If we may add, the little, large Indian shall not be hijacked from the
course of free and fair elections by mob muscle methods, or subtle
perversion of discretion by men dressed in little, brief authority’.
For ‘be you ever so high, the law is above you’.
3. The moral may be stated with telling terseness in the words of
William Pitt: ‘Where laws end, tyranny begins’. Embracing both
these mandates and emphasizing their combined effect is the
clemental law and polities of Power best expressed by Benjamin
Disraeli:
I repeat... that all power is a trust that we are accountable for its
exercise - that, from the people and for the people, all springs, and
all must exist. Aside from these is yet another, bearing on the play
of natural justice, its nuances, non-applications, contours, colour
and content. Natural justice is no mystic testament of Judge-made
juristics but the pragmatic, yet principled, requirement of fairplay
in action as the norm of a civilised justice-system and minimum
of good government crystallised clearly in our jurisprudence by a
catena of cases here and elsewhere.
THE CONSPECTUS OF FACTS
4. The historic elections to Parliament, recently held across the
country, included a constituency in Punjab called 13-Ferozepore
parliamentary constituency. It consisted of nine assembly segments
and the polling took place on March 16, 1977. According to the
calendar notified by the Election Commission. The counting
took place in respect of five assembly segments on March 20
1977 and the remaining four on the next day. The appellant and
the third respondent were the principal contestants. It is stated
by the appellant that when counting in all the assembly segments
was completed at the respective segment headquarters, copies of
the results were given to the candidates and the local tally tele
phonically communicated to the returning officer (respondent
2). According to the scheme the postal ballots are to arrive at the
returning officer’s headquarters at Ferozepore where they are to be
counted. The final tally is made when the ballot boxes and the returns
duly reach the Ferozepore headquarters from the various segment
headquarters. The poll proceeded as ordained, almost to the very
last stages, but the completion of the counting at the constituency
headquarters in Ferozepore was aborted at the final hour as the
postal ballots were being counted thanks to mob violence allegedly
mobilised at the instance of the third respondent. The appellant’s
version is that he had all but won on the total count by a margin
of nearly 2000 votes when the panicked opposite party havoced
and halted the consummation by muscle tactics. The postal ballot
papers were destroyed. The ballot boxes from the Fazilka segment
were also done away with en route, and the returning officer was
terrified into postponing the declaration of the result. On account
of an earlier complaint that the returning officer was a relation of
the appellant, the Election Commission (hereinafter referred to as
Commission) had deputed an officer of the Commission Shri IKK
Menon as observer of the poll process in the constituency. He was
present as the returning officer started the last stage operations on
March 21, from 3 p.m. onwards. Thus the returning officer had the
company of the observer with him during the crucial stages and
controversial eruptions in the afternoon of March 21. Shortly after
sunset, presumably, the returning officer who under compulsion
had postponed the concluding part of the election, reported the
happenings by wireless Message to the Election Commission.
The observer also reached Delhi and gave a written account and
perhaps an oral narration of the untoward events which marred
what would otherwise have been a smooth finish to the election.

5. Disturbed by the disruption of the declaratory part of the election,
the appellant, along with a former Minister of the State, met the
Chief Election Commissioner (i.e. the Commission) at about 10.
30 a. m. on March 22, with the request that he should direct the
returning officer to declare the result of- the election. Later in the
day, the Commission issued an order which has been characterised
by the appellant as a lawless and precedent less cancellation of the
whole poll acting by hasty hunch and without rational appraisal
of facts. By March 22, when the Election Commission made the
impugned order, the bulk of the electoral results in the country had
beamed in The gravamen of the grievance of the appellant is that
while he had in all probability, won the poll, he had been deprived
of this valuable and hard-won victory by the arbitrary action of
the Commission going contrary to fairplay and in negation of the
basic canons of natural justice. Of course the Commission did
not stop with the cancellation but followed it up a few days later
with a direction to hold a fresh poll for the whole constituency
involving all the nine segments, although there were no complaints
about the po1ling in any of the constituencies and the ballot papers
of eight constituencies were available infact with the returning
officer and only Fazilka segment ballot papers were destroyed
or damaged on the way, (plus the postal ballots) it must also be
mentioned here that a demand was made, according to the version
of the third respondent, for recount in one segment which was,
unreasonably, lurned down. The observer, in his report to the
Election Commission, also mentioned that in two polling stations
divergent practices were adopted in regard to testing valid and
invalid votes. To be more precise, Shri IKK Menon mentioned
in his report that at polling station 8, the presiding officer’s seal
on the tag as well as the paper seal of one box was broken. But
the ballot papers contained in that box were below 300 and would
not have affected the result in the normal course. In another case
in Jalalabad assembly segment the assistant returning officer had
rejected a number of ballot papers of a polling station on the score
that they were not signed by the presiding officer. In yet another
case it was reported that the ballot papers were neither signed nor
stamped but were accepted by the assistant returning officer as
valid, although the factum was not verified by Shri Menon with the

assistant returning officer. Shri Menon, in his report. seems to have
broadly authenticated the story of the mob creating a tense situation
leading to the military being summoned. According to him only
the ballot papers of Fazilka assembly segment were destroyed,
not of the other segments. Even regarding Fazilka, the result-
sheet had anived. So far as Zira assembly segment was concerned,
some documents (not the ballot papers) had been snatched away
by hooligans. The observer had asked the returning officer to
send a detailed report over and above the wireless message. That
report, dated March 21, reached the Commission on March 23, but
without waiting for the report - we need net probe the reasons for
the hurry - the Commission issued the order cancelling the poll.
The Chief Election Commissioner has filed a laconic affidavit
leaving to the Secretary of the Commission to go into the details of
the facts, although the Chief Election Commissioner must himself
have had them within his personal ken. This aspect also need not
be examined by us and indeed cannot be, for reason which we will
presently set out.
6. Be that as it may, the Chief Election Commissioner admitted in
his affidavit that the appellant met him in his office on the morning
of March 22 1977 with the request that the returning officer be
directed to declare the result. He agreed to consider and told him
off, and eventually passed an order as mentioned above. The
then Chief Election Commissioner has mentioned in his affidavit
that the observer Shri Menon had apprised him of ‘the various
incidents and developments regarding the counting of votes in the
constituency’ and also had submitted a written report. He has also
admitted the receipt of the wireless message of the returning officer.
He concludes his affidavit: ‘that after taking all the circumstances
and information including the oral representation of the first
petitioner into account on March 22, 1977 itself I passed the order
cancelling the poll in the said parliamentary constituency. In my
view this was the onlv proper course to adopt in the circumstances
of the case and with a view to ensuring fair and free elections,
particularly when even a recount had been rendered impossible by
reason of the destruction of ballot papers’. The order of the Election
Commission, resulting in the demolition of the poll already held,
may be read at this stage :
New Delhi
Dated March 22, 1977
Chaitra l, 18,99 (Saka)
NOTIFICATION
S.O. Whereas the Election Commission has received reports from the
Returning Officer of 13-Fero:zepore parliamentary constituency that
the counting on March 21, 1977 was seriously disturbed by violence;
that the ballot papers of some of the assembly segments of the
parliamentary constituency have been destroyed by violence; that as a
consequence it is not possible to complete the counting of the votes in
the constituency and the declaration of the rest1lt cannot be made with
any degree of certainty ;
And whereas the Commission is satisfied that taking all circumstances
into account, the poll in the constituency has been vi1iated to such an
extent as to affect the result of the election ;
Now, therefore, the Commission in exercise of the powers vested in it
under Article 324 of the Constitution, Section 153 of 1be Representation
of the People Act. 1951 and all other powers enabling it so to do,
cancels the poll already taken in the constituency and extends the time
for the completion of the election up to April 30, 1977 by amending
its notification 464/77 dated February 25, 1977 in respect of the above
election as follows :
In clause (d) of item (i) of the said notification relating to the completion
of election-
(a) in the existing item (i), after the words “State of Jammu and
Kashmir”, the words “and 13-Feroz:epore parliamentary
constituency in the State of Punjab” shall be inserted ; and
(b) the existing item (ii) shall be renumbered as item (iii), and before
the item (iii) as so renumbered. the following item shall be inserted,
namely:
(iii) April 30, 1977 (Saturday) as the date before which the
election shall be completed in 13-Ferozepore parliamentary
constituency in the State of Punjab. (464/77)
By order
Sd/· A. N. Sen, Secretary.

The Commission declined to reconsider his decision when the appellant
pleaded for it. Shocked by the liquidation of the entire poll, the latter
moved the High Court under Article 226 and sought to void the order
as without jurisdiction and otherwise arbitrary and violative of and
vestige of fairness. He was met by the objection, successfully urged
by the respondents 1 and 3. that the High Court had no jurisdiction
in view ofArticle 329(b) of the Constitution and the Commission had
acted within its wide power under Article 324 and fairly. Holding that
it had no jurisdiction to entertain the writ petition, the High Court
nevertheless proceeded to enter verdicts on the merits of all the issues
virtually exercising even the entire jurisdiction which exclusively
belonged to the Election Tribunal. The doubly damnified appellant has
come up to this Court in appeal by special leave.
7. Meanwhile, pursuant to the Commission’s direction, a re-poll was
held. Although the appellant’s name lingered on the ballot he did
not participate in the re-poll and respondent 3 won by an easy
plurality although numerically those who voted were less than half
of the previous poll. Of course, if the Commission’s order for re-
poll fails in law, the second electoral exercise has to be dismissed
as a stultifying futility. Two things fall to be mentioned at this
stage, but, in passing. it may be stated that the third respondent had
complained to the Chief Election Commissioner that the assistant
returning officer Fazilka segment had declined the request for
recount unreasonably and that an order for re-poll of the Fazilka
assembly part should be made ‘after giving personal hearing.
Mean- while, runs the request of the third respondent: ‘direct the
returning officer to withhold declaration of result of 13-Ferozepore
parliament constituency. We do not stop to make inference from
this document but refer to it as a material factor which may be
considered by the tribunal which, eventually, has to decide the
factual controversy.
8. The second equally relevant matter is that when a statutory
functionary makes an order based on certain grounds, its
validity must be judged by the reasons so mentioned and cannot
be supplemented by fresh reasons in the shape of affidavit or
otherwise. Otherwise, an order bad in the beginning may, by the
time it comes to Court on account of a challenge, get validated by

additional grounds later brought out. We may here draw attention
to the observations of Bose, J. in Gordhandas Bhanji:
Public orders, publicly made, in exercise of a statutory authority
cannot be construed in the light of explanations subsequently given
by the officer making the order of what he meant, or of what was in
his mind, or what he intended to do. Public orders made by public
authorities are meant to have public effect and are intended to
affect the actings and conduct of those to whom they are addressed
and must be construed objectively with reference to the language
used in the order itself.
Orders are not like old wine becoming better as they grow older.
A CAVEAT
9. We must, in limine, state that - anticipating our decision on the
blanket ban on litigative interference during the process of the
election, clamped down by Article 329 (b) of the Constitution -
we do not propose to enquire into or pronounce upon the factual
complex or the lesser legal tangles. but only narrate the necessary
circumstances of the case to get a hang of the major issues which
we intend adjudicating. Moreover, the scope of any factual
investigation in the event of controversion in any petition under
Article 226 is ordinarily limited and we have before us an appeal
from the High Court dismissing a petition under Article 226 on
the score that such a proceeding is constitutionally out of bounds
for any Court, having regard to the mandatory embargo in Article
329(b). We should not, except in exceptional circumstances,
breach the recognised. though not inflexible, boundaries of Article
226 sitting in appeal, even assuming the maintainability of such a
petition. Indeed. we should have expected the High Court to have
considered the basic jurisdictional issue: first, and not last as it did,
and avoided sallying forth into a discussion and decision on the
merits, self-contradicting its own holding that it had no jurisdiction
even to entertain the petition. The learned Judges observed:
It is true that the submission at serial 3 above in fact relates to
the preliminary objection urged on behalf of respondents 1 and
3 and should normally have been dealt with first but since the
contentions of the parties on submission 1 are inter- mixed with
the interpretation of Article 329(b) of the Constitution, we thought
it proper to deal with them in the order in which they have been
made.
This is hardly convincing alibi for the extensive per incuriam
examination of facts and law gratuitously made by the Division
Bench of the High Court, thereby generating apprehensions in the
appellant’s mind that normally is his petition not maintainable but
he has been damned by damaging findings on the merits. We make
it unmistakably plain that the election Court hearing the dispute
on the same subject under Section 98 of the R. P. Act, 1951 (for
short, the Act) shall not be moved by expressions of opinion on the
merits made by the Delhi High Court while dismissing *he writ
petition. An obiter binds none, not even the author, and obliteration
of findings rendered in supererogation must allay the appellant’s
apprehensions. This Court is in a better pos position than the High
Court, being competent, under certain circumstances, to declare
the law by virtue of its position under Article 141. But, absent
such authority or duty. the High Court should have abstained from
its generosity. Lest there should be any confusion about possible
slants inferred from our synoptic statements. we clarify that
nothing projected in this judgment is intended to be an expression
of our opinion, even indirectly. The facts have been set out only to
serve as a peg to hang three primary constitutional issues which we
will formulate a little later.
OPERATION ELECTION
10. Before we proceed further. we had better have a full glimpse of the
constitutional scheme of elections in our system and the legislative
follow-up regulating the process of election. Shri Justice Mathew
in Indira Nehru Gandhi summarised. skeletal fashion. this scheme
following the pattern adopted by Fazl Ali. J. in Ponnuswami*. He
explained:
The concept of democracy as visualized by the Constitution
presupposes the representation of the people in Parliament and
State Legislatures by the method of election. And, before an
election machinery can be brought into operation, there are three
requisites which require to be attended to, namely, (1) there should

be a set of laws and rules making provisions with respect to all
matters relating to, or in connection with, elections, and it should
be decided as to how these laws and rules are to be made; (2) there
should be an executive charged with the duty of securing the due
conduct of elections; and (3) there should be a judicial tribunal to
deal with disputes arising out of or in connection with elections.
Articles 327 and 328 deal with the first of these requisites. Article
324 with the second and Article 329 with the third requisite (sec N.
P. Ponnuswami v. Returning Officer, Namakkal Constituency).
Article 329(b) envisages the challenge to an election by a petition
to be presented to such authority as the Parliament may, by law,
prescribe. A law relating to election should contain the requisite
qualifications for candidates, the method of voting, definition of
corrupt practices by the candidates and their election agents, the
forum for adjudication of election disputes and other cognate
matters. It is on the basis of this law that the question whether there
has been a valid election has to be determined by the authority
to which the petition is presented. And, when a dispute is raised
as regards the validity of the election of a particular candidate,
the authority entrusted with the task of resolving the dispute must
necessarily exercise a judicial function, for, the process consists of
ascertaining the facts relating to the election and applying the law
to the facts so ascertained.
11. A short description of the legislative project in some more detail
may be pertinent, especially touching on the polling process in
the booths and the transmission of ballot boxes from the polling
stations to the returning officer’s ultimate counting station and
the crucial prescriptions regarding announcements and recounts
and declarations. We do not pronounce upon the issues regarding
the stage for and right of recount, the validity of votes or other
factual or legal disputes since they fall for decision by the Election
Court where the appellant has filed an election petition by way of
abundant caution.
12 A free and fair election based on universal adult franchise is
the basic the regulatory procedures vis-a-vis the repositories
of functions and the distribution of legislative. executive and

judicative roles in the total scheme. directed towards the holding
of free elections, are the specifics. Part XV of the Constitution plus
the Representation of the People Act, 1950 (for short, the 1950
Act) and the Representation of the People Act, 1951 (for short. the
Act), Rules framed thereunder, instructions issued and exercises
prescribed, constitute the package of electoral law governing the
parliamentary and assembly elections in the country. The super-
authority is the Election Commission, the kingpin is the returning
officer, the minions are the presiding officers in the polling stations
and the electoral engineering is in conformity with the elaborate
legislative provisions.
13 The President of India (under Section 14) ignites the general
elections across the nation by calling upon the people, divided
into several constituencies and registered in the electoral rolls, to
choose their representatives to the Lok Sabha. The constitutionally
appointed authority, the Election Commission, takes over the
whole conduct and supervision of the mammoth enterprise
involving a plethora of details and variety of activities, and starts
off with the notification of the time-table for the several stages
of the election (Section 30). The assembly line operations then
begin. An administrative machinery and technology to execute
these enormous and diverse jobs is fabricated by the Act, creating
officers. powers and duties, delegation of functions and location of
polling stations. The precise exercises following upon the calendar
for the poll. commencing from presentation of nomination papers,
polling drill and felling of votes, culminating in the declaration
and report of results are covered by specific prescriptions in the
Act and the rules. The secrecy of the ballot. the authenticity of the
voting paper and its later identifiability with reference to particular
polling stations, have been thoughtfully provided for. Myriad other
matters necessary for smooth elections have been taken care of by
several provisions of the Act.
14. The wide canvas so spread need not engage us sensitively, since
such diffusion may weaken concentration on the few essential
points concerned in this case. One such aspect relates to re-
poll. Adjournment of the poll at any polling station in certain
emergencies is sanctioned by Section 57 and fresh poll in specified

vitiating contingencies is authorised by Section 58. The rules
run into more particulars. After the votes are cast comes their
counting. Since the simple plurality of votes clinches the verdict,
as the critical moment approaches, the situation is apt to hot up,
disturbances erupt and destruction of ballots disrupt. If disturbance
or destruction demolishes the prospect of counting the total votes,
the number secured by each candidate and the ascertainment of the
will of the majority, a re-poll confined to disrupted polling stations
is provided for. Section 64A chalks out the conditions for and
course of such re-poll. spells out the power and repository thereof
and provides for kindred matters. At this stage we may make a
closer study of the provisions regarding re-poll systematically
and stagewise arranged in the Act. It is not the case of either side
that a total re-poll of an entire constituency is specificated in the
sections or the rules. Reliance is placed for this wider power upon
Article 324 of the Constitution -by the Commission in its order, by
the first respondent in his affidavit, by the learned Addl. Solicitor
General in his argument and by the third respondent through his
Counsel. We may therefore have to study the scheme of Article
324 and the provisions of the Act together since they are integral
to each other. Indeed, if we may mix metaphors for emphasis,
the legislation made pursuant to Article 327 and that part of the
Constitution specially devoted to elections must be viewed as one
whole picture, must be heard as an orchestrated piece and must be
interpreted as one package of provisions regulating perhaps the
most stressful and strategic aspect of democracy-in-action so dear
to the nation and so essential for its survival.
THE LIS AND THE ISSUES
15. Two prefatory points need to be mentioned as some reference was
made to them at the bar. Firstly, an election dispute is not like
an ordinary lis between private parties. The entire electorate is
vicariously, not inertly, before the Court. (See Inamati Mallappa
Basappa v. Desai Besavaraj. Ayyappa). We may, perhaps. call
this species of cases collective litigation where judicial activism
assures justice to the constituency, guardians the purity of the
system and decides the rights of the candidates. In this class of
cases, where the common law tradition is partly departed from.

the danger that the active Judge may become, to some extent,
the prisoner of his own prejudices exists and so, notwithstanding
his powers of initiative, the parties’ role in the formulation of the
issues and in the presentation of evidence and argument should be
substantially maintained and care has to be taken that the circle
does not become a vicious one, as pointed out by J. A. Jolowicz in
‘Public Interest Parties and the Active Role of the Judge in Civil
Litigation’. Therefore, it is essential that Courts, adjudicating upon
election controversies, must play a warily active role, conscious
all the time that every decision rendered by the Judge transcends
private rights and defends the constituency and the democracy of
the country.
16. Secondly, the pregnant problem of power and its responsible
exercise is one of the perennial riddles of many a modern
constitutional order. Similarly. the periodical process of free and fair
elections, uninfluenced by the caprice, cowardice or partisanship
of hierarchical authority holding it and unintimidated by the turust,
tantrum or vandalism of strong-arm tacties, exacts the embarrassing
price of vigilant monitoring. Democracy digs its grave where
passions, tensions and violence, on an overpowering spree, upset
results of peaceful polls, and the law of elections is guilty of sharp
practice if it hastens to legitimate the fruits of lawlessness. The
judicial branch has a sensitive responsibility here to call to order
lawless behaviour, Forensic non-action may boomerang, for the
Court and the law are functionally the bodyguards of the People
against bumptious power, official or other.
17. We now enter the constitutional zone relating to the controversy in
this case. Although both sides have formulated the plural problems
with some divergence, we may compress them into three cardinal
questions :
(1) Is Article 329 (b) a blanket ban on all manner of questions which
may have impact on the ultimate result of the election, arising
between two temporal termini viz., the notification by the President
calling for the election and the declaration of the result by the
returning officer? ls Article 226 also covered by this embargo and.
if so. is Section 100 broad enough to accommodate every kind

of objection, constitutional, legal or factual, which may have the
result of invalidation of an election and the declaration of the
petitioner as the returned candidate and direct the organisation of
any steps necessary to give full relief ?
(2) Can the Election Commission, clothed with the comprehensive
functions under Article 324 of the Constitution, cancel the whole
poll of a constituency after it has been held, but before the formal
declaration of the result has been made, and direct a fresh poll
without reference to the guidelines under Sections 58 and 64(a) of
the Act, or other legal prescription or legislative backing? If such
plenary power exists, is it exercisable on the basis of his inscrutable
‘subjective satisfaction’ or only on a reviewable objective
assessment reached on the basis of circumstances vitiating a free
and fair election and warranting the stoppage of declaration of the
result and directions of a fresh poll not merely of particular polling
stations but of the total constituency ?
(3) Assuming a constitutionally vested capacity under Article 324
to direct re-poll, is it exercisable only in conformity with natural
justice and geared to the sole goal of a free, popular verdict if frus-
trated on the first occasion? Or is the Election Commission immune
to the observance of the doctrine of natural justice on account of
any recognised exceptions to the application of the said principle
and unaccountable for his action even before the Election Court?
18. The juridical aspect of these triple questions alone can attract
judicial jurisdiction. However, even if we confine ourselves to
legal problematics, eschewing the political overtones, the words
of Justice Holmes will haunt the Court: “We are quiet here, but
it is the quiet of a storm centre”. The judicature must, however,
be illumined in its approach by a legal sociological guideline and
a principled-pragmatic insight in resolving with jural tools and
techniques, ‘the various crises of human affairs’ as they reach the
forensic stage and seek dispute-resolution in terms of the rule of
law. Justice Cardozo felicitously set the perspective:
The great generalities of the Constitution have a content and
significance that vary from age to age.

Chief Justice Hidayatullah perceptively articulated the insight:
One must, of course, take note of the synthesized authoritive
content or the moral meaning of the underlying principle of the
prescriptions of law, but not ignore the historic evolution of the
law itself or how it was connected in its changing moods with
social requirements of a particular age.
19 The old articles of the suprema lex meet new challenges of lite, the
old legal pillars suffer new stresses. So we have to adopt the law
and develop its latent capabilities if novel situations, as here, are
encountered. That is why in the reasoning we have adopted and the
perspective we have projected, not literal nor lexical but liberal and
visional is our interpretation of the articles of the Constitution and
the provisions of the Act. Lord Denning’s words are instructive:
Law does not stand still. It moves continually. Once this is
recognised, then the task of the Judge is put on a higher plane. He
must consciously seek to mould the law so as to serve the needs of
the time. He must not be a mere mechanic a mere working mason,
laying brick on brick, without thought to the overail design. He
must be an architect thinking of the structure as a whole building
for society a system of law which is strong, durable and just. It is
on his work that civilised society itself depends.
THE INVULNERABLE BARRIER OF ARTICLE 329(b)
20. Right at the forefront stands in the way of the appellant’s progress
the broad-spectrum ban of Article 329(b) which, it is claimed for
the respondents, is imperative and goal-oriented. Is this Great
Wall of China, set up as a preliminary bar, so impregnable that
it cannot be bypassed even by Article 226? That, in a sense, is
the key question that governs the fate of this appeal. Shri P. P.
Rao for the appellant contended that, however, wide Article 329(b)
may be. it does not debar proceedings challenging, not the steps
promoting, election but dismantling it, taken by the Commission
without the backing of legality. He also urged that his client, who
had been nearly successful in the poll and had been deprived of it
by an illegal cancellation by the Commission, would be left in the
cold without any remedy since the challenge to cancellation of the

completed poll in the entire constituency was not covered by
Section 100 of the Act. Many subsidiary pleas also were put
forward but we will. focus on the two inter-related submissions
bearing on Article 329(b) and Section 100 and search for a solution.
The problem may seem prickly but an imaginative application of
principles and liberal interpretation of the Constitution and the Act
will avoid anomalies and assure justice. If we may anticipate our
view which will presently be explained, Section 100 (1) (d) (iv)
of the Act will take care of the situation present here, being broad
enough, as a residual provision, to accommodate, in the expression
‘non-compliance’, every excess, transgression, breach or omission.
And the span of the ban under Article 329 (b) is measured by the
sweep of Section 100 of the Act.
21. We have to proceed heuristically now. Article 329(b) reads:
Notwithstanding anything in this Constitution-
(b) no election to either House of Parliament or to the House
or either House of the Legislature of a State shall be called
in question except by an election petition presented to such
authority and in such manner as may be provided for by or
under any law made by the appropriate Legislature.
Let us break down the prohibitory provision into its
components. The sole remedy for an aggrieved party, if he
wants to challenge any election, is an election petition. And
this exclusion of all other remedies includes constitutional
remedies like Article 226 because of the non-obstante clause.
If what is impugned is an election the ban operates provided
the proceeding ‘calls it in question’ or puts it in issue; not
otherwise. What is the high policy animating this inhibition?
Is there any interpretative alternative which will obviate
irreparable injury and permit legal contests in between ?
How does Section 100(1)(d) (iv) of the Act integrate into the
scheme? Let us read Section 100 here:
Subject to the provisions of sub-section (2) if (the High Court)
is of opinion-
(d) that the result of the election, in so far as it concerns a returned
candidate, has been materially affected-

(iv) by any non-compliance with the provisions of the Constitution
or of this Act or of any rules or orders made under this Act. The
High Court shall declare the election of the returned candidate
to be void.
The companion provision, viz.. Section 98 also may be
extracted at this stage :
At the conclusion of the trial of an election petition (the High
Court) shall make an order
(a) dismissing the election petition; or
(b) declaring the election of all or any of the returned
candidates to be void; or
(c) declaring the election of all or any of the returned
candidates to be void and the petitioner or any other
candidate to have been duly elected.
Now arises the need to sketch the scheme of Section 100 in the
setting of Article 329(b). The troublesome word ‘non-compliance’
holds in its fold a teleologic signification which resolves the riddle
of this case in a way. So we will address ourselves to the meaning
of meanings, the values within the words and the project unfolded.
This will be taken up one after the other.
22. At the first blush we get the comprehensive impression that every
calling in question of an election save, at the end, by an election
petition, is forbidden. What, then, is an election? What is ‘calling
in question’? Every step from start to finish of the total process
constitutes ‘election’, not merely the conclusion or culmination.
Can the cancellation of the entire poll be called a step in the
process and for the progress of an election, or is it a reverse step
of undoing what has been done in the progress of the election, a
non-step or anti-step setting at nought the process and, therefore,
not a step towards the goal and hence liberated from the coils of
Article 329(b)? And, if this act or step were to be shielded by the
constitutional provision, what is an aggrieved party to do? This
takes us to the enquiry about the ambit of Section 100 of the Act
and the object of Article 329 (b) read with Article 324. Such is the
outline of the complex issue projected before us.

THE ELECTION PHILOSOPHY AND THE PRINCIPLE IN
PONNUSWAMI
23. Democracy is government by the people. It is a continual
participative operation, not a cataclysmic, periodic exercise. The
little man, in his multitude, marking his vote at the poll does a social
audit of us Parliament plus political choice of this proxy. Although
the full flower of participative Government rarely blossoms, the
minimum credential of popular government is appeal to the people
after every term for a renewal of confidence. So we have adult
franchise and general elections as constitutional compulsions. The
right of election is the very essence of the constitution’. It needs
little argument to hold that the heart of the Parliamentary system is
free and fair elections periodically held, based on adult franchise,
although social and economic democracy may demand much
more.
24. Ponnuswami is a landmark case in election laws and deals with the
scope, amplitude, rationale and limitations of Article 329(b). Its
ratio has been consistently followed by this Court in several rulings
through Durga Shankar Mehta v. Thakur Raghuraj Singh and Hari
Vishnu Kamath and Khare down to Indira Gandhi. The factual
setting in that case may throw some light on the decision itself.
The appellant’s nomination for election to the Madras Legislative
Assembly was rejected by the Returning Officer and so he hurried
to the High Court praying for a writ of certiorari to quash the order
of rejection, without waiting for the entire elective process to run
its full course and, at the end of it, when the results also were
declared, to move the election tribunal for setting aside the result
of the election conducted without his participation. He thought that
if the election proceeded without him irreparable damage would
have been caused and therefore sought to intercept the progress of
the election by filing a writ petition. The High Court dismissed it
as unsustainable, thanks to Article 329(b) and this Court in appeal,
affirmed that holding. Fazl Ali, J. virtually spoke for the Court
and explained the principle underlying Article 329(b). The ambit
and spirit of the bar imposed by the article was elucidated with
reference to the principle that ‘it does not require much argument
to show that in a country with a democratic Constitution in which

the Legislatures have to play a very important role, it will lead
to serious consequences if the elections are unduly protracted or
obstructed. In the view of the learned Judge, immediate individual
relief at an intermediate stage when the process of election is
under way has to be sacrificed for the paramount public good of
promoting the completion of elections. Fazl Ali, J. ratiocinated on
the ineptness of interlocutory legal hold-ups. He posed the issue
and answered it thus:
The question now arises whether the law of elections in
this country contemplates that there should be two attacks
on matters connected with election proceedings, one while
they are going on by invoking the extraordinary jurisdiction
of the High Court under Article 226 of the Constitution (the
ordinary jurisdiction of the Courts having been expressly
excluded), and another after they have been completed
by means of an election petition. on. In my opinion, to
affirm such a position would be contrary to the scheme of
Part XV of the Constitution and the Representation of the
People Act, which, as I shall point out later, seems to be
that any matter which has the effect of vitiating an election
should be brought up only at the appropriate stage in an
appropriate manner before a special tribunal and should
not be brought up at an intermediate stage before any
Court. It seems to me that under the election law, the only
significance which the rejection of a nomination paper has
consists in the fact that it can be used as a ground to call
the election in question. Article 329(b) was apparently
enacted to describe the manner in which and the stage at
which this ground, and other grounds which may be raised
under the law to call the election in question, could be
urged. I think it follows by necessary implication from the
language of this provision that those grounds cannot be
urged in any other manner, at any other stage and before
any other Court. If the grounds on which an election can
be called in question could be raised at an earlier stage
and errors, if any are rectified, there will be no meaning
in enacting a provision like Article 329(6) and in setting
up a special tribunal. Any other meaning ascribed to the
words used in the article would lead to anomalies, which
the Constitution could not have contemplated, one of them
being that conflicting views may be expressed by the High
Court at the pre-polling stage and by the election tribunal,
which is to be an independent body, at the stage when the
matter is brought before it.
25. Having thus explaining the raison d’etre of the provision, the
Court proceeded to interpret the concept of election in the
scheme of Part XV of the Constitution and the Representation of
the People Act, 1951. Articles 327 and 328 take care of the set
of laws and rules making provisions with respect to all matters
relating to or in connection with elections. Election disputes were
also to be provided for by laws made under Article 327. The
Court emphasised that Part XV of the Constitution was really a
code in itself, providing the entire ground work for enacting the
appropriate laws and setting up suitable machinery for the conduct
of elections. The scheme of the Act enacted by Parliament was also
set out by Fazl Ali, J.:
Part VI deals with disputes regarding elections and
provides for the manner of presentation of election
petitions, the constitution of election tribunals and the trial
of election petitions. Part VII outlines the various corrupt
and illegal practices which may affect the elections, and
electoral offences. Obviously, the Act is a self-contained
enactment so far as elections are concerned, which means
that whenever we have to ascertain the true position in
regard to any matter connected with elections, we have
only to look at the Act and the rules made thereunder. The
provisions of the Act which are material to the present
discussion are Sections 80, 100, 105 and 170, and the
provisions of Chapter II of Part IV dealing with the form of
election petitions, their contents and the reliefs which may
be sought in them. Section 80 which is drafted in almost the
same language as Article 329(b) provides that ‘no election
shall be called in question except by an election petition
presented in accordance with the provisions of this Part.
Section 100, as we have already seen, provides for the

grounds on which an election may be called in question,
one of which is the improper rejection of a nomination
paper. Section 105 says that every order of the Tribunal
made under this Act shall be final and conclusive. Section
170 provides that ‘no civil court shall have jurisdiction to
question the legality of any action taken or of any decision
given by the Returning Officer or by any other person
appointed under this Act in connection with an election.
There have been amendments to these provisions but the profile
remains substantially the same. After pointing out that the Act,
iff Section 80, and the Constitution, in Article 329(b), speak
substantially the same language and inhibit other remedies for
election grievances except through the election tribunal, the Court
observed:
That being so, I think it will be a fair inference from the provisions
of the Representation of the People Act to state that the Act
provides for only one remedy, that remedy being by an election
petition to be presented after the election is over, and there is no
remedy provided at any intermediate stage.
There is a non-obstante clause in Article 329 and, therefore, Article
226 stands pushed out where the dispute takes the form of calling
in question an election, except in special situations pointed at but
left unexplored in Ponnuswami.
26. The heart of the matter is contained in the conclusions sum-marised
by the Court thus:
(1) Having regard to the important functions which the legislatures
have to perform in democratic countries, it has always been
recognised to be a matter of first importance that elections should
be concluded as early as possible according to time schedule and
all controversial matters and all disputes arising out of elections
should be postponed till after the elections are over, so that the
election proceedings may not be unduly retarded or protracted.
(2) In conformity with this principle, the scheme of the election law
in this country as well as in England is that no significance should
be attached to anything which does not affect the “election”; and,

if any irregularities are committed while it is in progress and they
belong to the category or class which, under the law by which
elections are governed, would have the effect of vitiating the
“election” and enable the person affected to call it in question,
they should be brought up before a special tribunal by means of an
election petition and not be made the subject of a dispute before
any Court while the election is in progress.
After elaborately setting out the history in England and in India of
election legislation vis-a-vis dispute-resolution, Fazl Ali, J. stated:
If the language used in Article 329(b) is considered against this
historical background, it should not be difficult to see why the
framers of the Constitution framed that provision in its present
form and chose the language which had been consistantly used in
certain earlier legislative provisions and which had stood the test
of time.
Likewise the Court discussed the connotation of the expression
“election” in Article 329 and observed:
That word has by long usage in connection with the process of
selection or proper representatives in domestic institutions, acquired
both a wide and a narrow meaning. In the narrow sense, it is used
to mean the final selection of a candidate which may embrace the
result of the poll when there is polling or a particular candidate
being returned unopposed when there is no poll. In the wide sense,
the word is used to connote the entire process culminating in a
candidate being declared elected it seems to me that the word
“election” has been used in Part XV of the Constitution in the
wide sense, that is to say, to comote the entire procedure to be
gone through to return a candidate to the legislature That the word
“election” bears this wide meaning whenever we talk of elections
in a democratic country, is borne out by the fact that in most of the
books on the subject and in several cases dealing with the matter,
one of the questions mooted is, when the election begins?
The rainbow of operations, covered by the compendious
expression ‘Election’, thus commences from the initial notification
and culminates in the declaration of the return of a candidate. The
paramount policy of the Constitution-framers in declaring that no
election shall be called in question except the way it is provided
for in Article 329(b) and the Representation of the People Act,
1951, compels us to read, as Fazl Ali, J. did in Ponnuswami,
the Constitution and the Act together as an integral scheme. The
reason for postponement of election litigation to the post- election
stage is that elections shall not unduly be protracted or obstructed.
The speed and promptitude in getting due representation for the
electors in the legislative bodies is the real reason suggested in the
course of judgment.
27. Thus far everything is clear. No litigative enterprise in the High
Court or other Court should be allowed to hold up the on-going
electoral process because the parliamentary representative for the
constituency should be chosen promptly. Article 329 therefore
covers “electoral matters”. One interesting argument, urged
without success in Ponnuswami elicited a reasoning from the Court
which has some bearing on the question in the present appeal. That
argument was that if nomination was part of election a dispute as
to the validity of the nomination was a dispute relating to election
and could be called in question, only after the whole election was
over, before the election tribunal. This meant that the Returning
Officer could have no jurisdiction to decide the validity of a
nomination, although Section 36 of the Act conferred on him that
jurisdiction. The learned Judge dismissed this argument as without
merit, despite the great dialectical ingenuity in the submission. In
this connection the learned Judge observed:
Under Section 36 of the Representation of the People Act,
1951, it is the duty of the Returning Officer to scrutinize
the nomination papers to ensure that they comply with the
requirements of the Act and decide all objections which
may be made to any nomination. It is clear that unless this
duty is discharged properly, any number of candidates may
stand for election without complying with the provisions
of the Act and a great deal of confusion may ensue.
In discharging the statutory duty imposed on him, the
Returning Officer does not call in question any election.
Scrutiny of nomination papers is only a stage, though an
important stage, in the election process. It is one of the

essential duties to be performed before the election can be
completed, and anything done towards the completion of
the election proceeding can by no stretch of reasoning be
described as questioning the election. The fallacy of the
argument lies in treating a single step taken in furtherance
of an election as equivalent to election. The decision of this
appeal however turns not on the construction of the single
word ‘election’, but on the construction of the compendious
expression “no election shall be called in question” in its
context and setting, with due regard to the scheme of Part
XV of the Constitution and the Representation of the People
Act, 1951. Evidently, the argument has no bearing on this
method of approach to the question posed in this appeal,
which appears to me to be the only correct method.
28. What emerges from this perspicacious reasoning, if we may say
so with great respect, is that any decision sought and rendered
will not amount to calling in question an election if it subserves
the progress of the election and facilitates the completion of the
election. We should not slur over the quite essential observation
“Anything done towards the completion of the election proceeding
can by no stretch of reasoning be described as questioning the
election”. Likewise, it is fallacious to treat ‘a single step taken in
furtherance of an election’ as equivalent to election.
29. Thus, there are two types of decisions, two types of challenges. The
first relates to proceedings which interfere with the progress of the
election. The second accelerates the completion of the election and
acts in furtherance of an election. So, the short question before us,
in the light of the illumination derived from Ponnuswami, is as to
whether the order for re-poll of the Chief Election Commissioner is
“anything done towards the completion of the election proceeding”
and whether the proceedings before the High Court felicitated the
election process or halted its progress. The question immediately
arises as to whether the relief sought in the writ petition by the
present appellant amounted to calling in question the election. This,
in turn, revolves round the point as to whether the cancellation of
the poll and the reordering of fresh poll is ‘part of election’ and
challenging it is calling it in question’.

30. The plenary bar of Articic 329(b) rests on two principles: (1)
The peremptory urgency of prompt engineering of the whole
election process without intermediate interruptions by way of
legal proceedings challenging the steps and stages in between the
commencement and the conclusion. (2) The provision of a special
jurisdiction which can be invoked by an aggrieved party at the
end of the election excludes other form. The right and remedy
being creatures of statutes and controlled by the Constitution.
Durga Shankar Mehta (supra) has affirmed this position and
supplemented it by holding that, once the Election Tribunal has
decided. The prohibition is extinguished and the Supreme Court’s
overall power to interfere under Article 136 springs into action.
In Hari Vishnu (supra) this Court upheld the rule in Ponnuswami
excluding any proceeding, including one under Article 226, during
the on-going process of election, understood in the comprehensive
sense of notification down to declaration. Beyond the declaration
comes the election petition, but beyond the decision of the Tribunal
the ban of Article 329(b) does not bind.
31. If ‘election’ bears the larger connotation, if ‘calling in question’
possesses a semantic sweep in plain English, if policy and principle
are tools for interpretation of statutes, language permitting, the
conclusion is irresistible, even though the argument contra may
have emotional impact and ingenious appeal, that the catch-all
jurisdiction under Article 226 cannot consider the correctness,
legality or otherwise of the direction for cancellation integrated
with re-poll. For, the prima facie purpose of such a re-poll was
to restore a detailed poll process and to complete it through the
salvationary effort of a re-poll. Whether, in fact or law, the order
is validly made within his powers or violative of natural justice
can be examined later by the appointed instrumentality. viz., the
Election Tribunal. That aspect will be explained presently. We
proceed on the footing that re-poll in one polling station or in
many polling stations, for good reasons, is lawful. This shows that
re-poll in many or all segments, all-pervasive or isolated, can be
lawful. We are not considering whether the act was bad for other
reasons. We are concerned only to say that if the regular poll, for
some reasons, has failed to reach the goal of choosing by plurality
the returned candidate and to achieve this object a fresh poll (not
a new election) is needed, it may still be a step in the election. The
deliverance of Dunkirk is part of the strategy of counter- attack.
Wise or valid, is another matter.
32. On the assumption, but leaving the question of the validity of
the direction for re-poll open for determination by the Election
Tribunal, we hold that a writ petition challenging the cancellation
coupled with re-poll amounts to calling in question a step in
‘election’ and is therefore barred by Article 329(b). If no re-poll had
been directed the legal perspective would have been very different.
The mere cancellation would have then thwarted the course of the
election and different considerations would have come into play.
We need not chase a hypothetical case.
33. Our conclusion is not a matter of textual interpretation only but a
substantial assurance of justice by reading Section 100 of the Act
as covering the whole basket of grievances of the candidates. Sri
P. P. Rao contended that the Court should not deny relief to a party
in the area of elections which are the life-breaths of the democracy
and people’s power. We agree.
34. This dilemma does not arise in the wider view we take of Section
100 (1) (d) (iv) of the Act. Sri Rao’s attack on the order impugned
is in substance based on alleged non-compliance with a provision
of the Constitution viz.. Article 324 but is neatly covered by the
widely-worded, residual catch-all clause of Section 100. Knowing
the supreme significance of speedy elections in our system the
framers of the Constitution have, by implication postponed all
election disputes to election petitions and tribunals. In harmony
with this scheme Section 100 of the Act has been designedly
drafted to embrace all conceivable infirmities which may be urged.
To make the project fool-proof Section 100 (1) (d) (iv) has been
added to absolve everything left over. The Court has in earlier
rulings pointed out that Section 100 is exhaustive of all grievances
regarding an election. But what is banned is not anything
whatsoever done or directed by the Commissioner but everything
he does or directs in furtherance of the election, not contrarywise.
For example, after the President notifies the nation on the holding
of elections under Section 15 and the Commissioner publishes the
calendar for the poll under Section 30, if the latter orders returning
officers to accept only one nomination or only those which come
from one party as distinguished from other parties or independents,
is that order immune from immediate attack. We think not Because
the Commissioner is preventing an election, not promoting it and
the Court’s review of that order will facilitate the flow, not stop the
stream. Election, wide or narrow be its connotation, means choice
from a possible plurality, monolithic politics not being our genius
or reality, and if that concept is crippled by the Commissioner’s
act, he holds no election at all.
35. A poll is part a vital part of the election but with the end of the
poll the whole election is not over. Ballots have to be assembled,
scrutinised, counted, recount claims considered and result declared.
The declaration determines the election. The conduct of the
election thus ripens into the elector’s choice only when processed,
screened and sanctified, every escalatory step upto the formalized
finish being unified in purpose, forward in movement, fair and free
in its temper, Article 329(b) halts judicial intervention during this
period, provided the act possesses the pre-requisites of ‘election’
in its semantic sweep. That is to say, immunity is conferred only
if the act impeached is done for the apparent object of furthering a
free and fair election and the protective armour drops down if the
act challenged is either unrelated to or thwarts or taints the course
of the election.
36. Having held against the maintainability of the writ petition, we
should have parted with the case finally. But Counsel for both
the candidates and, more particularly, the learned Addl. Solicitor
General, appearing for the Election Commission, submitted that
the breadth, amplitude and implications, the direction and depth of
Article 324 and, equally important. the question of natural justice
raised under Article 324 are of such public importance and largely
fallow field, going by prior pronouncements, and so strategic for
our democracy and its power process that this Court must decide
the issue here and now. Article 141 empowers and obligates this
Court to declare the law for the country when the occasion asks for
it. Counsel. Otherwise opposing one another, insistently concurred
in their request that, for the working of the electoral machinery and
understanding of the powers and duties vested in the functionaries

constituting the infrastructure, it is essential to sketch the ambit
and import of Article 324. This point undoubtedly arises before
us even in considering the prohibition under Article 329 and has
been argued fully. In any view, the Election Tribunal will be faced
with this issue and the law must be laid down so that there may
be no future error while disposing of the election petition or when
the Commission is called upon to act on later occasion. This is the
particular reason for our proceeding to decide what the content and
parameters of Article 324 are. contextually limited to situations
analogous to the present.
37. We decide two questions under the relevant article, not arguendo.
but as substantive pronouncements on the subject. They are:
(a) What, in its comprehensive connotation, does the ‘conduct’
of elections mean or, for that matter, the ‘superintendence,
direction and control’ of elections?
(b) Since the text of the provision is silent about hearing before
acting, is it permissible to import into Article 324(1) an
obligation to act in accord with natural justice?
38. Article 324, which we have set out earlier, is a plenary provision
vesting the whole responsibility for national and State elections
and, therefore, the necessary powers to discharge that function. It is
true that Article 324 has to be read in the light of the constitutional
scheme and the 1950 Act and the 1951 Act. Sri Rao is right to
the extent he insists that if competent legislation is enacted as
visualised in Article 327 the Commission cannot shake itself
free from the enacted prescriptions. After all, as Mathew, J. has
observed in Indira Gandhi (supra) (p. 523)
In the opinion of some of the judges constituting the majority in
Bharati’s case, Rule of Law is a basic structure of the Constitution
apart from democracy.
The rule of law postulates the pervasiveness of the spirit of law
throughout the whole range of government in the sense of excluding
arbitrary official action in any sphere.
And the supremacy of valid law over the Commission argues itself.
No one is an imperium in imperio in our constitutional order. It
is reasonable to hold that the Commissioner cannot defy the law
armed by Article 324. Likewise, his functions are subject to the
norms of fairness and he cannot act arbitrarily. Unchecked power
is alien to our system.
39. Even so, situations may arise which enacted law has not provided
for. Legislators are not prophets but pragmatists. So it is that the
Constitution has made comprehensive provision in Article 324
to take care of surprise situations. That power itself has to be
exercised, not mindlessly nor mala fide, not arbitrarily nor with
partiality but in keeping with the guidelines of the rule of law and
not stultifying the Presidential notification nor existing legislation.
More is not necessary to specify; less is insufficient to leave
unsaid. Article 324, in our view, operates in areas left unoccupied
by legislation and the words ‘superintendence, direction and
control, as well as conduct of all elections’, are the broadest terms.
Myriad maybes, too mystic to be precisely presaged, may call for
prompt action to reach the goal of free and fair election. It has
been argued that this will create a constitutional despot beyond
the pale of accountability; a Frankenstein’s monster who may
manipulate the system into elected despotism - instances of such
phenomena are the tears of history. To that the retort may be that
the judicial branch, at the appropriate stage, with the potency of its
benignant power and within the leading strings of legal guidelines,
can call the bluff, quash the action and bring order into the process.
Whether we make a triumph or travesty of democracy depends on
the man as much as on the Great National Parchment. Secondly,
when a high functionary like the Commissioner is vested with
wide powers the law expects him to act fairly and legally. Article
324 is geared to the accomplishment of free and fair elections
expeditiously. Moreover, as held in Virendra and Hurishankar
discretion vested in a high functionary may be reasonably trusted
to be used properly, not perversely. If it is misused. certainly the
Court has power to strike down the act. This is well established
and does not need further case law confirmation.
40. The learned Addl. Solicitor General brought to our notice rulings
of this Court and of the High Courts which have held that Article
324 was a plenary power which enabled the Commission to act

even in the absence of specific legislation though not contrary to
valid legislation. Ordering a re-poll for a whole constituency under
compulsion of circumstances may be directed for the conduct of
elections and can be saved by Article 324 -provided it is bona fide
necessary for the vindication of the free verdict of the electorate
and the abandonment of the previous poll was because it failed to
achieve that goal. While we repel Sri Rao’s broadside attack on
Article 324 as confined to what the Act has conferred, we concede
that even Article 324 does not exalt the Commission into a law
unto itself. Broad authority does not bar scrutiny into specific
validity of the particular order.
41. Our conclusion on this limb of the contention is that Article 324 is
wide enough to supplement the powers under the Act, as here, but
subject to the several conditions on its exercise we have set out.
42. Now we move on to a close-up of the last submission bearing on
the Commission’s duty to function within the leading strings of
natural justice.
43. Indeed, natural justice is a pervasive facet of secular law
where a spiritual touch enlivens legislation. administration and
adjudication, to make fairness a creed of life. It has many colours
and shades, many forms and shapes and, save where valid law
excludes it, applies when people are affected by acts of Authority.
It is the hone of healthy government, recognised from earliest times
and not a mystic testament of Judge- made law. Indeed, from the
legendary days of Adam- and of Kautilya’s Arthasastra - the rule
of law has had this stamp of natural justice which makes it social
justice. We need not go into these deeps for the present except to
indicate that the roots of natural justice and its foliage are noble
and not new-fangled. Today its application must be sustained by
current legislation. case-law or other extant principle, not the hoary
chords of legend and history. Our jurisprudence has sanctioned its
prevalence even like the Anglo-American system.
44. The dichotomy between administrative and quasi-judicial functions
vis-a-vis the doctrine of natural justice is presumably obsolescent
after Kraipak in India and Schmidts in England.

45. Kraipak marks the watershed, if we may say so, in the applica-
tion of natural justice to administrative proceedings. Hegde, J.,
speaking for a Bench of five Judges observed, quoting for support
Lord Parker in In re H. K. (an infant):
It is not necessary to examine these decisions as there is a great
deal of fresh thinking on the subject. The horizon of natural justice
is constantly expanding.
The aim of the rules of natural justice is to secure justice or to
put it negatively to prevent miscarriage of justice. These rules can
operate only in areas not covered by any law validly made. In other
words they do not supplant the law of the land but supplement it.
The validity of that limitation is now questioned. If the purpose
of the rules of natural justice is to prevent miscarriage of justice
one fails to see why those rules should be made inapplicable to
administrative inquiries. Often times it is not easy to draw the
line that demarcates administrative enquiries from quasi-judicial
enquiries. Enquiries which were considered administrative at one
time are now being considered as quasi-judicial in character.
Arriving at a just decision is the aim of both quasi-judicial
enquiries as well as administrative enquiries. An unjust decision
in an administrative enquiry may have more far reaching effect
than a decision in a quasi-judicial enquiry. As observed by this
Court in Suresh Koshy George v. The University of Kerala the
rules of natural justice are not embodied rules. What particular
rule of natural justice should apply to a given case must depend
to a great extent on the facts and circumstances of that case, the
framework of the law under which the enquiry is held and the
constitution of the Tribunal or body of persons appointed for that
purpose. Whenever a complaint is made before a Court that some
principle of natural justice had been contravened the Court has to
decide whether the observance of that rule was necessary for a just
decision on the facts of that case.
46. It is an interesting sidelight that in America it has been held to
be but fundamental fairness that the right to an administrative
hearing is given. Natural justice is being given access to the United
Nations. It is notable that Mathew, J. observed in Indira Gandhi:

If the amending body really exercised judicial power, that
power was exercised in violation of the principles of natural
justice of audi adi alteram partem. Even if a power is given
to a body without specifying that the rules of natural justice
should be observed in exercising it, the nature of the power
would call for its observance.
Lord Morris of Borth-y-Gest in his address before the Bentham
club concluded:
We can. I think, take pride in what has been done in recent
periods and particularly in the field of administrative law
by invoking and by applying those principles which we
broadly classify under the designation of natural justice.
Many testing problems as to their application yet remain to
be solved. But I affirm that the area of administrative action
is but one area in which the principles are to be deployed.
Nor are they to be invoked only when procedural failures
are shown. Does natural justice qualify to be described
as a “majestic” conception? I believe it does. Is it just a
rhetorical but vague phrase which can be employed, when
needed, to give a gloss of assurance? I believe that it is very
much more If it can be summarised as being fairplay in
action who could wish that it would ever be out of action?
It denotes that the law is not only to be guided by reason
and by logic but that its purpose will not be fulfilled if it
lacks more exalted inspiration.
47. It is fair to hold that subject to certain necessary limitations natural
justice is now a brooding omnipresence although varying in its
play.
48. Once we understand the soul of the rule as fairplay in action
and it is so we must hold that it extends to both the fields. After
- all, administrative power in a democratic set-up is not allergic
to fairness in action and discretionary executive justice cannot
degenerate into unilateral injustice. Nor is there ground to be
frightened of delay. inconvenience and expense. if natural justice
gains access. For fairness itself is a flexible, pragmatic and relative
concept, not a rigid, ritualistic or sophisticated abstraction. It is not

a bull in a china shop, nor a bee in one’s bonnet. Its essence is good
conscience in a given situation : nothing more - but nothing less.
The ‘exceptions’ to the rules of natural justice are a misnomer or
rather are but a shorthand form of expressing the idea that in those
exclusionary cases nothing unfair can be inferred by not affording
an opportunity to present or meet a case. Text-book excerpts and
ratios from rulings can be heaned. but they all converge to the same
point that audi alteram partem is the justice of the law. without. of
course, making law lifeless, absurd. stultifying, self-defeating or
plainly contrary to the commonsense of the situation.
49. Let us look at the jurisprudential aspects of natural justice. limited
to the needs of the present case as the doctrine has developed
in the Indo-Anglican systerns We mav state that the question of
nullity does not arise here because we are on the construction of
a constitutional clause. Even otherwise. the rule of natural justice
bears upon construction where a statute is silent save in that category
where a legislation is charged with the vice of unreasonableness
and consequential voidness.
50. Article 324 on the face of it vests vast functions which may be
powers duties essentially administrative and marginally even
iudicative or legislative (See All Party Hill Leaders’ Conference,
Shillong v. Capt. W. A. Sangma) We are not fascinated by the logo-
machic exercise suggested by Sri P. P Rao. reading ‘functions’ in
contra-distinction to ‘powers’ nor by the trichotomy of diversion
of powers, fundamentally sound but flawsome in several situations
if rigidly applied. These submissions merely serve to draw the
red-herring across the trial. We will now zero-in on the crucial
issue of natural justice vis-a-vis Article 324 where the function
is so exercised that a candidate is substantially prejudiced even if
he has not acquired a legal right nor suffered ‘civil consequences,
whatever that may mean.
51. We proceed on the assumption that even if the cancellation of
the poll in this case were an administrative act, that per se does
not repel the application of the natural justice principle. Kraipak
(supra) nails the contrary argument. Nor did the learned Addl.
Solicitor General contend that way, taking his stand all through,
not on technicalities, easy victories or pleas for reconsiderations of
the good and progressive rules gained through this Court’s rulings
in administrative law but on the foundational thesis that any
construction that we may adopt must promote and be geared to the
great goal of expeditious, unobstructed, despatch of free and fair
elections and leaving grievances to be fully sorted out and solved
later before the election tribunal set out by the Act. To use a telling
word familiar in officialese: ‘Election Immediate’.
52. So now we are face to face with the naked issue of natural
justice and its pro tem exclusion on grounds of necessity and
non- stultification of the on-going election. The Commission
claims that a direction for re-poll is an ‘emergency’ exception.
The rules of natural justice are rooted in all legal systems not any
new theology’ and are manifested in the twin principles of nemo
judex in causa sua and audi alteram partem. We are not concerned
here with the former since no case of bias has been urged. The
grievance ventilated is that of being condemned unheard. Sporadic
applications or catalogue of instances cannot make for a scientific
statement of the law and so we have to weave consistent criteria
for application and principles for carving out exceptions. If the
rule is sound and not negatived by statute, we should not devalue
it nor hesitate to hold every functionary who affects others’ right to
it. The audi alteram partem rule has a few facets two of which are
(a) notice of the case to be met; and (b) opportunity to explain. Let
us study how far the situation on hand can co-exist with canons of
natural justice. While natural justice is universally respected, the
standards vary with situations contracting into a brief, even post-
decisional opportunity, or expanding into trial-type trappings.
53. Ridge v. Baldwin is a leading case which restored light to an area
‘benighted by the narrow conceptualism of the previous decade’,
to borrow Professor Clark’s expression. Good administration
demands fairplay in action and this simple desideratum is the fount
of natural justice. We have already said that the classification of
functions as ‘judicial’ or ‘administrative’ is a stultifying shibboleth,
discarded in India as in England. Today, in our jurisprudence, the
advances made by natural justice far exceed old frontiers and if
judicial creativity belights penumbral areas it is only for improving
the quality of government by injecting fairplay into its wheels.

54. The learned Addl. Solicitor General welcomed the dramatic pace
of enlargement in the application of natural justice But he argued
for inhibiting its spread into forbidden spaces lest the basic values
of Article 329 be nullified. In short, his point is that where utmost
promptitude is needed and that is the raison d’etre of exclusion of
intermediate legal proceedings in election matters natural justice
may be impractical and may paralyze, thus balking the object
of expeditious completion. He drew further inspiration from
another factor to validate the exclusion of natural justice from
the Commission’s actions, except where specifically stipulated
by statute. He pointed out what we have earlier mentioned that
an election litigation is one in which the whole constituency of
several lakhs of people is involved and if the Election Commission
were under an obligation to hear affected parties it may, logically,
have to give notice to lakhs of people and not merely to candidates.
This will make an ass of the law and, therefore, that is not the law.
This reductio ad absurdum also has to be examined.
55. Law cannot be divorced from life and so it is that the life of the law
is not logic but experience. If, by the experiential test, importing
the right to be heard will paralyze the process, law will exclude
it. It has been said that no army can be commanded by a debating
society, but it is also true that the House of Commons did debate,
during the days of debacle and disaster, agony and crisis of the
Second World War, the life-and-death aspects of the supreme
command by the then British Prime Minister ‘to the distress of
all our friends and to the delight of all our foes’ too historic to be
lost on jurisprudence. Law lives not in a world of abstractions but
in a cosmos of concreteness and to give up something good must
be limited to extreme cases. If to condemn unheard is wrong, it is
wrong except where it is overborne by dire social necessity. Such
is the sensible perspective we should adopt if ad hoc or haphazard
solutions should be eschewed.
56. Normally, natural justice involves the irritating inconvenience for
men in authority, of having to hear both sides since notice and
opportunity are its very marrow. And this principle is so integral to
good government, the onus is on him who urges exclusion to make
out why.

Lord Denning expressed the paramount policy consideration
behind this rule of public law (while dealing with the nemo judex
aspect) with expressiveness: “Justice must be rooted in confidence;
and confidence is destroyed when right-minded people go away
thinking the judge was biased’.” We may adapt it to the audi
alteram situation by the altered statement : “Justice must be felt
to be just by the community if democratic legality is to animate
the rule of law. And if the invisible audience sees a man’s case
disposed of unheard, a chorus of ‘no-confidence’ will be heard
to say. ‘that man had no chance to defend his stance’.” That is
why Tucker LJ in Russel v. Duke of Norfolk emphasised that
‘whatever standard of natural justice is adopted, one essential is
that the person concerned should have a reasonable opportunity
of presenting his case’. What is reasonable in given circumstances
is in the domain of practicability; not formalised rigidity. Lord
Upjohn in Fernando observed that ‘while great urgency may rightly
limit such opportunity timeously, perhaps severely, there can never
be a denial of that opportunity if the principles of natural justice
are applicable’. It is untenable heresy, in our view, to lock-jaw the
victim or act behind his back by tempting invocation of urgency,
unless the clearest case of public injury flowing from the least delay
is self- evident. Even in such cases a remedial hearing as soon as
urgent action has been taken is the next best. Our objection is not
to circumscription dictated by circumstances, but to annihilation
as an easy escape from a benignant. albeit inconvenient obligation.
The procedural pre-condition of fair hearing, however minimal,
even post-decisional, has relevance to administrative and judicial
gentlemanliness. The Election Commission is an institution of
central importance and enjoy far-reaching powers and the greater
the power to affect others’ right or liabilities the more necessary
the need to hear.
57. We may not be taken to say that situational modifications to notice
and hearing are altogether impermissible. They are, as the learned
Addl. Solicitor General rightly stressed. The glory of the law is
not that sweeping rules are laid down but that it tailors principles
to practical needs, doctors remedies to suit the patient, promotes,
not freezes, life’s processes, if we may mix metaphors. Tucker, LJ

drove home this point when he observed in the Duke of Norfolk
case (supra):
There are no words which are of universal application to every
kind of inquiry The requirements of natural justice must depend on
the circumstances of the case, the nature of the inquiry, the rules
under which the tribunal is acting, the subject-matter that is being
dealt with, and so forth.
This circumstantial flexibility of fair hearing has been underscored
in Wiseman v. Borneman by Lord Reid when he said he would be
“sorry to see this fundamental general principle degenerate into a
series of hard- and-fast rules”. Lord Denning, with lovey realism
and principled pragmatism, set out the rule in Selvaraian”:
The fundamental rule is that, if a person may be subjected to pains
or penalities, or be exposed to prosecution or proceedings, or
deprived of remedies or redress, or in some such way adversely
affected by the investigation and report, then he should be told
the case made against him and be afforded a fair opportunity of
answering it. The investigation body is, however, the master of its
own procedure. It need not hold a hearing. It can do everything in
writing. It need not allow lawyers. It need not put every detail of
the case against a man. Suffice it if the broad grounds are given.
It need not name its informants. It can give the substance only.
Moreover it need not do everything itself. It can employ secretaries
and assistants to do all the preliminary work and leave much to
them. But, in the end, the investigating body itself must come to its
own decision and make its own report.
Courts must be tempered by the thought while compromise on
principle is unprincipled, applied administrative law in modern
complexities of government must be realistic, not academic. The
myriad maybes and the diverse urgencies are live factors. Natural
justice should not destroy administrative order by insisting on the
impossible.
58. This general discussion takes us to four specific submissions made
by the learned Addl. Solicitor General. He argued that the Election
Commission, a high constitutional functionary, was charged with
conducting elections with celerity to bring the new House into
being and the tardy process of notice and hearing would thwart
this imperative. So no natural justice. Secondly, he submitted that
there was no final determination to the prejudice of any party by
directing a re-poll since the Election Court had the last word on
every objectionable order and so the Commission’s order was
more or less provisional. So no natural justice. Thirdly, he took
up the position that no candidate could claim anything more than
an expectation or spes and no right having crystallised till official
declaration of the result, there was no room for complaint of
civil consequences. What was condemned was the poli, not any
candidate. So no natural justice. Finally, he reminded us of the far-
flung futility of giving a hearing to a numerous constituency which
too was interested in proper elections like the candidates. So no
natural justice.
59. De Smith was relied on and Wisemans as well as Pearlberg” were
cited in support of these propositions. We may add to these weighty
rulings the decision of the House of Lords in Pearlberg. The
decision of this Court in the ruling in Bihar School Examination
Board vs. Subhas Chandra Sinha where a whole University
examination was cancelled without hearing any of the candidates
but was upheld against the alleged vice of non-hearing, was relied
on.
60. We must admit that the law, in certain amber areas of natural
justice, has been unclear. Vagueness haunts this zone but that is no
argument to shut down. If it is twilit, we must delight. So we will
lay down the guidelines but guard ourselves against any decision
on the facts of this case. That is left for the Election Court in the
light of the law applicable.
61. Nobody will deny that the Election Commissioner in our democratic
scheme is a central figure and a high functionary. Discretion vested
in him will ordinarily be used wisely, not rashly, although to echo
Lord Camden, wide discretion is fraught with tyrannical potential
even in high personages, absent legal norms and institutional
checks, and relaxation of legal canalisation on generous ‘VIP’
assumptions may boomerang. Natural justice is one such check on
exercise of power. But the chemistry of natural justice is confused

in certain aspects, especially in relation to the fourfold exceptions
put forward by the respondents.
62. So let us examine them each. Speed in action versus soundness of
judgment is the first dilema. Punnuswami (supra) has emphasised
what is implicit in Article 329(b) that once the process of election
has started, it should not be interrupted since the tempo may slow
down and the early constitution of an elected parliament may be
halted. Therefore, think twice before obligating a hearing at a
critical stage when a quick re-poll is the call. The point is well
taken. A fair hearing with full notice to both or others may surely
protract; and notice does mean communication of materials since
no one can meet an unknown ground. Otherwise hearing becomes
hollow, the right becomes a ritual. Should the cardinal principle
of ‘hearing as condition for decision-making be mar- tyred for the
cause of administrative immediacy? We think not. The full panoply
may not be there but a manageable minimum may make-do.
63. In Wiseman v. Borneman there was a hint of the competitive claims
of hurry and hearing. Lord Reid said: ‘Even where the decision
has to be reached by a body acting judicially, there must be a
balance between the need for expedition and the need to give full
opportunity to the defendant to see material against him’ (emphasis
added). We agree that the elaborate and sophisticated methodology
of a formalised hearing may be injurious to promptitude so essential
in an election under way. Even so, natural justice is pragmatically
flexible and is amenable to capsulation under the compulsive
pressure of circumstances. To burke it altogether may not be a
stroke of fairness except in very exceptional circumstances. Even
in Wiseman where all that was sought to be done was to see if
there was a prima facie case to proceed with a tax case where,
inevitably, a fuller hearing would be extended at a later stage of
the proceedings, Lord Reid, Lord Morris of Borth-y-Gest and Lord
Wilber- force suggested “that there might be exceptional cases
where to decide upon it exparte would be unfair, and it would
be the duty of the tribunal to take appropriate steps to eliminate
unfairness” (Lord Denning, M. R., in Howard v. Borneman”
summarised the observations of the Law Lords in this form). No
doctrinaire approach is desirable but the Court must be anxious to

salvage the cardinal rule to the extent permissible in a given case.
After all, it is not obligatory that Counsel should be allowed to
appear nor is it compulsory that oral evidence should be adduced.
Indeed, it is not even imperative that written statements should be
called for. Disclosure of the prominent circumstances and asking
for an immediate explanation orally or otherwise may, in many
cases, be sufficient compliance. It is even conceivable that an
urgent meeting with the concerned parties summoned at an hour’s
notice, or in a crisis, even a telephone call, may suffice. If all that
is not possible as in the case of a fleeing person whose passport
has to be impounded lest he should evade the course of justice
or a dangerous nuisance needs immediate abatement, the action
may be taken followed immediately by a hearing for the purpose
of sustaining or setting aside the action to the extent feasible. It
is quite on the cards that the Election Commission if pressed by
circumstances, may give a short hearing. In any view, it is not
easy to appreciate whether before further steps got under way he
could not have afforded an opportunity of hearing the parties, and
revoke the earlier directions. We do not wish to disclose our mind
on what, in the critical circumstances, should have been done for
a fair play of fair hearing. This is a matter pre-eminently for the
Election Tribunal to judge, having before him the vivified totality
of all the factors All that we need emphasize is that the content of
natural justice is a dependent variable, not an easy casualty.
64. The learned Addl. Solicitor General urged that even assuming that
under ordinary circumstances a hearing should be granted, in the
scheme of Article 324 and in the situation of urgency confronting
the Election Commission it was not necessary.
65. Here we must demur. Reasons follow.
66. It was argued, based on rulings relating to natural justice, that unless
civil consequences ensued, hearing was not necessary. A civil right
being adversely affected is a sine qua non for the invocation of
the audi alteram partem rule. This submission was supported by
observations in Ram Gopal, Col. Sinha”. Of course, we agree that
if only spiritual censure is the penalty, temporal laws may not take
cognizance of such consequences since human law operates in
the material field although its vitality vicariously depends on its
morality. But what is a civil consequences, let us ask ourselves,
bypassing verbal booby-traps? ‘Civil consequences’ undoubtedly
cover infraction of not merely property or personal rights but of
civil liberties, material deprivations and non-pecuniary damages.
In its comprehensive connotation, everything that affects a citizen
in his civil life inflicts a civil consequence. ‘Civil is defined by
Black (Law Dictionary, Fourth Edn.) at p. 311:
Ordinarily, pertaining or appropriate to a member of a civitas
of free political community; natural or proper to a citizen. Also,
relating to the community, or to the policy and government of the
citizens and subjects of a state.
The word is derived from the Latin civilis, a citizen various
significations. ...... In law, it has various significations.
Civil Rights’ are such as belong to every citizen of the State or
country, or, in a wider sense, to all its inhabitants, and are not
connected with the organisation or administration of government.
They include the rights of property, marriage, protection by the
laws, freedom of contract, trial by jury, etc. Or, as otherwise
defined, civil rights are rights appertaining to a person in virtue
of his citizenship in a State or community. Rights capable of
being enforced or redressed in a civil action. Also a term applied
to certain rights secured to citizens of the United States by the
thirteenth and fourteenth amendments to the Constitution, and by
various acts of Congress made in pursuance thereof.
(p. 1487, Black’s Legal Dictionary)
The interest of a candidate at an election to Parliament regulated by
the Constitution and the laws comes within this gravitational orbit.
The most valuable right in a democratic polity is the “little man’s”
little pencil- marking, assenting or dissenting, called his vote. A
democratic right, if denied, inflicts civil consequences. Likewise,
the little man’s right, in a representative system of government,
to rise to Prime Ministership or Presidentship by use of the right
to be candidate, cannot be wished away by calling it of no civil
moment. It civics mean anything to a self-governing citizenry, if
participatory democracy is not to be scuttled by the law, we shall
not be captivated by catchwords. The straight-forward conclusion
is that every Indian has a right to elect and be elected and this is
a constitutional as distinguished from a common law right and is
entitled to cognizance by Courts subject to statutory regulation. We
may also notice the further refinement urged that a right accrues
to a candidate only when he is declared returned and until then
it is incipient, inchoate and intangible for legal assertion in the
twilight zone of expectancy, as it were. This too, in our view, is
legicidal sophistry. Our system of ‘ordered’ rights cannot disclaim
cognizance of orderly processes as the right means to a right end.
Our jurisprudence is not so jejune as to ignore the concern with
means as with the end, with the journey as with the destination.
Every candidate, to put it cryptically, has an interest or right to
fair and free and legally run election. To draw lots and decide who
wins, if announced as the electoral methodology, affects his right,
apart from his luckless rejection at the end. A vested interest in the
prescribed process is a processual right, actionable if breached,
the Constitution premitting. What is inchoate, viewed from the
end, may be complete, viewed midstream. It is a subtle fallacy to
confuse between the two. Victory is still an expectation; qua mado
is a right to the statutory procedure. The appellant has a right to
have the election conducted not according to humour or hubris
but according to law and justice. And so natural justice cannot be
stumped out on this score. In the region of public law locus standi
and person aggrieved, right and interest have a broader import.
But, in the present case, the Election Commission contends that a
hearing has been given although the appellant retorts that a vacuous
meeting where nothing was disclosed and he was summarily told
off would be strange electoral justice. We express no opinion on the
factum or adequacy of the hearing but hold that where a candidate
has reached the end of the battle and the whole poll is upset, he has
a right to notice and to be heard, the quantum and quality being
conditioned by the concatenation of circumstances.
67. The rulings cited, bearing on the touchstone of civil consequences,
do not contradict the view we have propounded. Col. Sinha
(supra) merely holds and we respectfully agree that the lowering
of retirement age does not deprive a government servant’s rights,
it being clear that every servant has to quit on the prescribed age
being attained. Even Binapani concedes that the State has the
authority to retire a servant on superannuation. The situation here
is different. We are not in the province of substantive rights but
procedural rights statutorily regulated. Sometimes processual
protections are too precious to be negotiable, temporised with or
whittled down.
68. Ram Gopal (supra), for the same reason, is inapplicable. A
temporary servant has only a temporary tenure terminable legally
without injury. Even he, if punished, has procedural rights in the
zone of natural justice, but not when the contract of employment is
legally extinguished. Interest and right are generous conceptions in
this jurisdiction, not narrow orthodoxies as in traditional systems.
69. We move on to a consideration of the argument prolix plurality
making hearing impracticable and therefore expendable.
Attractively ingenious and seemingly precedented, but, argumentum
ab inconvenienti has its limitations and cannot override established
procedure. May be, argumentum ab impossibili has greater
force. But here neither applies for it is a misconception to equate
candidates who fought to the bitter finish with the hundreds of
thousands of voters who are interested in electoral proprieties. In
law and life, degree of difference may, at a substantial stage, spell
difference in kind or dimensions. Is there an impossible plurality
which frustrates the feasibility of notice and hearing if candidates
alone need be notified?
70. In Subhash Chandra Sinha (supra), Hidayatullah, C.J. speaking
for the Court repelled the plea of natural justice when a whole
examination was cancelled by the concerned university authorities.
The reasons given are instructive. The learned Judge said that “the
mention of fairplay does not come very well from the respondents
who were grossly guilty of breach of fairplay themselves at the
examinations”. The Court examined the grounds for cancellation
of examinations and satisfied itself that there was undoubted
abundance of evidence that students generally had outside
assistance in answering questions. The learned Judge went on
further to say:
This is not a case of any particular individual who is being
charged with adoption of unfair means but of the conduct of all

the examinees or at least a vast majority of them at a particular
centre. If it is not a question of charging anyone individually with
unfair means but to condemn the examination as ineffective for
the purpose it was held, must the Board give an opportunity to all
the candidates to represent their cases? We think not. It was not
necessary for the Board to give an opportunity to the candidates
if the examinations as a whole were being cancelled. The Board
had not charged any one with unfair means so that he could claim
to defend himself. The examination was vitiated by adoption of
unfair means on a mass scale. In these circumstances it would be
wrong to insist that the Board must hold a detailed inquiry into the
matter and examine each individual case to satisfy itself which of
the candidates had not adopted unfair means. The examination as
a whole had to go.
If at a centre the whole body of students receive assistance and
manage to secure success in the neighbourhood of 100% when
others at other centres are successful only at an average of 50%, it
is obvious that the university or the Board must do something in
the matter. It cannot hold a detailed quasi-judicial inquiry with a
right to its alumni to plead and lead evidence etc. before the results
are withheld or the examinations cancelled. If there is sufficient
material on which it can be demonstrated that the university was
right in its conclusion that the examinations ought to be cancelled
then academic standards require that the university’s appreciation
of the problem must be respected. It would not do for the Court
to say that he should have examined all the candidates or even
their representatives with a view to ascertaining whether they had
received assistance or not. To do this would encourage indiscipline
if not also perjury.
These propositions are relied on by the learned Addl. Solicitor
General who seeks to approximate the present situation of
cancellation of the poll to the cancellation of an examination. His
argument is that one has to launch on a public enquiry allowing
a large number of people to participate in the hearing if the
cancellation of the poll itself is to be subjected to natural justice.
He further said that no candidate was condemned but the poll
process was condemned. He continued to find a parallel by stating

that like the university being responsible for the good conduct of
examinations, the Election Commission was responsible for the
proper holding of the poll. We do not consider the ratio in Subhash
Chandra (supra) as applicable. In fact, the candidates concerned
stand on a different footing from the electorate in general. They
have acquired a very vital stake in polling going on properly to a
prompt conclusion. And when that is upset there may be a vicarious
concern for the constituency, why, for that matter, for the entire
country, since the success of democracy depends on country- wide
elections being held periodically and properly. Such interest is too
remote and recondite, too feeble and attenuated, to be taken note
of in a cancellation proceeding. What really marks the difference
is the diffusion and dilution. The candidates, on the other hand,
are the spearheads, the combatants, the claimants to victory. They
have set themselves up as nominated candidates, organised the
campaign and galvanised the electorate for the crowning event of
polling and counting. Their interest and claim are not indifferent
but immediate, not weak but vital. They are more than the
members of the public. They are parties to the electoral dispute.
In this sense, they stand on a better footing and cannot be denied
the right to be heard or noticed. Even in the case of university
examinations it is not a universal rule that notice need not be given.
Ghanshyam Das Gupta’s cases illustrates this aspect. Even there,
when an examination result of three candidates was cancelled the
Court imported natural justice. It was said that even if the enquiry
involved a large number of persons, the committee should frame
proper regulations for the conduct of such enquiries but not deny
the opportunity. That case was distinguished in Subhash Chandra
the differentia being that in one case the right exercised was of
the examining body to cancel its own examinations since it was
satisfied that the examination was not properly conducted. It may
be a parallel in electoral situations if the Election Commission
cancels a poll because it is satished that the procedure adopted has
gone awry on a wholesale basis. Supposing wrong ballot papers
in large numbers have been supplied or it has come to the notice
of the Commission that in the constituency counterfeit ballots had
been copiously current and used on a large scale, then without
reference to who among the candidates was more prejudiced, the

poll might have been set aside. It all depends on the circumstances
and is incapable of generalisation. In a situation like the present it
is a far cry from natural justice to argue that the whole constituency
must be given a hearing. That is an ineffectual over-kill.
71. Lastly, it was contended by the learned Addl. Solicitor General,
taking his cue from Wiseman that the Election Commission’s
direction for a re-poll has only a provisional consequence since
the Election Court was the ultimate matter of the destiny of the
poll, having power to review the decision of the Commission. It
is true that Wisemen deals with the assess ment of the evidence at
a preliminary stage merely to ascertain whether there is a prima
facic case. The proceeding had still later stages where the affected
party would enjoy a full opportunity. Lord Reid said plainly that
there was a difference:
It is very unusual for there to be a judicial determination of the
question whether there is a prima facie case there is nothing
inherently unjust in reaching such a decision (i.e.. a prima facie
decision) in the absence of the other party.
Lord Wilberforce however took the view that there was ‘a residual
duty of fairness. Lord Denning in Pearlberg v. Varty added in
parenthesis:
Although the tribunal, in determining whether there is a prima facie
case, is itself the custodian of fairness, nevertheless its discretion
is open to review. Buckley, J. made this point about natural justice
and administrative action
I do not forget the fact that it has been said that the rules of
natural justice may apply to cases where the act in question is
more properly described as administrative than judicial or quasi-
judicial: See Ridge v. Baldwin (supra) and Schmidt v. Secretary of
State for Home Affairs
72. The Indian parallel would be an argument for notice and hearing
from a police officer when he investigated and proceeded to lay a
chargesheet because he thought that a case to be tried by the Court
had been made out. The present case stands on a totally different
footing. What the Election Commission does is not to ascertain

whether a prima facie case exists or an ex parte order. subject to
modification by him is to be made. If that were so Pearlberg would
have been an effective answer. For, Lord Denning luminously
illustrates the effect:
I would go so far with him as to say that in reaching a prima facie
decision, there is a duty on any tribunal to act fairly; but fairness
depends on the task in hand. Take an application to a Court by
statute, or by the rules, or, as a matter of practice, is made ex
parte. The Court itself is a custodian of fairness. If the matter is
so urgent that an order should be made forthwith, before hearing
the other side, as in the case of an interim injunction or a stay of
execution, the Court will make the order straightaway. We do it
every day. We are always ready, of course, to hear the other side
if they apply to discharge the order. But still the order is made ex
parte without hearing them. It is a prima facie decision. I agree
that before some other tribunal a prima facie decision may be a
little different. The party affected by it may not be able to apply
to set it aside. The case must go forward to a final decision. Here,
again. I think the tribunal itself is under what Lord Wilberforce
described as a residual duty of fairness. (1971 AC 297, 320)
When Pearlberg reached the House of Lords, the Law Lords
considered the question again. Lord Hailsham of St. Marylebone,
L. C. observed:
The third factor which affects mind is the consideration that
the decision once made, does not make any final determination
of the rights of the taxpayer. It simply enables the inspector to
raise an assessment, by satisfying the commissioner that there
are reasonable grounds for suspecting loss of tax resulting from
neglect, fraud, or wilful default. that is that there is a prima facie
probability that there has been neglect, etc., and that the Crown
may have lost by it. When the assessment is made, the taxpayer
can appeal against it, and, on the appeal, may raise any question
(inter-alia) which would have been relevant on the application for
leave, except that the leave given should be discharged.
The doctrine of natural justice has come in for increasing
consideration in recent years, and the Courts generally, and your

Lordships’ House in particular, have, I think rightly, advanced its
frontiers considerably. But at the same time they have taken an
increasingly sophisticated view of what it requires in individual
cases.
Viscount Dilhorne observed in that case:
I agree with Lord Donoven’s view (Wiseman v. Borneman) that
it cannot be said that the rules of natural justice do not apply to
a judicial determination of the question whether there is a prima
facie case, but I do not think they apply with the same force or as
much force as they do to decide decisions which determine the
rights of persons.
Lord Pearson’s comment ran thus :
A tribunal to whom judicial or quasi-judicial functions are entrusted
is held to be required to apply those principles in performing
those functions unless there is a provision to the contrary. But
where some person or body is entrusted by Parliament with
administrative or executive functions there is no presumption
that compliance with the principles of natural justice is required.
although, as ‘Parliament” is not to be presumed to act unfairly,
the Courts may be able in suitable cases (perhaps always) to
imply an obligation to act with fairness. Fairness, however, does
not necessarily require a plurality of hearings or representations
and counter- representations. If there were too much elaboration
of procedural safeguards, nothing could be done simply and
quickly and cheaply. Administrative or executive efficiency and
economy should not he too readily sacrificed. The disadvantage
of a plurality of hearings even in the judicial sphere was cogently
pointed out in the majority judgments in Cozens v. North Devon
Hospital Management Committee.
Lord Salmon put the matter pithily:
No one suggests that it is unfair to launch a criminal prosecution
without first hearing the accused.
Indeed, in Mallock, Lord Wilberforce observed:

A limited right of appeal on the merits affords no argument against
the existence of a right to a precedent hearing, and, if that is denied,
to have the decision declared void.
After all. the Election Court can exercise only a limited power of
review and must give regard to the Commission’s discretion. And
the trouble and cost of instituting such proceedings would deter all
but the most determined of parties aggrieved, and even the latter
could derive no help from legal principle in predicting whether at
the end of the day the Court would. not condone their summary
treatment on a subjective appraisal of the demerits of the case they
had been denied the opportunity to present. The public interest would
be ill-served by judicially fostered uncertainty as to the value to be
set upon procedural fairplay as a canon of good administration.
And further the Wiseman Law Lords regarded the cutting out of
“hearing’ as quite unpalatable but in the circumstances harmless
since most of the assesses knew the grounds and their declaration
was one mode of explanation.
73. We consider it a valid point to insist on observance of natural
justice in the area of administrative decision-making so as to avoid
devaluation of this principle by ‘administrators already alarmingly
insensitive to the rationale of audi alteram partern’:
In his lecture on ‘The Mission of the Law’ Professor H W. R.
Wade takes the principle that no man should suffer without being
given a hearing as a cardinal example of a principle ‘recognised
as being indispensable to justice, but which (has) not yet won
complete recognition in the world of administration The goal of
administrative sporadic and ex post facto judicial review. The
essential mission of the law in this field is to win acceptance by
administrators of the principle that to hear a man before he is
penalised is an integral part of the decision-making process. A
measure of the importance of resisting the incipient abnegation
by the Courts of the firm rule that breach of audi alteram partem
invalidates, is that if it gains ground the mission of the law is
doomed to fail to the detriment of all.
74. Our constitutional order pays more than lip-service to the rule of
reasonable administrative process. Our people are not yet conscious

of their rights; our administrative apparatus has a hard-of-hearing
heritage. Therefore a creative play of fairplay, irksome to some but
good in the long run, must be accepted as part of our administrative
law. Lord Hailsham. L. C. in Pearlberg presaged:
The doctrine of natural justice has come in tor increasing
consideration in recent years, and the Courts generally, (and
the House of Lords in particular), have advanced its frontiers
considerably. But at the same time they have taken an increasingly
sophisticate view of what is required in individual cases. And
in India this case is neither the inaugural nor the valedictory of
natural justice.
75. Moreover. Sri Rao’s plea that when the Commission cancels, viz.,
declares the poll void it is performing more than an administrative
function merits attention, although we do not pause to decide it.
We consider that in the vital area of elections where the people’s
faith in the democratic process is hyper-sensitive it is republican
realism to keep alive audi alteram even in emergencies, even
amidst the clash of arms. Its protean shades apart we recognise
that ‘hearing’ need not be an elaborate ritual and may, in situations
of quick despatch, be minimal, even formal, nevertheless real. In
this light, the Election Court will approach the problem. To scuttle
the ship is not to save the cargo to jettison may be.
76. Fair hearing is thus a postulate of decision-making cancelling a
poll. although fair abridgement of that process is permissible. It
can be fair without the rules of evidence or form of trial. It cannot
be fair if apprising the affected and appraising the representations
is absent. The philosophy behind natural iustice is, in one sense.
participatory justice in the process of democratic rule of law.
77. We have been told that wherever the Parliament has intended a
hearing it has said so in the Act and the rules and inferentially
where it has not specificated it is otiose. There is no such sequitur.
The silence of a statute has no exclusionary effect except where it
flows from necessary implication. Article 324 vests a wide power
and where some direct consequence on candidates emanates from
its exercise we must read this functional obligation.

78. There was much argument about the guidelines in Sections 58 and
64A being applicable to an order for constituency-wide re-poll. It
may be wholesome to be guided; but it is not illegal not to do so,
provided homage to natural justice is otherwise paid. Likewise,
Sri P. P. Rao pressed that the Chief Election Commissioner was
arbitrary in ordering a re-poll beyond Fazilka segment or postal
ballots. Even the third respondent had not asked for it; nor was
there any material to warrant it since all the ballots of all the other
segments were still available to be sorted out and recounted. A
whole re-poll is not a joke. It is almost an irreparable punishment
to the constituency and the candidates. The sound and fury, the
mammoth campaigns and rallies. the whistle-stop speeches and
frenzy of slogans, the white-heat of tantrums, the expensiveness of
the human resources and a hundred other traumatic consequences
must be remembered before an easy re-poll is directed, urges Shri
Rao. We note the point but leave its impact open for the Election
Court to assess when judging whether the impugned order was
scary. arbitrary, whimsical or arrived at by omitting material
considerations. Independently of natural justice, judicial review
extends to an examination of the order as to its being perverse,
irrational, bereft of application of the mind or without any
evidentiary backing. If two views are possible. the Court cannot
interpose its view. If no view is possible the Court must strike
down.
79. We have projected the panorama of administrative law at this
length so that the area may not be befogged at the trial before the
Election Court and for action in future by the Election Commission.
We have held that Article 329(b) is a bar for intermediate legal
proceedings calling in question the steps in the election outside the
machinery for deciding election disputes. We have further held that
Article 226 also suffers such eclipse. Before the notification under
Section 14 and beyond the declaration under Rule 64 of Conduct
of Election Rules, 1961 are not forbidden ground. In between is,
provided, the step challenged is taken in furtherance of, not to halt
or hamper the progress of the election.
80. We have clarified that what may seem to be counter to the march
of the election process may in fact be one to clear the way to a free

and fair verdict of the electorate. It depends. Taking the Election
Commission at his word (the Election Court has the power to
examine the validity of his word). we proceed on the prima facie
view that writ petition is not sustainable. If it turned out that the
Election Commission acted bizarre fashion or in indiscreet haste,
it forebodes ill for the Republic. For if the salt lose their savour,
where with shall they be salted? Alan Barth in his ‘Prophets with
Honor’, quotes Justice Felix Frankfurter regarding the standard for
a judicial decision thus:
Mr. Dooley’s, the Supreme Court fellows thiliction returns’,
expressed the wit of cynicism, not the demand of principle. A
Court which yields to the popular will thereby licenses itself to
practice despotism, for there can be no assurance that it will not
on another occasion indulge its own will. Courts can fulfil their
responsibility in a democratic society only to the extent that they
succeed in shaping their judgments by, rational standards, and
rational standards are both impersonal and communicable.
The above observation would equally apply to the Election
Commission.
81. Many incidental points were debated but we have ignored those
micro-questions and confined ourselves to macro-determinations.
It is for the Election Court, not for us, to rule on those variegated
matters. Certain obvious questions will claim the Election Court’s
attention. Did the Commission violate the election rules or canons
of fairness? Was the play, in short, according to the script or did
the dramatis personae act defiantly, contrary to the text? After- all,
democratic elections may be likened to a drama, with a solemn
script and responsible actors, officials and popular, each playing
his part, with roles for heroes but not for villains, save where the
text is travestied and unscheduled anti-heroes intervene turning the
promising project for the smooth registration of the collective will
of the people into a tragic plot against it. Every corrupt practice,
partisan official action, basic breach of rules or deviance from the
fundamental of electoral fairplay is a danger signal for the nation’s
democratic destiny. We view this case with the seriousness of John
Adams’ warning

‘Remember’, said John Adams, remember’, democracy never lasts
long. It soon wastes, exhausts and murders itself. There never was
a democracy that did not commit suicide.
82. Only one issue remains. Is the provision in Section 100 read
with Section 98 sufficient to afford full relief to the appellant if
the finding is in violation or mal-exercise of powers under Article
324? Sri Rao says ‘NO’ while the opposition says ‘YES’.
83. Let us follow the appellant’s apprehension for a while to test its
tenability. He says that the Commissioner has no power to cancel
the election to a whole constituency. Therefore, the impugned order
is beyond his authority and in excess of his functions under Article
324. Moreover, even if such power exists it has been exercised
illegally, arbitrarily and in violation of the implied obligation of
audi alteram partem. In substance, his complaint is that under guise
of Article 324 the Commissioner has acted beyond its boundaries,
in breach of its content and oblivious of its underlying duties. Such
a mal-exercise clearly tantamounts to non- adherence to the norms
and limitations of Article 324 and, if true, is a non-compliance with
that provision of the Constitution. It falls within Section 100 (1)
(d) (iv). A generous, purpose-oriented. literally informed statutory
interpretation spreads the wings of non-compliance’ wide enough
to bring in all contraventions. excesses. breaches and subversions.
84. We derive support for this approach from Durga Mehta (supra).
The Court there considered the same words, in the same sections,
in the same statute. Section 100(2)(c) interpreted in that case re-
incarnates as Section 100(1) (d) (iv) later. Everything is identical.
And Mukherjea, J. explained:
It is argued on behalf of the respondent that the expression “non-
compliance” as used in sub-section (2)(c) would suggest the idea
of not acting according to any rule or command and that the
expression is not quite appropriate in describing a mere lack of
qualification. This, we think, would be a narrow way of looking at
the thing. When a person is incapable of being chosen as a member
of a State Assembly under the provisions of the Constitution itself
but has nevertheless been returned as such at an election, it can
be said without impropriety that there has been non-compliance

with the provisions of the Constitution materially affecting the
result of the election. There is no material difference beween
“non-compliance” and “non-observance” or “breach” and this
item in clause (c) of sub-section (2) may be taken as a residuary
provision contemplating cases where there has been infraction of
the provisions of the Constitution or of the Act but which have not
been specifically enumerated in the other portions of the clause.
Lexical significations are not the last work in statutory construction.
We hold that it is perfectly permissible for the Election Court to
decide the question as one falling under Section 100 (1) (d) (iv).
A presumatic view of the Act and Article 324 helps discern ‘an
organic synthesis’. Law sustains, not fails.
85. A kindred matter viz., the scope of Section 100 and Section 98 has
to be examined, parties having expressed anxious difference on
the implied powers of the Election Court. Indeed, it is a necessary
part of our decision but we may deal with it even here. Sri Rao’s
consternation is that if his writ petition is dismissed as not
maintainable and his election petition is dismissed on the ground
that the Election Court had no power to examine the cancellation
of poll, now that a fresh poll has taken place, he will be in the
unhappy position of having to forfeit a near-victory because a
gross illegality triumphs irremediably. If this were true the hopes
of the rule of law turn into dupes of the people. We have given
careful thought to this tragic possibility and are convinced - indeed,
the learned Addl. Solicitor General has argued for upholding, not
subverting the rule of law and agrees that the Election Court has
all the powers necessary to grant all or any of the reliefs set out in
Section 98 and to direct the Commissioner to take such ancillary
steps as will render complete justice to the appellant.
86. Section 98, which we have read earlier, contemplates three
possibilities when an election petition is tried. Part VI of the Act
deals with the complex of provisions calculated to resolve election
disputes. A march past this Part discloses the need to file an election
petition (Section 80); the jurisdiction to try which is vested in the
High Court (Section 80A). Regulatory of the further processes
on presentation of a petition are Sections 81 to 96. If a candidate
whose return is challenged has a case invalidating the challenger’s
election he may set it up subject to the provision in Section 97.
Then comes the finale in Section 98. The High Court has three
options by way of conclusive determinations. It may (a) dismiss
the petition; (b) declare the election void; and (c) go further to
declare the petitioner duly elected. Side-stepping certain species
of orders that may be passed under Section 99 we have to explore
the gamut of implied powers when the grant of power is wide and
needs incidental exercises to execute the substantive power.
87. A few more sections exist which we may omit as being not germane
to the present controversy.
88. What is that controversy? Let us project it with special reference to
the present case. Here the poll proceeded peacefully, the counting
was almost complete, the ballots of most stations are available
and postal votes plus the votes of one or two polling stations may
alone be missing. Sri P. P. Rao asks and whenever Counsel in
Court or speaker on a podium asks rhetorical questions be sure
he is ready with an answer in his favour: If the Court holds that
the cancellation by the Commissioner of the whole poll is illegal
what relief can it give me since a fresh election based on that
demolition has been already held? If the Court holds that since
most of the ballots are intact, re-poll at one or two places is enough
how can even the Court hold such limited re-poll? If the Court
wants to grant the appellant the relief that he is duly elected how
can the intervening processes lying within the competence of the
Commissioner be commandered by the Court? The solution to
this dis- turbing string of interrogations is simple, given a creative
reading of implied powers writ invisibly. yet viably, into the larger
jurisdiction under Section 98. Law transcends legalism when life is
baffled by surprise situations. In this larger view and in accordance
with the well-established doctrine of implied powers we think the
Court can and if justified, - shall do. by its command, all that is
necessary to repair the injury and make the remedy realisable.
Courts are not luminous angels beating their golden wings in the
void but operational authority sanctioning everything to fulfil
the trust of the rule of law. That the less is the inarticulate part of
the larger is the jurisprudence of power. Both Sri Sorabjee and Sri
Phadke agree to this proposition and Sri Rao, in the light of the

election petition filed and pending, cannot but assent to it. By way
of abundant caution or otherwise, the appellant has challenged,
in his election petition, the declaration of the third respondent as
the returned candidate. He has also prayed for his being declared
the duly elected candidate. There is no dispute there cannot be
that the cornerstone of the second constituency-wide poll is the
cancellation of the first. If that is set aside as invalid by the High
Court for any good reason then the second poll falls and the third
respondent too with it. This question of the soundness of the
cancellation of the entire poll is within the Court’s power under
Section 98 of the Act. All are agreed on this. In that eventuality,
what are the follow-up steps? Everything necessary to resurrect,
reconstruct and lead on to a consummation of the original process.
Maybe, to give effective relief by way of completion of the broken
election the Commissioner may have to be directed to hold fresh
poll and report back together with the ballots. A recount of all or
some may perhaps be required Other steps suggested by other
developments may be desired. If anything intergrally linked up
with and necessitated by the obligation to grant full relief has to
be undertaken or ordered to be done by the election machinery, all
that is within the orbit of the Election Court’s power.
89. Black’s Law Dictionary explains the proposition thus:
Implied powers are such as are necessary to make available and
carry into effect those powers which are expressly granted or
conferred, and which must therefore be presumed to have been
within the intention of the constitutional or legislative grant.
90. This understanding accords with justice and reason and has the
support of Sutherland. The learned Addl. Solicitor General also
cited the cases in Matajog Dobey v. H. C. Bhari and Commissioner
of Commercial Taxes v. R. S. Jhaver to substantiate his thesis that
the doctrine of implied powers clothes the Commissioner with
vast incidental powers. He illustrated his point by quoting from
Sutherland (Frank E. Horack Jr., Vol. 3):
Necessary implications. Where a statute confers powers or duties
in general terms, all powers and duties incidental and necessary
to make such legislation effective are included by implication.

Thus it has been stated, “An express statutory grant of power or
the imposition of a definite duty carries with it by implication, in
the absence of a limitation, authority to employ all the means that
are usually employed and that are necessary to the exercise of the
power or the performance of the duty That which is clearly implied
is as much a part of a law as that which is expressed. The reason
behind the rule is to be found in the fact that legislation is enacted
to establish broad or general standards. Matters of minor detail are
frequently omitted from legislative enactments, and if these could
not be supplied by implication the drafting of legislation would
be an interminable process and the true intent of the Legislature
likely to be defeated”.
The rule whereby a statute, is by necessary implication extended
has been most frequently applied in the construction of laws
delegating powers to public officers and administrative agencies.
The powers thus granted involve a multitude of functions that are
discoverable only through practical experience.
A municipality, empowered, by statute to construct sewers for
the preservation of the public health, interest and convenience,
was permitted to construct a protecting wall and pumping plant
which were necessary for the proper working of the sewer, but
were essential to public health. A country school superintendent,
who was by statute given general supervisory power over a special
election, was permitted to issue absentec ballots. The power to
arrest has been held to include the power to take finger prints,
and take into custody non-residents who were exempted from the
provisions of a licensing statute.
91. Having regard to statutory setting and comprehensive jurisdiction
of the Election Court we are satisfied that it is within its powers to
direct a re-poll of particular polling stations to be conducted by the
specialised agency under the Election Commission and report the
results and ballots to the Court. Even a re-poll of postal ballots, since
those names are known. can be ordered taking care to preserve the
secrecy of the vote. The Court may, if necessary, after setting aside
the election of respondent 3 (if there are good grounds therefore
keep the case pending. issue directions for getting available votes.
order recount and/or parital re-poll, keep the election petition
pending and pass final orders holding the appellant elected if only
if valid grounds are established. Such being the wide ranging scope
of implied powers we are in agreement with the Icarned Addl.
Solicitor General that all the reliefs the appellant claims are within
the Court’s power to grant and Sri Rao’s alarm is unfounded.
92. Diffusion, even more elaborate discussion, tends to blur the
precision of the conclusion in a judgment and so it is meet that we
synopsize the formulations. Of course, the condensed statement
we make is for convenience, not for exclusion of the relevance or
attenuation of the binding impact of the detailed argumentation.
For this limited purpose, we set down our holdings:
(1) (a) Article 329(b) is a blanket ban on litigative challenges to
electoral steps taken by the Election Commission and its officers
for carrying forward the process of election to its culmination in
the formal declaration of the result
(b) Election, in this context. has a very wide connotation
commencing from the Presidential notification calling upon
the electorate to elect and culminating in the final declaration
of the returned candidate.
(2) (a) The Constitution contemplates a free and fair election and vests
comprehensive responsibilities of superintendence, direction and
control of the conduct of elections in the Election Commission.
This responsibility may cove powers, duties and functions of many
sorts, administrative or other, depending on the circumstances.
(b) Two limitations at least are laid on its plenary character in
the exercise thereof. Firstly, when Parliament or any State
Legislature has made valid law relating to or in connection
with elections, the Commission, shall act in conformity with,
not in violation of, such provisions but where such law is
silent Article 324 is a reservoir of power to act for the avowed
purpose of, not divorced from, pushing forward a free and fair
election with expedition. Secondly, the Commission shall be
responsible to the rule of law, act bona fide and be amenable
to the norms of natural justice in so far as conformance to such
canons can reasonably and realistically be required of it as
fairplay in-action in a most important area of the constitutional
order, viz.. elections. Fairness does import an obligation to
see that no wrong-doer candidate benefits by his own wrong.
To put the matter beyond doubt, natural justice enlivens and
applies to the specific case of order for total re-poll, although
not in full panoply but in flexible practicability. Whether it has
been complied with is left open for the Tribunal’s adjudication.
(3) The conspectus of provisions bearing on the subject of elections
clearly expresses the rule that there is a remedy for every wrong
done during the election in progress although it is postponed to the
post-election stage and procedure as predicated in Article 329(b)
and the 1951 Act. The Election Tribunal has, under the various pro-
visions of the Act, large enough powers to give relief to an injured
candidate if he makes out a case and such processual amplitude of
power extends to directions to the Election Commission or other
appropriate agency to hold a poll, to bring up the ballots or do other
thing necessary for fulfilment of the jurisdiction to undo illegality
and injustice and do complete justice within the parameters set by
the existing law.
93. In sum, a pragmatic modus vivendi between the Commission’s
paramount constitutional responsibility vis-a-vis elections and the
rule of law vibrant with fair acting by every authority and remedy
for every right breached, is reached.
94. We conclude stating that the bar of Article 329(b) is as wide as
the door of Section 100 read with Section 98. The writ petition
is dismissible but every relief (given factual proof) now prayed
for in the pending election petition is within reach. On this view
of the law ubi jus ibi remedium is vindicated, election injustice
is avoided, and the constituency is allowed to speak effectively.
In the light of and conditioned by the law we have laid down, we
dismiss the appeal. Where the dispute which spirals to this Court
is calculated to get a clarification of the legal calculus in an area
of national moment, the parties are the occasion but the people are
the beneficiaries, and so costs must not be visited on a particular
person. Each party will bear his own costs.
95. A word of need for Counsel. Shri Soli Sorabjee did, with
imaginative, yet emphatic. clarity and pragmatic, yet persuasive,

advocacy, belight the twilit, yet sensitive, zones of the electoral
law; Shri P. P. Rao did, with feeling for justice and wrestling
with law, drive home the calamities of our system if right did
not speak to remedy; and Shri Phadke did, without overlapping
argument, but with unsparing vigour, bring out the legal dynamics
of quick elections and comprehensive corrections. We record our
appreciation to the bar whose help goes a long way for the Bench
to do justice
GOSWAMI, J. (for himself and Shinghal, J.) (concurring)-This
appeal by special leave is directed against the judgment of the
Delhi High Court dismissing the writ application of the appellant
under Article 226 of the Constitution.
97. By a notification of February 10, 1977, made under Section 14
of the Representation of the People Act, 1951, (briefly the Act),
the President called upon the Parliamentary Constituencies to
elect members to the House of the People in accordance with the
provisions of the Act and the rules and orders made thereunder.
Simultaneously, a notification was issued by the Chief Election
Commissioner with a calendar of dates for different Parliamentary
Constituencies in the country. In this appeal we are concerned with
13-Ferozepore Parliamentary Constituency in the State of Punjab
where the poll was scheduled to be held on March 15, 1977, and
March 23 was fixed as the date before which the election shall be
completed. Counting, according to the schedule, was to commence
on March 20, 1977 and it actually continued on March 21, 1977.
This Parliamentary Constituency consisted of nine Assembly
Constituencies including the Fazilka and Zira, Assembly segments.
98. We may now briefly state the appellants’ case so far as it is
material :-
98A. The poll in the entire Parliamentary Constituency was
peacefully over on March 16, 1977. Counting in five Assembly
segments was completed on March 20, 1977, and in the remaining
four it was completed on March 21. The Assistant Returning
Officers made entries in the result sheets in Form 20 and announced
the number of votes received by each candidate in the Assembly
segments. No recounting was asked for by any candidate or his

polling agent in any segment. Copies of the result sheets in Form
20 were handed over to the candidates or to their polling agents.
The ballot papers and the result sheets of all the nine Assembly
segments were transmitted by the Assistant Returning Officers
concerned to the Returning Officer at the Headquarters. According
to the result sheets the appellant, who was the Congress candidate,
secured 1,96,016 votes, excluding postal ballots, as against his
nearest rival candidate, respondent 3, belonging to the Akali
Party, who secured 1,94,095 votes, excluding postal ballots. The
margin of votes between the appellant and respondent 3 at that
stage was 1921. There were 769 postal ballots. As per programme,
counting of postal ballot papers was started by the Returning
Officer (respondent 2) at 3.00 p.m. on March 21. 248 ballot papers
out of 769 were rejected in the counting. At this stage, it is said,
respondent 3 and his son incited an unruly mob of his supporters to
raid the office of the Returning Officer as a result of which a grave
situation was created in which many officers received injuries.
The Returning Officer was abused and was threatened that his
son and other members of his family would be murdered. All the
postal ballot papers, except those which had been rejected, were
destroyed by the mob. Some ballot papers of Fazilka Assembly
segment are also said to have been destroyed by the mob in the
course of their transit to the office of the Returning Officer. The
Assistant Returning Officer of the Zira Assembly segment, on his
way to the office of the Returning Officer, was attacked by the mob
and some of the envelopes containing ballot papers, paper seal
accounts and Presiding Officers’ diaries were snatched away from
him. However the result sheets in Form 20 of all the Assembly
segments in which the counting had been completed by March 21,
21, 1977, could be preserved and were deposited in Government
Treasury, Ferozepore. In view of the violent situation created in the
office of the Returning Officer, he was prevented from ascertaining
the result of the postal ballot papers and declaring the result of the
election. He was made to sign a written report about the happenings
to the Chief Election Commissioner (respondent 1) The above,
briefly, is the version of the appellant.
99. Deputy Commissioners are usually appointed as Returning
Officers and originally Shri G. B. S. Gosal, who was the Deputy
Commissioner, was nominated as the Returning Officer of the
aforesaid constituency, as per notification dated January 29, 1977.
It appears on February 8, 1977, Shri Gosal was transferred and Shri
Gurbachan Singh, a close relation of the appellant, was appointed
as the Deputy Commissioner in place of Shri Gosal. Shri Gurba
Shri Gurbachan Singh (respondent 2) thus became the Returning
Officer. There were complaints and allegations against him and
after being apprised of the same the Chief Election Commissioner
(respondent 1) appointed Shri I. K. K. Menon, Under Secretary,
Election Commission, as an Observer to be present at Ferozepore
from March 16 till March 21 on which date the result was expected
to be declared.
100. On March 22, 1977, the Chief Election Commissioner received
a wireless message from the Returning Officer which may be
quoted :-
Mob about sixteen thousand by overpowering the police attacked
the counting hall where postal ballot papers were being counted.
Police could not control the mob being outnumbered. Part of postal
ballot papers excepting partly rejected ballot papers and other
election material destroyed by the mob. Lot of damage to property
done. The undersigned was forced under duress to give in writing
the following: “The counting of 13 Parliamentary Ferozepore
Constituency has been adjourned due to certain circumstances
which have been mentioned in the application presented by Shri
Mohinder Singh Sayanwala regarding re-poll of the constituency
and on the polling station in which the ballot boxes have been
reported to be tampered with. This will be finally decided on receipt
of instructions from the Election Commission and the result will
be announced thereafter. Counting adjourned and result postponed
till receipt of further instructions from Election Commission.
Incident happened in the presence of Observer at Ferozepore. Mob
also destroyed the ballot papers and other election material and
steel trunks of Fazilka Assembly segment at Ferozepore after the
counting part of election material of Zira Assembly segment was
also snatched and destroyed by the moderat Ferozepore.
On the same day the Chief Election Commissioner received
a written report from the Observer. The Observer also “orally
apprised the Chief Election Commissioner of the various incidents
at the time of poll and counting in various Assembly segments”.
No other report from the Returning Officer was, however, received
on that day.
101. On the materials mentioned above which he could gather on March
22, 1977, the Chief Election Commissioner passed the impugned
order on the same day. It may even be appropriate to quote the
same :
Election Commission of India
New Delhi
Dated March 22, 1977.
Chaitra 1, 1899 (SAKA)
NOTIFICATION
S. O. Whereas the Election Commission has received reports from the
Returning Officer of 13-Ferozepur Parliamentary Constituency that the
counting on March 21, 1977 was seriously disturbed by violence; that
the ballot papers of some of the assembly segments of the parliamentary
constituency have been destroyed by violence; that as a consequence it
is not possible to complete the counting of the votes in the constituency
and the declaration of the result cannot be made with any degree of
certainty;
And whereas the Commission is satisfied that taking all circumstances
into account, the poll in the constituency has been vitiated to such an
extent as to affect the result of the election;
Now, therefore, the Commission, in exercise of the powers vested in it
under Article 324 of the Constitution, Section 153 of the Representation
of the People Act, 1951 and all other powers enabling it so to do, cancels
the poll already taken in the constituency and extends the time for the
completion of the election upto April 30, 1977...
102. The appellant approached the Chief Election Commissioner to
revoke the impugned order and to declare the result of the election,
but without success. That led to the writ application in the High
Court with prayer to issue-

(1) a writ of certiorari calling forth the records for the purpose of
quashing the impugned order; and
(2) a writ of mandamus directing the Chief Election Commissioner
and the Returning Officer to declare the result of the election;
(3) alternatively, a writ of mandamus directing the Chief Election
Commissioner to act strictly in accordance with the provisions
of Section 64A(2) thus confining its directions in regard to postal
ballot papers only.
103. The appellant made three contentions before the High Court.
Firstly, that the Election Commission had no jurisdiction to order
re-poll of the entire Parliamentary Constituency. Secondly, the
impugned order was violative of the principles of natural justice
as no opportunity of a hearing was afforded to the appellant before
passing the order. Thirdly, that the High Court under Article 226 of
the Constitution was competent to go into the matter notwithstanding
the provisions of Article 329(b) of the Constitution.
104. The application was resisted by the Chief Election Commissioner
(respondent 1) and respondent 3, the rival candidate.
105. A preliminary objection was raised by respondents 1 to 3 with
regard to the maintainability of the writ application on the ground
that Article 329(b) of the Constitution was a bar to the High
Court’s entertaining it. Another objection was taken that the writ
petition was not maintainable in view of the amended provisions
of Article 226 of the Constitution. The High Court dismissed the
writ application. The High Court held that Article 324 confers
“plenary executive powers” on the Election Commission and there
were no limitations on the functions contemplated in Article 324.
The High Court observed that the law framed under Article 327
or Article 328 was in aid of the plenary powers already conferred
on the Election Commission under Article 324. and where the law
so made under Article 327 or Article 328 omitted to provide for
a contingency or a situation, the said plenary executive power
relating to conduct of elections conferred upon the Election
Commission by Article 324(1) of the Constitution would become
available to it and the Election Commission would be entitled to
pass necessary orders in the interest of free and fair elections. The
High Court also held that the Returning Officer could not deprive
the candidates of the rights of recount available to them under Rule
63 of the Conduct of Election Rules, 1961, and after going into the
facts observed that “it became impossible for the Returning Officer
to comply with the provisions of Rule 63 (2) to 63(6)”. Repelling
the contention of the appellant that the Commission could not
travel beyond the Act and the rules by simply relying on its powers
under the Constitution, the High Court observed “that calling upon
of the parliamentary constituencies to elect members has to be in
accordance with the provisions of the Act and the rules but it does
not mean that the conduct of elections by the Commission has to
be held only under the Act or the rules. The Election Commission
who is vested with the power of conducting the elections has still to
hold the elections in accordance with the Act and the rules as well
as under the Constitution”. The High Court further held that the
principles of natural justice were not specifically pro vided for in
Article 324 but were “totally excluded while passing the impugned
order”. The High Court further observed that even if the principles
of natural justice were impliedly to be observed before passing
the impugned order the appellant was “heard not only before the
issue of the notification but in any case after the notification”. The
High Court also held that it had no jurisdiction to entertain the
writ petition in view of the bar contained in Article 329(b) of the
Constitution.
106. This appeal has come up for hearing before this Constitution Bench
on a reference by a Two-Judge Bench as substantial questions of
law have arisen as to the interpretation of the Constitution, in
particular Article 324 and Article 329 (b) of the Constitution. We
should, therefore, immediately address ourselves to that aspect of
the matter.
107. What is the scope and ambit of Article 324 of the Constitu- tion?
The Constitution of our country ushered in a Democratic Republic
for the free people of India. The founders of the Constitution took
solemn care to devote a special chapter to elections niched safely
in Part XV of the Constitution. Originally there were only six
articles in this Part opening with Article 324. The penultimate
article in the chapter, as it stands, is Article 329 which puts a ban on

interference by Courts in electoral matters. We are not concerned
in this appeal with the newly added Article 329A which is the last
Article to close the chapter.
108. Elections supply the visa viva to a democracy. It was, therefore,
deliberately and advisedly thought to be of paramount importance
that the high and independent office of the Election Commission
should be created under the Constitution to be in complete charge
of the entire electoral process commencing with the issue of
the notification by the President to the final declaration of the
result. We are not concerned with the other duties of the Election
Commission in this appeal.
109. Article 324 came to the notice of this Court for the first time in
N. P. Ponnuswami v. Returning Officer, Namakkal Constituency”.
This Court observed:
Broadly speaking, before an election machinery can be brought into
operation, there are three requisites which require to be attended
to, namely, (1) there should be a set of laws and rules making
provisions with respect to all matters relating to, or in connection
with, elections, and it should be decided as to how these laws and
rules are to be made; (2) there should be an executive charged with
the duty of securing the due conduct of elections; and (3) there
should be a judicial tribunal to deal with disputes arising out of or
in connection with elections. Articles 327 and 328 deal with the
first of these requisites, Article 324 with the second and Article
329 with the third requisite.
Further below this Court observed as follows:
Obviously, the Act is a self-contained enactment so far as elections
are concerned, which means that whenever we have to ascertain
the true position in regard to any matter connected with elections,
we have only to look at the Act and the rules made thereunder.
Lower down this Court further observed :
It is now well-recognised that where a right or liability is created
by a statute which gives a special remedy for enforcing it, the
remedy provided by that statute only must be availed of.

...it will be a fair inference from the provisions of the Representation
of the People Act to state that the Act provides for only one
remedy, that remedy being by an election petition to be presented
after the election is over, and there is no remedy provided at any
intermediate stage.
110. Ponnuswami’s case (supra) had to deal with a matter arising out
of rejection of a nomination paper which was the subject-matter of
a writ application under Article 226 of the Constitution which the
High Court had dismissed.
111. With regard to the construction of Article 329(b) it was held that
“the more reasonable view seems to be that Article 229 covers all
‘electoral matters’”. This Court put forth its conclusions in that
decision as follows:
(1) Having regard to the important functions which the Legislatures
recognised to be a matter of first importance that elections should
(2) In conformity with this principle, the scheme of the election law in
this country as well as in England is that no significance should be
attached to anything which does not affect the ‘clection’; and if any
irregularities are committed while it is in progress and they belong
to the category or class which, under the law by which elections
are governed, would have the effect of vitiating the ‘election’
and enable, the person affected to call it in question, they should
be brought up before a special tribunal by means of an election
petition and not be made the subject of a dispute before any Court
while the election is in progress. This Court also explained the
connotation of the word “election” in very wide terms as follows:
It seems to me that the word ‘election’ has been used in Part XV
of the Constitution in the wide sense, that is to say, to connote
the entire procedure to be gone through to return a candidate to
the Legislature. The use of the expression ‘conduct of elections’
in Article 324 specifically points to the wide meaning, and that
meaning can also be read consistently into the other provisions
which occur in Part XV including Article 329(b).
This Court further observed that-
...it (is) clear that the word ‘election’ ‘can be and has been
appropriately used with reference to the entire process which
consists of several stages and embraces many steps, some of which
may have an important bearing on the result of the process.
If the grounds on which an election can be called in question could
be raised at an earlier stage and errors, if any, are rectified, there
will be no meaning in enacting a provision like Article 329(b)
and in setting up a special tribunal. Any other meaning ascribed
to the words used in the article would lead to anomalies, which
the Constitution could not have contemplated, one of them being
that conflicting views may be expressed by the High Court at the
pre-polling stage and by the election tribunal, which is to be an
independent body, at the stage when the matter is brought up
before it.
The above decision is locus-classicus on the subject and the parties
before us seek to derive support from it for their contentions.
112. The important question that arises for consideration is as to the
amplitude of powers and the width of the functions which the
Election Commission may exercise under Article 324 of the
Constitution. According to Mr. Rao, appearing on behalf of the
appellants, there is no question of exercising any powers under
Article 324 of the Constitution which, in terms, refers to “functions”
under sub-article (6). We are, however, unable to accept this
submission since functions include powers as well as duties (see
Stroud’s Judicial Dictionary, p. 1196). It is incomprehensible that
a person or body can discharge any functions without exercising
powers. Powers and duties are integrated with function.
113. Article 324(1) vests in the Election Commission the
superintendence, direction and control of the preparation of the
electoral rolls for, and the conduct of, all elections to Parliament
and to the Legislature of every State and of elections to the offices
of the President and Vice-President held under the Constitution.

Article 324(1) is thus couched in wide terms. Power in any
democratic set-up, as is the pattern of our polity, is to be exercised
in accordance with law. That is why Articles 327 and 328 provide
for making of provisions with respect to all matters relating to or
in connection with elections for the Union Legislatures and for the
State Legislatures respectively. When appropriate laws are made
under Article 327 by Parliament as well as under Article 328 by the
State Legislatures, the Commission has to act in conformity with
those laws and the other legal provisions made thereunder. Even
so, both Articles 327 and 328 are “subject to the provisions” of
the Constitution which include Article 324 and Article 329. Since
the conduct of all elections to the various legislative bodies and
to the offices of the President and the Vice- President is vested
under Article 324(1) in the Election Commission, the framers of
the Constitution took care to leaving scope for exercise of resi-
duary power by the Commission, in its own right, as a creature of
the rules. That seems to be the raison d’etre for the opening clause
in Articles 327 and 328 which leaves the exercise of powers under
Article 324 operative and effective when it is reasonably called for
in a vacuous area. There is, however, no doubt whatsoever that the
Election Commission will have to conform to the existing laws and
rules in exercising its powers and performing its manifold duties for
the conduct of free and fair elections. The Election Commission is
a high-powered and independent body which is irremovable from
office except in accordance with the provisions of the Constitution
relating to the removal of Judges of the Supreme Court and is
intended by the framers of the Constitution to be kept completely
free from any pulls and pressures that may be brought through
political influence in a democracy run on party system. Once the
appointment is made by the President, the Election Commission
remains insulated from extraneous influences, and that cannot be
achieved unless it has an amplitude of powers in the conduct of
elections of course in accordance with the existing laws. But where
these are absent, and yet a situation has to be tackled, the Chief
Election Commissioner has not to fold his hands and pray to God
for divine inspiration to enable him to exercise his functions and to
perform his duties or to look to any external authority for the grant
of powers to deal with the situation. He must lawfully exercise

his power independently, in all matters relating to the conduct of
elections, and see that the election process is completed properly,
in a free and fair manner. “An express statutory grant of power or
the imposi tion of a definite duty carries with it by implication, in
the absence of a limitation, authority to employ all the means that
are usually employed and that are necessary to the exercise of the
power or the performance of the duty That which is clearly implied
is as much a part of a law as that which is expressed.”
114. The Chief Election Commissioner has thus to pass appropriate
orders on receipt of reports from the returning officer with regard to
any situation arising in the course of an election and power cannot
be denied to him to pass appropriate orders. Moreover, the power
has to be exercised with promptitude. Whether an order passed
is wrong, arbitrary or is otherwise invalid, relates to the mode of
exercising the power and does not touch upon the existence of the
power in him if it is there either under the Act or the rules made in
that behalf, or under Article 324(1).
115. Apart from the several functions envisaged by the two Acts and
the rules made thereunder. where the Election Commission is
required to make necessary orders or directions, are there any other
functions of the Commission? Even if the answer to the question
may be found elsewhere, reference may be made to Section 19A
of the Act which, in terms, refers to functions not only under the
Representation of the People Act, 1950 and the Representation of
the People Act, 1951, or under the rules made thereunder, but also
under the Constitution. The Commission is, therefore, entitled to
exercise certain powers under Article 324 itself, on its own right, in
an area not covered by the Acts and the rules. Whether the power
is exercised in an arbitrary or capricious manner is a completely
different question.
116. Mr. Rao submits, referring to Sections 58 and 64A of the Act. that
the Chief Election Commissioner has no power to cancel the poll
in the entire constituency. He submits that this is a case of complete
lack of power and not merely illegal or irregular exercise of power.
He points out that there is a clear provision under Section 63 of
the Act for reordering of poll at a polling station. Similarly under
Section 64A there is provision for declaring the poll at a polling
station void when the Election Commission is satisfied that there
is destruction or loss etc. of ballot papers before counting. Counsel
submits that while law has provided for situations specified in
Section 58 with regard to loss or destruction of ballot boxes and
under Section 64A with regard to loss and destruction of ballot
papers before counting of votes, no provision has been made for
such an unusual exercise of power as the cancellation of the poll
in the entire constituency after it has already been completed
peacefully. It is, therefore, argued that, this is a case of complete
lack of power of the Commission to pass the impugned order.
117. It is clear even from Section 58 and Section 64A that the
Legislature envisaged the necessity for the cancellation of poll and
ordering of re-poll in particular polling stations where situation
may warrant such a course. When provision is made in the Act
to deal with situations arising in a particular polling station, it
cannot be said that if a general situation arises whereby numerous
polling stations may witness serious mal-practices affecting the
purity of the electoral process, that power can be denied to the
Election Commission to take an appropriate decision. The fact
that a particular Chief Election Commissioner may take certain
decisions unlawfully, arbitrarily or with ulterior motive or in mala
fide exercise of power, is not the test in such a case. The question
always relates to the existence of power and not the mode of
exercise of power. Although Section 58 and Section 64A mention
“a polling station” or “a place fixed for the poll” it may, where
necessary, embrace multiple polling stations.
118. Both under Section 58 and under Section 64A the poll that was
taken at a particular polling station can be voided and fresh poll
can be ordered by the Commission. These two sections naturally
envisage a particular situation in a polling station or a place fixed
for the poll and cannot be said to be exhaustive. The provisions
in Sections 58 and 64A cannot therefore be said to rule out the
making of an order to deal with a similar situation if it arises in
several polling stations or even sometimes as a general feature in a
substantially large area. It is, therefore not possible to accept the
contention that the Election Commission has no power to make the
impugned order for a re-poll in the entire constituency.

119. Mr. Rao submits that once the Presidential notification has
been made, it is left to the President alone to amend or alter the
notification and power, in an appropriate case, may be exercised by
the President in which case the action of the President will be on the
advice of the Cabinet which will be responsible to the Legislature.
He submits that it was not the intention of the Constitution-makers
in the entire scheme of the electoral provisions to entrust such an
extraordinary power to the Election Commission He further submits
that in an appropriate case the President may also promulgate an
ordinance under Article 123(1) of the Constitution cancelling the
poll in the entire constituenсу.
120. The contention that the President can revoke, alter or amend the
notification under Section 14 of the Act or that he can promulgate
an ordinance in an appropriate case does not however answer the
question. The question will have to be decided on the scope and
ambit of power under Article 324(1) of the Constitution which
vests the conduct of elections in the Election Commission. It is
true that in exercise of powers under Article 324 (1) the Election
Commission cannot do some thing impinging upon the power of
the President in making the notification under Section 14 of the
Act. But after the notification has been issued by the President, the
entire electoral process is in the charge of the Election Commission
and the Commission is exclusively responsible for the conduct of
the election without reference to any outside agency. We do not
find any limitation in Article 324 (1) from which it can be held
that where the law made under Article 327 or the relevant rules
made thereunder do not provide for the mechanism of dealing
with a certain extraordinary situation, the hands of the Election
Commission are tied and it cannot independently decide for itself
what to do in a matter relating to an election. We are clearly
of opinion that the Election Commission is competent in an
appropriate case to order re-pol of an entire constituency where
necessary. It will be an exercise of power within the ambit of its
functions under Article 324. The submission that there is complete
lack of power to make the impugned order under Article 324 is
devoid of substance.

121. The ancillary question which arises for consideration is that when
the Election Commission amended its notification and extended
the time for completion of the election by ordering a fresh poll, is it
an order during the course of the process of ‘election’ as that term
is understood?
122. As already pointed out, it is well-settled that election covers the
entire process from the issue of the notification under Section 14
to the declaration of the result under Section 66 of the Act. When
a poll that has already taken place has been cancelled and a fresh
poll has been ordered, the order therefor, with the amended date,
is passed as an integral part of the electoral process. We are not
concerned with the question whether the impugned order is right
or wrong or invalid on any account. Even if it is a wrong order
it does not cease to be an order passed by a competent authority
charged with the conduct of elections with the aim and object of
completing the elections. Although that is not always decisive, the
impugned order itself shows that it has been passed in the exercise
of power under Article 324(1) and Section 153 of the Act. That
is also the correct position. Such an order, relating, as it does, to
election within the width of the expression as interpreted by this
Court, cannot be questioned except by an election petition under
the Act.
123. What do the appellants seek in the writ application? One of
their prayers is for declaration of the result on the basis of the
poll which has been cancelled. This is nothing short of seeking
to establish the validity of a very important stage in the election
process, namely, the poll which has taken place and which was
countermanded by the impugned order. If the appellants succeed,
the result may, if possible, be declared on the basis of that poll,
or some other suitable orders may be passed. If they fail, a fresh
poll will take place and the election will be declared on the basis
of the fresh poll. This is, in effect, a vital issue which relates to
questioning of the election since the election will be complete
only after the fresh poll on the basis of which the declaration of
the result will be made. In other words, there are no two elections
as there is only one continuing process of election. If, therefore,
during the process of election, at an intermediate or final stage,

the entire poll has been wrongly cancelled and a fresh poll has
been wrongly ordered, that is a matter which may be agitated
after declaration of the result on the basis of the fresh poll. by
questioning the election in the appropriate forum by means of an
election petition in accordance with law. The appellants, then, will
not be without a remedy to question every step in the electoral
process and every order that has been passed in the process of the
election including the countermanding of the earlier poll. In other
words, when the appellants question the election after declaration
of the result on the basis of the fresh poll, the election Court will
be able to entertain their objection with regard to the order of the
Election Commission countermanding the earlier poll, and the
whole matter will be at large. If for example, the election Court
comes to the conclusion that the earlier poll has been wrongly
cancelled, or the impugned order of the Election Commission is
otherwise invalid, it will be entitled to set aside the election on the
basis of the fresh poll and will have power to breathe life into the
countermanded poll and to make appropriate directions and orders
in accordance with law. There is, therefore, no foundation for a
grievance that the appellants will be without any remedy if their
writ application is dismissed. It has in fact been fairly conceded
by Counsel for the other side that the election Court will be able
to grant all appropriate relief and that the dismissal of the writ
petition will not prejudice the appellants.
124. Indeed it has been brought to our notice that an election petition
has been filed by the appellants, ex abundanti cautela, in the High
Court of Punjab and Haryana, challenging the election which has
since been completed on the basis of a fresh poll ordered by the
Election Commission. The High Court of Punjab and Haryana will
therefore be to decide that petition in accordance with law.
125. It is submitted by Mr. Rao that in Ponnuswami (supra) the question
was of improper rejection of nomination paper which is clearly
covered by Section 100 (1) (c) of the Act. Counsel submits that
the only ground which can be said to be raised in the election
petition, in the present case, is Section 100 (1) (d) (iv), namely,
non-compliance with the provisions of the Constitution or of the
Representation of the People Act, 1951, or of any rules or orders

made under that Act. According to Counsel, there is no non-
compliance with Article 324 of the Constitution as the Election
Commission has no power whatsoever to pass the impugned order
under Article 324 of the Constitution. That, according to him,
is not “non-compliance with the provisions of the Constitution”
within the meaning of Section 100 (1) (d) (iv). We are unable to
accept this submission for the reasons already given. The Election
Commission has passed the order professedly under Article 324
and Section 153 of the Act. We have already held that the order is
within the scope and ambit of Article 324 of the Constitution. It,
therefore, necessarily follows that if there is any illegality in the
exercise of the power under Article 324 or under any provision of
the Act, there is no reason why Section 100(1) (d) (iv) should not
be attracted to it. If exercise of a power is competent either under
the provisions of the Constitution or under any other provision of
law, any infirmity in the exercise of that power is, in truth and
substance, on account of non-compliance with the provisions of
law, since law demands of exercise of power by its repository, as
in a faithful trust, in a proper, regular, fair and reasonable manner.
(See also Durga Shanker Mehta v. Thakur Raghuraj Singh)
126. The above being the legal position, Article 329(b) rules out the
maintainability of the writ application. Article 329 (b) provides
that “notwithstanding anything in this Constitution no election to
either House of Parliament ..shall be called in question except by an
election petition presented to such authority and in such manner as
may be provided for by or under any law made by the appropriate
Legislature”. It is undisputed that an election can be challenged
only under the provisions of the Act. Indeed Section 80 of the Act
provides that “no election shall be called in question except by an
election petition presented in accordance with the provisions of”
Part VI of the Act. We find that all the substantial reliefs which the
appellants seek in the writ application, including the declaration
of the election to be void and the declaration of appellant 1 to
be duly elected, can be claimed in the election petition. It will be
within the power of the High Court, as the election Court, to give
all appropriate reliefs to do complete justice between the parties.
In doing so it will be open to the High Court to pass any ancillary

or consequential order to enable it to grant the necessary relief
provided under the Act. The writ application is therefore barred
under Article 329 (b) of the Constitution and the High Court rightly
dismissed it on that ground.
127. In view of our conclusion that the High Court had no jurisdiction to
entertain the writ application under Article 226 of the Constitution,
it will not be correct for us, in an appeal against the order of the
High Court in that proceeding, to enter into any other controversy,
on the merits, either on law or on facts, and to pronounce finally on
the same. The pre-eminent position conferred by the Constitution
on this Court under Article 141 of the Constitution does not
envisage that this Court should lay down the law, in an appeal like
this, on any matter which is required to be decided by the election
Court on a full trial of the election petition, without the benefit
of the opinion of the Punjab and Haryana High Court which has
the exclusive jurisdiction under Section 80A of the Act to try the
election petition. Moreover, a statutory right to appeal to this Court
has been provided under Section 116A, on any question, whether
of law or fact, from every order made by the High Court in the
dispute.
128. So, in view of the scheme of Part VI of the Act, the Delhi High
Court could not have embarked upon an enquiry on any part of
the merits of the dispute. Thus it could not have examined the
question whether the impugned order was made by the Election
Commission in breach of a rule of natural justice. That is a matter
relating to the merits of the controversy and it is appropriately for
the election Court to try and decide it after recording any evidence
that may be led at the trial. It may be that if we pronounce on the
question of the applicability of the rule of natural justice, the High
Court will be relieved of its duty to that extent. But it has to be
remembered that even for the purpose of deciding that question,
the parties may choose to produce evidence, oral or documentary,
in the trial Court. We therefore refrain from expressing any opinion
in this appeal on the question of the violation of any rule of natural
justice by the Election Commission in passing the impugned order.

129. At the same time we would like to make it quite clear that any
observation. on a question of law or fact, made in the impugned
judgment of the Delhi High Court, bearing on the trial of the
election petition pending in the Punjab and Haryana High Court,
will stand vacated and will not come in the way of that trial. That
High Court will thus be free to decide the petition according to
the law. We would also like to make it quite clear. with all respect
to the learned Judges who have delivered a separate judgment,
that we may not be taken to have agreed with the views expressed
therein about the applicability of audi alteram partem or on the
applicability of the guidelines in Sections 58 and 64A to the facts
and circumstances of this case, or the desirability of ordering a re-
poll in the whole constituency, or the ordering of a re-poll of postal
ballots etc. Election is a long, elaborate and complicated process
and, as far as we can see, the rule of audi alteram partem, which is
in itself a fluid rule. cannot be placed in a strait-jacket for purposes
of the instant case. It has also to be remembered that the impugned
order of the Election Commission could not be said to be a final
pronouncement on the rights of the parties as it was in the nature
of an order covering an unforeseen eventuality which had arisen
at one stage of the election. The aggrieved party had all along a
statutory right to call the entire election in question, including the
Commission’s order, by an election petition under Section 80 of
the Act, for the trial of which an elaborate procedure has been laid
down in the Act. Then, as has been stated, there is also a right
of appeal under Section 116A. These and perhaps other relevant
points may enter the scales in considering at the trial of the election
petition whether there may not be sufficient justification to negative
the existence of any implied duty on the part of the Commission,
at that stage, to hear any party before taking its decision to order
or not to order a re-poll. We do not therefore think it necessary
or desirable to foreclose a controversy like this by any general
observations and will leave any issue that may arise from it for
trial and adjudication by the election Court.
130. Being not altogether certain of all the facts and circumstances
that may be made available, in the appropriate forum, it may be
a premature exercise by this Court even to lay down guidelines

when there is no hide-bound formula of rules of natural justice to
operate in all cases and at all times when a decision has to be made.
Justice and fair play have often to be harmonised with exigencies
of situations in the light of accumulated totality of circumstances
in a given case having regard to the question of prejudice not to
the mere combatants in an electoral contest but to the real and
larger issue of completion of free and fair election with rigorous
promptitude. Not being adequately informed of all the facts and
circumstances, this Court will not make the task of the election
Court difficult and embarrassing by suggesting guidelines in a
rather twilight zone.
131. As we find no merit in this appeal, it is dismissed but, in the
circumstances of the case, there will be no order as to the costs in
this Court.

26. MUKESH NAYAK vs. BRIJENDRA PRATAP SINGH
(ELECTION PETITION NO. 32 OF 2009) SCC
OnLine MP 627
CASE
DETAILS 24.12.2009
R.C. Mishra, J.
Election of the returned candidate was challenged
inter-alia on the ground that irregularities in counting
ISSUES
of votes were committed through tampering of
EVMs.
The Hon’ble Court rejected the Petition referring to
the earlier judgment passed by the Karnataka High
Court in Michael B, Fernandes v. C.K.Jaffer Sharif,
DECISIONS
AIR 2004 Karnataka 289 wherein the Hon’ble Court
had the occasion to analyze these claims regarding
functional efficacy of EVM.
SUMMARY
The petitioner has filed an election petition whereby the election of
the retuned candidate was challenged inter-alia on the ground that
irregularities in counting of votes were committed through tampering
of EVMs.
The Hon’ble Court rejected the Petition by referring the earlier judgment
passed by the Karnataka High Court in Michael B, Fernandes v. C.K.
Jaffer Sharif, AIR 2004 Karnataka 289 wherein the Honble Court
had the occasion to analyze these claims regarding functional efficacy
of EVM by examining one of the scientist of the Bharat Electronic
Limited (in short B.E.L.) as the Court witness who was also cross-
examined at Length.
The Hon’ble Court had further observed that since the petitioner
raised doubt as to fairness or impartiality of the officials engaged in
the counting process, he was under an obligation to demonstrate as
to how the EVMs could be tampered with to get the desired result.
However, no expert opinion was placed on record regarding the chances
of misalignment of EVMs. On the other hand, correctness of all the
technical aspects of the matter, as reflected as FAQs and the Press Note

issued and uploaded on its website by Election Commission of India,
has already been verified on the judicial side in Michael B. Fernandes’s
case (supra). Accordingly, the EVM is a foolproof device for counting
of votes. In this view of the matter, any further probe into the allegation
made by the petitioner regarding possibility of malfunctioning and
tampering of the EVMs used in the counting of votes in 17th, 18th
and 19th rounds or non-inclusion of the EVM pertaining to polling
booth No. 128 of Bada Gaon Sarsela would be a futile exercise. The
averments regarding error in counting of postal ballot papers also do
not assume any significance in view of the fact that it precedes the
counting of votes through EVMs.
ORDER
R.C. Mishra, J.
1. This order shall govern disposal of LA. Nu. 43/2009, which is
an application, under Order VII, Rule 11 of the Code of Civil
Procedure (for brevity “the Code”) read with section 86 of the
Representation of People Act, 195 l (for short ·’the Act”), seeking
rejection of this election petition at the threshold on the following
grounds -
(i) The petition is lacking in material facts and particulars,
(ii) The petition does not disclose any cause of action,
(iii) The petition is not supported by any affidavit in Form 25.
(iv) The annexures filed along with the petition are not attested or
verified as true copies by the Petitioner.
(v) Material contradictions exist between the contents of
verification clause and those of the affidavit filed in support of
the pleadings.
2. In this petition, election of returned candidate viz. the respondent to
M.P. Legislative Assembly Constituency No. 58 Pawai (hereinafter
referred to as the Constituency’) has been called in question on the
ground of irregularities in the counting of votes with a prayer for
a direction for recounting of the votes polled as well as the postal

ballot papers received in the Constituency. The petitioner has also
sought a declaration that irregularities committed by the Returning
Officer in counting the votes have vitiated the entire process of
election and has further entreated to punish the persons found
involved therein.
3. Election to the Constituency was held on 27-11-2008 in which
as many as 18 candidates were in the fray. The petitioner and
the respondent contested the election respectively as the official
candidates of Bhartiya Janshakti Party and Bhartiya Janta Party.
Counting of votes through Electronic Voting Machines (EVMs)
was scheduled to take place on 8-12-2008. The petitioner had
appointed Devendra Kumar Tiwari, Rajaram Singraul, Rajkumar,
Ramsewak Chhotelal Pathak and Shri C. L. Singraul as counting
agents whereas one Kedar Prasad, acted as agent of another
candidate namely Kamlesh Dwivedi for the purpose. As per the
result notified after conclusion of the counting, the respondent was
declared duly elected, as he had secured 39921 votes whereas his
nearest rival viz. the petitioner could get 39011 votes.
4. According to the petitioner,-
(i) Till 16th round of counting, that was concluded at about 16:00
hours, he was leading as against the respondent by a margin of
3779 votes. However, the administrative officers involved in
the process of counting were able to gather from the outcomes
of the process of counting in other Constituencies that the
ruling Bhartiya Janta Party, represented by the respondent,
was again going to form Government in the State. As an
obvious reaction, they suddenly left the counting room and
even on being asked the reason for doing so, did not give any
logical reply. Their explanation that they were leaving for
lunch was also not satisfactory as breaks for the purpose had
already been availed of at 13:00 and 14:30 hours.
(ii) At about 16:50 hours, brother of the respondent namely
Lokendra Singh and his companion Mahendra Yadav started
hurling abuses and throwing chairs on the partition providing
separate spaces to the agents and the officers of Election

Commission in the counting room. Finding that the situation
was a complete chaos, the officers appointed by the Election
Commission not only shifted 8 EVMs which were yet to
be used for counting of votes but also dragged his counting
agents out of the room. Thus, counting in the 17th, 18th and
19th rounds could not be done in presence of his counting
agents.
(iii) Further, the moment the counting agents came out of the room,
the entry passes issued in their favour were torn into pieces by
the police authorities present there. Although, they preferred
an oral complaint to the Superintendent of Police, Panna and
also submitted an affidavit to the effect that on 8-12-2008 after
4.30 p.m. they were expelled from the counting room by the
police officials yet, no action was taken presumably in view
of the fact that by that time 80% of the election results in the
State were formally announced.
(iv) Immediately thereafter, to his utter dismay and surprise, the
respondent was declared elected by exhibiting that in the
17th, 18th and 19th rounds, he had received 237, 634 and 355
votes whereas the respondent had secured 1242, 2702 and
1971 votes. This apart, his counting agents were compelled
to append signatures on the tabulation sheets showing result
of those rounds based on the readings of 8 EVMs despite the
fact that procedure prescribed under the Election Law for
counting of votes in their presence was not followed. One of
the counting agents namely Sitaram Patel made an application
for recounting of votes recorded by 8 EVMs in 17th, 18th and
19th rounds on the ground that votes were not counted before
him. Another counting agent viz. K. K. Pandey also made
a complaint to the effect that the EVM in respect of polling
booth No. 128 of Bada Gaon Sarsela was not at all included
in the process of counting. However, the Returning Officer
refused to acknowledge receipt of these complaints.
(v ) Thus, the figures reflected in the tabulation chart, prepared
as per Proforma 20 prescribed under Rule 56C(2)(c), were

erroneous, incorrect and bogus. In such a situation, he himself
faxed applications to the Returning Officer at 18:46 and 19:10
hours for recounting of 17th, 18th and 19th rounds but no
action was taken.
5. In the light of these averments, the petitioner has claimed that
in case a recounting is done he would emerge as victorious by a
considerable margin of votes.
6. As pointed out already, the prayer for rejection of the Election
Petition has been made not only on the ground of non-compliance
with the statutory procedural requirements but also for the reason
that the petition does not disclose any cause of action.
7. In reply, the petitioner has submitted that even if it is assumed that
the pleadings or the contents of affidavit suffer from any deficiency,
the election petition cannot be dismissed in limine. To buttress
the contention, reference has been made to leading decision of
the Apex Court in Murarka Radhey Shyam Ram Kumar vs. Roop
Singh Rathore, AIR 1964 SC 1545.
8. At the outset, it may be observed that the objection as contained in
ground No. (iii) [above] regarding non-submission of affidavit in
Form No. 25 prescribed by Rule 94A of the Conduct of Elections
Rules, 1961 and the reply that the corresponding particulars may
be amended and amplified are apparently misconceived in view
of the fact that election in question has not been challenged on the
ground of any corrupt practice enumerated in Section 123 of the
Act. Further, the ground nos.(iv) and (v) [supra] can be dealt with
under the doctrine of curability. As such, the petition cannot be
rejected on any one of the above mentioned three grounds.
9. The question that arises for consideration is as to whether the
petition deserves rejection on the ground Nos. (i) and (ii) [ibid]
relating to the objection as to non-pleading of material facts and
materials and non-disclosure of cause of action respectively.
10. The expression ‘material facts’ has neither been defined in the Act
nor in the Code. According to the dictionary meaning, ‘material’
means ‘fundamental’, ‘vital’, ‘basic’, ‘cardinal’, ‘central’, ‘crucial’,

‘decisive’, ‘essential’, ‘pivotal’, indispensable’, ‘elementary’ or
‘primary’ (Harkirat Singh vs. Amarinder Singh, AIR 2006 SC 713
referred to). Hence, material facts are facts which if established
would give the petitioner the relief asked for even if the respondent
had not appeared. Further, for deciding the application under
Order VII, Rule 11 of the Code, the averments in the petition are
germane and the pleas taken by the respondent would be wholly
irrelevant at that stage. This apart, rejection of plaint in exercise of
the power under Order VII, Rule 11 would be necessitated only if
on a meaningful, not formal reading of the petition it is manifestly
vexatious, and meritless, in the sense of not disclosing a clear right
to challenge the election [See. T. Arivandandam vs. T. V. Satyapal,
(1977) 4 SCC 467].
11. Examining the pleadings of the petitioner in the light of these
guiding principles, one may easily conclude that the petitioner has
only suspected a foul play in the process of counting resulting into
his defeat in spite of the fact that he was leading upto last but 3
rounds.
12. Law on the subject has been claborately explained by the Apex
Court in T. A. Ahammed Kabeer vs. A. A. Azez. (2003) 5 SCC 650
in the following terms-
(1) In an election petition wherein the limited relief sought for
is the declaration that the election of the returned candidate
is void on the ground under section 100(1)(d)(iii) of the Act,
the scope of enquiry shall remain confined to two questions:
(a) finding out any votes having been improperly cast in
favour of the returned candidate, and (b) any votes having
been improperly refused or rejected in regard to any other
candidate. In such a case an enquiry cannot be held into and
the election petition decided on the finding (a) that any votes
have been improperly cast in favour of a candidate other than
the returned candidate, or (b) any votes were improperly
refused or rejected in regard to the returned candidate.
(2) A recrimination by the returned candidate or any other party
can be filed under section 97(1) in a case where in an election

petition an additional declaration is claimed that any candidate
other than the returned candidate has been duly elected.
(3) For the purpose of enabling an enquiry that any votes have
been improperly cast in favour of any candidate other than the
returned candidate or any votes have been improperly refused
or rejected in regard to the returned candidate the Election
Court shall acquire jurisdiction to do so only on two conditions
being satisfied: (1) the election petition seeks a declaration
that any candidate other than the returned candidate has been
duly elected over and above the declaration that the election of
the returned candidate is void; and (ii) a recrimination petition
under section 97(1) is filed.
(4) A recrimination petition must satisfy the same requirements
as that of an election petition in the matter of pleadings,
signing and verification as an election petition is required to
fulfil within the meaning of section 83 of the Act and must be
accompanied by the security or the further security referred to
in sections 117 and 118 of the Act.
(5) The bar on enquiry enacted by section 97 read with section
100(1)(d)(iii) of the Act is attracted when the validity of the
votes is to be gone into and adjudged or in other words the
question of improper reception, refusal or rejection of any
vote or reception of any vote which is void is to be gone
into. The bar is not attracted to a case where it is merely a
question of correct counting of the votes without entering
into adjudication as to propriety, impropriety or validity of
acceptance, rejection or reception of any vote. In other words,
where on a re-count the Election Judge finds the result of re-
count to be different from the one arrived at by the Returning
Officer or when the Election Judge finds that there was an
error of counting the bar is not attracted because the court
in a pure and simple counting carried out by it or under its
directions is not adjudicating upon any issue as to improper
reception, refusal or rejection of any vote or the reception of
any vote which is void but is performing mechanical process

of counting or recounting by placing the vote at the place
where it ought to have been placed. A case of error in counting
would fall within the purview of sub- clause (iv), and not sub-
clause (iii) of clause (d) of sub-section (1) of section 100 of the
Act” (Emphasis supplied)
13. Accordingly, when a petition is for relief of scrutiny and recount on
the allegation of miscount, the petitioner has to offer proof of errors
in counting and if errors in counting are prima facie established
a recount can be ordered. However, fact of the matter is that in
the case on hand, scope of inquiry is limited to the correctness
and authenticity of counting that was carried out by means of
EVMs whereas all doubts and queries regarding the functioning of
EVMs have already been answered in FAQs of electronic voting
machines published by the Commission on the website. The
relevant questions and answers may be reproduced as under:
“Q. 18. Is it possible to vote more than once by
pressing the button again and again?
Ans. No
Q. 21. Is it possible to program the EVMs in such
a way that initially, say upto 100 votes, votes will
be recorded exactly in the same way as the ‘blue
buttons’ are pressed, but thereafter, votes will be
recorded only in favour of one particular candidate
irrespective of whether the ‘blue button against that
candidate or any other candidate is pressed?
Ans. The microchip used in EVMs is seated at the time
of import. It cannot be opened and any rewriting of
program can be done by anyone without damaging
the chip. There is, therefore, absolutely no chance of
programming the EVMs in a particular way to select
any particular candidate or political party.
Q. 28. in the conventional system, before the
commencement of poll, the Presiding Officer shows
to the polling agents present that the ballot box to be

used in the polling station is empty. Is there any such
provision to satisfy the polling agents that there are
no hidden votes already recorded in the EVMs?
Ans. Yes
Before the commencement of poll, the Presiding
Officer demonstrates to the polling agents present
that there are no hidden votes already recorded in the
machine by pressing the result button. Thereafter, he
will conduct a mock poll by asking the polling agents
to record their votes and will take the result to satisfy
them that the result shown is strictly according to the
choice recorded by them. Thereafter, the Presiding
Officer will press the clear button to clear the result
of the mock poli before commencing the actual poll.
Q. 29. How can one rule out the possibility of
recording further votes at any time after close of the
poll and before the commencement of counting by
interested parties?
Ans. As soon as the last voter has voted, the Poiling
Officer in-charge of the Control Unit will press the
‘Close’ Button. Thereafter, the EVM will not accept
any vote. Further, after the close of poll the Balloting
Unit is disconnected from the Control Unit and kept
separately. Votes can be recorded only through the
Balloting Unit. Again the Presiding officer, at the
close of the poll will hand over to each polling agent
present an account of votes recorded. At the time of
counting of votes, the total will be tallied with this
account and if there is any discrepancy, this will be
pointed out by the Counting Agents. (Underlined by
me)
14. From the corresponding Press Note’, copy of which has also been
placed by the respondent on record, one may gather the following
information about EVMs used by Election Commission of India-

Facts about EVMs used by ECI
(i) ECI-EVMs are manufactured only by Electronics Corporation
of India Limited (Department of Atomic Energy) and Bharat
Electronics Limited (Ministry of Defence), both Central Public
Sector Undertakings, which are entrusted with development
of very high security product/equipment development.
(ii) The ECI-EVMs cannot be reprogrammed.
(iii) The software for this chip is developed in-house by a select
group of engineers in the two PSUs independently from each
other. A select software development group of 2-3 engineers
designs the source code and this work is not sub-contracted.
(iv) The source code is so designed that it allows a voter to cast the
vote only once. The next vote can be recorded only after the
Presiding Officer enables the ballot on the Control Unit. In
between the machine becomes dead to any signal from outside
(except from the Control Unit).
(v) After completion of software design, testing and evaluation
of the software is carried out by an independent testing group
as per the software requirements specifications (SRS). This
ensures that the software has really been written as per the
requirements laid down for its intended use only.
(vi) After successful completion of such evaluation, machine
code of the source programme code known as hex-code
(not the source code itself) is given to the micro controller
manufacturer for fusing in the micro controllers. From this
machine code, the source code cannot be read. Source code is
never handed over to anyone outside the software group.
(vii) Micro controller manufacturer initially provides engineering
samples for evaluation. These samples are assembled into
the EVM, evaluated and verified for functionality at great
length. Bulk production clearance is given to micro controller
manufacturer only after successful completion of this
verification.

(viii) The source code for the EVM is stored under controlled
conditions at all times. Checks and balances are in place to
ensure that it is accessible to authorized personnel only.
(ix) During production, functional testing is done by production
group as per the laid down quality plan and performance test
procedures.
(x) Samples of EVMs from production batches are regularly
checked for functionality by Quality Assurance Group, which
is an independent group within the organizations.
(xi) Certain additional features were introduced in 2006 in ECI-
EVMS such as dynamic coding between Ballot Unit and
Control Unit, installation of real time clock, installation
of full display system and date and time stamping of every
key pressing in EVM. It is important to note that there was
no modification of any type done at this stage in the basic
functions of the machine.
Not comparable with EVMs Abroad
The Commission has come across some comparisons between ECI-
EVМ and EVMs used by foreign countries. Such comparisons are both
misplaced and misguided. Most of the systems used in other countries
are PC based and running on operating Systems. Hence, these could
be vulnerable to hacking. The EVM in India on the other hand is a
fully stand alone machine without being part of any network and
with no provision for any input. As already stated, the software in
the EVM chip is one time programmable and is hurnt into the chip
at the time of manufacture. Nothing can be written on the chip after
manufacture. Thus the ECI-EVMs are fundamentally different from the
voting machines and processes adopted in various foreign countries.
Any surmise based on foreign studies or operating system based EVMs
used elsewhere would be completely erroneous. The ECI-EVMs cannot
be compared with those EVMS.
Complete Procedural Security
The Commission has in place elaborate administrative measures and

procedural checks-and-balances aimed at prevention of any possible
misuse or procedural lapses. These measures include rigorous pre-
election test and inspection of each EVM by the technicians, two level
randomization with the involvement of candidates and their agents,
for the random allotment of the EVMs to various constituencies and
their subsequent dispatch to various polling stations. Preparation of
the EVMs for elections is done in the presence of the candidates/their
agents and sealing of the prepared EVMs is also done in candidate’s
or their agent’s presence. Thread seal are fixed on the EVM where
again, the candidates or their representatives put their own signature
and seals. Paper seals guards against any unauthorized access to the
EVMs after preparation. EVMs are then kept in sealed strong rooms
with provision for the candidates to put their individual seals on the
strong rooms. The EVMs are randomized twice over. The list of EVMs
going to individual polling stations is given to the candidates for them
to check, on the poll day the actual machine, that is used in that polling
station. Furthermore a mock poll is conducted in the presence of
polling agents, when the polling agents can verify, inter-alia, the EVM
numbers. A mock poli certificate is taken before the commencement of
poll After the mock poll the machine is set back to zero and green paper
seal printed at Govt. Security Press is put in, where once again every
polling agent is allowed to put his/her signature. After the polls, the
EVM are also sealed in such a manner that there is no physical access
to any of the buttons on the EVMs. Indeed there is no access to the
EVMs itself since the carrying case is sealed completely. The machines
are put in the strong room again in presence of the candidates, observer
of the commission under video camera surveillance. The strong room
is allowed to be guarded by the supporters of the candidates besides
the police protection provided to strong rooms. At every step, the EVM
is very well protected and elaborate arrangements are in place for the
same.
15. In Michael B. Fernandes vs. C. K. Jaffer Sharief, AIR 2004
Karnataka 289, the Karnataka High Court had the occasion to
analyze these claims regarding functional efficacy of EVM by
examining one of the scientists of the Bharat Electronic Limited (in
short B. E. L.) as the Court witness who was also cross-examined

at length. The findings recorded by the learned Election Judge may
usefully be quoted as under
Voting machine has two major units: one is control unit and other
is balloting unit. Control unit is handled by the Presiding Officer,
who is in-charge of the Polling Booth. The control unit has all the
intelligence in- built. The ballot unit is a, dummy unit or otherwise
called non- intelligence unit. The ballot unit hus buttons and a
lamp for each candidate arranged in a line. The ballot unit is kept
in the polling compartment, 5 metres away from the control unit.
The ballot Unit has a cable permanently attached. At the time of
polling, the cable is connected to the control unit, when the voter
press the button casting the vote to a candidate, the lamp by the side
of the button will glow to indicate that the voting done is proper
and simultaneously in the control unit a heep sound is heard to a
range of 30 ft. The control unit functions in a non- reversible cycle
of voting process.
After the publication of the list of the candidates, the Returning
Officer sets the number of contesting candidates in the control
unit. which functions on a battery specially manufactured and
supplied by B.E.L. The effective life of the battery is 48 hours of
continuous functioning. In the balloting unit the printed ballot
sheet is put behind the transparent screen. The balloting unit is
capable of handling the ballot sheet containing 16 contestants
and on the whole EVM is designed to handle a maximum of 64
contestants at an election. The balloting unit has got 16 buttons
operatable through a panel cut out. After inserting the balloting
paper in the ballot unil, the Returning Officer closes the lid and
put a seal provided by the election commission in presence of
the candidates their agents. The lid and the flaps once closed
and sealed cannot be opened without tampering the seal. The
Returning Officer simultaneously will set the control unit to receive
the information about the number of candidates contesting in the
election. By pressing the last “Can set” button in the control unit,
the number of contesting candidates is recorded. The candidate
set compartment of the control unit is closed and sealed in the

presence of the candidates/their agents. Thereafter the control unit
and the balloting unit are put separately in a carrying cases and
are sealed by the Returning Officer in presence of the candidates/
agents. The carrying cases containing control unit and balloting
Unit are delivered to the Presiding Officers on the previous day to
the election and would be carried to the polling booth.
The Polling Officer wilt verify the seals of the carrying cases, tuke
out the control unit and balloting unit, verify the correctness of the
seals. An hour before the polling time, mock poll is conducted to
verify the functional capacity. The agents/candidates are asked to
press the button in the balloting unit to cast their votes. Later on
the “result button” in the micro controller is pressed which display
the number of votes polled. After demonstration of the correctness
of the function, the ‘clear button is pressed which will erase all the
data of the mock poll. After the mock poll, the Presiding Officer
will close the result compartment by putting the seal provided by
the election commission by which the voting machine is ready for
polting.
The voter presents before the Presiding Officer, after verifying the
identity, the Presiding Officer will press the ‘balloting button’ in
the control unit and send the voter to the polling cabin. When the
voter press the ‘balloting button’ casting vote to the candidate of
his choice, the lamp by the side of the button will glow indicating
the correctness of voting. The control unit will give a heep sound
to indicate that the vote casted is registered in the control unit. For
the next vote to be cast, again it is necessary that the ‘balloting
button’ in the control unit is to he pressed by the Presiding Officer,
otherwise, mere pressing of button in the balloting unit by the
voter will be of no consequence. For every next vote to be cust, it
is necessary that the balloting button’ in the control unit is to be
pressed by the Presiding Officer. After polling time is over ‘close
button’ in the control unit is pressed by the Presiding Officer by
which the machine gets locked. Thereafter, the balloting unit is
disconnected from the control unit, they are separately packed
in the carrying cases and sealed in presence of the agents by the

Presiding Officer. Later on they are transported to the counting
centers and ballot unit and control unit are kept in a strong
room before they are taken to the counting centers. At the time
of counting, seals put by the Presiding Officer to the control unit
is verified to ensure that no tampering has taken place. When the
‘result button’ is pressed, machine will display the number of votes
polled against each candidates sequentially.
Control unit has two main devices: one is micro controller and
another is memory. Micro controller is one time programmable
component. Micro controller once fused with program code and
data is unchangeable and irreversible. The memory device is
functionally efficient and retain the voting data without the aid
of a battery. The micro controller will record and register the
voting data by cross checking with the memory for every vote. The
programme code is encrypted and stored in the memory. It is not
possible to replace the memory device in order to play mischief.
If the Memory device is removed, micro controller will detect and
declare that the machine is in error state. The memory device and
one time programmable micro controller are the pivotal devices of
the EVM and they act as tamper proof device for the programme
code and poll data.
If a voter damages the button of the balloting unit or for accidental
reason the button of the balloting unit gets stuck, such errors are
indicated in the control unit. In such cases, a spare balloting unit
is used. The sound of error message is heard in the control unit like
a alert sound, simultaneously the display panel will show letters
“PE” indicating that balloting unit has gone out of order. If the
connecting cable is damaged or cut, letter ‘LE’ is displayed in the
display panel of the control unit with an alert sound and these are
the possible errors that can happen during use of machine during
polling. If there is any error in the memory device, the machine
is declared dead. The weak battery can also lead to error and
the panel display will indicate hy six dash marks. The Presiding
Officer will change the battery and continue polling. The defect in
the battery is a rare phenomenon. If the machine is not functioning,

there will be no battery consumption. The Micro controller
manufactured with a given programme code is only useful for
EVMs made for the elections by the B. E. L. company and cannot
be used for any other purpose. The programme code is encrypted
by out-source agency in the presence of the responsible official of
the BEL and the programme code is a business secret. Out- source
agency would keep the encrypted data as utmost secrecy. It is
further stated that the encrypted code and data is unchangeable
and indelible by anybody, even by the manufacturer. Any attempt
to tamper with the encrypted code would only result in damage
to the machine. But the micro controller and memory cannot be
manipulated by anybody. It is also stated that the EVM is tested
to the temperature condition of 20 degree C to +55 degree C and
electromagnetic radiation also would not affect the functioning
of the machine. The witness categorically states that either by
manipulation or by accident there is no possibility of transfer of
votes from one candidate to another and the machine designed is
fully tamper proof
16. Since the petitioner has raised doubt as to fairness or impartiality
of the officials engaged in the counting process, he is under an
obligation to demonstrate as to how the EVMs could be tampered
with to get the desired result. However, no expert opinion has been
placed on record regarding the chances of misalignment of EVMs.
On the other hand, correctness of all the technical aspects of the
matter, as reflected as FAQs and the Press Note issued and uploaded
on its website by Election Commission of India, has already been
verified on the judicial side in Michael B. Fernandes’s case (supra).
Accordingly, the EVM is a foolproof device for counting of votes.
In this view of the matter, any further probe into the allegations
made by the petitioner regarding possibility of malfunctioning and
tampering of the EVMs used in the counting of votes in 17th, 18th
and 19th rounds or non-inclusion of the EVM pertaining to polling
booth No. 128 of Bada Gaon Sarsela would be a futile exercise.
The averments regarding error in counting of postal ballot papers
also do not assume any significance in view of the fact that it
precedes the counting of votes through EVMs.

17. For these reasons, I am of the view that the petition does not
disclose any material fact necessitating a full-dressed trial.
18. In a democracy the mandate has sacrosanctity. It is to be respected
and not lightly interfered with. When it is contended that the purity
of electoral process has been polluted, weighty reasons must be
shown and established. The onus on the election petitioner is
heavy as he has to substantiate his case by making out a clear
case for interference both in the pleadings and in the trial. Any
casual, negligent or cavalier approach in such serious and sensitive
matter involving great public importance cannot be countenanced
or glossed over too liberally as for fun (Regu Mahesh Rao vs.
Rajendra Pratap Bhanj Dev, AIR 2004 SC 38 referred to).
19. To sum up, even if the averments made in the election petition
are taken at their face value and are accepted in their entirety,
no triable issue between the parties would arise in absence of
complete, precise and specific pleadings in respect of the alleged
irregularities in counting of votes through EVMs. As an obvious
consequence, the petition deserves to be rejected on the ground
Nos. (i) and (ii) [above].
20. In the result, the petition stands rejected, under Order VII, Rule
11(a) of the Code, for want of any cause of action. The parties shall
bear their own costs.
21. A copy of this order be forwarded to the Election Commission as
well as to the Speaker of the State Legislative Assembly.
Petition dismissed.

27. N. CHANDRABABU NAIDU vs. UNION OF INDIA
Writ Petition (C) No. 273 of 2019 [(2019) 15 SCC
377]
CASE
8.04.2019
DETAILS
Ranjan Gogoi CJI, Deepak Gupta, J. and Sanjiv
Khanna J.
ISSUES VVPAT Verification
The Hon’ble Court after recording submissions of
all parties, directed that verification of VVPAT slips
DECISIONS of 5 polling stations per Assembly Constituency or
Assembly Segment of a Parliamentary constituency
should be done.
SUMMARY
The Election Commission submitted that Indian Statistical Institute
[ISI], an expert body, has stated that verification of VVPAT paper trail
of 479 (randomly selected) EVMs would generate over 99% accuracy
in the election results. And, as per Guideline No. 16.6, verification of
VVPAT paper trails would involve 4125 EVMs instead of 479 EVMs
which is eight times more than what has been reported by the ISI.
Additionally, the Election Commission pointed out infrastructure
difficulties, including manpower availability, at that point of time, in
increasing the number of EVMs for verification. It was contended that
the sample verification of the VVPAT paper trail of one EVM is done
by a team of three officers under the direct supervision of the Returning
Officer and the Election Observer of the constituency. The process
takes about an hour. If verification of VVPAT paper trail of 50% of the
EVMs is done as sought for by the Petitioner, the declaration of result
of election could be delayed by 5-6 days.
In this regard, the Hon’ble Court observed that neither the satisfaction
of ECI nor the system in vogue today, is being doubted by the Court in
so far as fairness and integrity is concerned. However, having regard
to the need to generate the greatest degree of satisfaction in all with
regard to the full accuracy of the election results, it was held that the
number of EVMs that would now be subjected to verification so far as
VVPAT paper trail is concerned would be 5 per Assembly Constituency

or Assembly Segments in a Parliamentary Constituency instead of what
is provided by Guideline No. 16.6, namely, one machine per Assembly
Constituency or Assembly Segment in a Parliamentary Constituency.
ORDER
Ranjan Gogoi CJI, Deepak Gupta, J. and Sanjiv Khanna J.
This writ petition has been filed seeking the following reliefs:
“A. Issue a writ of mandamus or any other appropriate
writ, order or direction thereby quashing and
setting aside Guideline No.16.6 of the Manual
on Electronic Voting Machine and VVPAT as
framed and issued by the Election Commission
of India; and
B. Issue a writ of mandamus or any other appropriate
writ, order or direction thereby directing that
minimum of 50% randomized VVPAT paper slip
verification of EVM shall be conducted in every
General and Bye Election in each Assembly
Segment of a Parliamentary Constituency, in
case of Election to the House of the People; and
in each Assembly Constituency, in case of an
election to a State Legislative Assembly; and
C. Pass such other order or direction as it deems fit
in the facts of the present case and in the interest
of justice.”
Guideline No. 16.6 of the Manual on Electronic Voting Machine and
VVPAT in respect of which the first prayer has been made would require
to be specifically noticed to appreciate the issues involved in the writ
petition. We, therefore, deem it appropriate to extract Guideline No.
16.6, which reads as follows:
“16.6. Mandatory Verification of VVPAT Paper
Slips:
Mandatory verification of VVPAT paper slips of

56D of the Conduct of Elections Rules,1961, after
a) In case of General and Bye elections to State
legislative Assemblies, verification of VVPAT
paper slips of randomly selected 01 (one) polling
b) In case of General and Bye elections to the House
of the People, verification of VVPAT paper slips
of randomly selected 01 (one) polling station of
For this mandatory verification of VVPAT paper slips, the following
procedure shall be followed.
16.6.1 The verification of VVPAT paper slips of
randomly selected 01 (one) polling station for
each Assembly Constituency/Segment shall be
taken up after the completion of the last round
of counting of votes recorded in the EVMs.
16.6.2 The random selection of 01 (one) polling station
per Assembly Constituency/Segment shall be
done by Draw of lots, by the Returning Officer
agents and the General Observer appointed by
the Commission for that Constituency.
16.6.3 The draw of lots must be conducted immediately
after the completion of the last round of counting
of votes recorded in the EVMs (Control Units)
in the designated Counting Hall for the particular
Assembly Constituency/Assembly Segment.
16.6.4 A written intimation regarding the conduct of
draw of lots for the random selection of 01 (one)
polling station for verification of VVPAT Slips
shall be given by the Returning Officer to the
Candidates/their election agents well in advance.
16.6.5 The following procedure shall be followed for
the conduct of draw of lots:
a) White colour paper cards of postcard size shall
be used for conducting the draw of lots.
b) Total number of such paper cards should be
equal to total number of polling stations in the
c) The paper cards shall have pre-printed Assembly
Constituency/ Assembly Segment number, AC/
AS name and date of polling on the top, and the
polling station number in the centre. Each digit
of the polling station number shall be atleast 1”
x 1”(1 inch by 1 inch) size and printed in black
ink.
d) The paper cards to be used for draw of lots
should be four- folded in such a way that polling
station number is not visible.
e) Each paper card shall be shown to the candidates/
container.
f) The paper cards shall be kept in the big container
and must be shaken before picking up 01 (one)
slip by the Returning Officer.
16.6.6. The verification of VVPAT paper slips shall be
done in a ‘VVPAT Counting Booth’ (VCB),
specially prepared for this purpose inside the
Counting Hall. The booth shall be enclosed in a
wire mesh just like a bank cashier’s cabin so that
no VVPAT paper slip can be accessed by any
unauthorized person. One of the Counting tables
in the Counting Hall can be converted into the

VCB and can be used for normal counting of
round- wise EVM votes before the count of
VVPAT slips as per random selection after the
completion of round-wise EVM counting.
16.6.7 The Verification count of the VVPAT paper slips
of the randomly selected 01 (one) polling station
shall be conducted strictly in accordance with
the instructions of the Commission on counting
of printed paper slips.
16.6.8 The Returning Officer and Assistant Returning
Officer, as the case may be, shall personally
supervise the counting of VVPAT paper slips
at this booth. The General Observer concerned
shall ensure close and careful observation of the
entire exercise and ensure strict compliance of
the Commission’s instructions.
16.6.9. The above process shall be fully videographed.
16.6.10. After completion of the above process, the
Returning Officer shall give a certificate in the
annexed format (Annexure-30).”
The petitioners, who are 21 in number, are representatives of 21 political
parties, who claim to represent about 70-75% of the total population of
the country and also to represent the entire opposition in the Lok Sabha.
The thrust of the petition is that, to maintain the purity of the electoral
process and to ensure foolproof result of the mandate expressed by the
voters in the forthcoming General Elections of the Lok Sabha as well
as to some Assembly seats in different States it is necessary to increase
the percentage of verification of VVPAT paper trails to atleast 50% of
the EVMs to be used in the forthcoming elections.
The Election Commission of India has not responded very favourably
to the prayers made in the writ petition, as noticed above.
Very broadly, the Election Commission of India (“ECI”) contends that a
query had been posed to the Indian Statistical Institute (“ISI”), namely,
“what would be the reasonable sample size of Polling Stations

where VVPAT slips verification is required to be carried out to
achieve the object of establishing the credibility and integrity of
the electoral process”.
According to the ECI, the said query was posed to an Expert Body,
namely, ISI. In response, the ISI had submitted an elaborate report,
the crux of which is that verification of VVPAT paper trail of 479
(randomly selected) Electronic Voting Machines (“EVMs”) would
generate over 99% accuracy in the election results. It is also pointed out
that as per Guideline No. 16.6 i.e. verification of VVPAT paper trails of
one Assembly Constituency or Assembly Segment in a Parliamentary
Constituency would involve verification of VVPAT paper trail of 4125
EVMs instead of 479 EVMs which is eight times more than what
has been reported by the ISI. Additionally, the ECI has pointed out
infrastructure difficulties, including manpower availability, at this point
of time, in increasing the number of EVMs for verification. According
to the Election Commission of India, the sample verification of the
VVPAT paper trail of one EVM is done by a team of three Officers
under the direct supervision of the Returning Officer and the Election
Observer of the constituency. The process takes about an hour. If what
the petitioner asks for i.e. verification of VVPAT paper trail of 50% of
the EVMs, the declaration of result of election could be delayed by 5-6
days.
In a situation where the ECI, a constitutional body, is satisfied
on the integrity of the EVMs and which is further fortified by the
sample verification of VVPAT paper trail of one EVM per Assembly
Constituency or Assembly Segment in a Parliamentary Constituency,
the exercise sought for by the petitioner would be a futile exercise,
which the Court should not order, it is contended.
We have heard learned counsel for the parties and we have also
interacted with Mr. Jain, Deputy Election Commissioner, who is
personally present in Court.
At the very outset the Court would like to observe that neither the
satisfaction of the Election Commission nor the system in vogue today,
as stated above, is being doubted by the Court insofar as fairness and
integrity is concerned. It is possible and we are certain that the system
ensures accurate electoral results. But that is not all. If the number

of machines which are subjected to verification of paper trail can be
increased to a reasonable number, it would lead to greater satisfaction
amongst not only the political parties but the entire electorate of the
Country. This is what the Court should endeavour and the exercise,
therefore, should be to find a viable number of machines that should be
subjected to the verification of VVPAT paper trails keeping in mind the
infrastructure and the manpower difficulties pointed out by the Deputy
Election Commissioner. In this regard, the proximity to the Election
schedule announced by the ECI must be kept in mind.
Having considered the matter, we are of the view that if the number
of EVMs in respect of which VVPAT paper slips is to be subjected to
physical scrutiny is increased from 1 to 5, the additional manpower
that would be required would not be difficult for the ECI to provide
nor would the declaration of the result be substantially delayed. In fact,
if the said number is increased to 5, the process of verification can be
done by the same team of Polling Staff and supervisors/officials. It is,
therefore, our considered view that having regard to the totality of the
facts of the case and need to generate the greatest degree of satisfaction
in all with regard to the full accuracy of the election results, the number
of EVMs that would now be subjected to verification so far as VVPAT
paper trail is concerned would be 5 per Assembly Constituency or
Assembly Segments in a Parliamentary Constituency instead of what
is provided by Guideline No. 16.6, namely, one machine per Assembly
Constituency or Assembly Segment in a Parliamentary Constituency.
We also direct that the random selection of the machines that would be
subjected to the process of VVPAT paper trail verification as explained
to us by Mr. Jain, Deputy Commissioner of the Election Commission,
in terms of the guidelines in force, shall apply to the VVPAT paper trail
verification of the 5 EVMs covered by the present order.
With the aforesaid directions, the Writ Petition shall stand closed.

28. N.P. PONNUSWAMI vs. RETURNING OFFICER,
NAMAKKAL CONSTITUENCY
Civil Appeal No. 351 of 1951 [(1952) 1 SCC 94]
21.01.1952
CASE Patanjali Sastri, C.J., Fazl Ali, J., M.C. Mahajan, J.,
DETAILS
B.K. Mukherjea, J., S.R. Das, J. and
Chandrasekhara Aiyar, J.
ISSUES Laws and Rules relating to Ballot
In 1951 when the Act was passed or the Rules were
made, the system of voting by machine was not in
DECISIONS vogue in this country. Therefore, the word ‘ballot’ in
its strict sense would not include voting by the use of
voting machines
SUMMARY
Section 59 of the Act uses the words “ballot in such manner as may be
prescribed”, which means prescribed by the Rules made under the Act.
In this connection, reference was made to Rule 22 which relates to the
form of ballot paper and its contents. Rule 23 requires the Returning
officer to record on the counterfoil of the ballot paper the electoral roll
number of the elector as entered in the marked copy of the electoral
roll. Rule 27 refers to the return of ballot paper after an elector has
recorded his vote or made his declaration. Rule 30, which prescribes
the contents of ballot papers, is completely contrary to the concept
of ballot by machine. Similarly, Rules 33, 38, 39 and 40 seem to be
wholly inconsistent with the mechanical process but seem to adopt the
conventional method. These Rules are binding on the Commission and
it cannot by an executive fiat either override them or act contrary to
the statutory provisions of the Rules. On a proper and detailed analysis
of these Rules it is clear that the Act by framing the Rules completely
excluded the mechanical process which, if resorted to, would defeat in
a large measure the mandatory requirements of the Rules.
The Hon’ble Court thereby held that in 1951 when the Act was passed
or the Rules were made, the system of voting by machine was not in
vogue in this country. Therefore, the word ‘ballot’ in its strict sense
would not include voting by the use of voting machines.

ORDER
Patanjali Sastri, C.J., Fazl Ali, J., M.C. Mahajan, J., B.K. Mukherjea,
J., S.R. Das, J. and Chandrasekhara Aiyar, J.
FAZL ALI, J. - This is an appeal from an order of the Madras High Court
dismissing the petition of the appellant praying for a writ of certiorari.
2. The appellant was one of the persons who had filed nomination
papers for election to the Madras legislative Assembly from the
Namakkal Constituency in Salem District. On 28-11-1951, the
Returning Officer for that constituency took up for scrutiny the
nomination papers filed by the various candidates and on the
same day he rejected the appellant’s nomination paper on certain
grounds which need not be set out as they are not material to the
point raised in this appeal. The appellant thereupon moved the
High Court under Article 226 of the Constitution praying for a writ
of certiorari to quash the order of the Returning Officer rejecting
his nomination paper and to direct the Returning Officer to include
his name in the list of valid nominations to be published. The High
Court dismissed the appellant’s application on the ground that it had
no jurisdiction to interfere with the order of the Returning Officer
by reason of the provisions of Article 329(b) of the Constitution.
The appellant’s contention in this appeal is that the view expressed
by the High Court is not correct, that the jurisdiction of the High
Court is not affected by Article 329(b) of the Constitution and that
he was entitled to a writ of certiorari in the circumstances of the
case.
3 . Broadly speaking, the arguments on which the judgment of the High
Court is :assailed are twofold:
(1) that the conclusion arrived at by the High Court does not
follow from the language of Article 329(b) of the Constitution,
whether that article is read by itself or along with the other
articles in Part xv of the Constitution; and
(2) that the anomalies which will arise if the construction put by
the High Court on Article 329 (b) is accepted are so starting
that the courts should lean in favour of the construction put
forward on behalf of the appellant.

4. The first argument which turns on the construction of Article 329
(b) requires serious consideration, but I think the second argument
can be disposed of briefly at the outset. It should be stated that what:
the appellant chooses to call anomaly can be more appropriately
described as hardship or prejudice and what their nature will be
has been stated in forceful language by Wallace, J. in Sarvothama
Rao v. Municipal Council, Saidapet in these words : (ILR p. 600)
“ ... I am quite clear that any post- election remedy is wholly
inadequate to afford the relief which the petitioner seeks, namely,
that this election, now published, be stayed, until it can be held
with himself as a candidate. It is no consolation to tell him that
he can stand for some other election. It is no remedy to tell him
that he must let the election go on and then have it set aside by
petition and have a fresh election ordered. The fresh election may
be under altogether different conditions and may bring forward an
array of fresh candidates. The petitioner can only have his proper
relief if the proposed election without him is stayed until his
rejected nomination is restored, and hence an injunction staying
this election was absolutely necessary, unless the relief asked for
was to be denied to him altogether in limine. In most cases of th is
kind no doubt there will be difficulty for the aggrieved party to get
in his suit in time before the threatened wrong is committed; but
when he has succeeded in so doing, the court cannot stultify itself
by allowing the wrong which it is asked to prevent to be actually
consummated while it is engaged in trying the suit.”
5. These observations however represent only one side of the picture
and the same learned Judge presented the other side of the picture
in a subsequent case (Desi Chettiar v. Chinnasami Chettiar ) in the
following passage : (AIR p. 1272)
“ ... The petitioner is not without his remedy. His remedy lies in
an election petition which we understand he has already put in.
It is argued far him that that remedv which merelv allows him to
have set aside an election once held is not as efficacious as the
one which would enable him to stop the election altogether; and
certain observations at p.. 600 of Sarvothama Rao v. Municipal
Council, Saidapeti. are quoted. In the first place, we do not

see how the mere fact that the petitioner cannot get the election
stopped and has his remedy only after it is over by an election
petition, will in itself confer on him any right to obtain a writ.
In the second place, these observations were directed to the
consideration of the propriety of an injunction in a civil suit, a
matter with which we are not here concerned. And finally it may be
observed that these remarks were made some years ago when the
practice of individuals coming forward to stop elections in order
that their own individual interest may be safeguarded was not so
common. It is clear that there is another side of the question to be
considered, namely, the inconvenience to the public administration
of having elections and the business of Local Boards held up while
individuals prosecute their individual grievances. We understand
the election for the elective seats in this Union has been held up
since 31st May because of this petition, the result being that the
electors have been unable since then to have any representation on
the Board, and the Board is functioning, if indeed it is functioning
with a mere nominated fraction of its total strength; and this state
of affairs the petitioner proposes to have continued until his own
personal grievance is satisfied.’’
6. These observations which were made in regard to elections
to Local Boards will apply with greater force to elections to
legislatures, because it does not require much argument to show
that in a country with a democratic Constitution in which the
legislatures have to play a very important role, it will lead to
serious consequences if the elections are unduly protracted or
obstructed. To this aspect of the matter I shall have to advert later,
but it is sufficient for the present purpose to state firstly that in
England the hardship and inconvenience which may be suffered
by an individual candidate has not been regarded as of sufficient
weight to induce Parliament to make provision for immediate relief
and the aggrieved candidate has to wait until after the election to
challenge the validity of the rejection of his nomination paper, and
secondly, that the question of hardship or inconvenience is after
all only a secondary question,. because if the construction put by
the High Court on Article 329(b) of the Constitution is found to be
correct, the fact that such construction will lead to hardship and
inconvenience becomes irrelevant.
7. Article 329 is the last article in Part xv of the Constitution, the
heading of which is “ Elections”, and it runs as follows:
“329. Bar to interference by courts in electoral matters.-
Notwithstanding anything in this Constitution-
(a) the validity of any law relating to the delimitation of
constituencies or the allotment of seats to such constituencies,
made or purporting to be made· under Article 327 or Article
328, shall not be called in question in any court;
(b) no election to either House of Parliament or to the House
or either House of the Legislature of a State shall be called
in question except by an election petition presented to such
authority and in such manner as may be provided for by or
under any law made by the appropriate legislature.”
8. In construing this article, reference was made by both the parties in
the course of their arguments to the other articles in the same Part,
namely, Articles 324, 325, 326, 327 and 328. Article 324 provides
for the constitution and appointment of an Election Commissioner
to superintend, direct and control elections to the legislatures;
Article 325 prohibits discrimination against electors on the ground
of religion, race, caste or sex; Article 326 provides for adult
suffrage; Article 327 empowers Parliament to pass laws making
provision with respect to all matters relating to, or in connection
with, elections to the legislatures, subject to the provisions of the
Constitution; and Article 328 is a complementary article giving
power to the State Legislature to make provision with respect to
all matters relating to, or in connection with, elections to the State
Legislature. A notable difference in the language used in Articles
327 and 328 on the one hand, and Article 329 on the other, is that
while the first two articles begin with the words “ subject to the
provisions of this Constitution”, the last article begins with the
words “ notwithstanding anything in this Constitution”. It was
conceded at the Bar that the effect of this difference in language
is that whereas any law made by Parliament under Article 327, or
by the State Legislatures under Article 328, cannot exclude the
jurisdiction of the High Court under Article 226 of the Constitution,

that jurisdiction is excluded in regard to matters provided for in
Article 329.
9. Now, the main controversy in th is appeal centres round the meaning
of the words “no election shall be called in question except by an
election petition” in Article 329(b),. and the point to be decided is
whether questioning the action of the Returning Officer in rejecting
a nomination paper can be said to be comprehended with in the
words, “no election shall be called in question”. The appellant’s
case is that questioning something which has happened before a
candidate is declared elected is not the same thing as questioning
an election, and the arguments advanced on his behalf in support
of this construction were these:
(1) That the word “ election’’ as used in Article 329(b) means
what it normally and etymologically means, namely, the result
of polling or the final selection of a candidate;
(2) That the fact that an election petition can be filed only after
polling is over or after a candidate is declared elected, and
what is normally called in question by such petition is the
final result, bears out the contention that the word “election’’
can have no other meaning in Article 329(b) than the result of
polling or the final selection of a candidate;
(3) That the words “arising out of or in connection with” which
are used in Article 324(1) and the words “with respect to all
matters relating to, or in connection with” which are used in
Articles 327 and 328, show that the Framers of the Constitution
knew that it was necessary to use different language when
referring respectively to matters which happen prior to and
after the result of polling, and if they had intended to include
the rejection, of a nomination paper within the ambit of the
prohibition contained in Article 329(b) they would have used
similar language in that article; and
(4) That the action of the Returning Officer in rejecting a
nomination paper can be questioned before the High Court
under Article 226 of the Constitution for the following reason :
Scrutiny of nomination papers and their rejection are provided

for in Section 36 of the Representation of the People Act, 1951.
Parliament has made this provision in exercise of the powers
conferred on it by Article 327 of the Constitution which is
“subject to the provisions of the Constitution”. Therefore, the
action of the Returning Officer is subject to the extraordinary
jurisdiction of the High Court under Article 226.
These arguments appear at first sight to be quite impressive,
but in my opinion there are weightier and basically more
important arguments in support of the view taken by the High
Court.
10. As we have seen the most important question for determination is
the meaning to be given to the word “election” in Article 329(b).
That word has by long usage in connection with the process of
selection of proper representatives in democratic institutions,
acquired both a wide and a narrow meaning. In the narrow sense,
it is used to mean the final selection of a candidate which may
embrace the result of the poll when there is polling or a particular
candidate being returned unopposed when there is no poll. In
the wide sense, the word is used to connote the entire process
culminating in a candidate being declared elected.
11. In Srinivasalu v . Kuppuswami, the learned Judges of the Madras
High Court after examining the question, expressed the opinion
that the term “election’’ may be taken to embrace the whole
procedure whereby an “elected member’’ is returned, whether or
not it be found necessary to take a poll. With this view, my Brother,
Mahajan, J. expressed his agreement in Sat Narain v. Hanuman
Parshad; and I also find myself in agreement with it.
12. It seems to me that the word “election has been used in Part xv
of the Constitution in the wide sense, that is to say, to connote
the entire procedure to be gone through to return a candidate to
the legislature. The use of the expression “conduct of elections’’
in Article 324 specifically points to the wide meaning, and that
meaning can also be read consistently into the other provisions
which occur in Part XV including Article 329(b). That the word
“election’’ bears this wide meaning whenever we talk of elections
in a democratic country, is borne out by the fact that in most of the

books on the subject and in several cases dealing with the matter,
one of the questions mooted is, when the election begins.
13. The subject is dealt with quite concisely in Halsbury’s Laws
of England in the following passage under the heading
“Commencement of the Election’’:
“Although the first formal step in every election is the issue of
the writ, the election is considered for some purposes to begin
at an earlier date. It is a question of fact in each case when an
election begins in such a way as to make the parties concerned
responsible for breaches of election law, the test being whether the
contest is ‘reasonably imminent’. Neither the issue of the writ nor
the publication of the notice of election can be looked to as fixing
the date when an election begins from this point of view. Nor,
again, does the nomination day afford any criterion. The election
will usually begin at least earlier than the issue of the writ. The
question when the election begins must be carefully distinguished
from that as to when ‘the conduct and management of’ an election
may be said to begin. Again, the question as to when a particular
person commences to be a candidate is a question to be considered
in each case.”
The discussion in this passage makes it clear that the word
“election” can be and has been appropriately used with reference
to the entire process which consists of several stages and embraces
many steps, some of which may have an important bearing on the
result of the process.
14. The next important question to be considered is what is meant by
the words “no election shall be called in question”. A reference
to any treatise on elections in England will show that an election
proceeding in that country is liable to be assailed on very limited
grounds, one of them being the improper rejection of a nomination
paper. The law with which we are concerned is not materially
different,and we find that in Section 100 of the Representation of
the People Act, 1951, one of the grounds for declaring an election
to be void is the improper rejection of a nomination paper.

15. The question now arises whether the law of elections in this
country contemplates that there should be two attacks on matters
connected with election proceedings, one while they are going
on by invoking the extraordinary jurisdiction of the High Court
under Article 226 of the Constitution (the ordinary jurisdiction
of the courts having been expressly excluded), and another after
they have been completed by means of an election petition. In my
opinion, to affirm such a position would be contrary to the scheme
of Part xv of the Constitution and the Representation of the People
Act, which, as I shall point out later, seems to be that any matter
which has the effect of vitiating an election should be brought up
only at the appropriate stage in an appropriate manner before a
Special Tribunal and should not be brought up at an intermediate
stage before any court. It seems to me that under the election law,
the only significance which the rejection of a nomination paper
has consists in the fact that it can be used as a ground to call the
election in question. Article 329(b) was apparently enacted to
prescribe the manner in which and the stage at which this ground
and other grounds which may be raised under the law to call the
election in question, could be urged. I think it follows by necessary
implication from the language of this provision that those grounds
cannot be urged in any other manner, at any other stage and before
any other court. If the grounds on which an election can be called
in question could be raised at an earlier stage and errors, if any,
are rectified, there will be no meaning in enacting a provision like
Article 329(b) and in setting, up a Special Tribunal. Any other
meaning ascribed to the words used in the article would lead to
anomalies, which the Constitution could not have contemplated,
one of them being that conflicting views may be expressed by the
High Court at the pre-polling stage and by the Election Tribuna I
which is to be an independent body, at the stage when the matter is
brought up before it.
16. I think that a brief examination of the scheme of Part XV of the
Constitution and the Representation of the People Act, 1951 will
show that the construction I have suggested is the correct one.
Broadly speaking, before an election machinery can be brought

into operation, there are three requisites which require to be
attended to, namely, (1) there should be a set of laws and rules
making provisions with respect to all matters relating, to, or in
connection with, elections, and it should be decided as to how these
laws and rules are to be made; (2) there should be an executive
charged with the duty of securing the due conduct of elections; and
(3) there should be a judicial tribunal to deal with disputes arising
out of or in connection with elections. Articles 327 and 328 deal
with the first of these requisites, Article 324 with the second and
Article 329 with the third requisite. The other two articles in Part
XV viz. Articles 325 and 326, deal with two matters of principle to
which the Constitution-Framers have attached much importance.
They are : (1) prohibition against discrimination in the preparation
of, or eligibility for inclusion in, the electoral rolls, on grounds of
religion, race, caste, sex or any of them; and (2) adult suffrage. Part
XV of the Constitution is really a code in itself providing the entire
groundwork for enacting appropriate laws and setting up suitable
machinery for the conduct of elections.
17. The Representation of the People Act, 1951, which was passed by
Parliament under Article 327 of the Constitution, makes detailed
provisions in regard to all matters and all stages connected with
elections to the various legislatures in this country. That Act is
divided into 11 parts, and it is interesting to see the wide variety
of subjects they deal with Part II deals with “ the qualifications
and disqualifications for membership’’, Part-III deals with
the notification of General Elections, Part IV provides for the
administrative machinery for the conduct of elections, and Part V
makes provisions for the actual conduct of elections and deals with
such matters as presentation of nomination papers, requirements
of a valid nomination, scrutiny of nominations, etc., and procedure
for polling and counting of votes. Part VI deals with disputes
regarding etections and provides for the manner of presentation
of election petitions, the constitution of Election Tribunals and the
t rial of election petitions. Part VII outlines the various corrupt
and illegal practices which may affect the elections, and electoral
offences. Obviously, the Act is a self-contained enactment so far
as elections are concerned, which means that whenever we have

to ascertain the true position in regard to any matter connected
with elections, we have only to look at the Act and the Rules made
thereunder.
18. The provisions of the Act which are material to the present
discussion are Sections 80, 100, 105 and 170, and the provisions of
Chapter II of Part IV dealing with the form of election petitions, t
heir contents and the reliefs which may be sought in them. Section
80, which is drafted in almost the same language as Article 329(b),
provides that “no election shall be called in question except by an
election petition presented in accordance with the provisions of
this Part”. Section 100, as we have already seen, provides for the
grounds on which an election may be called in question, one of
which is the improper rejection of a nomination paper. Section 105
says that ‘’every order of the Tribunal made under this Act shall be
final and conclusive”. Section 170 provides that:
170. Jurisdiction of civil courts barred.- No civil court shall
have jurisdiction to question the legality of any action taken or of
any decision given by the Returning Officer or by any other person
appointed under this Act in connection with an election.”
These are the main provisions regarding election matters being
judicially dealt with, and it should be noted that there is no provision
anywhere to the effect that anything connected with elections can
be questioned at an intermediate stage.
19. It is now well recognised that where a right or liability is created
by a statute which gives a special remedy for enforcing it, the
remedy provided by that statute only must be availed of. This rule
was stated with great clarity by Willes, J. in Wolverhampton New
Waterworks Co. v. Hawkesford in the following passage :
“ ... There are three classes of cases in which a liability may
be established founded upon statute. One is, where there was a
liability existing at common law, and that liability is affirmed
by a statute which gives a special and peculiar form of remedy
different from the remedy which existed at common law : there,
unless the statute contains words which expressly or by necessary
implication exclude the common law remedy, and the party suing

has his election to pursue either that or the statutory remedy. The
second class of cases is, where the statute gives the right to sue
merely, but provides no particular form of remedy : there, the party
can only proceed by action at common law. But there is a third
class viz. where a liability not existing at common law is created
by a statute which at the same time gives a special and particular
remedy for enforcing it .... The remedy provided by the statute
must be followed, and it is not competent to the party to pursue the
course applicable to cases of the second class. The form given by
the statute must be adopted and adhered to.”
The rule laid down in this passage was approved by the House of
Lords in Neville v. London Express Newspapers Ltd. and has been
reaffirmed by the Privy Council in Attorney General of Trinidad
v. Gordon Grant & Co. Ltd. and Secy. of State v . Mask & co.;
and it has also been held to be equally applicable to enforcement
of rights (see Hurdutrai Jagadish Prasad v . Official Assignee of
Calcutta ). That being so, I think it will be a fair inference from
the provisions of the Representation of the People Act to state that
the Act provides for only one remedy, that remedy being by an
election petition to be presented after the election is over, and there
is no remedy provided at any intermediate stage.
20. 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 writs 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 progress.
21. It may be stated that Section 107(1) of the Representation of the
People Act, 1949 in England is drafted almost in the same language
as Article 329(b). That section runs thus :

“No parliamentary election and no return to Parliament shall be
questioned except by a petition complaining of an undue election
or undue return (hereinafter referred to as a parliamentary election
petition) presented in accordance with this Part of this Act.”
22. It appears that similar language was used in the earlier statutes,
and it is noteworthy that it has never been held in England that
the improper rejection of a nomination paper can be the subject
of a writ of certiorari or mandamus .. On the other hand, it was
conceded at the Bar that the question of improper rejection of a
nomination paper has always been brought up in that country before
the appropriate tribunal by means of an election petition after the
conclusion of the election. It is true that there is no direct decision
holding that the words used in the relevant provisions exclude the
jurisdiction of the High Court to issue appropriate prerogative
writs at an intermediate stage of the election, but the total absence
of any such decision can be accounted for only on the view that the
provisions in question have been generally understood to have that
effect.
23. Our attention was drawn to Rule 13 of the Rules appended to the
Ballot Act of 1872 and a similar rule in the Parliamentary Elections
Rules of 1949, providing that the decision of the Returning Officer
disallowing an objection to a nomination paper shall be final,
but allowing the same shall be subject to reversal on a petition
questioning the election or return. These Rules however do not
affect the main argument. I think it can be legitimately stated that if
words similar to those used in Article 329(b) have been consistently
treated in England as words apt to exclude the jurisdiction of the
courts including the High Court, the same consequence must
follow from the words used in Article 329(b) of the Constitution.
The words ‘’notwithstanding anything in this Constitution” give to
that article the same wide and binding effect as a statute passed by
a sovereign legislature like the English Parliament.
24. It may be pointed out that Article 329(b) must be read as
complementary to clause (a) of that article. Clause (a) bars the
jurisdiction of the courts with regard to such law as may be
made under Articles 327 and 328 relating to the delimitation of

constituencies or the allotment of seats to such constituencies. It
was conceded before us that Article 329(b) ousts the jurisdiction
of the courts with regard to matters arising between the
commencement o f the polling and the final selection. The question
which has to be asked is what conceivable reason the legislature
could have had to leave only matters connected with nominations
subject to the jurisdiction of the High Court under Article 226 of
the Constitution. If Part XV of the Constitution is a code by itself
i.e. it creates rights and provides for their enforcement by a Special
Tribunal to the exclusion of all courts including the High Court,
there can be no reason for assuming that the Constitution left one
small part of the election process to be made the subject-matter of
contest before the High Courts and thereby upset the time schedule
of the elections. The more reasonable view seems to be that Article
329 covers all “electoral matters’’.
25. The conclusions which I have arrived at may be summed up briefly
as follows:
(1) Having regard to the important functions which the legislatures
recognised to be o matter of first importance that elections should
(2) In conformity with this principle, the scheme of the election law
in this country as well as in England is that no significance should
be attached to anything which does not affect the “election”; and
if any irregularities are committed while it is in progress and they
belong to the category or class which, under the law by which
elections are governed, would have the effect of vitiating the
“election” and enable the person affected to call it in question, they
should be brought up before a Special Tribunal by means of an
election petition and not be made the subject of a dispute before
any court while the election is in progress.
26. It will be useful at this stage to refer to the decision of the Privy
Council in Theberge v. Laudry.. The petitioner in that case having

been declared duly elected a member to represent an electoral
district in the Legislative Assembly of the Province of Quebec,
his election was afterwards, on petition, declared null and void by
judgment of the superior court, under the Quebec Controverted
Elections Act, 1875, and himself declared guilty of corrupt
practices, both personally and by his agents. Thereupon, he applied
for special leave to appeal to Her Majesty in Council, but it was
refused on the ground that the fair construction of the Act of 1875
and the Act of 1872 which preceded it providing among other things
that the judgment of the superior court “ shall not be susceptible
of appeal” was that it was the intention of the legislature to create
a tribunal for the purpose of trying election petitions in a manner
which should make its decision final for all purposes, and should
not annex to it the incident of its judgment being reviewed by the
Crown under its prerogative.
27. In delivering the judgment of the Privy Council, Lord Cairns
observed as follows : (Theberge case , AC p. 106)
These two Acts of Parliament, the Acts of 1872 and 1875, are
Acts peculiar in their character. They are not Acts constituting
or providing for the decision of mere ordinary civil rights; they
are Acts creating an entirely new, and up to that time unknown,
jurisdiction in a particular court ... for the purpose of taking out,
with its own consent, of the Legislative Assembly, and vesting in that
Court, that very peculiar jurisdiction which, up to that time, had
existed in the Legislative Assembly of deciding election petitions,
and determining the status of those who claimed to be members of
the Legislative Assembly. A jurisdiction of that kind is extremely
special, and one of the obvious incidents or consequences of such
a jurisdiction must be that the jurisdiction, by whomsoever it is
to be exercised, should be exercised in a way that should as soon
as possible become conclusive, and enable the constitution of the
Legislative Assembly to be distinctly and speedily known.
28. After dealing with certain other matters, the Lord Chancellor
proceeded to make the following further observations : (Theberge
case, AC pp. 107-08)

“Now, the subject-matter, as has been said, of the legislation
is extremely peculiar. It concerns the rights and privileges of
the electors and of the Legislative Assembly to which they elect
members. Those rights and privileges have always in every colony,
following the example of the mother country, been jealously
maintained and guarded by the Legislative Assembly. Above all,
they have been looked upon as rights and privileges which pertain to
the Legislative Assembly, in complete independence of the Crown,
so far as they properly exist. And it would be a result somewhat
surprising, and hardly in consonance with the general scheme of
the legislation, if, with regard to rights and privileges of this kind,
it were to be found that in the last resort the determination of them
no longer belonged to the Legislative Assembly, no longer belonged
to the Superior Court which the legislative Assembly had put in its
place, but belonged to the Crown in Council, with the advice of the
advisers of the Crown at home, to be determined without reference
either to the judgment of the Legislative Assembly, or of that Court
which the Legislative Assembly had substituted in its place.”
29. The points which emerge from this decision may be stated as
follows:
(1) The right to vote or stand as a candidate for election is not a
civil right but is a creature of statute or special law and must
be subject to the limitations imposed by it.
(2) Strictly speaking, it is the sole right of the legislature to
examine and determine a,11 matters relating to the election
of its own members, and if the legislature takes it out of its
own hands and vests in a Special Tribunal an entirely new
and unknown jurisdiction, that special jurisdiction should be
exercised in accordance with the law which creates it .
30. It should be mentioned here that the question as to what the powers
of the High Court under Articles 226 and 227 and of this Court
under Article 136 of the Constitution may be, is one that will have
to be decided on a proper occasion.
31. It is necessary to refer at this stage to an argument advanced before
us on behalf of the appellant which was based on the language of

Article 71( 1) of the Constitution. That provision runs thus:
71, Matters relating to, or connected with, the election of a
President or Vice-President-(1) All doubts and disputes arising
out of or in connection with the election of a President or Vice
President shall be inquired into and decided by the Supreme Court
whose decision shall be final.
32. The argument was as follows. There is a marked contrast between
the language used in Article 71(1) and that of Article 329(b) . The
difference in the phraseology employed in the two provisions
suggests that they could not have been intended to have the same
meaning and scope as regards matters to be brought up before
the tribunals they respectively deal with. If the Framers of the
Constitution, who apparently knew how to express themselves,
intended to include within the ambit of Article 329(b) all possible
disputes connected with elections to legislatures, including
disputes as to nominations, they would have used similar words as
are to be found in Article 71(1). It is true that it is not necessary to
use identical language in every provision, but one can conceive of
various alternative ways of expression which would convey more
clearly and properly what Article 329(b) is said to convey.
33. It seems to me that once it is admitted that the same idea can be
expressed in different ways and the same phraseology need not be
employed in every provision, the argument loses much of its force.
But, however that may be, I think. there is a good explanation as to
why Article 329(b) was drafted as it stands.
34. A reference to the election rules made under the Government of
India Acts of 1919 and 1935 wi ll show that the provisions in them
on the subject were almost in the same language as Article 329(b).
The corresponding rule made under the Government of India Act,
1919, was Rule 31 of the Electoral Rules. and it runs as follows:
“No election shall be called in question, except by an election
petition presented in accordance with the provisions of this Part.”
It should be noted that this Rule occurs in Part VII, the heading
of which is “The final decision of doubts and disputes as to the
validity of an election”. These words th row some light on the

function which the Election Tribunal was to perform, and they are
the very words which the learned counsel for the appellant argued,
ought to have been used to make the meaning clear.
35. The same scheme was followed in the election rules framed under
the Government of India Act, 1935, which are contained in “The
Government of India (Provincial Elections) (Corrupt Practices and
Election Petitions) Order, 1936, dated 3 - 7 -1936. In that Order,
the rule corresponding to Rule 31 under the earlier Act, runs thus:
“No election shall be called in question except by an election
petition presented in accordance with the provisions of th is Part of
the Order.”
This Rule is to be found in Part III of the Order, the heading of
which is “ Decision of doubts and disputes as to validity of an
election and disqualification for corrupt practices”.
36. The Rules to which I have referred were apparently framed on the
pattern of the corresponding provisions of the British Acts of 1868
and 1872, and they must have been intended to cover the same
ground as the provisions in England have been understood to cover
in that country for so many years. if the language used in Article
329(b) is considered against th is historical background, it should
not be difficult to see why the Framers of the Constitution framed
that provision in its present form and chose the language which
had been consistently used in certain earlier legislative provisions
and which had stood the test of time .
37. And now a word as to why negative language was used in Article
329(b). It seems to me that there is an important difference
between Article 71(1) and Article 329(b). Article 71(1) had to be
in an affirmative form, because it confers special jurisdiction on
the Supreme Court which that Court could not have exercised but
for this article. Article 329(b), on the other hand, was primarily
intended to exclude or oust the jurisdiction of all courts in regard
to electoral matters and to lay down the only mode in which an
election could be challenged. The negative form was therefore
more appropriate, and, that being so, it is not surprising that it

was decided to follow the pre-existing pattern in which also the
negative language had been adopted.
38. Before concluding, I should refer to an argument which was
strenuously pressed by the learned counsel for the appellant and
which has been reproduced by one of the learned Judges of the
High Court in these words:
“It was next contended that if nomination is part of eliection, a
dispute as to the validity of nomination is a dispute relating to
election and that can be called in question only in accordance with
the provisions of Article 329(b) by the presentation of an election
petition to the appropriate Tribunal and that the Returning Officer
would have no jurisdiction to decide that matter, and it was further
argued that Section 36 of Act 43 of 1951 would be ultra vires
inasmuch as it confers on the Returning Officer a jurisdiction which
Article 329(b) confers on a tribunal to be appointed in accordance
with the article.”
39. This argument displays great dialectical ingenuity, but it has no
bearing on the result of this appeal and I think it can be very
shortly answered. Under Section 36 of the Representation of
the People Act, 19511 it is the duty of the Returning Officer to
scrutinise the nomination papers to ensure that they comply with
the requirements of the Act and decide all objections which may
be made to any nomination. It is clear that unless th is duty is
discharged properly, any number of candidates may stand for
election without complying with the provisions of the Act and a
great deal of confusion may ensue. In discharging the statutory duty
imposed on him, the Returning Officer does not call in question
any election. Scrutiny of nomination papers is only a stage, though
an important stage, in the election process. It is one of the essential
duties to be performed before the election can be completed, and
anything done towards the completion of the election proceeding
can by no stretch of reasoning be described as questioning the
election. The fallacy of the argument lies in treating a single step
taken in furtherance of an election as equivalent to election. The
decision of this appeal however turns not on the construction

of the single word “election”, but on the construction of the
compendious expression-’’no election shall be called in question’’
in its context and setting, with due regard to the scheme of Part
XV of the Constitution and the Representation of the People Act,
1951. Evidently,. the argument has no bearing on this method of
approach to the question posed in this appeal, which appears to me
to be the only correct method.
40. We are informed that besides the Madras High Court, seven other
State High Courts have held that they have no jurisdiction under
Article 226 of the Constitution to entertain petitions regarding
improper rejection of nomination papers. This view is, in my
opinion, correct and must be affirmed. The appeal must, therefore,
fail and is dismissed. In view of the nature and importance of the
points raised in this appeal, there should be no order as to costs.

29. NARESH SARAF vs. ELECTION COMMISSION OF INDIA
Writ Petition No 28106/ 2018 Madhya Pradesh
CASE HighCourt (Jabalpur Bench)
DETAILS 06.12 2018
S.K. Seth, C.J. and Vijay Kumar Shukla, J.
ISSUES Security of EVM/VVPAT
The petitioner had alleged tampering of EVMs and
DECISIONS VVPATs and lack of sufficient security to the EVM
machines. The Hon’ble Court dismissed the petition.
SUMMARY
The Writ Petition was filed expressing concern over the alleged lack of
sufficient security in some districts in respect of polled/unused EVMs
and VVPATs in the assembly election in the State of MP. The Election
Commission refuted all allegations and submitted that all necessary
instructions were issued well in advance, for the safe upkeep of polled
EVMs/ VVPATs and unused/reserved EVMs/ VVPATs at the end of
poll.
The Hon’ble Court held that careful reading of reports shows that the
strong rooms for storing polled EVMs/ VVPATs and warehouses for
unused/ reserved EVMs/ VVPATs are separate buildings with separate
security arrangements. It is also clear that the strong room with polled
EVMs/ VVPATs were sealed immediately after poll to be opened on the
day of counting. These strong rooms are under the security of Central
Armed Paramilitary Forces with a triple cordon of security. Thus, the
Hon’ble Court held that no further action is required in this petition.
ORDER
S.K. Seth, C.J. and Vijay Kumar Shukla, J.
1. This petition has been filed expressing concern over the alleged
lack of sufficient security in some districts in respect of polled/
unused EVMs and VVPATs in the assembly election in the State,
which went to poll on November 28, 2018.
2. We have heard learned counsel for petitioner and the Election
Commission of India at length.

3. Shorn of unnecessary details, certain instances have been alleged
in the petition to contend that after the poll, attempts were made
to temper with the polled EVMs/VVPATs used in Bhopal, Satna,
Shajapur, Sagar and Khandwa. Petitioner has also filed the
representation made in this regard (through I.A. No. 14197/18) to
the Election Commission of India and the Chief Electoral Officer,
Madhya Pradesh.
4. Learned Counsel appearing for the Election Commission of
India refuted all allegations/contentions and submitted that all
necessary instructions were issued by the Election Commission
of India well in advance, for the safe upkeep of polled EVMs/
VVPATs and unused/reserved EVMs/VVPATs at the end of poll.
According to him, on the representation of the Madhya Pradesh
Congress Committee, the Chief Electoral Officer, Madhya Pradesh
on December 2, 2018 had submitted incident wise detail report to
5. Again on December 4, 2018 the Chief Electoral Officer submitted
further report to the Election Commission of India refuting the
media reports on account of short term failure of CCTV cameras
due to power cut in Bhopal and delay in depositing 3 unused
EVMs/VVPATs machine in Khandwa.
6. Careful reading of the aforesaid reports, which were produced for
our perusal, shows that the strong rooms for storing polled EVMs/
VVPATs and warehouses for unused/reserved EVMs/VVPATs are
separate buildings with separate security arrangements. It was
further clear that the strong room with polled EVMs/VVPATs were
sealed immediately after poll to be opened on the day of counting
i.e. on 11.12.2018. These strong rooms are under the security of
Central Armed Paramilitary Forces with a triple cordon of security.
The Election Commission of India has also informed the Indian
National Congress, New Delhi about the remedial measure already
taken. Thus, we are of the considered view that in light of above,
we feel that no further action is required by us in this petition. The
writ petition is accordingly disposed of.
7. Ordered accordingly.

30. NYAYA BHOOMI & ANR vs. ELECTION COMMISSION
OF INDIA
Writ Petition (Civil) No. 1332/ 2018 (Supreme
Court of India)
CASE
22.11. 2018
DETAILS
Hon’ble Chief Justice, K.M. Joseph, J. and
M.R. Shah, J.
To hold 2019 General Election and State Assembly
ISSUES
Polls with ballot papers instead of EVMs.
The Hon’ble Court rejected the prayer of the petitioner
DECISIONS that the ballot papers instead of EVMs should be used
inall upcoming elections.
SUMMARY
The Writ Petition was filed seeking direction to the Election Commission
to hold 2019 General Election and State Assembly Polls with ballot
papers instead of EVMs. The writ petition was vehemently opposed by
the Commission and having heard learned counsel for the petitioners
and upon perusing the relevant material, the Hon’ble Court dismissed
the Writ Petition.
ORDER
Hon’ble Chief Justice, K.M. Joseph, J. and M.R. Shah, J.
1. Having heard learned counsel for the petitioners and upon perusing
the relevant material, we are not inclined to entertain the writ
petition. The same is, accordingly, dismissed.

31. PEOPLE’S UNION FOR CIVIL LIBERTIES vs. UNION OF
INDIA
Writ Petition (C) No. 161 of 2004
Supreme Court of India
CASE
27.09. 2013
DETAILS
P. Sathasivam, C.J., Ranjana P. Desai, J. and
RanjanGogoi, J.
The Petitioner had sought inclusion of necessary
ISSUES provision in the ballot papers as well as in EVMs for
secrecy/ protection of Right of Not to Vote. (NOTA)
The Hon’ble Supreme Court directed the Commission to
provide necessary provision in the ballot papers/EVMs
and another button called “None of the Above” (NOTA)
DECISIONS be provided in EVMs so that the voters, who come to
the polling booth and decide not to vote for any of the
candidates in the fray, are able to exercise their right not
to vote while maintaining their right of secrecy.
SUMMARY
The Writ Petition was filed under Article 32 of the Constitution of
India challenging the vires of Rules 41(2) and (3) and 49-O of the
Conduct of Elections Rules, 1961 to the extent that these provisions
violate the secrecy of voting which is fundamental to the free and fair
elections and is required to be maintained as per Section 128 of the
Representation of the People Act, 1951 and Rules 39 and 49-M of the
Rules. The Petitioner had sought inclusion of necessary provision in
the ballot papers as well as in EVMs for secrecy/ protection of the right
of not to vote.
It was argued on behalf of the Commission that insofar as secrecy is
an essential feature of “free and fair elections”, Rules 41(2) and (3)
and 49-O of the Rules violate the requirement of secrecy. In the larger
interest of promoting democracy, a provision for “None of the Above”
or “NOTA” button should be made in the EVMs/ballot papers. It was
contended that such an action, apart from promoting free and fair
elections in a democracy, will provide an opportunity to the elector to
express his dissent/disapproval against the contesting candidates and
will have the benefit of reducing bogus voting.

The Hon’ble Supreme Court took note of the submissions put forth by
the Commission and observed that the implementation of the “None
of the Above” (NOTA) button will not require much effort except for
allotting the last panel in the EVM for the same. The Hon’ble Court also
held that the Rules 41(2) and (3) and Rule 49-O of the Rules are ultra
vires Section 128 of the Representation of the People Act, 1951 and
Article 19(1)(a) of the Constitution to the extent they violate secrecy
of voting.
Further, the Commission was directed to provide NOTA button in EVMs
so that the voters, who come to the polling booth and decide not to vote
for any of the candidates in the fray, are able to exercise their right not
to vote while maintaining their right of secrecy. It was observed that the
Commission can implement the same either in a phased manner or at a
time with the assistance of the Government of India. The Commission
was further directed to undertake awareness programmes to educate
the masses. The Government of India was also directed to provide
necessary help for implementation of the above directions.
ORDER
P. Sathasivam, C.J., Ranjana P. Desai, J. and Ranjan Gogoi, J.
1. The present writ petition, under Article 32 of the Constitution
of India, has been filed by the petitioners herein challenging
the constitutional validity of Rules 41(2) & (3) and 49-O of the
Conduct of Election Rules, 1961 (in short ‘the Rules’) to the
extent that these provisions violate the secrecy of voting which
is fundamental to the free and fair elections and is required to be
maintained as per Section 128 of the Representation of the People
Act, 1951 (in short ‘the RP Act’) and Rules 39 and 49-M of the
Rules.
2. The petitioners herein have preferred this petition for the issuance
of a writ or direction(s) of like nature on the ground that though
the above said Rules, viz., Rules 41(2) & (3) and 49-O, recognize
the right of a voter not to vote but still the secrecy of his having
not voted is not maintained in its implementation and thus the
impugned rules, to the extent of such violation of the right to
secrecy, are not only ultra vires to the said Rules but also violative

of Articles 19(1) (a) and 21 of the Constitution of India besides
International Covenants.
3. In the above backdrop, the petitioners herein prayed for declaring
Rules 41(2) & (3) and 49-O of the Rules ultra vires and
unconstitutional and also prayed for a direction to the Election
Commission of India-Respondent No. 2 herein, to provide
necessary provision in the ballot papers as well as in the electronic
voting machines for the protection of the right of not to vote in
order to keep the exercise of such right a secret under the existing
RP Act/the Rules or under Article 324 of the Constitution.
4. On 23.02.2009, a Division Bench of this Court, on an objection
with regard to maintainability of the writ petition on the ground
that right to vote is not a fundamental right but is a statutory right,
after considering Union of India vs. Association for Democratic
Reforms and Anr. (2002) 5 SCC 294 and People’s Union for
Civil Liberties vs. Union of India (2003) 4 SCC 399 held that
even though the judgment in Kuldip Nayar & Ors. vs. Union of
India & Ors. (2006) 7 SCC 1 did not overrule or discard the ratio
laid down in the judgments mentioned above, however, it creates a
doubt in this regard, referred the matter to a larger Bench to arrive
at a decision.
5. One Centre for Consumer Education and Association for
Democratic Reforms have filed applications for impleadment in
this Writ Petition. Impleadment applications are allowed.
6. Heard Mr. Rajinder Sachhar, learned senior counsel for the
petitioners, Mr. P.P. Malhotra, learned Additional Solicitor General
for the Union of India-Respondent No. 1 herein, Ms. Meenakshi
Arora, learned counsel for the Election Commission of India-
Respondent No. 2 herein, Ms Kamini Jaiswal and Mr. Raghenth
Basant, learned counsel for the impleading parties.
Contentions:
7. Mr. Rajinder Sachhar, learned senior counsel for the petitioners,
by taking us through various provisions, particularly, Section 128
of the RP Act as well as Rules 39, 41, 49-M and 49-O of the Rules
submitted that in terms of Rule 41(2) of the Rules, an elector has a

right not to vote but still the secrecy of his having not voted is not
maintained under Rules 41(2) and (3) thereof. He further pointed
out that similarly according to Rule 49-O of the Rules, the right of
a voter who decides not to vote has been accepted but the secrecy
is not maintained. According to him, in case an elector decides not
to record his vote, a remark to this effect shall be made against the
said entry in Form 17-A by the Presiding Officer and the signature
or thumb impression of the elector shall be obtained against such
remark. Hence, if a voter decides not to vote, his record will be
maintained by the Presiding Officer which will thereby disclose that
he has decided not to vote. The main substance of the arguments
of learned senior counsel for the petitioners is that though right
not to vote is recognized by Rules 41 and 49-O of the Rules and
is also a part of the freedom of expression of a voter, if a voter
chooses to exercise the said right, it has to be kept secret. Learned
senior counsel further submitted that both the above provisions,
to the extent of such violation of the secrecy clause are not only
ultra vires but also contrary to Section 128 of the RP Act, Rules 39
and 49-M of the Rules as well as Articles 19(1)(a) and 21 of the
Constitution.
8. On the other hand, Mr. P.P. Malhotra, learned Additional Solicitor
General appearing for the Union of India submitted that the right
to vote is neither a fundamental right nor a constitutional right
nor a common law right but is a pure and simple statutory right.
He asserted that neither the RP Act nor the Constitution of India
declares the right to vote as anything more than a statutory right
and hence the present writ petition is not maintainable. He further
pointed out that in view of the decision of the Constitution Bench
in Kuldip Nayar (supra), t he reference f or deciding the same
by a larger Bench was unnecessary. He further pointed out that in
view of the above decision, the earlier two decisions of this Court,
viz., Association for Democratic Reforms and Another (supra)
and People’s Union for Civil Liberties (supra), stood impliedly
overruled, hence, on this ground also reference to a larger Bench
was not required. He further pointed out that though the power
of Election Commission under Article 324 of the Constitution is
wide enough, but still the same can, in no manner, be construed

as to cover those areas, which are already covered by the statutory
provisions. He further pointed out that even from the existing
provisions, it is clear that secrecy of ballot is a principle which has
been formulated to ensure that in no case it shall be known to the
candidates or their representatives that in whose favour a particular
voter has voted so that he can exercise his right to vote freely and
fearlessly. He also pointed out that the right of secrecy has been
extended to only those voters who have exercised their right to
vote and the same, in no manner, can be extended to those who
have not voted at all. Finally, he submitted that since Section 2(d)
of the RP Act specifically defines “election” to mean an election to
fill a seat, it cannot be construed as an election not to fill a seat.
9. Ms. Meenakshi Arora, learned counsel appearing for the Election
Commission of India – Respondent No. 2 herein, by pointing out
various provisions both from the RP Act and the Rules submitted
that inasmuch as secrecy is an essential feature of “free and fair
elections”, Rules 41(2) & (3) and 49-O of the Rules violate the
requirement of secrecy.
10. Ms. Kamini Jaiswal and Mr. Raghenth Basant, learned counsel
appearing for the impleading parties, while agreeing with the stand
of the petitioners as well as the Election Commission of India,
prayed that necessary directions may be issued for providing
another button viz., “None of the Above” (NOTA) in the Electronic
Voting Machines (EVMs) so that the voters who come to the
polling booth and decide not to vote for any of the candidates, are
able to exercise their right not to vote while maintaining their right
of secrecy.
11. We have carefully considered the rival submissions and perused
the relevant provisions of the RP Act and the Rules.
Discussion:
12. In order to answer the above contentions, it is vital to refer to the
relevant provisions of the RP Act and the Rules. Sections 79(d)
and 128 of the RP Act read as under:

79(d)-“electoral right” means the right of a person to stand or not to
stand as, or to withdraw or not to withdraw from being, a candidate, or
to vote or refrain from voting at an election.
128. Maintenance of secrecy of voting-(1) Every officer, clerk,
agent or other person who performs any duty in connection with the
recording or counting of votes at an election shall maintain, and aid in
maintaining, the secrecy of the voting and shall not (except for some
purpose authorized by or under any law) communicate to any person
any information calculated to violate such secrecy:
Provided that the provisions of this sub-section shall not apply to such
officer, clerk, agent or other person who performs any such duty at an
election to fill a seat or seats in the Council of States.
(2) Any person who contravenes the provisions of subsection (1) shall
be punishable with imprisonment for a term which may extend to three
months or with fine or with both.”
Rules 39(1), 41, 49-M and 49-O of the Rules read as under:
39. Maintenance of secrecy of voting by electors within polling
station and voting procedure.-(1) Every elector to whom a ballot
paper has been issued under rule 38 or under any other provision of
these rules, shall maintain secrecy of voting within the polling station
and for that purpose observe the voting procedure hereinafter laid down.
41. Spoilt and returned ballot papers.-(1) An elector who has
inadvertently dealt with his ballot paper in such manner that it cannot be
conveniently used as a ballot paper may, on returning it to the presiding
officer and on satisfying him of the inadvertence, be given another
ballot paper, and the ballot paper so returned and the counterfoil of
such ballot paper shall be marked “Spoilt: cancelled” by the presiding
officer.
(2) If an elector after obtaining a ballot paper decides not to use it, he
shall return it to the presiding officer, and the ballot paper so returned
and the counterfoil of such ballot paper shall be marked as “ Returned:
cancelled” by the presiding officer.
(3) All ballot papers cancelled under sub-rule (1) or subrule (2) shall be
kept in a separate packet.

49M. Maintenance of secrecy of voting by electors within the
polling station and voting procedures.-(1) Every elector who has
been permitted to vote under rule 49L shall maintain secrecy of voting
within the polling station and for that purpose observe the voting
procedure hereinafter laid down.
(2) Immediately on being permitted to vote the elector shall proceed to
the presiding officer or the polling officer incharge of the control unit
of the voting machine who shall, by pressing the appropriate button on
t he control unit, activate the balloting unit; for recording of elector’s
vote.
(3) The elector shall thereafter forthwith--
(b) record his vote by pressing the button on the balloting unit against
the name and symbol of the candidate for whom he intends to vote; and
(c) come out of the voting compartment and leave the polling station.
(4) Every elector shall vote without undue delay.
(5) No elector shall be allowed to enter the voting compartment when
another elector is inside it.
(6) If an elector who has been permitted to vote under rule 49L or rule
49P refuses after warning given by the presiding officer to observe the
procedure laid down in sub-rule (3) of the s aid rules, the presiding
officer or a polling officer under the direction of the presiding officer
shall not allow such elector to vote.
(7) Where an elector is not allowed to vote under sub-rule (6), a remark
to the effect that voting procedure has been violated shall be made
against the elector’s name in the register of voters in Form 1 7A by the
presiding officer under his signature.
49-O. Elector deciding not to vote.- If an elector, after his electoral
roll number has been duly entered in the register of voters in Form
17A and has put his signature or thumb impression thereon as required
under sub-rule (1) of rule 49L, decide not to record his vote, a remark
to this effect shall be made against the said entry in Form 17A by the

presiding officer and the signature or thumb impression of t he elector
shall be obtained against such remark.”
13) Apart from the above provisions, it is also relevant to refer Article
21(3) of the Universal Declaration of Human Rights and Article 25(b)
of the International Covenant on Civil and Political Rights, which read
as under:
21(3) The will of the people shall be the basis of the authority of
government; this will shall be expressed in periodic and genuine
elections which shall be by universal and equal suffrage and shall be
held by secret vote or by equivalent free voting procedures.
25. Every citizen shall have the right and the opportunity, without any
of the distinctions mentioned in article 2 and without unreasonable
restrictions:
(b) To vote and to be elected at genuine periodic elections which shall
be by universal and equal suffrage and shall be held by secret ballot,
guaranteeing the free expression of the will of the electors;
14) Articles 19(1)(a) and 21 of the Constitution, which are also pertinent
for this matter, are as under:
19. Protection of certain rights regarding freedom of speech, etc.-
(1) All citizens shall have the right-
(a) to freedom of speech and expression;
21. Protection of life and personal liberty- No person shall be
deprived of h is life or personal liberty except according to procedure
established by law.”
15) From the above provisions, it is clear that in case an elector decides
not to record his vote, a remark to this effect shall be made in Form
17-A by the Presiding Officer and the signature or thumb impression
of the elector shall be obtained against such remark. Form 17-A reads
as under:

FORM 17A
[See rule 49L)
REGISTER OF VOTERS
Election to the House of the People/ Legislative Assembly of the State/
Union territory..........……………from……..…………Constituency
No. and Name of Polling Station………….....…Part No. of Electoral
Roll……......……
Details of the
Signature/
Sl. No. of document produced
Sl. Thumb
elector in the by theelector in Remarks
No. impression of
electoral roll proof ofhis/her
elector
identification
(1) (2) (3) (4) (5)
1.
2.
3.
4.
Signature of the Presiding Officer

16) Before elaborating the contentions relating to the above provisions
with reference to the secrecy of voting, let us first consider the
issue of maintainability of the Writ Petition as raised by the Union
of India. In the present Writ Petition, which is of the year 2004, the
petitioners have prayed for the following reliefs:
“(i) declaring that Rules 41(2) & (3) and 49-O of the Conduct of
Election Rules, 1961 are ultra vires and unconstitutional to
the extent they violate secrecy of vote;
(ii) direct the Election Commission under the existing
Representation of People Act, 1951 and the Conduct of
Election Rules, 1961 and/ or under Article 324 to provide
necessary provision in the ballot papers and the voting
machines for protection of right not to vote and to keep the
exercise of such right secret;”

17) It is relevant to point out that initially the present Writ Petition
came up for hearing before a Bench of two-Judges. During the
course of hearing, an objection was raised with regard to the
maintainability of the Writ Petition under Article 32 on the ground
that the right claimed by the petitioners is not a fundamental right
as enshrined in Part III of the Constitution. It is the categorical
objection of the Union of India that inasmuch as the writ petition
under Article 32 would lie to this Court only for the violation of
fundamental rights and since the right to vote is not a fundamental
right, the present Writ Petition under Article 32 is not maintainable.
It is the specific stand of the Union of India that right to vote is
not a fundamental right but merely a statutory right. It is further
pointed out that this Court, in Para 20 of the referral order dated
23.02.2009, reported in (2009) 3 SCC 200,observed that since in
Kuldip Nayar (supra), the judgments of this Court in Association
for Democratic Reforms (supra) and People’s Union for Civil
Liberties (supra) have not been specifically overruled which tend
to create a doubt whether the right to vote is a fundamental right
or not and referred the same to a larger Bench stating that the issue
requires clarity. In view of the reference, we have to decide:
(i) Whether there is any doubt or confusion with regard to the
right of a voter in Kuldip Nayar (supra);
(ii) Whether earlier two judgments viz., Association for
Democratic Reforms (supra) and People’s Union for Civil
Liberties (supra) referred to by the Constitution Bench in
Kuldip Nayar (supra) stand impliedly overruled.
18) Though, Mr. Malhotra relied on a large number of decisions, we
are of the view that there is no need to refer to those decisions
except a reference to the decision of this Court in Kuldip Nayar
(supra), Association for Democratic Reforms (supra) and
People’s Union for Civil Liberties (supra).
19) A three-Judge Bench of this Court comprising M.B Shah, P.
Venkatarama Reddi and D.M. Dharmadhikari, JJ. expressed
separate but concurring opinions in the People’s Union for Civil
Liberties (supra). In para 97, Reddi, J made an observation as to

the right to vote being a Constitutional right if not a fundamental
right which reads as under:
“97. In Jyoti Basu v. Debi Ghosal [1982] 3 SCR 318 this Court
again pointed out in no uncertain terms that:
8 “a right to elect, fundamental though it is to democracy,
is, anomalously enough, neither a fundamental right nor a
common law right. It is pure and simple a statutory right.”
With great reverence to the eminent Judges, I would like
to clarify that the right to vote, if not a fundamental right,
is certainly a constitutional right. The right originates from
the Constitution and in accordance with the constitutional
mandate contained in Article 326, the right has been shaped
by the statute, namely, R .P. Act. That, in my understanding,
is the correct legal position as regards the nature of the right
to vote in elections to the House of the People and Legislative
Assemblies. It is not very accurate to describe it as a statutory
right, pure and simple. Even with this clarification, the
argument of the learned Solicitor General that the right to vote
not being a fundamental right, the information which at best
facilitates meaningful exercise of that right cannot be read
as an integral part of any fundamental right, remains to be
squarely met….”
Similarly, in para 123, point No. 2 Reddi, J., held as under:-
“(2) The right to vote at the elections to the House of the
People or Legislative Assembly is a constitutional right but
not merely a statutory right; freedom of voting as distinct
from right to vote is a facet of the fundamental right enshrined
in Article 19(1)(a). The casting of vote in favour of one or
the other candidate marks the accomplishment of freedom of
expression of the voter.”
Except the above two paragraphs, this aspect has nowhere been
discussed or elaborated wherein all the three Judges, in their
separate but concurring judgments, have taken the pains to
specifically distinguish between right to vote and freedom of

voting as a species of freedom of expression. In succinct, the ratio
of the judgment was that though the right to vote is a statutory right
but the decision taken by a voter after verifying the credentials of
the candidate either to vote or not is his right of expression under
Article 19(1)(a) of the Constitution.
20) As a result, the judgments in Association for Democratic
Reforms (supra) and People’s Union for Civil Liberties (supra)
have not disturbed the position that right to vote is a statutory right.
Both the judgments have only added that the right to know the
background of a candidate is a fundamental right of a voter so
that he can take a rational decision of expressing himself while
exercising the statutory right to vote. In People’s Union for Civil
Liberties (supra), Shah J., in para 78D, held as under:-
“…However, voters’ fundamental right to know the antecedents
of a candidate is independent of statutory rights under the
election law. A voter is first citizen of this country and a part from
statutory rights, he is having fundamental rights conferred by the
Constitution…”
P. Venkatrama Reddi, J., in Para 97, held as under:-
“…Though the initial right cannot be placed on the pedestal of
a fundamental right, but, at the stage when the voter goes to the
polling booth and casts his vote, his freedom to express arises. The
casting of vote in favour of one or the other candidate tantamounts
to expression of his opinion and preference and that final stage in
the exercise of voting right marks the accomplishment of freedom of
expression of the voter. That is where Article 19(1)(a) is attracted.
Freedom of voting as distinct from right to vote is thus as pecies
of freedom of expression and therefore carries with it the auxiliary
and complementary rights such as right to secure information
about the candidate which are conducive to the freedom…”
Dharmadhikari, J., in para 127, held as under:-
“…This freedom of a citizen to participate and choose a candidate
at an election is distinct from exercise of his right as a voter which
is to be regulated by statutory law on the election like the RP Act…”

In view of the above, Para 362 in Kuldip Nayar (supra) does not
hold to the contrary, which reads as under:-
“We do not agree with the above submission. It is clear that a fine
distinction was drawn between the right to vote and the freedom of
voting as as pecies of freedom of expression, while reiterating the
view in Jyoti Basu v. Debi Ghosal that a right to elect, fundamental
though it is to democracy, is neither a fundamental right nor a
common law right, but pure and simple, a statutory right”.
21) After a careful perusal of the verdicts of this Court in Kuldip
Nayar (supra), Association for Democratic Reforms (supra)
and People’s Union for Civil Liberties (supra), we are of the
considered view that Kuldip Nayar (supra) does not overrule the
other two decisions rather it only reaffirms what has already been
said by the two aforesaid decisions. The said paragraphs recognize
that right to vote is a statutory right and also in People’s Union
for Civil Liberties (supra) it was held that “a fine distinction was
drawn between the right to vote and the freedom of voting as a
species of freedom of expression”. Therefore, it cannot be said
that Kuldip Nayar (supra) has observed anything to the contrary.
In view of the whole debate of whether these two decisions were
overruled or discarded because of the opening line in Para 362
of Kuldip Nayar (supra) i.e., “we do not agree with the above
submissions…” we are of the opinion that this line must be read
as a whole and not in isolation. The contention of the petitioners
in Kuldip Nayar (supra) was that majority view in People’s
Union for Civil Liberties (supra) held that right to vote is a
Constitutional right besides that it is also a facet of fundamental
right under Article 19(1)(a) of the Constitution. It is this contention
on which the Constitution Bench did not agree too in the opening
line in para 362 and thereafter went on to clarify that in fact in
People’s Union for Civil Liberties (supra), a fine distinction was
drawn between the right to vote and the freedom of voting as a
species of freedom of expression. Thus, there is no contradiction
as to the fact that right to vote is neither a fundamental right nor a
Constitutional right but a pure and simple statutory right. The same
has been settled in a catena of cases and it is clearly not an issue
in dispute in the present case. With the above observation, we hold

that there is no doubt or confusion persisting in the Constitution
Bench judgment of this Court in Kuldip Nayar (supra) and the
decisions in Association for Democratic Reforms (supra) and
People’s Union for Civil Liberties (PUCL) (supra) do not stand
impliedly overruled.
Whether the present writ petition under Article 32 is maintainable:
22) In the earlier part of our judgment, we have quoted the reliefs rayed
for by the petitioners in the writ petition. Mr. Malhotra, learned
Additional Solicitor General, by citing various decisions submitted
that since right to vote is not a fundamental right but is merely a
statutory right, hence, the present writ petition under Article 32
is not maintainable and is liable to be dismissed. He referred to
the following decisions of this Court in N.P. Ponnuswami vs.
Returning officer, 1952 SCR 218, Jamuna Prasad Mukhariya
vs. Lachhi Ram, 1955 (1) SCR 608, University of Delhi vs. Anand
Vardhan Chandal, (2000) 10 SCC 648, Kuldip Nayar (supra) and
K. Krishna Murthy (Dr.) vs. Union of India, (2010) 7 SCC 202,
wherein it has been held that the right to vote is not a fundamental
right but is merely a statutory right.
23) In Kochunni vs. State of Madras, 1959 (2) Supp. SCR 316, this
Court held that the right to move before this Court under Article
32, when a fundamental right has been breached, is a substantive
fundamental right by itself. In a series of cases, this Court has
held that it is the duty of this Court to enforce the guaranteed
fundamental rights.[Vide Daryo vs. State of U.P. 1962 (1) SCR
574].
24) The decision taken by a voter after verifying the credentials of the
candidate either to vote or not is a form of expression under Article
19(1)(a) of the Constitution. The fundamental right under Article
19(1)(a) read with statutory right under Section 79(d) of the RP
Act is violated unreasonably if right not to vote effectively is
denied and secrecy is breached. This is how Articles 14 and 19(1)
(a) are required to be read for deciding the issue raised in this writ
petition. The casting of the vote is a facet of the right of expression
of an individual and the said right is provided under Article 19(1)
(a) of the Constitution of India (Vide: Association for Democratic

Reforms (supra) and People’s Union for Civil Liberties (supra).
Therefore, any violation of the said rights gives the aggrieved
person the right to approach this Court under Article 32 of the
Constitution of India. In view of the above said decisions as well
as the observations of the Constitution Bench in Kuldip Nayar
(supra), a prima facie case exists for the exercise of jurisdiction of
this Court under Article 32.
25) Apart from the above, we would not be justified in asking the
petitioners to approach the High Court to vindicate their grievance
by way of a writ petition under Article 226 of the Constitution
of India at this juncture. Considering the reliefs prayed for which
relate to the right of a voter and applicable to all eligible voters, it
may not be appropriate to direct the petitioners to go to each and
every High Court and seek appropriate relief. Accordingly, apart
from our conclusion on legal issue, in view of the fact that the
writ petition is pending before this Court for the last more than
nine years, it may not be proper to reject the same on the ground,
as pleaded by learned ASG. For the reasons mentioned above, we
reject the said contention and hold that this Court is competent to
hear the issues raised in this writ petition filed under Article 32 of
the Constitution.
Discussion about the relief prayed for in the writ petition:
26) We have already quoted the relevant provisions, particularly, Section
128 of the RP Act, Rules 39, 41, 49M and 49-O of the Rules. It is
clear from the above provisions that secrecy of casting vote is duly
recognized and is necessary for strengthening democracy. We are
of the opinion that paragraph Nos. 441, 442 and 452 to 454 of the
decision of the Constitution Bench in Kuldip Nayar (supra), a re
relevant for this purpose which are extracted hereinbelow:
441.Voting at elections to the Council of States cannot be compared
with a general election. In a general election, the electors have
to vote in a secret manner without fear that their votes would be
disclosed to anyone or would result in victimisation. There is no
party affiliation and hence the choice is entirely with the voter. This
is not the case when elections a re held t o the Council of States a

s the electors are elected Members of the Legislative Assemblies
who in turn have party affiliations.
442.The electoral systems world over contemplate variations. No
one yardstick can be applied to an electoral system. The question
whether election is direct or indirect and for which House members
are to be chosen i s a relevant aspect. All over the world in
democracies, members of the House of Representatives are chosen
directly by popular vote. Secrecy there is a must and insisted upon;
in representative democracy, particularly to the upper chamber,
indirect means of election adopted on party lines is well accepted
practice.
452. Parliamentary democracy and multi-party system are an
inherent part of the basic structure of the Indian Constitution. It
is the political parties that set up candidates at an election who
are predominantly elected as Members of the State Legislatures.
The context in which general elections are held, secrecy of the
vote is necessary in order to maintain the purity of the electoral
system. Every voter has a right to vote in a free and fair manner
and not disclose to any person how he has voted. But here we are
concerned with a voter who is elected on the ticket of a political
party. In this view, the context entirely changes.
453. That the concept of “constituency-based representation” is
different from “proportional representation” has been eloquently
brought out in United Democratic Movement v. President of
the Republic of South Africa where the question before the
Supreme Court was: whether “floor crossing” was fundamental
to the Constitution of South Africa. In this judgment the concept
of proportional representation vis-à-vis constituency-based
representation is highlighted…
454. The distinguishing feature between “constituency
based representation” and “proportional representation” in a
representative democracy is that in the case of the list system
of proportional representation, members are elected on party
lines. They are subject to party discipline. They are liable to be
expelled for breach of discipline. Therefore, to give effect to the

concept of proportional representation, Parliament can suggest
“open ballot”. In such a case, it cannot be said that “free and
fair elections” would stand defeated by “open ballot”. As stated
above, in a constituency-based election it is the people who vote
whereas in proportional representation it is the elector who votes.
This distinction is indicated also in the Australian judgment in
R. vs. Jones. In constituency based representation, “secrecy”
is the basis whereas in the case of proportional representation in
a representative democracy the basis can be “open ballot” and it
would not violate the concept of “free and fair elections”, which
concept is one of the pillars of democracy.”
27) The above discussion in the cited paragraphs makes it clear that in
direct elections to Lok Sabha or State Legislatures, maintenance
of secrecy is a must and is insisted upon all over the world in
democracies where direct elections are involved to ensure that a
voter casts his vote without any fear of being victimized if his vote
is disclosed.
28) After referring to Section 128 of the RP Act and Rule 39 of the
Rules, this Court in S. Raghbir Singh Gill vs. S. Gurcharan
Singh Tohra and Others 1980 (Supp) SCC 53 held as under:
“14 Secrecy of ballot can be appropriately styled as a
postulate of constitutional democracy. It enshrines a
vital principle of parliamentary institutions set up under
the Constitution. It sub serves a very vital public interest
in that an elector or a voter should be absolutely free in
exercise of his franchise untrammeled by any constraint,
which includes constraint as to the disclosure. A remote
or distinct possibility that at some point a voter may
under a compulsion of law be forced to disclose for
whom he has voted would act as a positive constraint
and check on his freedom to exercise his franchise in
the manner he freely chooses t o exercise. Therefore,
it can b e s aid with confidence that this postulate of
constitutional democracy rests on public policy.”
29) In the earlier part of this judgment, we have referred to Article
21(3) of the Universal Declaration of Human Rights and Article

25(b) of the International Covenant on Civil and Political Rights,
which also recognize the right of secrecy.
30) With regard to the first prayer of the petitioners, viz., extension of
principle of secrecy of ballot to those voters who decide not to vote,
Mr. Malhotra, learned ASG submitted that principle of secrecy of
ballot is extended only to those voters who have cast their votes in
favour of one or the other candidates, but the same, in no manner,
can be read as extended to even those voters who have not voted
in the election. He further pointed out that the principle of secrecy
of ballot pre-supposes validly cast vote and the object of secrecy is
to assure a voter to allow him to cast his vote without any fear and
in no manner it will be disclosed that in whose favour he has voted
or he will not be compelled to disclose in whose favour he voted.
The pith and substance of his argument is that secrecy of ballot is
a principle which has been formulated to ensure a voter (who has
exercised his right to vote) that in no case it shall be known to the
candidates or their representatives that in whose favour a particular
voter has voted so that he can exercise his right to vote freely and
fearlessly. The stand of the Union of India as projected by learned
ASG is that the principle of secrecy of ballot is extended only to
those voters who have cast their vote and the same in no manner
can be extended to those who have not voted at all.
31) Right to vote as well as right not to vote have been statutorily
recognized under Section 79(d) of the RP Act and Rules 41(2) &
(3) and 49-O of the Rules respectively. Whether a voter decides to
cast his vote or decides not to cast his vote, in both cases, secrecy
has to be maintained. It cannot be said that if a voter decides to
cast his vote, secrecy will be maintained under Section 128 of the
RP Act read with Rules 39 and 49M of the Rules and if in case a
voter decides not to cast his vote, secrecy will not be maintained.
Therefore, a part of Rule 49-O read with Form 17-A, which treats
a voter who decides not to cast his vote differently and allows the
secrecy to be violated, is arbitrary, unreasonable and violative of
Article 19 and is also ultra vires Sections 79(d) and 128 of the RP
Act.

32) As regards the question as to whether the right of expression
under Article 19 stands infringed when secrecy of the poll is not
maintained, it is useful to refer S. Raghbir Singh (supra) wherein
this Court deliberated on the interpretation of Section 94 of the RP
Act which mandates that no elector can be compelled as a witness
to disclose his vote. In that case, this Court found that the “ secrecy
of ballots constitutes a postulate of constitutional democracy… A
remote or distinct possibility that the voter at some point of time
may under a compulsion of law be forced to disclose for whom
he has voted would act as a positive constraint and check on his
freedom to exercise his franchise in the manner he freely chooses
to exercise”. Secrecy of ballot, thus, was held to be a privilege
granted in public interest to an individual. It is pertinent to note
that in the said case, the issue of the disclosure by an elector of his
vote arose in the first place because there was an allegation that the
postal ballot of an MLA was tampered with to secure the victory
of one of the candidates to the Rajya Sabha. Therefore,seemingly
there was a conflict between the “fair vote” and “secret ballot”.
33) In Kuldip Nayar (supra), this Court held that though secrecy of
ballots is a vital principle for ensuring free and fair elections, the
higher principle is free and fair elections. However, in the same
case, this Court made a copious distinction between “constituency
based representation” and “proportional representation”. It was
held that while in the former, secrecy is the basis, in the latter the
system of open ballot and it would not be violative of “free and fair
elections”. In the said case, R vs. Jones, (1972) 128 CLR 221 and
United Democractic Movement vs. President of the Republic
of South Africa, (2003) 1 SA 495 were also cited with approval.
34) Therefore, in view of the decisions of this Court in S. Raghubir
Singh Gill (supra) and Kuldip Nayar (supra), the policy is clear
that secrecy principle is integral to free and fair elections which can
be removed only when it can be shown that there is any conflict
between secrecy and the “higher principle” of free elections. The
instant case concerns elections to Central and State Legislatures
that are undoubtedly “constituency based”. No discernible public
interest shall be served by disclosing the elector’s vote or his
identity. Therefore, secrecy is an essential feature of the “free

and fair elections” and Rule 49-O undoubtedly violates that
requirement.
35) In Lily Thomas vs. Speaker, Lok Sabha, (1993) 4 SCC 234, this
Court held that “voting is a formal expression of will or opinion by
the person entitled to exercise the right on the subject or issue in
question” and that “right to vote means right to exercise the right in
favour of or against the motion or resolution. Such a right implies
right to remain neutral as well”.
36) In view of the same, this Court also referred to the Practice and
Procedure of the Parliament for voting which provides for three
buttons: viz., AYES, NOES and ABSTAIN whereby a member can
abstain or refuse from expressing his opinion by casting vote in
favour or against the motion. The constitutional interpretation given
by this Court was based on inherent philosophy of parliamentary
sovereignty.
37) A perusal of Section 79(d) of the RP Act, Rules 41(2) & (3) and
Rule 49-O of the Rules make it clear that a right not to vote has been
recognized both under the RP Act and the Rules. A positive ‘right
not to vote’ is a part of expression of a voter in a parliamentary
democracy and it has to be recognized and given effect to in the
same manner as ‘right to vote’. A voter may refrain from voting at
an election for several reasons including the reason that he does
not consider any of the candidates in the field worthy of his vote.
One of the ways of such expression may be to abstain from voting,
which is not an ideal option for a conscientious and responsible
citizen. Thus, the only way by which it can be made effectual is
by providing a button in the EVMs to express that right. This is
the basic requirement if the lasting values in a healthy democracy
have to be sustained, which the Election Commission has not only
recognized but has also asserted.
38) The Law Commission of India, in its 170th Report relating to
Reform of the Electoral Laws recommended for implementation
of the concept of negative vote and also pointed out its advantages.
39) In India, elections traditionally have been held with ballot papers.
As explained by the Election Commission, from 1998 onwards, the

Electronic Voting Machines (EVMs) were introduced on a large
scale. Formerly, under the ballots paper system, it was possible to
secretly cast a neutral/negative vote by going to the polling booth,
marking presence and dropping one’s ballot in the ballot box
without making any mark on the same. However, under the system
of EVMs, such secret neutral voting is not possible, in view of the
provision of Rule 49B of the Rules and the design of the EVM and
other related voting procedures. Rule 49B of the Rules mandates
that the names of the candidates shall be arranged on the balloting
unit in the same order in which they appear in the list of contesting
candidates and there is no provision for a neutral button.
40) It was further clarified by the Election Commission that EVM
comprises of two units, i.e. control and balloting units, which are
interconnected by a cable. While the balloting unit is placed in a
screened enclosure where an elector may cast his vote in secrecy,
the control unit remains under the charge of the Presiding Officer
and so placed that all polling agents and others present have an
unhindered view of all the operations. The balloting unit, placed
inside the screened compartment at the polling station gets activated
for recording votes only when the button marked “Ballot” on the
control unit is pressed by the presiding officer/polling officer in
charge. Once the ballot button is pressed, the Control unit emanates
red light while the ballot unit which has been activated to receive
the vote emanates green light. Once an elector casts his vote by
pressing balloting button against the candidate of his choice, he can
see a red light glow against the name and symbol of that candidate
and a high-pitched beep sound emanates from the machine. Upon
such casting of vote, the balloting unit is blocked, green light
emanates on the control unit, which is in public gaze, and the high
pitched beep sound is heard by one and all. Thereafter, the EVM
has to re-activate for the next elector by pressing “ballot button”.
However, should an elector choose not to cast his vote in favour of
any of the candidates labeled on the EVM, and consequently, not
press any of the labeled button neither will the light on the control
unit change from red to green nor will the beep sound emanate.
Hence, all present in the poll booth at the relevant time will come
to know that a vote has not been cast by the elector.

41) Rule 49-O of the Rules provides that if an elector, after his electoral
roll number has been entered in the register of electors in Form
17-A, decides not to record his vote on the EVM, a remark to this
effect shall be made against the said entry in Form 17-A by the
Presiding Officer and signature/thumb impression of the elector
shall be obtained against such remark. As is apparent, mechanism
of casting vote through EVM and Rule 49-O compromise on the
secrecy of the vote as the elector is not provided any privacy when
the fact of the neutral/negative voting goes into record.
42) Rules 49A to 49X of the Rules come under Chapter II of Part IV
of the Rules. Chapter II deals with voting by Electronic Voting
Machines only. Therefore, Rule 49-O, which talks about Form
17-A, is applicable only in cases of voting by EVMs. The said
Chapter was introduced in the Rules by way of an amendment
dated 24.03.1992. Voting by ballot papers is governed by Chapter
I of Part IV of the Rules. Rule 39 talks about secrecy while voting
by ballot and Rule 41 talks about ballot papers. However, as said
earlier, in the case of voting by ballot paper, the candidate always
had the option of not putting the cross mark against the names
of any of the candidates and thereby record his disapproval for
all the candidates in the fray. Even though such a ballot paper
would be considered as an invalid vote, the voter still had the right
not to vote for anybody without compromising on his/her right
of secrecy. However, with the introduction of EVMs, t he s aid
option of not voting for anybody without compromising the right
of secrecy is not available to the voter since the voting machines
did not have ‘None of the Above’ (NOTA) button.
43) It is also pointed out that in order to rectify this serious defect,
on 10.12.2001, the Election Commission addressed a letter to the
Secretary, Ministry of Law and Justice stating, inter-alia, that the
“electoral right” under Section 79(d) includes a right not to cast
vote and sought to provide a panel in the EVMs so that an elector
may indicate that he does not wish to vote for any of the afore
mentioned candidates. The letter also stated that such number of
votes expressing dissatisfaction with all the candidates may be
recorded in a result sheet. It is also brought to our notice that no
action was taken on the said letter dated 10.12.2001.

44) The Election Commission further pointed out that in the larger
interest of promoting democracy, a provision for “None of the
Above” or “NOTA” button should be made in the EVMs/ ballot
papers. It is also highlighted that such an action, apart from
promoting free and fair elections in a democracy, will provide an
opportunity to the elector to express his dissent/disapproval against
the contesting candidates and will have the benefit of reducing
bogus voting.
45) Democracy and free elections are part of the basic structure of the
Constitution. In Indira Nehru Gandhi vs. Raj Narain, 1975 Supp
1 SCC 198, Khanna, J., held that democracy postulates that there
should be periodic elections where the people should be in a position
to re-elect their old representatives or change the representatives
or elect in their place new representatives. It was also held that
democracy can function only when elections are free and fair and
the people are free to vote for the candidates of their choice. In the
said case, Article 19 was not in issue and the observations were
in the context of basic structure of the Constitution. Thereafter,
this Court reiterated that democracy is the basic structure of the
Constitution in Mohinder Singh Gill and Another vs. Chief
Election Commissioner, New Delhi and Others, (1978) 1 SCC
405 and Kihoto Hollohon vs. Zachillhu and Others, 1992 (Supp)
2 SCC 651.
46) In order to protect the right in terms of Section 79(d) and Rule
49-O, viz., “right not to vote”, we are of the view that this Court
is competent/well within its power to issue directions that secrecy
of a voter who decides not to cast his vote has to be protected in
the same manner as the Statute has protected the right of a voter
who decides to cast his vote in favour of a candidate. This Court
is also justified in giving such directions in order to give effect
to the right of expression under Article 19(1)(a) and to avoid any
discrimination by directing the Election Commission to provide
NOTA button in the EVMs.
47) With regard to the above, Mr. Malhotra, learned ASG, by drawing
our attention to Section 62 of the RP Act, contended that this
Section enables a person to cast a vote and it has no scope for
negative voting. Section 62(1) of the RP Act reads as under:
“62. Right to vote - (1) No person who is not, and except as
expressly provided by this Act, every person who is, for the
time being entered in the electoral roll of any constituency
shall be entitled to vote in that constituency.”
48) Mr. Malhotra, learned ASG has also pointed out that elections are
conducted to fill a seat by electing a person by a positive voting
in his favour and there is no concept of negative voting under the
RP Act. According to him, the Act does not envisage that a voter
has any right to cast a negative vote if he does not like any of the
candidates. Referring to Section 2 (d) of the RP Act, he asserted
that election is only a means of choice or election between various
candidates to fill a seat. Finally, he concluded that negative voting
(NOTA) has no legal consequence and there shall be no motivation
for the voters to travel to the polling booth and reject all the
candidates, which would have the same effect of not going to the
polling station at all.
49) However, correspondingly, we should also appreciate that the
election is a mechanism, which ultimately represents the will
of the people. The essence of the electoral system should be to
ensure freedom of voters to exercise their free choice. Article
19 guarantees all individuals the right to speak, criticize, and
disagree on a particular issue. It stands on the spirit of tolerance
and allows people to have diverse views, ideas and ideologies. Not
allowing a person to cast vote negatively defeats the very freedom
of expression and the right ensured in Article 21 i.e., the right to
liberty.
50) Eventually, voters’ participation explains the strength of
the democracy. Lesser voter participation is the rejection of
commitment to democracy slowly but definitely whereas larger
participation is better for the democracy. But, there is no yardstick
to determine what the correct and right voter participation is. If
introducing a NOTA button can increase the participation of
democracy then, in our cogent view, nothing should stop the same.
The voters’ participation in the election is indeed the participation
in the democracy itself. Non-participation causes frustration and
disinterest, which is not a healthy sign of a growing democracy
like India.
Conclusion:
51) Democracy being the basic feature of our constitutional set up,
there can be no two opinions that free and fair elections would
alone guarantee the growth of a healthy democracy in the country.
The ‘Fair’ denotes equal opportunity to all people. Universal adult
suffrage conferred on the citizens of India by the Constitution has
made it possible for these millions of individual voters to go to the
polls and thus participate in the governance of our country. For
democracy to survive, it is essential that the best available men
should be chosen as people’s representatives for proper governance
of the country. This can be best achieved through men of high moral
and ethical values, who win the elections on a positive vote. Thus
in a vibrant democracy, the voter must be given an opportunity
to choose none of the above (NOTA) button, which will indeed
compel the political parties to nominate a sound candidate. This
situation palpably tells us the dire need of negative voting.
52) No doubt, the right to vote is a statutory right but it is equally vital
to recollect that this statutory right is the essence of democracy.
Without this, democracy will fail to thrive. Therefore, even if the
right to vote is statutory, the significance attached with the right is
massive. Thus, it is necessary to keep in mind these facets while
deciding the issue at hand.
53) Democracy is all about choice. This choice can be better expressed
by giving the voters an opportunity to verbalize themselves
unreservedly and by imposing least restrictions on their ability to
make such a choice. By providing NOTA button in the EVMs, it will
accelerate the effective political participation in the present state of
democratic system and the voters in fact will be empowered. We
are of the considered view that in bringing out this right to cast
negative vote at a time when electioneering is in full swing, it will
foster the purity of the electoral process and also fulfill one of its
objective, namely, wide participation of people.
54) Free and fair election is a basic structure of the Constitution and
necessarily includes within its ambit the right of an elector to cast
his vote without fear of reprisal duress or coercion. Protection of

elector’s identity and affording secrecy is therefore integral to free
and fair elections and an arbitrary distinction between the voter
who casts his vote and the voter who does not cast his vote is
violative of Article 14. Thus, secrecy is required to be maintained
for both categories of persons.
55) Giving right to a voter not to vote for any candidate while protecting
his right of secrecy is extremely important in a democracy. Such
an option gives the voter the right to express his disapproval with
the kind of candidates that are being put up by the political parties.
When the political parties will realize that a large number of
people are expressing their disapproval with the candidates being
put up by them, gradually there will be a systemic change and the
political parties will be forced to accept the will of the people and
field candidates who are known for their integrity.
56) The direction can also be supported by the fact that in the existing
system a dissatisfied voter ordinarily does not turn up for voting
which in turn provides a chance to unscrupulous elements to
impersonate the dissatisfied voter and cast a vote, be it a negative
one. Furthermore, a provision of negative voting would be in the
interest of promoting democracy as it would send clear signals to
political parties and their candidates as to what the electorate think
about them.
57) As mentioned above, the voting machines in the Parliament have
three buttons, namely, AYES, NOES, and ABSTAIN. Therefore, it
can be seen that an option has been given to the members to press
the ABSTAIN button. Similarly, the NOTA button being sought
for by the petitioners is exactly similar to the ABSTAIN button
since by pressing the NOTA button the voter is in effect saying
that he is abstaining from voting since he does not find any of the
candidates to be worthy of his vote.
58) The mechanism of negative voting, thus, serves a very fundamental
and essential part of a vibrant democracy. The following countries
have provided for neutral/protest/negative voting in their electoral
systems:

S. Name of the Form of Negative
Method of Voting
No Country Vote
1 France Electronic NOTA
2 Belgium Electronic NOTA
3 Brazil Ballot Paper NOTA
4 Greece Ballot Paper NOTA
5 Ukraine Ballot Paper NOTA
6 Chile Ballot Paper NOTA
7 Bangladesh Ballot Paper NOTA
8 State of Nevada,USA Ballot Paper NOTA
9 Finland Ballot Paper Blank Vote
and/or ‘write in*’
10 Sweden Ballot Paper Blank Vote and/or
`write in*
11 United States of Electronic/ Blank Vote and/or
America Ballot(Depending `write in*
on State)
12 Colombia Ballot Paper Blank Vote
13 Spain Ballot Paper Blank Vote
Write-in – The ‘write-in’ form of negative voting allows a voter to cast

a vote in favour of any fictional name/candidate.
59) The Election Commission also brought to the notice of this Court
that the present electronic voting machines can be used in a
constituency where the number of contesting candidates is up to
64. However, in the event of there being more than 64 candidates
in the poll fray, the conventional system of ballot paper is resorted
to. Learned counsel appearing for the Election Commission
also asserted through supplementary written submission that the
Election Commission of India is presently exploring the possibility
of developing balloting unit with 200 panels. Therefore, it was
submitted that if in case this Court decides to uphold the prayers
of the petitioners herein, the additional panel on the balloting unit
after the last panel containing the name and election symbol of
the last contesting candidate can be utilized as the NOTA button.

Further, it was explicitly asserted in the written submission that
the provision for the above facility for a negative or neutral vote
can be provided in the existing electronic voting machines without
any additional cost or administrative effort or change in design or
technology of the existing machines. For illustration, if there are 12
candidates contesting an election, the 13th panel on the balloting
unit will contain the words like “None of the above” and the ballot
button against this panel will be kept open and the elector who
does not wish to vote for any of the above mentioned 12 contesting
candidates, can press the button against the 13th panel and his vote
will be accordingly recorded by the control unit. At the time of the
counting, the votes recorded against serial number 13 will indicate
as to how many electors have decided not to vote for any candidate.
60) Taking note of the submissions of Election Commission, we are
of the view that the implementation of the NOTA button will not
require much effort except for allotting the last panel in the EVM
for the same.
61) In the light of the above discussion, we hold that Rules 41(2) &
(3) and 49-O of the Rules are ultra vires Section 128 of the RP Act
and Article 19(1)(a) of the Constitution to the extent they violate
secrecy of voting. In view of our conclusion, we direct the Election
Commission to provide necessary provision in the ballot papers/
EVMs and another button called “None of the Above” (NOTA)
may be provided in EVMs so that the voters, who come to the
polling booth and decide not to vote for any of the candidates in the
fray, are able to exercise their right not to vote while maintaining
their right of secrecy. Inasmuch as the Election Commission itself
is in favour of the provision for NOTA in EVMs, we direct the
Election Commission to implement the same either in a phased
manner or at a time with the assistance of the Government of India.
We also direct the Government of India to provide necessary help
for implementation of the above direction. Besides, we also direct
the Election Commission to undertake awareness programmes to
educate the masses.
62) The writ petition is disposed of with the aforesaid directions.

32. DR. RAMESH PANDEY vs. ELECTION COMMISSION OF
INDIA & ANOTHER
Writ Petition (PIL) No. 57 of 2017 [2017 SCC
CASE ONLINE UTT 676]
DETAILS 02.06. 2017
Rajiv Sharma, J. and Sharad Kumar Sharma, J.
ISSUES Functionality and credibility of EVMs.
The Hon’ble Court rejected this contention and held
that the EVMs are not hackable. There cannot be
any manipulation at the manufacturing stage. The
results cannot be altered by activating a Trojan Horse
through a sequence of key presses. The ECI-EVMs
cannot be physically tampered with. The EVMs
use some of the most sophisticated technological
DECISIONS
features like One Time Programmable (OTP)
microcontrollers, dynamic coding of key codes, date
and time stamping of each and every key press etc.
These EVMs also cannot be tampered with during
the course of transportation or at the place of storage.
There are checks and balances to ensure tamper-
proofing of EVMs.
SUMMARY
The Petitioner questioned EVM as per Press Release dated 20.5.2017.
According to the Press Release dated 20.5.2017, the respondent-Election
Commission of India (ECI) had taken the initiation of introducing the
Electronic Voting Machines (EVM) for recording, storing and counting
of votes across the country. The Commission successfully conducted
107 State Legislative Assembly Elections and 03 Lok Sabha elections
using EVMs. Since September, 2013, Voter Verifiable Paper Audit Trial
(VVPAT) Machines were also introduced in various State Assemblies
and Parliamentary Constituencies to enhance the transparency and
credibility in the voting process.
The Hon’ble Court held that the Election Commission of India is not
comparable with any other authority. Article 324 of the Constitution
of India has to be given the broadest possible meaning. The Election
Commission has successfully held the free and fair elections and the

political parties cannot be permitted to lower down the image and
prestige of the constitutional body.
However, in the larger public interest, the Hon’ble Court restrain all the
recognized National Political Parties, recognized State Political Parties,
other political parties, Non-Governmental Organizations (NGOs) and
individuals from criticizing the use of EVMs in the then recently
conducted elections of the State Assemblies even by approaching the
Electronic Media, Press, Radio, Facebook, Tweeter etc. till the decision
of the election petitions.
ORDER
Rajiv Sharma, J. and Sharad Kumar Sharma, J.
Petitioner claims himself to be the social worker involved in politics.
He was the Vice Chairman of the 20 Point Programme Committee,
District Nainital from the year 2005 to 2007. He is presently working
as the Vice President of the State Congress Committee.
Petitioner has laid challenge to EVMs being held by the Election
Commission of India on 3.6.2017 as per Press Release dated 20.5.2017.
According to the Press Release dated 20.5.2017 (Annexure No.1),
the respondent –Election Commission of India (ECI) has taken the
initiation of introducing the Electronic Voting Machines (EVM)
for recording, storing and counting of votes across the length and
breadth of the country. The Commission has successfully conducted
107 State Legislative Assembly Elections and 03 Lok Sabha elections
using EVMs. Since September, 2013, Voter Verifiable Paper Audit
Trial (VVPAT) Machines have also been introduced in various
State Assemblies and Parliamentary Constituencies to enhance the
transparency and credibility in the voting process.
According to the Press Release, some doubts have been raised in
the functioning of EVMs from time to time. Some complaints and
suggestions were received by the Commission after declaration of
results of 5 State Assembly Elections.
These complaints were looked into by the Commission. 13 political
parties met the Commission on 10.4.2017 and expressed certain
reservations about the use of EVMS. Some political parties also
raised apprehensions about the incidents relating to VVPATs used on

31.3.2017 during demonstration. The Commission also convened an
All-party Meeting on 12th May, 2017. Various Press Statements were
also issued by the Commission.
It is further stated in the press release that the EVMs are not hackable as
these are stand-alone machines and not connected to the internet and/
or any other network at any point of time during polling. Manipulation
at manufacturing stage is ruled out as there is very stringent security
protocol. Results cannot be altered by activating a Trojan Horse through
a sequence of key presses. ECI-EVMs cannot be physically tampered
with nor can their components be changed without anyone noticing.
The latest technological features make ECI-EVMs tamperproof. There
are no possibilities of manipulation in EVMs during transportation
or at the place of storage. There are different levels of checks and
balances ensuring tamperproofing of ECI-EVMs. Thus, the Election
Commission, on 3.6.2017, is holding the EVM Challenge.
The EVM Challenge is open for participation from the National and the
State Recognized Political Parties only which participated in the Five
States’ Assembly Elections viz. Goa, Punjab, Manipur, Uttarakhand and
Uttar Pradesh. Each National and State recognized party intending to
participate may nominate a maximum of 3 persons only to participate in
the EVM Challenge. Each party shall intimate the names of maximum
3 authorized persons. The political parties willing to participate in the
EVM Challenge must mandatorily confirm their interest to ECI by 5.00
PM on 26th May, 2017. The political parties were also allowed to choose
a maximum of 4 EVMs of their choice from any 4 polling stations out
of the Five Poll-gone States. The chosen EVM machines, including
Control Units (CU), Ballot Units (BU) (one or more as deployed)
and VVPAT (wherever deployed) shall be brought to the ECI at New
Delhi, on ‘as is where’ basis in compliance of the extent of established
protocol of ECI regarding opening of EVM strong-rooms/warehouse
and EVM transportation. The political parties, as per paragraph no.13
of the press release, are allowed the following methods to prove the
EVMs challenge: -
a. Pressing any sequence of buttons on the CU or BU or both;
b. The use of any external wireless/Bluetooth/mobile phone device/
transmitter.

It is also highlighted in the press release that the Commission would like
to reassure the people of the country that the Commission would leave
no stone unturned in preserving the purity, integrity and credibility of
the elections and reinforcing the faith and trust of the people in the
electoral democracy of the country.
Mr. Arvind Vashisth, Sr. Advocate, appearing for the petitioner has
vehemently argued that the role of the Election Commission is over
after the declaration of results and no such exercise could be undertaken
by the Commission. He further contended that this Court is seized of as
many as seven election petitions, whereby, a challenge has been laid to
the functioning of EVMs. He lastly contended that the demonstration
of EVMs functioning may influence the outcome of election petitions.
Mr. Amit Sharma and Mr. Shobhit Saharia, Advocates, appearing for
the Election Commission of India, have vehemently argued that there
is no scope of tampering, at all, in the EVMs. This exercise has been
undertaken by the Election Commission of India to allay the fears of
political parties.
We have heard learned Counsel for the parties at length.
Elections of Five Legislative Assemblies were held. The results were
declared. The National and the State Recognized Political Parties
have raised certain apprehensions about the functioning of EVMs. We
have gone through the press release dated 20.5.2017. Prima facie, it is
evident from a combined reading of the entire press release that this
system is seal proof. The EVMs are not hackable. There cannot be any
manipulation at manufacturing stage. The results cannot be altered by
activating a Trojan Horse through a sequence of key presses. The ECI-
EVMs cannot be physically tampered with. The EVMs use some of the
most sophisticated technological features like One Time Programmable
(OTP) microcontrollers, dynamic coding of key codes, date and time
stamping of each and every key press etc. These EVMs also cannot
be tampered with during the course of transportation or at the place of
storage. There are checks and balances to ensure tamper-proofing of
EVMs, as further detailed in the press release.
This Court is also seized of the matter because as many as seven
elections petitions bearing numbers 2, 3, 5, 6, 7, 8 and 9, all of Year

2017 are pending adjudication. It is submitted at bar that the Election
Commission of India has already been arrayed as party in these
petitions. The EVMs have also been ordered to be sealed in election
petitions by the orders passed by the Co-ordinate Bench of this Court.
Their Lordships of the Hon’ble Supreme Court in 1975 Supp. SCC 1
in the case of Indira Nehru Gandhi vs. Raj Narain and Anr. have
held that “Democracy” is an essential feature of the Constitution. Their
Lordships have also held that the election should be free and fair, so
that voters may be in a position to vote for candidates of their choice.
Democracy can indeed function only upon the faith that elections are
free and fair and not rigged and manipulated, that they are effective
instruments of ascertaining popular will both in reality and form and
are not mere rituals calculated to generate illusion of defence to mass
opinion. Their Lordships have held as under:-
“198. This Court in the case of Kesavananda Bharati
AIR 1973 SC 1461 held by majority that the power of
amendment of the Constitution contained in Article 368 does
not permit altering the basic structure of the Constitution.
All the seven Judges who constituted the majority were
also agreed that democratic set up was part of the basic
structure of the Constitution. Democracy postulates that
there should be periodical elections, so that people may
be in a position either to re-elect the old representatives or,
if they so choose, to change the representatives and elect
in their place other representatives. Democracy further
contemplates that the elections should be free and fair, so
that the voters may be in a position to vote for candidates
of their choice. Democracy can indeed function only upon
the faith that elections are free and fair and not rigged
and manipulated, that they are effective instruments of
ascertaining popular will both in reality and form and
are not mere rituals calculated to generate illusion of
deference to mass opinion. Free and fail elections require
that the candidates and their agents should not resort to
unfair means or malpractices as may impinge upon the
process of free and fair elections. Even in the absence of
unfair means and malpractices, sometimes the result of

an election is materially affected because of the improper
rejection of ballot papers. likewise, the result of an election
may be materially affected on account of the improper
rejection of a nomination paper. Disputes, therefore, arise
with regard to the validity of elections. For the resolving
of those disputes, the different democratic countries of the
world have made provisions prescribing the law and the
forum for the resolving of those disputes. To give a few
examples, we may refer to the United Kingdom where a
parliamentary election petition is tried by two judges on
the rota for the trial of parliamentary election petitions
in accordance with the Representation of the People Act,
1949. Section 5 of Article 1 of the U S Constitution provides
that each House (Senate and the House of Representatives)
shall be judge of the elections, returns and qualifications of
its own members. Section 47 of the Australian Constitution
provides that until the Parliament otherwise provides, any
question respecting the qualification of a senator or of a
member of the House of Representatives, or respecting a
vacancy in either House of Parliament, and any question
of a disputed election to either House, shall be determined
by the House in which the question arises. Article 55 of the
Japanese Constitution states that each House shall judge
disputes related to qualifications of its members. However,
in order to deny a seat to any member, it is necessary to
pass a resolution by a majority of two-thirds or more of
the members present. Article 46 of the Iceland Constitution
provides that the All thing itself decides whether its members
are legally elected and whether a member is disqualified.
Article 64 of the Norwegian Constitution states that the
representatives elected shall be furnished with certificates,
the validity of which shall be submitted to the judgment
of the Storthing. Article 59 of the French Constitution
provides that the Constitutional Council shall rule, in the
case of disagreement, on the regularity of the election of
deputies and senat Ors. Article 41 of the German Federal
Republic Constitution states that the scrutiny of elections
shall be the responsibility of the Bundestag. It shall also

decide whether a deputy has lost his seat in the Bundestag.
Against the decision of the Bundestag an appeal shall
lie to the Federal Constitutional Court. Details shall be
regulated by a federal law. According to Article 66 of
the Italian Constitution, each Chamber decides as to the
validity of the admission of its own Members and as to
cases subsequently arising concerning ineligibility and
incompatibility. In Turkey Article 75 provides inter-alia that
it shall be the function of Supreme Election Board to review
and pass final judgment on all irregularities, complaints
and objections regarding election matters during and after
elections. The function and powers of the Supreme Election
Board shall be regulated by law. Article 53 of the Malaysian
Constitution provides that if any question arises whether a
member of a House of Parliament has become disqualified
for membership, the decision of that House shall be taken
and shall be final.
672. The contention that ‘Democracy’ is an essential
feature of the Constitution is unassailable. It is therefore,
necessary to see whether the impugned provisions of
the 39th Amendment damage or destroy that feature.
The learned Attorney-General saw an unsurmountable
impediment in the existence of various forms of democracies
all over the world and he asked : What kind and form of
democracy constitutes a part of our basic structure ? The
cabinet system. the Presidential system the French, the
Russian or any other ? This approach seeks to make the
issue unrealistically complex. If the democratic form of
government is the corner-stone of our Constitution, the
basic feature is the broad form of democracy that was
known to Our Nation when the Constitution was enacted,
with such adjustments and modifications as exigencies may
demand but not so as to leave the mere husk of a popular
rule. Democracy is not a dogmatic doctrine and no one can
suggest that a rule is authoritarian because some rights and
safeguards available to the people at the inception of its
Constitution have been abridged or abrogated or because,

as the result of a Constitutional amendment, the form of
government does not strictly comport with some classical
definition of the concept. The needs of the Nation may call
for severe abnegation. though never the needs of the Rulers
and evolutionary changes in the fundamental law of the
country do not necessarily destroy the basic structure of
its government. What does the law live for, if it is dead to
living needs ? We cannot therefore, as lawyers and Judges,
generalize on what constitutes ‘Democracy’ though we all
know the highest form of that idealistic concept-the state of
bliss-in political science.”
Their Lordships of Hon. Supreme Court in AIR 1986 S.C. 111 in the
matter of ‘Kanhiya Lal Omar v. R.K. Trivedi & others’ have held that
even if for any reason, it is held that any of the provisions contained in
the Symbols Order are not traceable to the Act or the Rules, the power
of the Commission under Article 324(1) of the Constitution which is
plenary in character can encompass all such provisions, Article 324 of
the Constitution operates in areas left unoccupied by legislation and the
words ‘superintendence’, ‘direction’ and ‘control’ as well as ‘conduct
of all elections’ are the broadest terms which would include the power
to make all such provisions. In paragraph no.16, their Lordships have
held as under: -
“16. Even if for any reason, it is held that any of the
provisions contained in the Symbols Order are not traceable
to the Act or the Rules, the power of the Commission under
Article 324(1) of the Constitution which is plenary in
character can encompass all such provisions, Article 324
of the Constitution operates in areas left unoccupied by
legislation and the words ‘superintendence’, ‘direction’
and ‘control’ as well as ‘conduct of all elections’ are the
broadest terms which would include the power to make all
such provisions.”
The Election Commission is now a Multimember Commission. The
decisions are taken unanimously by the Members of Commission.
Their Lordships of the Hon’ble Supreme Court in (1996) 4 SCC 188 in
the case of Bhim Singh, President J&K Panthers Party Vs. Election

Commissioner of India and another, have held that functionaries
in any manner concerned with directing the conduct, supervision and
control of free, fair and peaceful elections to the House of the People
and the Legislative Assemblies of the States need to adopt a realistic,
pragmatic and flexible approach. Their Lordships have held as under:-
“11. Having due regard to the ground realities, we must
emphasise that Functionaries in any manner concerned
with directing the conduct, supervision and control of free,
fair and peaceful elections to the House of the People and
the Legislative Assemblies of the States need to adopt a
realistic, pragmatic and flexible approach to ensure that
the country shall be governed in its true, secular, socialist
democratic perspective.”
Their Lordships of Hon. Supreme Court in (2002) 5 S.C.C. 294 in
the case of ‘Union of India v. Assn. for Democratic Reforms’ have
again reiterated that the powers of Election Commission under Article
324 are plenary and include all powers necessary for smooth conduct
of election subject only to a valid law enacted by Parliament or State
Legislature. Even in absence of such a law, Election Commission can
exercise its residuary power under Article 324 to fill the vacuum in
order to meet unforeseen contingencies. They have also explained the
term ‘conduct of election’ in the following paragraphs:-
22. For health of democracy and fair election, whether the
disclosure of assets by a candidate, his/her qualification
and particulars regarding involvement in criminal cases
are necessary for informing voters, may be illiterate, so
that they can decide intelligently, whom to vote? In our
opinion, the decision of even illiterate voter, if properly
educated and informed about the contesting candidate,
would be based on his own relevant criteria of selecting
a candidate. In democracy, periodical elections are
conducted for having efficient governance for the country
and for the benefit of citizens--voters. In a democratic form
of government, voters are of almost importance. They have
right to elect or re-elect on the basis of the antecedents
and past performance of the candidate. He has choice of

deciding whether holding of educational qualification or
holding of property is relevant for electing or re-electing a
person to be his representative. Voter has to decide whether
the should cast vote in favour of a candidate who is involved
in criminal case. For maintaining purity of elections and
healthy democracy, voters are required to be educated
and well informed about the contesting candidates. Such
information would include assets held by the candidate,
his qualification including educational qualification and
antecedents of his life including whether he was involved
in a criminal case and if the case is decided--its result, if
pending-- whether charge is framed or cognizance is taken
by the Court? There is no necessity of suppressing the
relevant facts from the voters.
27. Further, this Court in Kanhiya Lal Omar v. R.K. Trivedi and
other AIR1986 SC111 dealt with the Constitutional validity of the
Election Symbols (Reservation and Allotment) Order, 1968 which was
issued by the Election Commission in its plenary exercise of power
under Article 324 of the Constitution read with Rules 5 and 10 of the
Conduct of Election Rules, 1961. The challenge was on the ground that
Symbols Order which is legislative in character could not be issued by
the Commission because the Commission is not entrusted by law the
power to issue such an order regarding the specification reservation and
allotment of symbol that may be chosen by the candidates at elections
in parliamentary and Assembly constituencies. It was urged that Article
324 of the Constitution which vests the power of superintendence,
direction and control of all elections to Parliament and to the Legislature
of a State in Commission cannot be construed as conferring the power
on the Commission to issue the Symbols. The Court negatived the said
contention and pertinently observed that “the word ‘election’ in Article
324 is used in wide sense so as to include the entire process of election
which consists of several stages and it embraces many steps, some
of which may have an important bearing on the result of the process.
India is a country which consists of millions of voters. Although they
are quite conscious of their duties politically, unfortunately, a large
percentage of them are still illiterate.”
The Court in paragraph 16 held:-

“16. Even if for any reason, it is held that any of the provisions contained
in the Symbols Order are not traceable to the Act or the Rules, the power
of the Commission under Article 324(1) of the Constitution which is
plenary in character can encompass all such provisions. Article 324 of
the Constitution operates in areas left unoccupied by legislation and the
words ‘superintendence, ‘direction’ and ‘control’ as well as “conduct of
all elections” are the broadest terms which would include the power to
make all such provisions.”
The Court further observed:-
“.....While construing the expression” superintendence, direction and
control” in Article 324(1), one has to remember that every norm which
lays down a rule of conduct cannot possibly be elevated to the position
of legislation or delegated legislation. There are some authorities or
persons in certain grey areas who may be sources of rules of conduct
and who at the same time cannot be equated to authorities or persons
who can make law, in the strict sense in which it is understood in
jurisprudence. A direction may mean an order issued to a particular
individual or a precept which many may have to follow. It may be a
specific or a general order. One has also to remember that the source of
power in this case is the Constitution, the highest law of the land, which
is the repository and source of all legal powers and any power granted
by the Constitution for a specific purpose should be construed liberally
so that the object for which the power is granted is effectively achieved.
Viewed from this angle it cannot be said that any of the provisions of
the Symbols Order suffers from want of authority on the part of the
Commission, which has issued it.”
Their Lordships of the Hon’ble Supreme Court in (2012) 7 SCC
340, in the case of Desiya Murpokku Dravida Kazhagam (DMDK)
and another Vs. Election Commission of India, have held that the
expression “election” in Article 324 of the Constitution is used in a
wider sense so as to include the entire process of election which
consists of several stages, some of which have an important bearing on
the result of the process. The Election Commission has been clothed
with plenary powers by Rules 5 and 10 of the Conduct of Election
Rules, 1961 in the matter of conducting the elections. Their Lordships
have held as under:-

10. After the Election Symbols Order was promulgated, some of its
provisions were challenged on the ground of their constitutional
validity. One of the questions raised was whether under the
aforesaid Order, the Election Commission could have vested
itself with the powers contained in Clause 15 thereof, reserving to
itself powers to settle issues in relation to splinter groups or rival
sections of recognized political party, each of whom claimed to
be the original party. The decision of the Commission was made
binding on all the rival sections and groups.
11. The said question fell for the decision of this Court in the case
of Shri Sadiq Ali and Anr. v. Election Commission of (1972)
4 SCC 664 and it was held by a Three-Judge Bench of this Court
that Clause 15 was intended to effectuate and subserve the main
purposes and objects of the Symbols Order. It was observed that
the Clause was designed to ensure that because of a dispute having
arisen in a political party between two or more groups, the entire
scheme of the Election Symbols Order relating to the allotment of
a symbol reserved for the political party, was not frustrated.
12. This Court took note of the fact that the Election Commission had
been clothed with plenary powers by Rules 5 and 10 of the Conduct
of Election Rules, 1961, in the matter of allotment of Symbols, the
validity whereof had not been challenged. This Court, therefore,
came to the conclusion that the fact that the power to settle such
disputes had been vested in the Commission could not constitute
a valid ground for assailing the vires of the said clause. Since the
said decision has also been referred to by the Learned Counsel for
the parties in extenso, we will revert back to the same at a later
stage in this judgment.
13. The same view was also expressed by this Court in All Party Hill
Leaders ‘ Conference, Shillong v. Captain W.A. Sangma and Ors.
(1977) 4 SCC 161 and in Roop Lal Sathi v. Nachhattar Singh
Gill, wherein while dealing with the provisions of Clause 13 of
the Symbols Order, this Court held that the dispute relating to
the procedure for setting up of candidates could be the subject
matter of an Election Petition Under Section 100(1)(d)(iv) of the
Representation of the People Act, 1951.

14. The authority of the Election Commission under the Election
Symbols Order, 1968, as a whole was also challenged before
this Court in Kanhiya Lal Omar v. R.K. Trivedi and Ors.
where in it was urged on behalf of the Petitioner that the said
Order, being legislative in character, could not have been
issued by the Election Commission, which was not entrusted
by law with power to issue such an Order regarding the
specification, reservation, choice and allotment of symbols
that might be chosen by the candidates during elections
in the Parliamentary and Assembly Constituencies. It was
also urged that Article 324 of the Constitution which vests
the power of superintendence, direction and control of all
elections to Parliament and to the Legislative Assemblies, in
the Commission, could not be construed as conferring power
on the Commission to issue the Symbols Order. Rejecting the
said contention, this Court held that the expression “election”
in Article 324 of the Constitution is used in a wide sense so
as to include the entire process of election which consists of
several stages, some of which had an important bearing on the
result of the process and that every norm which laid down a
Code of Conduct could not possibly be elevated to the status
of legislation or even delegated legislation. It was emphasized
that there are certain authorities or persons who may be the
source of rules of conduct and who at the same time could
not be equated with authorities or persons who are entitled to
make law in the strict sense.
49. The submissions made on behalf of the writ Petitioners regarding
the constitutional validity of the Election Symbols Order, 1968,
and the power of the Election Commission to settle issues relating
to claims of splinter groups to be the original party, had fallen for
the decision of this Court about forty years ago in Sadiq Ali ‘s
case, when this Court had occasion to observe that the Election
Commission had been clothed with plenary power by Rules 5
and 10 of the Conduct of Election Rules, 1961, in the matter of
conducting of elections, which included the power to allot symbols
to candidates during elections. The challenge to the vires of the
Symbols Order, 1968, was, accordingly, repelled.

50. The view in Sadiq Ali case has since been followed in the All
Party Hill Leaders Conference case (supra), Roop Lal Sathi
case (supra), case (supra) and as recently as in Subramanian
Swamy case (supra), to which reference has been made in the
earlier part of this judgment, where the provisions of Article 324 of
the Constitution vesting the superintendence, direction and control
of elections, were considered in detail and it was, inter-alia, held
that in addition to Rules 5 and 10 of the Conduct of Election Rules,
1961, the powers vested in the Election Commission could be
traced to Article 324 of the Constitution.
51. The evolution of the law relating to the criteria for a political party
to be recognized as a State Party clearly indicates that the Election
Commission, in its wisdom, was of the view that in order to be
recognized as a political party, such party should have achieved a
certain bench-mark in State politics. Nothing new has been brought
out in the submissions made on behalf of the writ Petitioners which
could make us take a different view from what has been decided
earlier.”
Their Lordships of the Hon’ble Supreme Court in (2014) 9 SCC
1, in the case of Manoj Narula Vs. Union of India, have held
that the democracy is the basic and fundamental structure of the
Constitution. There is no shadow of doubt that democracy in India
is a product of the rule of law and aspires to establish an egalitarian
social order. Their lordships have also held that holding of free and
fair election is the heart and soul of the parliamentary system by
relying upon Mohinder Singh Gill’s case. Their Lordships have
held as under:-
“1. A democratic polity, as understood in its quintessential purity, is
conceptually abhorrent to corruption and, especially corruption at
high places, and repulsive to the idea of criminalization of politics
as it corrodes the legitimacy of the collective ethos, frustrates the
hopes and aspirations of the citizens and has the potentiality to
obstruct, if not derail, the rule of law. Democracy, which has been
best defined as the Government of the People, by the People and
for the People, expects prevalence of genuine orderliness, positive
propriety, dedicated discipline and sanguine sanctity by constant

affirmance of constitutional morality which is the pillar stone of
good governance. While dealing with the concept of democracy,
the majority in Indira Nehru Gandhi v. Raj Narain AIR 1975
SC 2299, stated that ‘democracy’ as an essential feature of the
Constitution is unassailable. The said principle was reiterated in
T.N. Seshan, CEC of India v. Union of India and Ors. (1995) 4
SCC 611 and Kuldip Nayar v. Union of India and Ors. AIR 2006
SC 3127. It was pronounced with asseveration that democracy is
the basic and fundamental structure of the Constitution. There is
no shadow of doubt that democracy in India is a product of the
rule of law and aspires to establish an egalitarian social order.
It is not only a political philosophy but also an embodiment of
constitutional philosophy.
4. In the beginning, we have emphasized on the concept of democracy
which is the corner stone of the Constitution. There are certain features
absence of which can erode the fundamental values of democracy.
One of them is holding of free and fair election by adult franchise in
a periodical manner as has been held in Mohinder Singh Gill and
Anr. v. Chief Election Commissioner, New Delhi and Ors. (1978)
1 SCC 405, for it is the heart and soul of the parliamentary system.
In the said case, Krishna Iyer, J. quoted with approval the statement
of Sir Winston Churchill which is as follows: At the bottom of all
tributes paid to democracy is the little man, walking into a little
booth, with a little pencil, making a little cross on a little bit of
paper-no amount of rhetoric or voluminous discussion can possibly
diminish the overwhelming importance of the point.
5. In S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra
(AIR 1980 SC 1362), the learned Judges, after referring to
Mohinder Singh Gill’s case, stated that nothing can diminish the
overwhelming importance of the cross or preference indicated by
the dumb sealed lip voter. That is his right and the trust reposed by
the Constitution in him is that he will act as a responsible citizen
choosing his masters for governing the country.”
In AIR 1982 (Kerala) 265 in the matter of ‘K.C. Mathew v.
Election Commissioner of India & others’ learned Single Judge
of Kerala High Court has held that the Election Commission in

exercise of powers under Article 324 can issue the directions
relating to the employment of the electronic machines for the
recording of votes. Article 324 is wide enough to supplement the
powers under the Act and the Commission may be required to cope
up with the situations unprovided for in the enacted laws and the
rules. In paragraph nos.30, 31, 33 and 34, has held as under: -
“30. It has been already noticed that the claim of the Election
Commission in exercise of powers under Article 324 issued in the
counter-affidavit is that the direction relating to the employment of
the electronic machines for the recording of votes has been issued
in the exercise of the power under Article 324 of the Constitution.
This order too, is, therefore one passed by the Competent Authority
charged with the election, namely, the Election Commission and
with the aim and object of completing the election.
31. In this view of things, there cannot be any doubt whatever in this
case that with the promulgation of the notification by the Governor
on 12-4-1982 relating to the election proposed on the 19th of May,
1982, the election process commenced. The step taken, namely, the
introduction of the electronic machines for recording of the vote is
a step integrally connected with the election, it being one manner
of giving votes contemplated under Sec. 59 of the Act. The step is
also one to further, the election process and not to retard it. Even if
such a step be one in contravention of the Constitution or the Act
or the Rules such a complaint is indubitably a grievance regarding
an election and based on something which the Commission does
or has directed in furtherance of the election. The complaint of the
petitioner therefore is one calling in question a step in election and
is therefore barred by Article 329 of the Constitution.
33. In the light of the foregoing discussion I am clear in my mind that
the sweep and amplitude of Article 329(b) is such as to bar, at the
very threshold, the entry into this Court of this election litigation.
34. Under the statutory scheme, Sec. 59 of the Act provides for the
manner of voting at elections. The section reads:
“At every election where a poll is taken votes shall be given by
ballot in such manner as may be prescribed, and no votes shall be
received by proxy.”
The prescription of the method as envisaged in that section, is to
be done by rules, for that is the mode indicated with reference to
the definition of the term ‘prescribed’ under Sec. 2(g) of the Act.
The enabling provision for framing rules is contained in Section
169. Clause (c) of Section 169(2) provides for the framing of rules
in respect of the manner in which votes are to be given. It is in
exercise of these powers that the rules referred to above have been
framed. The powers of the Election Commission as provided under
Article 324 of the Constitution, with ‘no hedging’ (as observed by
the Supreme Court), are indicated in the following words :
“Article 324, on the face of it, vests vast functions which may be
powers or duties, essentially administrative and marginally even
indicative or legislative.”
It is well established that Article 324 is wide enough to supplement
the powers under the Act. The Commission may be required to
cope up with the situations unprovided for in the enacted laws and
the rules. That according to the Supreme Court is “the raison d’etre
for the opening clause in Articles 327 and 328 and which leaves the
exercise of powers under Article 324 operative and effective when
it is reasonably called for in a vacuous area”. The Commission will
have however to conform, in the exercise of its powers and the
performance of its manifold duties for the conduct of free and fair
elections, to the existing laws and rules.”
According to a plain reading of Article 324 of the Constitution
of India, superintendent, direction and control of elections of the
preparation of the electoral rolls for, and the conduct of, all elections
to House of People and to the State Assemblies of every State and
of elections to the offices of President and Vice-President, vests in
the Election Commission. Use of EVMs has been ordered by the
Election Commission while exercising the powers under Article
324 of the Constitution.
This Court has taken notice of the fact that the elections petitions
are pending wherein the Challenge has been laid to the use of
EVMs during Elections. The National and the State Recognized
Political Parties were aware of the challenge laid down to the use
of EVMs during elections. However, despite that, a systematic

campaign has been launched by the political parties to tarnish the
image of constitutional body i.e. Election Commission of India.
The National and State Recognized Political Parties and other
social organizations should have waited for the outcome of election
petitions pending in this Court as well as in other High Courts,
wherein, the challenge has been laid to the functioning of EVMs.
The power of superintendence, direction and control of elections
vests in the Election Commission. The Election Commission, in
these circumstances, decided to hold a Challenge to the EVMs on
3.6.2017. However, we are of the considered view that the Election
Commission was also aware of the fact that this Court and several
others High Courts are seized of the matter. The demonstration/
challenge to EVMs may influence the outcome of election petitions
wittingly or unwittingly.
Attention of the Court has also been drawn by Mr. Amit Sharma,
Advocate for the respondents, to an order passed by the Hon.
Supreme Court on 27.7.2009 in W.P. (Civil) No.292 of 2009,
whereby, the Hon. Supreme Court, in the similar set of facts
and circumstances, has relegated the petitioner to approach the
Election Commission. The Election Commission of India, after
the orders were passed by the Hon. Supreme Court, has issued the
Press Release on 8.8.2007.
In the present case, the petitioner is a member of Congress Party
and he cannot be oblivious about the pendency of election petitions.
The Election Commission has successfully held the free and fair
elections. We cannot permit the political parties to lower down
the image and prestige of the constitutional body. The un-called
for criticism of the functioning of Election Commission has a
deleterious effect on its functioning and the same may result in
lowering its morale. The faith of the people in the election process
is required to be restored at all costs. Holding of free and fair
election is a basic feature of the constitution.
The Election Commission is not comparable with any other
authority. Article 324 of the Constitution of India has to be given
broadest possible meaning.

It is the duty of the Courts to preserve, promote, nurture and
maintain independence of constitutional bodies and to insulate
them from unhealthy criticism. The foundation of democracy
would be weakened in case this tendency, on the part of certain
sections of the society to damage the institution by leveling
unsubstantiated allegations, is not curbed. The right of freedom
of speech and expression does not permit to level unsubstantiated
charges against the functionaries of the constitutional bodies.
The EVMs are manufactured only by the Electronics Corporation
of India Ltd. The Chip is developed in house.
Accordingly, in view of what has been set forth here in above,
there is no merit in the petition and the same is hereby dismissed.
We, however, in the larger public interest, restrain all the recognized
National Political Parties, recognized State Political Parties, other
political parties, Non-Governmental Organizations (NGOs) and
individuals from criticizing the use of EVMs in the recently
conducted elections of the State Assemblies even by approaching
the Electronic Media, Press, Radio, Facebook, Tweeter etc. till the
decision of the election petitions.
However, we leave it now to the wisdom /discretion of the Election
Commission of India to hold the demonstration/challenge on
3.6.2017 but with a caveat that even after it is held, as scheduled, it
will not affect the outcome of the pending election petitions.

33. RESHMA VITHALBHAI PATEL vs. UNION OF INDIA
SLP(C) No. 13598 OF 2017 (2018) 18 SCC 675
CASE 09.08.2017
DETAILS J.S Kheher C.J.I., A.K Goel, J. and Dr. D.Y
Chanderchud, J.
To hold 2017 Gujrat State Assembly Polls with ballot
ISSUES
papers instead of EVMs.
The Hon’ble Court recorded that the Government
of India has sanctioned funds for the purchase of
the VVPAT units, needed during the course of the
DECISIONS
elections and the position expressed left no room for
any doubt, that all future elections will be held by
using VVPAT.
SUMMARY
A Public Interest Litigation was filed seeking inter-alia the following
prayers:
(a) Issuance of an appropriate writ, order or direction directing that
ballot papers be used in the 2017 Gujarat Assembly Election in
place of EVMs.
(b) In case continuation of EVMs is deemed fit to be used in the
Assembly Election, issuance of an appropriate writ, order or
direction for incorporating a system of “paper trail/paper receipt”
in the Electronic Voting Machines.
(c) Directing that the EVMs with VVPAT system be tested, verified
and audited by competent independent technical experts’/ agency
having expertise in such evaluation.
The Election Commission reiterated its commitments to 100%
coverage of VVPATs in all future elections to Parliament and State
legislative Assemblies by way of: (a) Status Paper on EVMs and
VVPATs published on its website on 09.05.2017; (b) All Political Meet
conducted on 12.05.2017 where parties were informed of the resolution
to ensure 100% coverage of VVPATs in all future elections; and (c) a
Press Note dated 03.06.2017 to this effect
The Hon’ble Supreme Court observed that the Commission’s affidavit
leaves no room for any doubt that all future elections will be held using

VVPATs.
ORDER
J.S Kheher C.J.I., A.K Goel, J. and Dr. D.Y Chanderchud, J.
1 In the counter affidavit filed on behalf of the Election Commission
of India, it is sought to be asserted as under:
“4.10 Thereafter, pursuant to release of the requisite funds by the
Government of India on 19.04.2017, the Election Commission
of India published a Status Paper on EVMs and VVPATs on its
website dated 09.05.2017, wherein inter-alia, the commitment to
100% coverage of VVPATs in all future elections was reiterated.
Thereafter, an all Political Parties meet was conducted by the
Election Commission of India on 12.05.2017, which was attended
by 07 National Parties and 35 State Parties, wherein the Election
Commission of India informed the political parties present that it
would ensure 100% coverage of VVPATs in all future elections to
the Parliament and State Assembly Elections, and that VVPATs
slips of a percentage of EVMs (to be determined by the Election
Commission of India) would be counted.
Thereafter, after the conclusion of the EVM challenge on
03.06.2017, the Election Commission of India issued a Press Note
on 03.06.2017 itself, wherein it reiterated its commitment to hold
all future elections mandatorily with VVPATs.”
2. The above statement of the Election Commission of India
contained in the counter affidavit acknowledges, that all prayers
made in the group of petitions, stand fulfilled and satisfied. It is
also apparent, that the Government of India has sanctioned funds
for the purchase of the VVPAT Units, needed during the course
of the elections, which are to take place in the immediate future.
The position expressed leaves no room for any doubt, that all
future elections will be held by using VVPAT. The above stance
is reiterated during the course of hearing by the learned counsel
representing the Election commission of India.
3. In view of the above, we are of the considered view, that the present
bunch of matters does not require any further adjudication at our
hands. All the cases clubbed together, are accordingly disposed of
in terms of the counter affidavit filed by the Election Commission
of India, duly supported by the Government of India.
34. SUBRAMANIAN SWAMY vs. ELECTION COMMISSION
OF INDIA
Civil Appeal No. 9093 of 2013 [(2013) 10 SCC
CASE 500]
DETAILS 8.10.2013
P. Sathasivam, C.J. and Ranian Gogoi, J.
ISSUES Introduction of VVPAT mechanism.
In this case, the Hon’ble Supreme Court allowed
the Commission to introduce VVPAT mechanism
in a phased manner and held that 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
DECISIONS 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 a democratic
system.
SUMMARY
Dr Subramanian Swamy, the appellant herein contended before this
Court that the present system of EVMs, as utilised in the last few
general elections in India, does not meet all the requirements of the
international standards and though ECI maintains that the EVMs cannot
be tampered with but are open to hacking.
The Hon’ble Supreme Court held that “paper trail” is an indispensable
requirement of free and fair elections. The confidence of the voters
in EVMs can be achieved only with the introduction of the “paper
trail”. EVMs with VVPAT system ensure the accuracy of the voting
system. It was held that 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 VVPATs system because vote is nothing but an act
of expression which has immense importance in a democratic system.

The Hon’ble Court took note of the pragmatic and reasonable approach
of the Election Commission and considering the fact that in general
elections all over India, the Election Commission has to handle one
million (ten lakh) polling booths, the Commission was permitted to
introduce VVPAT in gradual stages or geographical-wise in the ensuing
general elections. It was held that the area, State or actual booth(s) are
to be decided by Commission and that it is free to implement the same
in a phased manner.
The Hon’ble Court appreciated the efforts and good gestures made
by the Election Commission in introducing the VVPAT system. For
implementation of such a system in a phased manner, the Government
of India was directed to provide required financial assistance for
procurement of units of VVPAT.
ORDER
P. Sathasivam, C.J. and Ranian Gogoi, J.
1) Leave granted.
Civil Appeal @ SLP (C) No. 13735 of 2012
2) This appeal is directed against the judgment and order dated
17.01.2012 passed by the Division Bench of the High Court of
Delhi at New Delhi in W.P.(C) No. 11879 of 2009 whereby the
High Court disposed of the petition by disallowing the prayer
made by the appellant herein for issuance of a writ of mandamus
directing the Election Commission of India (ECI)-Respondent
herein to incorporate a system of “paper trail/paper receipt” in the
Electronic Voting Machines (EVMs) as a convincing proof that the
EVM has rightly registered the vote cast by a voter in favour of a
particular candidate.
3) Being aggrieved of the above, the present appeal has been filed by
way of special leave.
Writ Petition (Civil) No. 406 of 2012
4) One Rajendra Satyanarayan Gilda has filed this Writ Petition,
under Article 32 of the Constitution of India, praying for issuance
of a writ of mandamus/direction(s) directing the Union of India,
the Chief Election Commissioner and the Technical Experts
Committee-Respondent Nos. 1-3 here in respectively to effect

the necessary modifications in the EVMs so as to allow the voters
to verify their respective votes and to attach the printers to the
EVMs with a facility to print the running record of the votes for
the purpose of verification by the voters in the process of voting.
He also prayed for a direction to frame guidelines and to effect
necessary amendments in the Conduct of Election Rules, 1961.
5) In view of the pendency of the appeal filed by Dr. Subramanian
Swamy, this Court issued notice in the writ petition and tagged
with the said appeal.
6) Heard Dr. Subramanian Swamy, appellant-in-person in the appeal,
Dr. R.R. Deshpande, learned counsel for the writ petitioner, Mr.
Ashok Desai and Ms. Meenakshi Arora, learned senior counsel for
the ECI.
Contentions:
7) Dr. Subramanian Swamy, the appellant herein contended before
this Court that the present system of EVMs, as utilized in the last
few general elections in India, does not meet all the requirements
of the international standards and though the ECI maintains that
the EVMs cannot be tampered with, but the fact is that EVMs, like
all electronic equipments, are open to hacking.
8) The appellant has further highlighted that the instant matter arises
out of the refusal of the ECI to incorporate a certain obvious
safeguard in the EVMs called “paper backup”, “paper receipt” or
“paper trail”, presently in use and mandated in some countries like
USA, which would easily and cheaply meet the requirement of
proof that the EVM has rightly registered the vote cast by a voter.
The appellant has further highlighted that the “paper trail” system
is to supplement the procedure of voting as in this procedure, after
recording a vote in the EVM, a print out will come out which will
appraise the voter that his vote has been rightly registered and the
same will be deposited in a box which can only be used by the ECI
in case of election dispute.
9) It is the categorical stand of the appellant that the above said
system will bring more accuracy in the present system and if a
particular election is challenged on the ground that some particular
identified voter’s voter or the votes of a group of voters have been

suppressed/have not been correctly assigned by the EVMs, the
accepted current procedure is for a re-run of the same EVMs for
a re-count, however, under the new procedure, a re-count will be
of the receipts in the ballot box containing the printouts the EVMs
had issued to the voter thereby ensuring more transparency in the
process.
10) The writ petitioner has also raised similar contentions as those of
Dr. Swamy. According to the petitioner, in the present system of
voting through EVMs, there is no such facility by which a voter
can verify and confirm his own voting. At present, a voter presses
a button only but cannot ascertain the actual voting. He is not
sure whether his vote is recorded or not, if recorded, whether it
is recorded in favour of t he person to whom it was intended or
not. Whether it is valid or invalid and whether it is counted or not.
It is submitted by the petitioner that unless and until answers to
these questions are personally seen by the voter, it cannot be said
that voting is made by him because “pressing a button of choice
and getting flashed the red-light” is not actual voting in real sense
unless the voter knows well that what has happened in consequence
of pressing a button of his choice from the EVMs.
Stand of the Election Commission of India:
11) Mr. Ashok Desai, learned senior counsel for the ECI submitted that
the apprehension that EVMs could be tampered with is baseless.
It was also informed to this Court that the ECI has been exploring
the possibility of incorporating a viable Voter Verifiable Paper
Audit Trail (VVPAT) system as a part of the presently used EVMs
to make the election system more transparent. Further, it was
brought to our notice that the ECI conducted field trials for VVPAT
system earlier also but the same had not been successful and were
discontinued. The ECI also filed a counter affidavit stating that
the EVMs provided by the Commission are of such a high end
technology that it cannot be hacked.
12) Referring to Section 61A of the Representation of the People Act,
1951, it is submitted that the Statute itself provides for recording
of votes by EVMs and the ECI has been given the discretion to
prescribe recording of votes by such EVMs as it may deem fit. This
discretion has to be exercised in a manner to preserve the sanctity

of the election process and ensure that the election is conducted
in a free and fair manner. The ECI has exercised due diligence
to ensure that EVMs so used are “tamper proof” and it is also in
the process of exploring to incorporate VVPAT system which is
compatible with the present EVMs used by it. It is asserted that
there is no instance of tampering with EVMs so far by anyone.
13) It is further submitted that the EVMs used in India are unique and
unlike the ones used in the elections in USA and other countries,
which are personal computer based. EVMs deployed by the ECI
have been lauded not only in India but also abroad. EVM’s Control
Unit retains in the memory each vote recorded elector-wise. The
information stored in the memory of the Control Unit can be
retrieved by using a device called the “decoder” which, when
attached to the Control Unit of EVM, can print out the statement
of voting data showing the order in which each voter has voted and
to whom he has voted.
14) Insofar as the transparency of the election process as well as
the right of a voter to know whether his vote h as actually been
recorded for the candidate for whom it was cast is concerned, it is
submitted that as soon as a vote is recorded by a voter by pressing
the “candidate’s” button on the Ballot Unit, a light glows against
the name and symbol of the candidate, which the voter can see for
himself/ herself. This is a visual (electronic) assurance to the voter
that the candidate for whom he has cast his vote has actually got
that vote. Thereafter, the light goes off to protect the secrecy of
voting.
15) It is further submitted that the feasibility of VVPAT system was
sought to be explored to by various political parties and they
were explained the technical and administrative safeguards. The
ECI also constituted a Technical Experts Committee to examine
the viability of the VVPAT system. On 27.05.2011, the Technical
Experts Committee, after discussion with political parties and civil
society members and also after seeing the demonstration of the
prototype VVPAT system developed by M/s. Bharat Electronics
Ltd. (BEL) and M/s. Electronics Corporation of India Ltd. (ECIL),
recommended that a field test of the prototype VVPAT system
should be carried out in a simulated election under different
environmental conditions in Jaisalmer, Thiruvananthapuram,

Delhi, Leh and Cherapunji. The ECI also held further meetings
with the manufacturers of EVMs on various dates to fine tune
the system and expedite the follow up action required. Several
meetings were also held with the Expert Committee on VVPAT
system.
16) In wider fulfillment of the objectives of the field trial, the ECI
has requested the National and State parties to extend necessary
cooperation by getting involved in the trial process actively and
also witness the trial in order to have a first hand experience of
the system. The ECI has also requested the individuals including
the appellant – Dr. Subramanian Swamy and the groups, who
have been engaged with the ECI on the issue of EVM-VVPAT, to
witness the trial.
17) We have carefully perused the relevant materials and considered
the rival contentions.
Discussion
18) When the matter was listed before this Court for hearing on
27.09.2012, Mr. Ashok Desai had brought to our notice that the
ECI is contemplating foolproof method in EVMs for which they
are taking various steps in consultation with the Technical Experts
Committee and the views of all recognized political parties. Mr.
Desai also promised to appraise this Court about the deliberations
and the ultimate decision to be taken by them in this regard.
Accordingly, this Court granted sufficient time to the ECI to file
Status Report regarding introduction of VVPAT system in EVMs
to be used in the elections.
19) Pursuant to the directions of this Court, the ECI filed a Status
Report on the developments of VVPAT system. In the said report,
the ECI, citing various technicalities, prayed for further time to
make the system more robust for the field conditions.
20) On 15.12.2012, M/s BEL, Bangalore filed a report showing the
status of development of VVPAT system which contains changes
that have been carried out in VVPAT from September to December,
2012 and also furnished chronological changes made in VVPAT
system after the field trial of the VVPAT system held in July and
August, 2012.

21) Pursuant to the directions of this Court, the Secretary, ECI, filed an
affidavit highlighting the following steps/information:
“(i) That vide its Affidavit dated 14.01.2013, the Commission had
filed the status report regarding introduction of the VVPAT
system in the Electronic Voting Machines (EVMs).
(ii) That subsequently, in the Technical Expert Committee meeting
held on 04.02.2013, the Committee approved the design of
the VVPAT and decided that software fine tuning will be done
and completed by the end of February, 2 013, and modified
design specifications will be submitted to the Technical Expert
Committee for approval. The Committee also recommended
that the Commission may for using the VVPAT and that the
VVPAT should be tried in a bye-election.
(iii) That in the Technical Expert Committee meeting held on
19.02.2013, the Committee finalized the VVPAT design. The
manufacturers, namely, M/s. Bharat Electronics Limited and
M/s. Electronics Corporation of India Limited have quoted
Rs. 16,200/- (excluding duties, taxes and transport charges)
per VVPAT system. The Commission has decided to purchase
sufficient units of VVPAT for trials in a Bye-election, at an
approximate cost of Rs.72,90,000/- (Rupees seventy two lakh
ninety thousand) approximately.
(iv) It is submitted that the Commission will require approximately
13 lakh VVPAT units to be manufactures for 13 lakh EVMs
presently available and roughly a bout Rs. 1690 crores
(One Thousand Six Hundred Ninety Crores) (i.e. 13 lakh
units x Rs.13,000 per unit) a re required for the purpose of
implementation of the VVPAT system taking into account the
possible reduction in the cost per unit when produced in bulk.
(v) It is further submitted that in order to implement the new
system the Conduct of Election Rules, 1961 will require
certain amendments. In this connection, vide letter No.
3/1/2013/Vol.II/SDR/86 dated 28.03.2013, the Commission
has informed the Legislative Department of the Ministry of
Law and Justice inter-alia the various amendments required
to the relevant parts of Rules 49A to 49X, 66A, 55C, 56C,

57C and Form 17C of the Conduct of Elections Rules, 1961,
as well as introduction of Rules 49MA and 56D in the said
Rules…
(vi) That the Commission has called for a meeting of all the
recognized National and State Parties on 10th May, 2013 for
the purpose of demonstration of VVPAT unit to them and for
discussion with them for eliciting their views regarding use
of VVPAT system in the elections. The petitioner herein and
others interested in the matter would also be invited at the
meeting.”
22) It is seen from the records that after various deliberations with the
experts and persons concerned with the technology, the Technical
Experts Committee approved the final design of VVPAT units in
its meeting held on 19.01.2013. In order to meet the directions
of this Court and for proper execution of VVPAT system, as
noticed above, the ECI in its letter dated 28.03.2013, addressed
to the Secretary to the Government of India, Ministry of Law and
Justice stated that necessary ground work for amendment to the
Conduct of Election Rules, 1961 (in relevant parts in Rules 49A
to 49X, 66A, 55C, 56C, 57C and Form 17C) may be made so that
the amendment to the Rules can be notified immediately which
will enable the ECI to use the VVPAT system in bye-elections
in consultation with the political parties. By placing all those
materials, the ECI requested the Ministry of Law and Justice for
drafting and notifying amendment Rules expeditiously.
23) From the materials placed by the ECI, it is noted that the purchase
order has been placed with M/s BEL and M/s ECIL for supplying
150 and 300 VVPAT units respectively at Rs. 16,200/- per unit
excluding excise duty, sales tax and transportation etc. costing
Rs. 72,90,000/- (approx.). The ECI has also highlighted that if
the VVPAT systems are ultimately to be used with all the 13 lakh
EVMs available, the total cost in the purchase of VVPAT units may
come to about Rs. 1,690 crores, taking into account the possible
reduction in the cost per unit due to bulk production the cost may
come to Rs. 13,000/- per unit approximately.
24) The affidavit dated 21.08.2013, filed on behalf of the ECI, shows
that the Ministry of Law and Justice, on 24.07.2013, referred the

draft notification to amend the Conduct of Election Rules, 1961 to
provide for use of VVPAT system of elections to the ECI for its views
and comments. The ECI suggested certain minor modifications in
the draft notification and sent the same back to the Ministry of Law
and Justice on 02.08.2013 with a request to notify the amendment
Rules at the earliest. Accordingly, the Ministry of Law and Justice
notified the amendments to the Conduct of Election Rules, 1961
in the Gazette of India vide notification No. S.O. 2470(E) dated
14.08.2013 to enable use of VVPAT with EVMs.
25) The aforesaid affidavit of the ECI also shows that the ECI had
also convened a meeting of all the recognized National and State
political parties on 10.05.2013 and demonstrated before their
representatives the working of VVPAT system. Separately, on the
same day, the ECI also held a meeting with individuals including
the appellant herein who had been engaged with the ECI over the
past several years regarding the functioning of EVMs. VVPAT
system was demonstrated before them as well. Representatives of
political parties and other individuals expressed their satisfaction
over the VVPAT system. Thereafter, the ECI had decided to use the
VVPAT system in the bye-election from 51-Noksen (ST) Assembly
Constituency in the State of Nagaland. Instructions were issued
to hold special meetings with the contesting candidates in that
constituency to brief them about the use of VVPAT system. The ECI
also organized special training sessions for poll officers for the use
of VVPAT and steps were taken to educate the electors for the same.
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 s lips o f 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 s
hows t hat 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.
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.
32) Before parting with the case, we record our appreciation for the
efforts made by Dr. Subramanian Swamy as well as the ECI, in
particular Mr. Ashok Desai and Ms. Meenakshi Arora, learned
senior counsel for the ECI.
33) With the above directions, the appeal and the writ petition are
disposed of. No separate order is required in the applications for
intervention. Both sides are permitted to approach this Court for
further direction(s), if need arises.

35. SUNIL AHYA vs. ELECTION COMMISSION OF INDIA
Writ Petition (C) No. 826 of 2023 (Supreme Court
of India)
CASE 22.09.2023
DETAILS Hon’ble The Chief Justice D.Y. Chandrachud,
Hon’ble Mr. Justice J.B. Pardiwala and Hon’ble
Mr. Justice Manoj Misra
A PIL was filed seeking direction to the ECI to
conduct an independent audit of the source code
governing the Electronic Voting Machines, applying
ISSUES
a particular standard, namely, IEEE 1028 and the
report of the audit should be placed in the public
domain.
The Hon’ble Court dismissed the petition held that
the Election Commission is a constitutional entity
entrusted under Article 324 of the Constitution with
superintendence and control over the conduct of the
elections. The petitioner has placed no actionable
material on the record of the Court to indicate that
the Election Commission has acted in breach of its
DECISIONS constitutional mandate. Ultimately, the manner in
which the source code should be audited and the
way the audit should be dealt with bears on sensitive
issues pertaining to the integrity of the elections
which are conducted under the superintendence of
the Election Commission. For the above reasons, we
are not inclined to entertain the petition which shall
accordingly stand dismissed.
SUMMARY
In the matter, the petitioner submitted that the source code must be
independently audited and the report of the audit should be placed in
the public domain. It was further submitted that if the source code is
audited, the hash function signature would be available and it should
be placed in the public domain. It is to be noted that the petitioner had
earlier moved a petition under Article 32 of the Constitution before the
Court before the General Election of 2019. However, the Court through
its order dated April 8, 2019 and considering the commencement of

the General Elections held that it was not possible to go into the issue
raised in the PIL, with the liberty to initiate fresh action.
Therefore, while dismissing the PIL, the Hon’ble Supreme Court
held that the manner in which the source code should be audited
and the way the audit should be dealt with bears on sensitive issues
pertaining to the integrity of the elections. The Election Commission is
a constitutional entity entrusted under Article 324 of the Constitution
with superintendence and control over the conduct of the elections.
It also held that the petitioner has placed no actionable material on
the record of the Court to indicate that the Election Commission has
acted in breach of its constitutional mandate. Thus, the petition was
dismissed.
ORDER
Hon’ble The Chief Justice D.Y. Chandrachud, Hon’ble Mr. Justice J.B.
Pardiwala and Hon’ble Mr. Justice Manoj Misra
1. The petitioner, who appears in person, invokes the jurisdiction of

this Court under Article 32 of the Constitution for a direction to
the Election Commission of India to conduct an independent audit
of the source code governing the Electronic Voting Machines,
applying a particular standard, namely, IEEE 1028.
2. The petitioner, during the course of the submissions, submits that
the source code must be independently audited and the report of
the audit should b e placed in the public domain. The petitioner
further submits that if the source code is audited, the hash function
signature would be available and it should be placed in the public
domain.
3. The petitioner had earlier moved a petition under Article 32 of the
Constitution before this Court before the General Election of 2019.
This Court, by its order dated 8 April 2019, held that in view of the
commencement of the General Elections, it was not possible for
it to go into the issue raised in the PIL, but the liberty was given
to the petitioner to initiate fresh action. Thereafter, the petitioner
instituted another PIL in which by an order dated 24 February
2020, this Court permitted the petitioner to move a representation
to the Election Commission of India.

4. The grievance of the petitioner is that he has followed up a
representation which is submitted on 12 March 2020 and with
reminders on 17 December 2020 and 9 March 2021, but he is still
in the dark on what steps have been taken.
5. The Election Commission is a constitutional entity entrusted under
Article 324 of the Constitution with superintendence and control
over the conduct of the elections. The petitioner has placed no
actionable material on the record of the Court to indicate t hat t
he Election Commission h as acted in breach of its constitutional
mandate. Ultimately, the manner in which the source code should
be audited and the way the audit should be dealt with bears on
sensitive issues pertaining to the integrity of the elections which are
conducted under the superintendence of the Election Commission.
On such a policy issue, we are not inclined to issue a direction as
sought by the petitioner. There is no material before this Court, at
this stage, to indicate that the Election Commission is not taking
suitable steps to fulfill its mandate.
6. For the above reasons, we are not inclined to entertain the petition
which shall accordingly stand dismissed.
7. Pending application, if any, stands disposed of.

36. T.A. AHAMMED KABEER vs. A.A. AZEEZ & ORS
Election Petition No. 4 of 2001 [(2003) 5 SCC 650]
CASE
09.01.2002
DETAILS
R.C Lahoti, J. and Brijesh Kumar, J.
Discrepancy in vote counting; Efficiency and
ISSUES
integrity of EVM mechanism
The Hon’ble Court vide its order recorded
appreciation on the efficiency and integrity of EVM
DECISIONS mechanism and the same was upheld by Hon’ble
Supreme Court in order dated 10.04.2003 in Civil
Appeal Nos.3531-32 of 2002.
SUMMARY
The election petition was filed by the appellant challenging the election
of Respondent No. 1 during the elections to the Kerala Legislative
Assembly on the ground that the election was materially affected
insofar as the returned candidate was concerned. The Respondent filed
a written statement as well as a recrimination petition. The Designated
Election Judge found that the case warranted a re-count and decoding
of votes cast through electronic voting machines and accordingly,
thirty-one votes were decoded and one tender ballot was opened.
The Designated Election judge directed the election petition to be
dismissed as in the light of the result of the decoding and re-count, it could
not be said that the result of the election was materially affected. It was
submitted that in the matter of decoding and re-count of the votes, the
High Court could not have travelled beyond the pleadings specifically
raised in the recrimination petition and the validity or invalidity of
votes beyond the one specifically pleaded in the recrimination petition
could not have been taken into consideration by the High Court.
The Hon’ble Supreme Court held that there is no fault in the view
taken by the High Court and stated that firstly, there is a recrimination
petition filed in the present case and the High Court has on the basis
of material available arrived at a finding that a case for decoding
of votes cast through electronic voting machines was made out and
thereupon proceeded to decode the ballots cast. Secondly, to the extent
to which the ballots have been merely recounted through the process of

decoding, Jabar Singh v. Genda Lal, AIR 1964 SC 1200, case has no
applicability as the case would be covered by Section 100(1)(d)(iv) and
not Section 100(1)(d)(iii). Accordingly, the Hon’ble Court held that so
far as the correctness of the facts found as a result of decoding and re-
count is concerned, the same is not disputed and dismissed the appeal.
ORDER
R.C Lahoti, J. and Brijesh Kumar, J.
1. Unsuccessful as a candidate and also as an election petitioner,
the appellant is in appeal, exercising his statutory right of appeal
under Section 116-A of the Representation of the People Act, 1951
(hereinafter “the Act” for short) against the decision of the High
Court dismissing his election petition.
2. Elections for the Kerala Legislative Assembly seat from 125,
Eravipuram Legislative Assembly Constituency were held on
10-5-2001. There were five candidates in the fray including the
appellant and Respondent 1. The results were announced on 13-5-
2001. The candidates secured the votes as under:
Sl. No. Candidate Votes secured
1 Appellant Ahammed Kabeer 55,617
2 Respondent 1 A.A. Azeez 55,638
3 Respondent 2 11,108
4 Respondent 4 531
5 Respondent 5 2756
3. The first respondent was declared elected defeating his nearest
rival, the appellant, by a margin of twenty-one votes.
4. The poll was held by using electronic voting machines.
5. An election petition was filed by the appellant laying challenge to
the election of Respondent 1 on very many grounds. The appellant
in his election petition submitted, inter-alia, that there were three
voters who had voted twice, that there were nine voters who were
actually dead, thirty voters were actually abroad and twenty-seven
voters were actually out-of-station; and hence these forty voters
were not available for voting on the date of polling and yet ballots

in their names were cast by impersonators; that five voters who
reached the polling station were told that impersonators had already
cast ballots in their names and therefore they were permitted to cast
tender ballots; that forty-eight voters could not cast their ballot as
the copy of the voters’ list supplied at Booth 185 was defective and
the relevant pages on which the names of these voters appeared
were missing; that six voters entitled to exercise their franchise
through postal ballots could not do so as some impersonators had
exercised franchise in their place; that there were postal ballots
attested by incompetent officers and hence invalid and so on.
There were other illegalities committed during polling and also at
counting, alleged the election petition.
6. The relief sought for by the appellant was the setting aside of the
election of Respondent 1 as also declaring the appellant as elected.
7. Respondent 1 filed his written statement and also delivered a
recrimination notice as contemplated by the proviso to Section
97(1) of the Act. Briefly stated, the pleas raised by way of
recrimination by Respondent 1 are: that there were four persons
who had voted twice in favour of the appellant and therefore the
votes were liable to be excluded from the votes counted in favour
of the appellant; that five persons were dead and not available for
casting the ballots yet impersonators cast ballots in the names of
the dead persons in favour of the appellant; that seven persons
whose names were deleted from the voters’ list were also permitted
to vote by the Presiding Officer, which ballots were cast in favour
of the petitioner. The recrimination petition was filed within the
prescribed period of limitation, in the prescribed manner, and was
accompanied by the security deposit as required by Section 117 of
the Act.
8. It is not necessary for us to go into other details of the pleadings and
it would suffice to state that both the appellant and Respondent 1 in
their respective election petition and recrimination petition pleaded
the material facts with relevant particulars and no deficiency was
to be found in the pleadings.
9. The learned Designated Election Judge framed all the relevant
issues arising from the pleadings and set down the petition for trial.

Both the parties adduced evidence and evidence in rebuttal. Vide
order dated 9-1-2002, the learned Designated Election Judge found
that there was a narrow margin of twenty-one votes between the
votes secured by the appellant and the first respondent; while the
appellant had made out a prima facie case for declaring twenty-nine
votes secured by the first respondent as invalid, the first respondent
had made out a prima facic case for invalidating three votes cast in
favour of the appellant. Prima facie the cases of double voting by
two persons, thirteen votes cast by impersonation and nine votes east
by persons whose names were removed from the final electoral roll
were made out. A case was also made out on evidence for counting
a tendered vote which was ignored by the Returning Officer. On the
abovesaid findings, the learned Designated Election Judge held,
vide his order dated 9-1-2002, that the case warranted re-count
and decoding of votes cast through electronic voting machines.
The Standing Counsel for the Election Commission of India made
available to the learned Judge a circular bearing No. 51/8/99-Vol.
111 dated 2-6-1999 issued to the Chief Electoral Officers of all
States with regard to the procedure to be followed in the matter
of decoding of votes cast through electronic voting machines. The
learned Judge also called for a detailed report from the Standing
Counsel for the Election Commission of India with regard to the
procedure to be followed in the matter of decoding based on which
directions would be given after hearing all the parties. On 17-1-
2002, Respondent 1 filed a special leave petition in this Court
putting in issue the order dated 9-1-2002, which was dismissed by
this Court, forming an opinion that the matter was yet to be finally
decided by the High Court and interference at an interim stage was
uncalled for under Article 136 of the Constitution.
10. The Election Commission of India submitted a report, rather a note,
regarding the procedure to be followed in the matter of decoding.
On 5-2-2002, thirty-one votes were decoded and one tender ballot
was opened. Decoding was carried out under the supervision of Shri
A.A. Seshsai, Senior Technical Officer of Electronic Corporation
of India Ltd., Hyderabad. He was examined as a court witness and
the documents which came into existence during the process of
decoding were marked as exhibits.

11. The learned Designated Election Judge heard the learned counsel
for the parties in the light of the result of decoding as reported to
the Court. Vide order dated 6-2-2002, the High Court directed the
election petition to be dismissed because in the light of the result
of decoding and re-count it could not be said that the result of the
election was materially affected insofar as the returned candidate is
concerned. It will be useful to extract and reproduce the following
findings from the judgment of the High Court:
“The cumulative effect of Ext. C-11 series is that out of the
impugned twenty-eight votes which had been taken into account
by the Returning Officer twenty-one votes secured by the first
respondent have to be ignored as void. That sets off the majority
declared in favour of the first respondent.
The decoding also shows that out of the remaining seven votes
impugned by the petitioner, the vote relating to Ext. X-34(b)
[see Ext. C-11(h)] has gone in favour of Candidate 3 (second
respondent herein) and that the votes exercised by voters vide Exts.
X-32(g), X-30(a), X-46(b), X-46(a), X-25(a) and X-38(a) entries
in the register of voters which are indicated in Exts. C-11(a),
C-11, C-11(b) and C-11(k) decoding reports had actually gone in
favour of the petitioner himself. They are also void votes on the
petitioner’s own showing. But then Ext. X-18 tendered vote has
gone in favour of the petitioner. If the aforesaid six votes are taken
as void and credit is given for Ext. X-18 vote, the consequence
would be that the petitioner would lose the election by a margin of
five votes.”
12. On behalf of the election petitioner it was submitted that the six
votes above mentioned could not be treated as void as they were
not specifically impugned as void in the recrimination petition filed
by the first respondent. The learned Judge found such resistance on
behalf of the election petitioner to be devoid of any merit and held:
“I find no merit in the said contention of the petitioner. This Court
had made clear in paras 60, 71 and 83 of the judgment pronounced
on 9-1-2002 that after decoding necessary adjustments would
be made regarding all the twenty-eight votes. That includes the
said six votes as well. Ext. X-18 tendered vote has also to be

given credit. There is no reason to take a different stand at this
stage. Moreover the prohibition contained in Section 97 of the
Representation of the People Act, 1951 relied on by the petitioner
is only against reception of evidence from the returned candidate
in the absence of any recrimination petition. First of all, in the
instant case there exists a valid recrimination petition filed by the
first respondent. That apart, I find nothing in Section 97 which
stands in the way of ignoring the votes which are found to be void
even on the showing of the petitioner himself i.e. without the aid
of any recrimination petition. On evidence I had already found in
the relevant paragraphs of the judgment, mentioned supra that the
petitioner has established the fact that the votes covered by Exts.
X-32(g), X-30(a), X-46(b), X-46(a), X-25(a) and X-38(a) are void.
It necessarily follows that the petitioner cannot take shelter under
Section 97 to contend that those votes are really valid. The petitioner
cannot be allowed to blow hot and cold. He cannot wriggle out of
the situation created by himself by pleading and proving that the
aforesaid six votes are in fact void. A void vote means it was a vote
that was never in existence at all. The petitioner cannot seek to
resuscitate or resurrect the said six votes.”
13. In conclusion the learned Judge held:
“I shall now consider the merit of the recrimination petition
filed by the first respondent which question will arise in
case the finding of this Court regarding invalidity of the
six votes is reversed in appeal by accepting the technical
stand of the petitioner based on Section 97. In that case
the petitioner will have a lead of one vote over the 1st
respondent and the merits of the recrimination petition will
assume significance. There was specific allegation therein
with regard to the validity of votes of Naseem Beevi, Aliyar
and George, which are covered by Exts. X-75(a), 75(b) and
75(c) entries in the register of voters. In paras 101 and
102 of the judgment of this Court dated 9-1-2002 it was
found that the said three votes were obviously received in
an improper manner and that after decoding necessary
adjustments would be made based on the details divulged
therein as regards the correct number of votes. The contents

of Ext. C-11(n) decoding report show that all the said three
votes have gone in favour of the present petitioner. They
are void votes. The result then would be that the number of
votes that the petitioner has obtained has to be reduced by
three and then again the first respondent will have a lead
of two votes.
I find that the correct number of votes secured by the first
respondent as a result of the implementation of the result
of decoding would be 55,617 and the correct number of
votes secured by the petitioner is only 55,612. In case the
plea of the petitioner regarding validity of the six votes is
accepted and the recrimination is also taken into account,
then also the election of the first respondent is not liable to
be declared invalid. Found accordingly.”
14. In the backdrop of the above facts, two questions arise for
consideration which only have been seriously pressed by Shri V.R.
Reddy, the learned Senior Counsel appearing for the appellant.
The same are stated and dealt with hereunder.
15. Firstly, it was submitted that in the matter of decoding and
thereafter re-count of the votes, the High Court could not
have travelled beyond the pleadings specifically raised in the
recrimination petition and validity or invalidity of votes beyond
the one specifically pleaded in the recrimination petition could
not have been taken into consideration by the High Court even
if it had come to its notice; for, the rule of divergence between
pleadings and evidence applied with all force and rigour to the trial
of an election dispute and any evidence contrary to the pleadings is
liable to be ignored. Implicit reliance was placed on behalf of the
appellant on a Constitution Bench decision of this Court in Jabar
Singh v. Genda Lal. The majority opinion in Jabar Singh case
is that in the absence of recriminatory petition the High Court had
no jurisdiction to reconsider the rejected votes qua the returned
candidate. However, as we will presently show Jabar Singh case
does not help the appellant at all, since the law laid down by the
Constitution Bench does not cause any dent in the view of the law
taken by the High Court.

16. In Jabar Singh case the Constitution Bench drew a distinction
between the election petitions claiming a single relief and those
claiming a double, composite or additional relief. Under Section
100(1) of the Act the election petitioner claims a single relief that
the election of the returned candidate be declared by the High Court
to be void. If such a relief is founded on the ground of improper
reception, refusal or rejection of any vote or the reception of any
vote which is void as contemplated by Section 100(1)(d)(iii), in
such a case the scope of the enquiry shall be limited to finding out
the infirmities specified in Section 100(1)(d)(iii) i.e. whether the
result of the returned candidate has been materially affected by (a)
any votes having been improperly cast in favour of the returned
candidate, or (b) any votes having been improperly refused or
rejected in regard to any other candidate. The scope of enquiry
is limited by force of Section 100(1)(d)(iii) which concentrates
on a pure and simple issue whether the election of the returned
candidate has been materially affected and nothing else. It cannot
be said that the enquiry is limited because the returned candidate
has not recriminated under Section 97(1). Section 97(1) has no
application to the case falling under Section 100(1)(d)(in). If
the result of the enquiry confined within the scope laid down by
Section 100(1)(d)(iii) is in favour of the petitioner the High Court
shall declare the election of the returned candidate to be void and
that is an end of the proceedings in the election petition. Those
cases will be different where not only the election of the returned
candidate is sought to be declared void but a declaration is also
asked for that the petitioner himself or some other person has been
duly elected within the meaning of Section 100(1) of the Act. In
such a case Section 100 shall have to be read along with Section
100(1) and Section 97 would also come into play. The returned
candidate can recriminate and raise pleas in support of his case
that the candidate who is sought to be declared as elected cannot
be so declared and an enquiry would be held under Section 100
(1) (d)(iii) as to the votes received by the candidate recriminated
against. The recrimination petition under Section 97(1) would give
an opportunity to the returned candidate to dispute the validity
of any of the votes cast in favour of the alternative candidate or
to plead for the validity of any vote cast in his favour which has

been rejected. These pleas will not be available to be raised by
the returned candidate in the absence of a recrimination petition.
In the absence of a recrimination petition, the High Court can
proceed on the basis that the other votes counted by the Returning
Officer were valid votes and that the votes in favour of the returned
candidate, if any, which were rejected, were invalid. In the case of
a relief of the nature contemplated by Section 101 -having been
sought, for in the election petition and a recrimination petition
having been preferred by the returned candidate, the scope of
enquiry is widened and proceeds beyond the limitation imposed by
Section 100(1)(d)(iii). Whether the petitioner or some other person
has received a majority of the valid votes, is an enquiry which
would be possible only if the returned candidate had recriminated.
Absence of recrimination by the returned candidate deprives him
of the right to challenge the validity of votes cast in favour of the
candidate sought to be declared elected, or to contend that any of
his votes were improperly rejected. Clearly, in an enquiry whether
under Section 100(1)(d)(iii) or under Section 101, in the absence
of recrimination a general re-count of the votes preceded by a
scrutiny about their validity cannot be ordered. How far the law
so laid down by the Constitution Bench applies to the facts of the
present case, we shall see a little later. We shall now proceed to
take up for consideration a few subsequent decisions of this Court
wherein the ratio of Jabar Singh case came up for consideration
and was sought to be applied.
17. In Janardan Dattuappa Bondre v. Govind Prasad Shivprasad
Choudhary while holding a re-count it was found by the High
Court that there were 250 votes cast in favour of the returned
candidate, but they were placed in another candidate’s packet.
There was no recriminatory notice under Section 97. The two-
Judge Bench held that the claim of the returned candidate did not
involve reconsideration of the validity of the votes and therefore
the returned candidate could not be denied the benefit of 250 votes
being counted for him even in the absence of a recriminatory
petition. Jabar Singh case was noticed and distinguished by holding
that when the re-count was taken the High Court was still at the
stage of concluding whether the election of the returned candidate
was invalid, which was an enquiry confined to Section 100(1)(d).
18. In Azmat Khan v. Khillan Singh a recrimination petition was
filed by the winning candidate wherein one of the grounds taken
was that errors were committed in the counting of votes of the
candidate who was sought to be declared elected. All the parties
agreed that the Court should order a re-count. Jabar Singh case was
distinguished by the two-Judge Bench primarily on the ground that
in Jabar Singh case there was no recrimination petition filed while
it was so filed in Azmat Khan case³. In Jabar Singh case an attack
against the alternative claim made by the election petitioner was
not permissible but the same was permissible here. In addition the
appellant had also agreed to the re-count of the votes secured by
all the partics. For these reasons fault could not be found with the
decision of the High Court.
19. In P. Malaichami v. M. Andi Ambalam this Court held that the
Election Judge could not have gone into the question of whether any
wrong votes had been counted in favour of the election petitioner
who had claimed the seat for himself, unless the successful
candidate had filed a petition under Section 97. It was held that it
was not a question of mere pleadings but a question of jurisdiction.
20. In Arun Kumar Bose v. Mohd. Furkan Ansari the successful
candidate was held not entitled to combat the claim of the election
petitioner on the ground that if the remaining rejected ballot
papers of the successful candidate had been counted, the election
petitioner would not have been found to have polled the majority
of the votes for want of a recrimination petition conforming to the
requirement of Section 97 of the Act.
21. In Bhag Mal v. Ch. Parbhu Ram in a re-count held at the instance
of the election petitioner it was noticed that there were eight more
votes secured by the returned candidate but they were not counted
in his favour. A three- Judge Bench by a majority of 2:1 held that
in the absence of recrimination petition having been filed by the
returned candidate the High Court, though justified in directing
re-count of the rejected ballot papers relating to the election
petitioner, was also justified in declining to take into account the
eight ballot papers relating to the returned candidate in the absence
of a recrimination petition under Section 97(1) of the Act.

22. In N.E. Horo v. Leander Tiru not only was there no recrimination
petition by the elected candidate, but on the other hand the plea
was taken in the written statement and also during his statement
recorded in the Court that there was no irregularity committed in
the process of counting ballots. It was held that the High Court was
justified in directing inspection of ballot papers polled in favour
of elected and other candidates but refusing inspection of ballots
polled in favour of the election petitioner at the instance of the
returned candidate so as to enter into the question whether the
votes secured by the returned candidate were rightly so counted.
23. Jabar Singh case was decided by the Constitution Bench by a
majority of 4:1. N. Rajagopala Ayyangar, J. recorded a dissenting
opinion. His Lordship analysed the scheme of the Act and the
setting in which Sections 97, 100(1)(d)(iii) and 101(a) were placed,
reading also the rules relating to counting of ballots, especially
Rules 56 and 57, along with the provisions of the Act. Ayyangar, J.
noticed the setuled law that the petitioner is not as a matter of right
entitled to have a scrutiny of ballot papers and re-count merely
because he prays for such a relief, but he has to allege, make out and
prove the specific grounds to establish that the scrutiny or counting
was improper and that the result was in consequence erroneous. If
one reaches that stage and the Tribunal is satisfied that a case for
scrutiny and re-count is made out it would mean that the Returning
Officer had not discharged his duties properly in the mauer of the
scrutiny of the ballot papers and their counting. The respondent
i.e. the returned candidate can allege similar failure on the part of
the Returning Officer and on that being done it would be unjust
to deprive him of the opportunity of proving his allegations and
thus maintaining his seat unless of course the statutory provision
clearly precludes him from doing so. A narrow construction on
Section 100(1)(d)(iii) cannot be placed because the expression
employed by the legislature is “by the improper reception, refusal
or rejection of any vote or the reception of any vote which is void”.
The opening expression in clausc (d) “insofar as it concerns a
returned candidate” cannot limit the width of sub-clause (iii). In the
opinion of Ayyangar, J. unjust and anomalous results would follow
which would be contradictory to the basic principles underlying the

election law if the narrow view propounded by the majority was to
be followed. The basic principles underlying election law are: (i)
that apart from disqualification, corrupt practices etc. the election
of a candidate who obtains the majority of valid votes shall not be
set aside, and (ii) no candidate shall be declared duly elected who
has not obtained the majority of valid votes. Giving hypothetical
but practical illustrations, Ayyangar, J. in his dissenting opinion
demonstrated that once an inspection and re-count was carried out
and yet narrow construction on the power of the court was placed,
then there may be cases (i) where the election of the returned
candidate may be liable to be set aside notwithstanding that he
had in fact obtained majority of valid votes, and (ii) where a seat
is claimed by the election petitioner he may be declared elected
notwithstanding that as a fact he has not obtained the majority
of lawful votes. In short, in the opinion of Ayyangar, J., once an
inspection has been allowed, every vote which has been improperly
received ought to be eliminated and every vote which has been
improperly refused or rejected ought to be added so as to get the
totality of valid votes and give effect to the result. That would meet
the object of election law and aspirations of democracy
24. In N. Gopal Reddy v. Bonala Krishnamurthy a two-Judge Bench
of this Court formed an opinion that the view of law taken by
the majority in Jabar Singh case is entailing apparently unjust
and unreasonable consequences because in spite of the re-count
pointing out to the result of the election being sustained in favour
of the returned candidate and in spite of variation in the exact
number of votes polled by different candidates, the High Court was
deprived of giving benefit of these votes to the returned candidate
simply for want of recrimination petition, and the result was that
the elector’s will and desire was defeated. The Court opined for
the majority view in Jabar Singh case requiring reconsideration
and sought for a reference to a larger Bench, preferably a Bench of
seven Judges. However, on 22-11-1995, it was reported to the Court
that the appeal had become infructuous because the term for which
the elected candidate was to hold office pursuant to the impugned
declaration of result had come to an end and therefore the Court
directed the appeal to be dismissed without any adjudication on

merits. The reference sought for in N. Gopal Reddy cases could
not be answered and the majority view in Jabar Singh case could
not be reconsidered.
25. Earlier also an effort at seeking reconsideration of the majority
opinion in Jabar Singh case was made before a three-Judge Bench
of this Court in Bhag Mal v. Ch. Parbhu Ram and there too it
did not succeed. Sabyasachi Mukharji, J. (as His Lordship then
was) held in his minority opinion that the view taken by Ayyangar.
I, (the minority opinion) in Jabar Singh case was more correct
as that view was in consonance with the purpose of the Act and
would further the cause of the democratic process at which the
Constitution aims. The Constitution and connected laws aim at
ensuring true democracy functioning in the country, and the will of
the people to prevail. That can be achieved by allowing the one to
represent the constituency who has obtained the majority of valid
votes by proper and due process of law. It would really be a mockery
of the procedure of law in a situation where it is demonstrated duly
in the court that a person who obtained four votes less than the
other next candidate should be declared elected in preference to
the others and allowed to represent the constituency. The failure on
the part of Parliament to amend the law suitably in view of Jabar
Singh case was also regretted.
26. The task before an Election Judge is ticklish. It is often urged and
also held that the success of a winning candidate should not be
lightly set aside and the secrecy of the ballot must be zealously
guarded. On account of a rigid following of these principles the
Election Courts are inclined to lean in favour of the returned
candidates and place the onus of proof on the person challenging
the result of election, insisting on strict compliance with the rules
of pleadings and excluding such evidence from consideration as is
in divergence with the pleadings. However, what has so developed
as a rule of practice should not be unduly stretched; for the purity
of the election process needs to be preserved unpolluted so as to
achieve the predominant goal of democracy that only he should
represent the constituency who has been chosen by the majority
of the electors. This is the purpose and object of the election law.

27. Though the inspection of ballot papers is to be allowed sparingly
and the court may refuse the prayer of the defeated candidate for
inspection if, in the garb of seeking inspection, he was indulging
in a roving enquiry in order to fish out materials to set aside the
election, or the allegations made in support of such prayer were
vague or too generalized to deserve any cognizance, nevertheless,
the power to direct inspection of ballot papers is there and ought to
be exercised if, based on precise allegations of material facts, also
substantiated, a case for permitting inspection is made out as is
necessary to determine the issue arising for decision in the case and
in the interest of justice. As held by the Constitution Bench in Ram
Sewak Yadav v. Hussain Kamil Kidwai an Election Tribunal
has undoubtedly the power to direct discovery and inspection of
documents within the narrow limits of Order 11 of the Code of
Civil Procedure. Inspection of documents under Rule 15 of Order
11 of the Code of Civil Procedure may be ordered of documents
which are referred to in the pleadings or particulars as disclosed in
the affidavit of documents of the other party, and under Rule 18(2)
of other documents in the possession or power of the other party.
The Returning Officer is not a party to an election petition and an
order for production of the ballot papers cannot be made under
Order 11 of the Code of Civil Procedure. But the Election Tribunal
is not on that account without authority in respect of the ballot
papers. In a proper case where the interests of justice demand it.
the Tribunal may call upon the Returning Officer to produce the
ballot papers and may permit inspection by the parties before it
of the ballot papers which power is clearly implicit in Sections
100(1)(d)(iii), 101, 102 and Rule 93 of the Conduct of Elections
Rules, 1961. This power to order inspection of the ballot papers
which is apart from Order 11 of the Code of Civil Procedure may
be exercised, subject to the statutory restrictions about the secrecy
of the ballot paper prescribed by Sections 94 and 128(1). However,
the Constitution Bench has cautioned, by the mere production of
the sealed boxes of ballot papers before the Election Tribunal
pursuant to its order the ballot papers do not become part of the
record and they are not liable to be inspected unless the Tribunal
is satisfied that such inspection is in the circumstances of the case
necessary in the interests of justice.

28. It is true that a re-count is not to be ordered merely for the asking or
merely because the court is inclined to hold a re-count. In order to
protect the secrecy of ballots the court would permit a re-count only
upon a clear case in that regard having been made out. To permit
or not to permit a re-count is a question involving jurisdiction of
the court. Once a re-count has been allowed the court cannot shut
its eyes on the result of re-count on the ground that the result of re-
count as found is at variance with the pleadings. Once the court has
permitted re-count within the well-settled parameters of exercising
jurisdiction in this regard, it is the result of the re-count which has
to be given effect to.
29. So also, once the court exercises its jurisdiction to enter into the
question of improper reception, refusal or rejection of any vote, or
the reception of any vote which is void by reference to the election
result of the returned candidate under Section 100(1)(d)(iii), as also
as to the result of the election of any other candidate by reference
to Section 97 of the Act and enters into scrutiny of the votes polled,
followed by re-count, consistently with its findings on the validity
or invalidity of the votes, it cannot refuse to give effect to the
result of its findings as to the validity or invalidity of the votes for
the purpose of finding out the true result of re-count though the
actual finding as to validity or otherwise of the votes by reference
to number may be at variance with the pleadings. In short, the
pleadings and proof in the matter of re-count have relevance for
the purpose of determining the question of jurisdiction to permit
or not to permit re-count. Once the jurisdiction to order re-count
is found to have been rightly exercised, thereafter it is the truth as
revealed by the result of re-counting that has to be given effect to.
30. In N.E. Horo case the High Court reached and recorded a finding
as to the availability of a prima facie case calling for inspection of
ballot papers having been made out on consideration of relevant
evidence produced by the parties. It was held that thereafter the
scope of inspection could not be kept confined to the pleadings
alone. In the course of such inspection, if the ballot papers which
ought not to have been accepted have, in fact been counted in
favour of a candidate, such votes must also fall to be excluded.
There may not be any specific allegation in the pleading in respect

of such ballot papers but the absence of specific averments in the
pleadings is no bar to inspect such ballot papers. “When illegality
is noticed upon inspection, it must be corrected. Invalid votes, if
any, should be excluded. That is precisely the purpose of inspection
of ballot papers.” (SCC p. 369, para 15) In S. Raghbir Singh Gill
v. S. Gurcharan Singh Tohra it was held that a petition for a re-
count on the allegation of miscount or error in counting is based
not upon the specific allegation of miscounting but errors which
may indicate a miscount, and re-count becomes necessary. When
it is alleged that postal ballot papers were tampered with, the
implication in law is that those ballot papers have been wrongly
received in favour of a candidate not entitled to the same, and
improperly refused in favour of the candidate entitled to the same,
and this is miscount and a re-count is necessary. In the very nature
of things the allegation can be not on each specific instance of
any error of counting or miscount but broad allegations indicating
error in counting or miscount necessitating a re-count.
“On a pure grammatical construction of the relevant clause it
cannot be gainsaid that an improper reception of any vote or an
improper refusal of any vote implies not only reception or refusal
of a vote contended to be invalid or valid, as the case may be, but
consequent reception in favour of any contesting candidate at the
election which would simultaneously show the vote being refused
in counting to any other candidate at the election. The expression
refusal’ implies refuse to accept and the expression ‘reception’
implies refuse to reject’. Apart from the setting and the context in
which the clause finds its place, in its interpretation it is to be borne
in mind that it seeks to specify one of the grounds for declaring
an election to be void. In this situation the expressions ‘improper
reception’ and ‘improper refusal’ have to be interpreted as would
carry out the purpose underlying the provision contained in Section
100.” (p. 79, para 46, ibid.)
31. With the pronouncement of this Court in Anirudh Prasad v.
Rajeshwari Saroj Das (three-Judge coram) and Janardan
Dattuappa Bondre v. Govind Prasad Shivprasad Choudhary
(two-Judge coram), it is clear that a distinction has to be drawn
between two situations: (i) when during inspection or consequent

upon inspection, the court is called upon to adjudicate upon the
issue as to whether any vote or votes were improperly received,
refused or rejected or whether any vote received was void, and (ii)
a case where no such adjudication is involved but all that is needed
is to perform the mechanical process of counting the valid and
invalid votes or just placing the votes admittedly cast in favour of
a candidate in his box or bundle by removing the same from where
they were wrongly placed, or, to put it in other words, where all
that is needed to be done is to perform a mere mechanical process
of re-counting the votes without any adjudication of validity or
invalidity of votes. In such a case, the court is treating the votes
as valid or invalid consistently with the decision of the Returning
Officer at the counting on validity or invalidity of votes and
without embarking upon testing the correctness of such decision
the court is simply correcting the error in counting detected at the
re-count. The latter case would be covered by Section 100(1)(d)
(iv) and not by Section 100(1)(d)(iii) of the Act as the error in
counting amounts to non-compliance with the provisions of the
Act and rules and orders made thereunder. A recrimination notice
under Section 97 is needed in the former case but is not required
in the latter casc. A casc clearly covered by Section 100(1)(d)(iii)
would not be covered by Section 100(1)(d)(iv) as special provision
excludes the general provision. Yet another exception in which the
applicability of Section 97 is not attracted is when the process of
inspection would entail adjustment of votes between two successful
candidates, both declared elected, where that be the situation.
32. In P. Malaichami v. M. Andi Ambalam further declaration was
claimed that the respondent himself be declared elected over
and above the declaration that the appellant’s election was void.
What was sought for, the Court noted vide para 26 “was not a
mere mechanical process” by way of re-count. Adjudication as to
improper acceptance/rejection and validity of votes was sought for.
In this context the Court held that in the absence of a recrimination
petition the Election Tribunal did not acquire jurisdiction to go into
the question as to whether any wrong votes had been counted in
favour of the election petitioner. The Court opined that it was not a
question of mere pleadings; it was a question of jurisdiction.

33. We have already stated that the rigorous rule propounded by the
Constitution Bench in Jabar Singh case has met with criticism in
some of the subsequent decisions of this Court though by Benches
of lesser coram and an attempt at seeking reconsideration of the
majority opinion in Jabar Singh case has so far proved to be
abortive. The view of the law taken by the Constitution Bench in
Jabar Singh case is binding on us. Analysing the majority opinion
in Jabar Singh case and the view taken in several decisions of this
Court, referred to here in above, we sum up the law as under:
(1) In an election petition wherein the limited relief sought for is the
declaration that the election of the returned candidate is void on
the ground under Section 100(1) (d)(iii) of the Act, the scope of
enquiry shall remain confined to two questions: (a) finding out
any votes having been improperly cast in favour of the returned
candidate, and (b) any votes having been improperly refused or
rejected in regard to any other candidate. In such a case an enquiry
cannot be held into and the election petition decided on the finding
(a) that any votes have been improperly cast in favour of a candidate
other than the returned candidate, or (b) any votes were improperly
refused or rejected in regard to the returned candidate.
(2) A recrimination by the returned candidate or any other party can be
filed under Section 97(1) in a case where in an election petition an
additional declaration is claimed that any candidate other than the
returned candidate has been duly elected.
(3) For the purpose of enabling an enquiry that any votes have been
improperly cast in favour of any candidate other than the returned
candidate or any votes have been improperly refused or rejected in
regard to the returned candidate the Election Court shall acquire
jurisdiction to do so only on two conditions being satisfied: (i) the
election petition seeks a declaration that any candidate other than
the returned candidate has been duly elected over and above the
declaration that the election of the returned candidate is void; and
(ii) a recrimination petition under Section 97(1) is filed.
(4) A recrimination petition must satisfy the same requirements as
that of an election petition in the matter of pleadings, signing and
verification as an clection petition is required to fulfil within the
meaning of Section 83 of the Act and must be accompanied by the

security or the further security referred to in Sections 117 and 118
of the Act.
(5) The bar on enquiry enacted by Section 97 read with Section 100(1)
(d)(iii) of the Act is attracted when the validity of the votes is to be
gone into and adjudged or in other words the question of improper
reception, refusal or rejection of any vote or reception of any
vote which is void is to be gone into. The bar is not attracted to a
case where it is merely a question of correct counting of the votes
without entering into adjudication as to propriety, impropriety or
validity of acceptance, rejection or reception of any vote. In other
words, where on a re-count the Election Judge finds the result of
re-count to be different from the onc arrived at by the Returning
Officer or when the Election Judge finds that there was an error
of counting the bar is not attracted because the court in a pure
and simple counting carried out by it or under its directions is not
adjudicating upon any issue as to improper reception, refusal or
rejection of any vote or the reception of any vote which is void but
is performing mechanical process of counting or re-counting by
placing the vote at the place where it ought to have been placed.
A case of error in counting would fall within the purview of sub-
clause (iv), and not sub-clause (iii) of clause (d) of sub-section (1)
of Section 100 of the Act.
34. The above was the plea seriously pressed and argued in very many
details on behalf of the appellant, and therefore, we have dealt with
the same extensively. There were other submissions made which
being not of much substance may be briefly noticed and disposed
of summarily. It was urged that the voters’ list supplied at one of
the polling booths, namely, Booth 185 was deficient as a few pages
containing names of eighty-three voters were missing therefrom.
The mistake was detected within a short time of commencement
of polling and rectified at about 11.30 a.m. On such mistake
having been detected and deficiency in the voters’ list having been
removed, thirty out of such eighty-three voters did turn up and
exercise their voting right. Out of such eighty-three voters, fifty-
three were allegedly deprived of voting. Of these fifty-three, only
six were examined as witnesses on behalf of the election petitioner.
The witnesses are PWs 18, 19, 20, 22, 23 and 24. They have stated

that they had gone at the polling booth in the earlier part of the day
but could not vote as their names were missing from the voters’
list as available at that time with the polling officer. They have
also deposed that if they would have been allowed to cast their
votes, they would have voted for the election petitioner. They
claimed to be the followers of the same political party to which the
election petitioner belonged. However, this averment is missing
from the election petition. Further, excepting the oral ipse dixit of
these six witnesses there is no contemporaneous record available
to show that these persons did go to cast their ballots. They do not
say why they could not have gone in the latter part of the day to
exercise their right to vote. Moreover, from the available evidence
it cannot be inferred and held positively that all the persons whose
names were missing from the voters’ list as initially available at
the polling booth, would have all exercised their right to vote
and actually wished to exercise their such right and, if so, which
way the result of the polling would have gone. On the available
evidence an inference as to the result of the election having been
materially affected insofar as the returned candidate is concerned,
cannot be drawn.
35. It was submitted that there was one tendered ballot by a voter
named Khalid but that is missing. Similarly it is submitted that
there were a few postal ballots which were not attested by a gazetted
officer as required by the Conduct of Elections Rules. There is no
material to hold which way the missing postal ballot had gone, that
is, in favour of which candidate it was cast. As to the attestation
by a gazcued officer the only plea taken in the election petition is
that “it is reliably understood that these votes cast through postal
ballots were altested by an officer who is not a gazetted officer and
therefore not competent to attest postal votes as per the Conduct
of Elections Rules”. At the trial no evidence was adduced in this
regard. On the contrary the evidence was directed towards proving
that the postal ballots were not actually signed by those voters
by which they purport to have been signed. Thus, there was a
divergence between the pleadings and proof and hence the plea
was rightly discarded by the High Court.

36. In the light of the law as stated hereinabove no fault can be found
with the view taken by the High Court in the impugned judgment.
Jabar Singh case has no applicability to the present case for two
reasons. Firstly, there is a recrimination petition filed in the present
case and the High Court has on the basis of material available
arrived at a finding that a case for decoding of votes (equivalent to
inspection of ballot papers) cast through electronic voting machines
was made out and thereupon proceeded to decode the ballots cast.
Secondly, to the extent to which the ballots have been merely re-
counted through the process of decoding, Jabar Singh case has no
applicability as the case would be covered by Section 100(1)(d)
(iv) and not Section 100(1)(d)(iii). So far as the correctness of the
facts found as a result of decoding and re-count is concerned, the
same is not disputed. The controversy centred around the legal
aspect only and has already been dealt with hereinabove.
37. For all the foregoing reasons we find the appeals devoid of any
merit and liable to be dismissed. These are dismissed accordingly.

37. T.R. BAALU vs. THE ELECTION COMMISSION OF INDIA
& ORS.
Writ Petition (C) No. 12728 Of 2014 [2014 SCC
CASE ONLINE MAD 1171]
DETAILS 08.05.2014
R. Sudhakar, J. and K.K. Sasidharan, J.
Installation of Video Cameras in each and every
ISSUES
counting table and the ARO’s table.
The Hon’ble Court dismissed the petition and held
that the security during the process of counting of
votes in counting halls will be affected if outsiders
are allowed. This is one step in the process of free
and fair election. In any event, the instructions
issued by the Election Commission of India is a
self-contained provision for conduct of election.
DECISIONS The Court will not interfere with the decision of the
Election Commission of India as to how it should
go about conduct of elections till the declaration
of results. The Court is conscious of the fact that
in an issue of this nature supplementing its views
one or other way would amount to interfering with
the election process, which is deprecated by the
Supreme Court in several decisions.
SUMMARY
The petitioner prayed to direct the respondents to install video-cameras
in each and every counting table and the ARO’s table and consequently
to record and display lively the counting and totalling of counted votes to
be entered in Part-II in Form No.17C, enabling the petitioner/candidate
or his authorised agents to cross-check the votes displayed in the EVM
and the total entered in Part-II in Form No. 17C and simultaneously
to be displayed/ transmitted in the common single screen and also by
webcast method in the official website of the Election Commission.
The Hon’ble Court held that the Election Commission is entitled to
formulate its own method for the purpose of counting of votes from
the EVMs and a detailed procedure has been prescribed to all the

Counting Halls. So far as the installation of camera is concerned, taking
into account the various parameters to maintain security and also to
ensure that there is secrecy of the ballots and to curb the interference
of third parties inside the counting hall, procedure has been prescribed
in paragraph No. 3.5 of the instruction of the Election Commission of
India dated 30.04.2014. There is no reason to fault the procedure.
The Hon’ble Court ultimately held that the instructions issued by the
Election Commission of India is a self-contained provision for conduct
of election and the Court will not interfere with the decision of the
Election Commission as to how it should go about conduct of election
till the declaration of results.
ORDER
R. Sudhakar, J. and K.K. Sasidharan, J.
1. This writ petition has been filed for issuance of a mandamus to
direct the respondents to install video-cameras in each and every
counting table and the ARO’s table and consequently to record
and display lively the counting and totalling of counted votes to
be entered in Part-II in Form No. 17C, enabling the petitioner/
candidate or his authorised agents to cross-check the votes displayed
in the EVM and the total entered in Part-II in Form No. 17C and
simultaneously to be displayed/transmitted in the common single
screen and also by webcast method in the official website of the
2. Mr. G. Rajagopalan, learned Senior Counsel appearing for the
respondents submitted that the plea made in this writ petition to
install video-cameras in each and every counting table cannot
be countenance in view of the instructions given by the Election
Commission of India in this regard on 30.4.2014. The relevant
portion of the said communication reads as under:
“3.5. No camera - still or video of the media (except the official
video camera for officially recording the entire counting process)
is allowed to be fixed inside any counting hall. No camera stand
should, therefore, be allowed to be taken inside counting hall by
media and journalists. Hand held cameras can be allowed to press
corps carrying Media pass issued by the ECI. Further, while taking
audio visual coverage of the counting process with camera carried

in hand or on shoulders by the media/press, under no circumstances,
the actual votes recorded on an individual EVM or ballot papers
is to be photographed or covered by audio visual coverage. The
exact location up to which the still and video cameras of the
media and press can move, should be indicated by the Returning
Officer in advance, marked by a line or a string for guidance of all
concerned.”
3. The Election Commission is entitled to formulate its own method
for the purpose of counting of votes from the Electronic Voting
Machines and a detailed procedure has been prescribed to all the
Counting Halls. So far as the installation of camera is concerned,
taking into account the various parameters to maintain security
and also to ensure that there is secrecy of the ballots and to curb
the interference of third parties inside the counting hall, procedure
has been prescribed in paragraph No. 3.5 of the instruction of
the Election Commission of India dated 30.04.2014. There is no
reason to fault the procedure.
4. On a mere apprehension, the writ petition has been filed pleading
that video cameras should be installed in each and every table
which is objected to by the learned Standing Counsel appearing
for Election Commission. We find much force in the objection
raised by the learned Standing Counsel as the Commissioner has to
ensure that there is no third party interference. Further, the security
during the process of counting of votes in counting halls will be
affected if outsiders are allowed. This is one step in the process
of free and fair election. In any event, the instructions issued by
the Election Commission of India is a self-contained provision for
conduct of election. The Court will not interfere with the decision
of the Election Commission of India as to how it should go about
conduct of election till the declaration of results. The Court is
conscious of the fact that in an issue of this nature supplementing
its views one or other way would amount to interfering with the
election process, which is deprecated by the Supreme Court in
several decisions.
For the foregoing reasons, we find no reason to interfere with the
procedure followed by the Election Commission in this regard and
no relief as sought for by the petitioner could be granted. Hence,
the writ petition stands dismissed. No costs.

38. VIPLAV SHARMA vs. UNION OF INDIA & ORS
P (C) No. 5521 of 2004 [(2005) 83 DRJ 665 (DB)]
CASE
23.05.2005
DETAILS
B.C. Patel, C.J. and Sanjay Kishan Kaul, J
Use of EVMs in the Parliamentary Constituencies of
ISSUES
the 14th Lok Sabha Elections.
The Hon’ble Court in view of the decisions in
A.C. Jose v. Sivan Pillai E.P. No. 2 of 1984 [1984
SCR (3) 74] and All India Anna Dravide Munnetra
DECISIONS
Kazhagam v. Election Commission of India, W.P.
No. 3346 and others of 2001 2001 SCC OnLine Mad
1398 dismissed the writ petition.
SUMMARY
The petitioner had prayed- (a) to declare sections 61A and 58(aa) of the
Representation of People Act, 1951 and Rules 49A to 49X contained
in Chapter II of Part IV of the Conduct of Elections Rule, 1961 to be
ultra vires the constitution and void; and (b) to quash decision of the
Commission to hold election of 14th Lok Sabha in all Parliamentary
constituencies by use of EVMs.
“The notification dated 1.4.2004, issued by the Election Commission
of India and published by the Government of India in the Gazette of
India Extraordinary, reads as under:-
Ο.Ν.60(E), In exercise of the powers conferred by Section 61A of the
Representation of People Act, 1951, the Election Commission of India
hereby specifies each of the 543 Parliamentary Constituencies at the
current General Election to the House of the People, 2004, as per the
election schedule announced by the Commission on 29th February,
2004, as the constituencies in which votes shall be given and recorded
by means of Electronic Voting Machines in the prescribed manner.”
The Hon’ble Court held that in view of the fact that the notification
is acted upon and the results have been declared much earlier and
the notification refers to all the constituencies, there is no reason to
entertain this public interest litigation especially in view of the decision
of the High Court of Madras which is affirmed by the Apex Court.
In view of the aforesaid order made by the Apex Court, wherein the

decision of the High Court of Madras has been upheld, specifically
agreeing with the decision of the High Court that the said Section is
valid, it is not open to this Court to examine that aspect again, and that
too, in a public interest litigation and that it is not necessary to consider
all the submissions made by the petitioner. Thus, the Hon’ble Court
refused to entertain the petition in the light of Hon’ble Madras High
Court and Hon’ble Supreme Court’s Judgement upholding the validity
of the impugned provisions.
ORDER
B.C. Patel, C.J. and Sanjay Kishan Kaul, J
1. This writ petition is filed by the petitioner, a practising lawyer,
inter-alia, praying for the reliefs as under:-
(a) declare sections 61A and 58(aa) of the Representation of
People Act, 1951 and Rules 49A to 49X contained in Chapter
II of Part IV of the Conduct of Elections Rules to be ultra
vires the constitution and void;
(b) issue a direction, order or a writ of certiorari or a writ in
the like nature quashing impugned decision of Respondent
No.2 to hold election of 14th Lok Sabha in all Parliamentary
constituencies by use of EVMs;
(c) issue a direction, order or a writ of mandamus or a writ in the
like nature commanding respondent No.2 to hold all elections
only through ballot paper system;
(d) stay the effect and operation of the impugned decision of
Respondent No.2 to hold elections of the 14th Lok Sabha
in all Parliamentary constituencies in the country by use of
EVMs; and
(e) pass such other or further order/orders as this Hon’ble Court
may deem fit and proper in the facts and circumstances of the
case.
2. This petition is filed in public interest and is styled as a public
interest litigation. Our attention is drawn by the learned counsel
for the Election Commission of India that the issue involved

in the instant petition has been examined by the High Court of
Judicature at Madras in its decision in the Writ Petition Nos. 3346,
3633, 4417, 4454, 4466, 4945, 5077, 6038 and 6039 of 2001. It
appears that in all nine petitions were filed by different political
parties and individuals, inter-alia, challenging the provisions
contained in Section 61A of the Representation of the People Act,
1951 (hereinafter referred to as R.P Act, 1951. By a well reasoned
and detailed judgment running into 68 pages, the High Court of
Madras held that the provisions are not ultra vires. The matter did
not end there. We find from the papers supplied by the learned
counsel for the Election Commission of India that the matter was
carried before the Apex Court by filing Special Leave Petition (C)
Nos. 2824-2825/2001 titled All India Anna Dravida Munnetra
Kazhagam v. Chief Election Commissioner and Another. On
23.4.2001 the Apex Court dismissed the Special Leave Petitions
by passing the following order:-
“Permission to file S.L.P. is granted.
We have heard the learned counsel for the petitioner. We do
not understand the impugned judgment to mean that the law
declared in A.C. Jose v. Sivan Pillai & Ors. 1983(3) SCR 74, is
incorrect. The observations made in the impugned judgment are
clear. Articles 326 and 327 cannot be so interpreted as to enable
the taking away the jurisdiction or to abridge the powers of the
Election Commission under Article 324.
A.C. Jose’s case does not apply to the facts of the present case for
the simple reason that in A.C. Jose’s case, it was by an Executive
order that Electronic Voting Machines were sought to be used
which was not permissible being contrary to the Rules. Now that
Section 61A has been inserted in the Representation of People Act,
1951 in 1989, the aforesaid decision cannot be of any assistance to
the petitioner.
While considering the validity of the said Section we are in
agreement with the decision of the High Court that the said Section
is valid. The Special Leave Petitions are dismissed.”

3. It is required to be noted that the decision of the High Court of
Judicature at Madras as well as the decision of the Apex Court
were not brought to our notice by the petitioner and the petitioner
states that he was not aware of those decisions as the same were
not reported nor was he a party in those proceedings and therefore,
he was not aware of them.
4. When a public interest litigation is filed by a person, obviously,
he being not interested in the matter, but claiming to be interested
to protect the interest of public at large, a duty is cast upon the
petitioner. It is not simplicitor to file a petition, but one has
to investigate and has to point out all the pros and cons of the
matter. The petitioner, particularly, being a lawyer, ought to have
investigated the matter to find out whether any High Court had an
occasion to examine the issue or whether the Supreme Court had
an occasion to examine the issue raised herein. The High Court
judgment is also reported in Scale. However, it is stated by the
petitioner that he came to know about those decisions only after
the same were produced before this Court by the learned counsel
for the Election Commission of India. It is in this background the
Court has to examine this public interest litigation.
5. The notification dated 1.4.2004, issued by the Election Commission
of India and published by the Government of India in the Gazette
of India Extraordinary, reads as under:-
Ο.Ν.60(E),- In exercise of the powers conferred by Section 61A of
the Representation of People Act, 1951, the Election Commission of
India hereby specifies each of the 543 Parliamentary Constituencies
at the current General Election to the House of the People, 2004,
as per the election schedule announced by the Commission on
29th February, 2004, as the constituencies in which votes shall be
given and recorded by means of Electronic Voting Machines in the
prescribed manner.”
6. A perusal of the notification makes it clear that it was issued for
the elections which were held in 2004, as per the election schedule
announced by the Election Commission of India. It is during
those elections electronic voting machines were used as indicated

in the notification. Elections were held and elected Members of
Parliament completed one year and it is thereafter that we have
to decide this petition. It was contended that Section 61A of the
Act refers to such constituency and each constituency is required
to be notified. Section 61A of the Act refers to “constituency” or
“constituencies” as the Election Commission may having regard to
the circumstances of each case specify. Relying on the language of
the Section, the petitioner contended that the Election Commission
is required to notify the reasons for the use of electronic voting
machines for each constituency.
7. In view of the fact that the notification is acted upon and the results
have been declared much earlier and the notification refers to all
the constituencies, we see no reason to entertain this public interest
litigation, especially in view of the decision of the High Court of
Madras which is affirmed by the Apex Court.
8. In view of the aforesaid order made by the Apex Court, wherein the
decision of the High Court of Madras has been upheld, specifically
agreeing with the decision of the High Court that the said. Section
is valid, it is not open to this Court to examine that aspect again,
and that too, in a public interest litigation. In view of this, we are
not inclined to entertain this petition. Petitioner in person submits
that all his submissions in respect of vires of Section should be
considered by this Court. It is not necessary to consider all the
submissions made by the petitioner.
9. In view of the discussion herein above, we decline to entertain the
petition. Hence, the writ petition is dismissed.
10. The petitioner submitted that he should be given a certificate under
Article 134A of the Constitution of India. We are of the opinion
that no such certificate is required to be issued by this Court in the
present case.
Dismissed.

CHAPTER 4: CONCLUSION
An analysis of all the afore-said decisions of the Hon’ble Supreme Court

of India and various High Courts of the country clearly demonstrates
that the Courts, after going through various aspects of the technological
soundness and the administrative measures involved in the use of
Election Voting Machines, have held that they are credible, reliable
and totally tamperproof. The Election Commission of India has been
among the pioneers in the introduction of a robust electronic voting
system.

EVM Technical Safeguards and Involvement of
Political Parties in Various EVM Activities
Control Unit (CU) VVPAT Ballot Unit (BU)
Electronic Voting Machines & VVPATs are manufactured by M/s.

Bharat Electronics Limited (A PSU under Ministry of Defence) and M/s.
Electronics Corporation of India Limited (A PSU under Department of
Atomic Energy).
Electronic Voting Machine (EVM): An EVM consists of two units,
namely, Control Unit (CU) and Ballot Unit (BU). A Ballot Unit caters
upto16 candidates. 24 (Twenty-four) Ballot Units can be cascaded
together for catering to 384 candidates (including NOTA) with one
Control Unit. On the right side of the BU along the candidates’ vote
button, digits 1 to 16 are embossed in Braille signage for guidance of
visually impaired electors. It runs on a power pack (Battery) having 7.5
volts.
Voter Verifiable Paper Audit Trail (VVPAT): Voter Verifiable Paper
Audit Trail is an independent system attached with the Electronic Voting
Machines that allows the voters to verify that their votes are cast as
intended. VVPAT runs on a power pack (Battery) of 22.5 volts.
• Functioning of EVM and VVPAT:
• Control Unit is kept with the Presiding Officer/Polling
Officer and Ballot Unit and VVPAT are kept in the Voting
Compartment.

• When a vote is cast on Ballot Unit by pressing candidate
button (Blue Button) of his/her choice, RED light is glow
against that particular candidate button.
• On other hand, a slip is printed on the VVPAT printer containing
the serial number, name and symbol of the candidate and
remains exposed through a transparent window for about 7
seconds.
• Thereafter, this printed slip automatically gets cut and falls in
sealed drop-box of the VVPAT.
• Thereafter, a beep sound is heard from the Control Unit to
ensure vote has been registered successfully.
Technical Security Features

Features Purpose Ruled Out
Standalone EVM used by the Commission Any connection
is a stand-alone non-networked with external
machine which can be connected world through
to EVM components only (e.g. wire or wireless
CU, BU, VVPAT, SLU, P-FLCU).
One Time The machine is electronically Any alteration
Programmable protected to prevent any tampering/ or tampering
(OTP) Chip manipulation. The programme
(software) used in these machines
is burnt into a One Time
Programmable (OTP) chip so that
it cannot be altered or tampered
with.
Unauthorized Software as well as polled data is Any access to
Access stored in the micro-controller of microcontroller
Detection the Control Unit of EVM, which is or memory
Module protected by a Secure Module. Any
(UADM) attempt to open the Secure Module
at any time whether the machine
is on or off, renders the machine
in factory mode and the machine
becomes inoperative.

No Radio Any tampering of ECI-EVM by Any tampering
Frequency coded signals by wireless, Bluetooth by coded
Transmission or WiFi is ruled out as EVM does signals by
or Reception not have any radio frequency (RF) wireless like
Capability communication capability, hence, Bluetooth or
cannot communicate through Wifi, Wifi
Bluetooth etc.
Dynamic Every key press is coded Any decoding
Coding of Key dynamically making it impossible of the signal
Presses for anyone to decode the signals between
between Control Unit and Ballot Control Unit,
Unit. Ballot Unit and
VVPAT
Most Standards used are proven to work Any
Advanced effectively in modern systems deciphering by
Encryption tapping cables
Techniques
Strong Mutual The strong mutual authentication Any interaction
Authentication capability ensures that any with any
Capability unauthorized devices cannot unauthorized
interact with EVMs devices
Real Time Every authorised or un-authorised Any
Clock for key press is recorded with date and malpractice
date and time time stamp on real time basis.
stamping key
presses
NOTE: For details on Technical Features and Administrative procedures on
EVMs & VVPATs kindly refer presentation on EVM, Status Paper on EVM
and Manual on EVM available on ECI website.
Various activities related to EVMs/VVPATs with the involvement

S.
of the representatives of National & State Recognised Political
No.
Parties and Candidates
1 Storage of EVMs and VVPATs During Non-Election Period
• Generally, EVM-VVPATs are stored at district headquarters
under custody of District Election Officer (DEO).
• EVM-VVPATs are stored under double lock system with all keys
of Lock-1 with DEO and all keys of Lock-2 with Deputy DEO
or equivalent.

• EVM-VVPAT warehouse/strong room has minimum ½ section
armed security, CCTV coverage, log-book etc.
• During non-election period till finalization of list of the contesting
candidates, EVM-VVPAT warehouses are opened/closed (for
any purpose like movement, inspection etc.) in the presence of
the representatives of National and State Recognised Political
Parties.
• Opening and Closing of EVM warehouse/strong room is done
under videography.
• With finalization of list of the contesting candidates, candidates
and their representatives are involved while opening and closing
of EVM-VVPAT warehouses/strong room.
2 First Level Checking of EVMs and VVPATs
• First Level Checking of EVMs and VVPATs is conducted before
every election by the authorised engineers of Bharat Electronics
Limited (BEL) and Electronics Corporation of India Limited
(ECIL) at District Election Officer (DEO) level.
• For this purpose, National and State Recognised Political Parties
at district headquarters are invited in writing by DEO concerned
at least two days before the beginning of FLC and a copy is
endorsed to state headquarters.
• The representatives of National and State Recognised Political
Parties are involved to oversee entire FLC process and also to put
their signatures on the paper seal (Pink Paper Seals affixed on the
Control Units) and various documents related to FLC.
• Functionality check of every EVM & VVPAT is conducted using
Pre FLC unit (PFLCU).
• Dummy Symbols are loaded in every VVPAT using Symbol
Loading Unit (SLU). Symbols being loaded in VVPATs are
simultaneously displayed on the monitor/TV screen for viewing
by representatives of Political Parties.
• During FLC cabinet of EVMs are opened in the presence of
political party representatives to check there is no spurious
component. Further, casting of 6 votes against each of the
candidate buttons (i.e. total 96 votes), observation of result and
clearing of mock poll data are done for each EVM & VVPAT.
• In addition, higher mock poll is conducted in 5% randomly
selected EVMs and VVPATs (i.e. 1200 votes in 1% EVMs, 1000
votes in 2% EVMs and 500 votes in 2% EVMs). The electronic
result of EVM is tallied with the VVPAT slips count. The
representatives of Political Parties are allowed to pick 5% EVMs
and VVPATs randomly and also to do mock poll.

• Green colour stickers are pasted on the FLC-OK machines and
Red colour stickers are pasted on the FLC-Rejected machines.
• Status of FLC-OK and FLC-Rejected machines is updated in the
EVM Management System (EMS) using mobile app.
• List of FLC OK EVMs and VVPATs generated from EMS is
shared with all National and State Recognised Political Parties.
• The representatives of National and State Recognised Political
Parties are allowed to sign the seals, forms register during FLC.
• FLC-Reject machines are sent to manufacturers for rectification.
• FLC-OK machines are stored in Strong Rooms having double
lock, CCTV coverage and minimum 1 section Armed Security.
3 EVMs and VVPATs for Training and Awareness
• After completion of FLC, up to 10% EVMs and VVPATs are
taken out for awareness and training purpose in the presence of
National and State Recognised Political Parties.
• The list of awareness and training EVMs and VVPATs is shared
with the representatives of the political parties.
• EVMs & VVPATs taken out for training & awareness are stored
separately in a separate designated warehouse.
• EVM Demonstration Centres (EDC) are set up at district
election office and at the returning officers headquarters/revenue
sub-division offices till the announcement of election.
• Mobile Demonstration Van (MDV) are deployed for every
assembly constituency/segment to cover all polling locations/
electoral literacy clubs.
• Training & Awareness EVMs/VVPATs are reintroduced for
election, if required, after de-novo FLC, Randomizations and
Commissioning.
4 Randomizations of EVMs and VVPATs
• Randomizations of EVMs and VVPATs are done using EVM
Management System (EMS) developed by ECI.
• First randomization of EVMs and VVPATs is conducted in the
presence of National and State Recognised Political Parties to
allocate EVMs and VVPATs Assembly constituency/ segment-
wise.
• List of first randomized EVMs and VVPATs (AC/AS-wise) is
shared with National and State Recognised Political Parties.
• The list of second randomized EVMs and VVPATs is shared with
contesting candidates.

• After finalization of list of contesting candidate, list of first
randomized EVMs and VVPATs (AC/AS-wise) is also shared
with contesting candidate.
• Second randomization of EVMs and VVPATs is conducted,
before commissioning of EVMs and VVPATs, in the presence of
contesting candidates to allocate polling station wise and reserve
machines.
5 Commissioning of EVMs and VVPATs
• Commissioning of EVMs and VVPATs for use in poll is done
in the presence of contesting candidates, by the district official.
• On Commissioning day EVM-VVPAT strong room is opened
in the presence of candidates/their representatives under
videography.
• Symbol loading in every VVPAT is done by using Symbol
Loading Unit (SLU). Symbols being loaded in VVPATs are
simultaneously displayed on the monitor/TV screen for viewing
by candidates/their representatives.
• During Commissioning every EVM & VVPAT is checked by
casting 1 vote to each candidate button including NOTA.
• In addition, higher mock poll of 1000 votes is done in 5%
randomly selected EVMs and VVPATs and electronic result of
EVM is tallied with the VVPAT slips count. Candidates/their
representatives are allowed to pick 5% EVMs and VVPATs
randomly and also to do mock poll.
• If any EVM-VVPAT assigned to the polling station is found
non-functional during commissioning, the same is replaced with
reserve EVM/VVPAT.
• Candidates/their representatives are allowed to sign the seals
used for sealing EVMs and VVPATs.
• After Commissioning of EVM-VVPAT, they are kept in the
strong room in the presence of candidates/their representatives
under double lock system.
6 Dispersal of EVMs and VVPATs with Polling Parties
• On dispersal day EVM-VVPAT strong room is opened in the
presence of candidates/their representatives under videography.
• Dispersal of EVMs and VVPATs is done in the presence of the
candidates/their representatives.
• If any EVM-VVPAT found non-functional during dispersal, the
same is replaced with reserve EVM/VVPAT.

7 Poll Day
• On Poll day 90 minutes before the Actual Poll start time, mock
poll of atleast 50 votes (minimum 1 vote to each candidate
including NOTA) is conducted at every polling station in the
presence of the polling agents nominated by the contesting
candidates. Electronic Result of mock poll is tallied with the
VVPAT slip count.
• Mock poll data is cleared from the Control Unit and mock poll
VVPAT slips are kept in the black envelope and sealed with Pink
Paper Seal.
• Presiding Officer prepare the Mock Poll Certificate in this effect.
• Before starting actual poll, Control Unit is sealed with Green
Paper Seal, Special Tag and Address Tag. VVPAT drop box
(Ballot compartment) is also sealed using Address Tags.
• On completion of Poll, presiding officer press the ‘CLOSE’
button of Control Unit to close the poll. EVM & VVPAT are kept
in the respective carrying cases and sealed with address tags.
• Polling Agents are allowed to sign the seals used in sealing
EVMs and VVPATs (before commencement of poll and on close
of poll).
• Polling Agents nominated by the contesting candidates are
allowed to remain in polling stations to observe polling process.
• A copy of Form 17C containing details of voters, EVM-VVPAT
& seals used, vote polled including votes polled in EVM etc. is
provided to polling agents.
Transportation of Polled EVMs and VVPATs from Polling
8
Stations to Collection Centre
• After completion of poll, EVMs & VVPATs are transported from
polling station to collection centre under escort.
• Candidates/Polling agents are allowed to follow vehicles carrying
polled EVMs and VVPATs.
9 Storage of EVMs and VVPATs after Poll
• Polled EVMs and VVPATs are stored in the strong room in the
presence of Candidates/their representatives.
• Candidates/their representatives are also allowed to put their
seals on the locks of the strong room.
• Polled EVM Strong Room has minimum 1 platoon of armed
security (CAPF) and CCTV coverage.
• Polled EVM Strong Room has two-cordon security. Inner cordon
under CAPF and outer cordon under State Armed Police. No one
is allowed to enter inner cordon.

• Candidates/their representatives are allowed to stay to watch
the Strong Room, if entrance of the strong room is not visible,
CCTV display facility is provided.
• Un-polled non-functional and unused reserve EVMs & VVPATs
are stored separately under security.
10 Counting Day
• Polled Strong Room is opened in the presence of Candidates/their
representatives, Returning Officer, ECI Observer on counting
day under videography.
• Counting of votes is done in the presence of candidates and
counting agents appointed by them.
• On the counting day, Control Units of EVMs are brought to the
counting table from the strong room under CCTV coverage, and
result is seen on the display of the CU by pressing ‘RESULT’
button on Control Unit after Seal verification by the Candidates/
Counting Agents.
• EVM wise result is recorded by Counting Supervisor in Form 17
C and sent to RO for compilation of round wise result.
• After completion of counting of votes, mandatory verification
of VVPAT slips of randomly selected 5 polling stations per
assembly constituency/segment is conducted.
• After completion of counting, power packs are removed from
the Control Units and Control Units are sealed in their carrying
cases.
• VVPAT slips are removed from all VVPATs and kept VVPAT-
wise in sealed envelopes under CCTV.
• Thereafter, EVMs are kept in the EVM Strong Room and sealed
envelopes of VVPAT slips are kept with the statutory documents
in separate trunk.
• Candidates/their representatives are allowed to sign the seals.

ADDITIONAL INFORMATION ON EVMs/
VVPATs
KEY FEATURES OF M-3 EVMs/VVPATs
• Standalone Machine: EVM is a standalone system not connected
with the external world through any wired or wireless network
medium.
• Unauthorised Access Detection Module (UADM): UADM
embedded in the machine destroyes the digital certificate
and disables EVM if any physical attempt is made to access
microcontroller or memory.
• Advanced Encryption Techniques: Encrypted communication
between Control Unit, Ballot Unit and VVPAT cannot be deciphered
without knowing proper decryption algorithm.
• Automated self diagnostics on every switch ON: EVM checks
its own health parameters each time it is Switched ON.
• Strong Mutual Authentication Capability: The strong mutual
authentication capability ensures that no unauthorised device can
interact with EVM.
• No Radio Frequency Transmission or Reception Capability:
Tampering of ECI-EVMs by any wireless coded signal using any
protocol (Bluetooth, WIFI, RFID, NFD etc.) is ruled out as EVM
does not have any radio frequency (RF) communication capability,
hence, cannot communicate through any wireless protocol.
• One Time Programmable (OTP): The microcontroller used in
EVM is one time programmable and application software can only
be programmed into that one time at the time of manufacturing of
EVMs in the factory.
• Dynamic Coding of Key Presses: Every key press is coded
dynamically making it impossible for anyone to decode the signals
flowing among the Control Unit, Balloting Unit and VVPAT.
• Real Time Clock for date and time stamping of events: Every
key press is recorded with date and time stamp on real time basis.

SALIENT ASPECTS OF EVMs/VVPATs:
• The ECI-EVMs are manufactured by two PSUs namely Electronics
Corporation of India Limited (ECIL), Hyderabad and Bharat
Electronics Limited (BEL), Bangalore.
• An independent TEC (a) provides technical advice to build
specifications and design of newer versions of EVMs and VVPATs,
in order to incorporate the latest technology both in Hardware
and Software Design and towards improving Robustness against
Tampering and operation in the field. (b) Examines design
proposals of manufacturers on EVMs and offers recommendations
for improvement. (c) Mentors design process wherever asked. (d)
Examines concerns raised on EVM tamperability.
• Standardisation Testing and Quality Certification (STQC) under
Ministry of Information and Technology, an accredited third party
entity, conducts standardization and certification of ECI EVMs
produced by manufacturers.
• EVMs data is stored internally and is non-transferrable to or by
any device.
• Commission has evolved end-to-end stringent security protocol
and administrative safeguards for the use, storage, transportation
and tracking of ECI EVMs.
• Since the introduction of EVMs, it has been used in various
elections and different governments are elected successfully by the
voters as mentioned in Appendix 1 & 2.

INTERESTING FACTS ON EVMs/VVPATs
• In 1982, when EVM was first used in Kerala, a candidate Sivan
Pillai challenged its use even before the election. But Kerala High
Court did not entertain his challenge and EVM was introduced
as a pilot project. Interestingly, Mr. Pillai, the challenger, won
the election when the result was declared. However, Mr. Pillai’s
opponent challenged the introduction of EVMs thereafter. The
said election was re-conducted with paper ballots after Supreme
Court ruling in 1984. However, the 1984 SC ruling against EVMs
had been on a legal technicality, and not about their fundamental
suitability, and the legal glitch was corrected through amendment
of the Representation of the People Act 1951 in 1988.
• The introduction of EVMs for voting in India was met with certain
reservations considering the then existing large-scale illiteracy and
socio- economic backwardness of the country. It was often asserted
by the naysayers that the multitudes of poor, illiterate, down-
trodden, especially in the rural areas, would face hardships and
problems in accessing the EVMs and may get dis-enfranchised out
of ignorance, lack of voting education or awareness. But, a joint
study of Indian School of Business, Indian Statistical Institute and
Brookings Institution in 2017 with the help of post-poll survey data
between 2000 and 2005 from the independent Centre for the Study
of Developing Societies (CSDS), establishes that introduction
of EVMs led to greater participation in electoral process by the
marginalised and vulnerable voters such as women, Scheduled
Castes and Scheduled Tribe.

Appendix - I
Elections in which EVMs used

Name of State/UT
Year
Andhra Pradesh 2004 2009 2014 2019
Arunachal Pradesh 2004 2009 2014 2019
Assam 2001 2006 2011 2016 2021
Bihar 2000 2005 2010 2015 2020
Chhattisgarh 2000 2003 2008 2013 2018 2023
Goa 2002 2007 2012 2017 2022
Gujarat 2002 2007 2012 2017 2022
Haryana 2000 2005 2009 2014 2019
Himachal Pradesh 2003 2007 2012 2017 2022
Jammu & Kashmir 2000 2004 2008 2014 --
Jharkhand 2000 2005 2009 2014 2019
Karnataka 2004 2008 2013 2018 2023
Kerala 2001 2006 2011 2016 2021
Madhya Pradesh 2003 2008 2013 2018 2023
Maharashtra 2004 2009 2014 2019
Manipur 2002 2007 2012 2017 2022
Meghalaya 2003 2008 2013 2018 2023
Mizoram 2003 2008 2013 2018 2023
Nagaland 2003 2008 2013 2018 2023
Orissa 2000 2004 2009 2014 2019
Punjab 2002 2007 2012 2017 2022
Rajasthan 2003 2008 2013 2018 2023
Sikkim 2004 2009 2014 2019
Tamil Nadu 2001 2006 2011 2016 2021
Telangana 2018 2023
Tripura 2003 2008 2013 2018 2023
Uttar Pradesh 2002 2007 2012 2017 2022
Uttarakhand 2002 2007 2012 2017 2022
West Bengal 2001 2006 2011 2016 2021
Delhi 2003 2008 2013 2015 2020
Puducherry 2001 2006 2011 2016 2021
TOTAL: 148 State Legislative Assembly Elections
EVMs were also used in all constituencies in General Elections to Lok Sabha
in 2004, 2009, 2014 and 2019.

Appendix - II
PARTY WITH MAXIMUM NUMBER OF SEATS IN LEGISLATIVE ASSEMBLY ELECTION

SINCE 2004
Andhra 2004 2009 2014 2019 2008 2013 2018 2023
Meghalaya
Pradesh INC INC TDP YSRCP INC INC INC NPEP
Arunachal 2004 2009 2014 2019 2008 2013 2018 2023
Mizoram
Pradesh INC INC INC BJP INC INC MNF ZPM
Assam 2006 2011 2016 2021 2008 2013 2018 2023
Nagaland
INC INC BJP BJP NPF NPF NPF NDPP
Bihar 2005 2010 2015 2020 2004 2009 2014 2019
Odisha
RJD JD(U) RJD RJD BJD BJD BJD BJD
Chhattis- 2008 2013 2018 2023 2007 2012 2017 2022
Punjab
garh BJP BJP INC BJP SAD SAD INC AAP
Goa 2007 2012 2017 2022 2008 2013 2018 2023
Rajasthan
INC BJP INC BJP INC BJP INC BJP
Gujarat 2007 2012 2017 2022 2004 2009 2014 2019
Sikkim
BJP BJP BJP BJP SDF SDF SDF SKM
Haryana 2005 2009 2014 2019 Tamil 2006 2011 2016 2021
INC INC BJP BJP Nadu DMK AIADMK AIADMK DMK
Himachal 2007 2012 2017 2022 2014 2018 2023
Telangana
Pradesh BJP INC BJP INC TRS TRS INC
Jammu & 2008 2014 2008 2013 2018 2023
Tripura
Kashmir JKNC JKPDP CIP(M) CPI(M) BJP BJP
Jharkhand 2009
2005 2014 2019 2007 2012 2017 2022
BJP & Uttarakhand
BJP BJP JMM BJP INC BJP BJP
JMM
Karnataka 2004 2008 2013 2018 2023 Uttar 2007 2012 2017 2022
BJP BJP INC BJP INC Pradesh BSP SP BJP BJP
2006 2011 2016 2021 West 2006 2011 2016 2021
Kerala CPI(M) CPI(M) CPI( M) CPI(M) Bengal CPI(M) AITC AITC AITC
Madhya 2008 2013 2018 2023 NCT of 2008 2013 2015 2020
Pradesh BJP BJP INC BJP Delhi INC BJP AAP AAP
Maharash- 2004 2009 2014 2019 2006 2011 2016 2021
Puducherry
tra NCP INC BJP BJP INC AINRC INC AINRC
Manipur 2007 2012 2017 2022
INC INC INC BJP
Party getting maximum number of seats changed 49 times in Assembly Elections

PARTY WITH MAXIMUM NUMBER OF SEATS IN LOK SABHA ELECTIONS
2004 2009 2014 2019
Max. Seats INC 145 INC 206 BJP 282 BJP 303
2nd Max. Seats BJP 138 BJP 116 INC 44 INC 52

FREQUENTLY ASKED QUESTIONS
On
EVM (CU, BU & VVPAT)
INDEX
EVM General Section Qn.1 to Qn.18
EVM Procedures Qn.19 to Qn.36
EVM Technical Section Qn.37 to Qn.64
EVM Tamperability Qn.65 to Qn.69
Judicial Scrutiny Qn.70 to Qn.73
Additional Topics Qn.74 to Qn.86

EVM General Section
Q1. What is an EVM?
Ans. EVM stands for Electronic Voting Machine. It is a device used to
electronically record and count votes cast in elections. The Indian
Electronic Voting Machine (EVM) system is also termed as ECI-
EVM, meaning an EVM specifically designed, manufactured
and used for Elections as per election procedure and rules framed
by Election Commission of India and documented in manual on
EVM, so as to differentiate it from EVMs used in other countries.
ECI-EVM consists of Ballot Unit (BU), Control Unit (CU) and
the later added Voter Verifiable Paper Audit Trail (VVPAT).
EVMs come under the overall category of DRE voting machines,
or Direct Recording Electronic voting machine systems, which
is one of the many voting methodologies available worldwide.
ECI-EVMs are considered more efficient and accurate than paper
ballots, as they eliminate the possibility of invalid votes due to
unclear or improperly marked (stamped) paper ballots, reduce
the time required for counting and ensure that a vote is registered
for a single candidate only.
For detailed information on various aspects of ECI-EVM, the
following documents may be referred:
The Presentation on EVM booklet is a short comprehensive guide
on ECI-EVMs. Starting with a historical perspective it covers the
technical safeguards and administrative safeguards, procedures
governing the secure design, production, transportation,
storage and deployment of EVMs in elections. The transparent
administrative processes of ECI solicit the presence and
participation of recognised political parties at all stages of EVM
deployment. The presentation covers the debate around EVMs
and the oft-repeated and misplaced international comparisons. A
few slides also cover the Judicial scrutiny the EVM has endured
and passed with flying colours.
The Manual on EVM contains the gist of all-important
instructions on use of BU, CU and VVPAT and serves as a ready
reference. The Manual is divided into four parts. Part 1 covers

Storage process and Movement of EVM during Election and
Non-election period, First Level Checking, First Randomisation
and Training and Awareness on EVMs. Part 2 covers all processes
from Second randomisation to Counting of Votes. Part 3 gives the
historical perspective and legal perspective and Part 4 contains
Annexures and reporting Formats.
ECI takes special care through pre-poll First Level Checking
(FLC) before conducting poll to ensure that EVMs to be used are
fit for use in elections. A very secure process of handling EVMs
in poll is followed with participation of recognised political
parties / candidates/their representatives.
The EVM Storage and Movement of EVM is done through EVM
Management System (EMS) to ensure efficient management and
control of ECI-EVM stock.
The booklet Status Paper on EVM covers in brief the journey of
EVMs in India since its conceptualisation in 1977 to the present
along with the socio-political feedback on introduction of EVMs.
It also highlights various legal interventions and court cases in
its long journey of over four decades. The role of Technical
Expert Committee, and various aspects such as design and
manufacturing protocol, EVM safety and security features, and
stringent administrate procedure for handing EVMs along with
International comparison.
Appendix 1 and 2 of this booklet provide some interesting
facts on use of EVMs in elections which clearly bring out all
possible permutations of electoral outcomes both favouring and
disfavouring National and State Political Parties.
The Legal History of EVMs booklet provides a useful insight into
EVM inception and milestones, first usage of EVM, Legislative
amendment to enable usage of EVM, Legal provisions regarding
EVM & VVPAT, and Judicial Decisions on EVM & VVPAT.
Q.2 In what way functioning of EVMs is different from the
conventional system of voting through paper ballots?
Whether technical knowledge is required for casting of vote
through EVM?

Ans. In the Paper Ballot system, the list of contesting candidates is
printed on a paper (ballot paper) along with serial number, name
and symbol of the candidates. There is a specific space allocated
for each contesting candidate where a vote can be cast by voter
by putting a mark. Thereafter, voter needs to fold the ballot
paper in a specified manner and to deposit in the Ballot Box.
For Counting votes obtained by that candidate, only correctly
marked votes are counted.
Some of the major issues with ballot paper voting are that (i) many
votes become invalid due to improper marking/ink smudging
(ii) Ballot boxes are also susceptible to “stuffing with spurious
votes” by capturing the booth for few minutes. (iii) Voting with
pre-marked ballot papers. (iv) Manual counting of votes is prone
to errors and mischief and takes a lot of days.
In the ECI-EVM system of voting, the Control Unit is placed
with the Presiding Officer (In-Charge CU) and the Ballot Unit(s)
and VVPAT are placed inside the Voting Compartment. Instead of
issuing a ballot paper, the Polling Officer in-charge of the Control
Unit releases the electronic Ballot by pressing the “Ballot Button”
on the Control Unit. This enables the voter to cast his/her vote by
pressing the “blue button” (Candidate button) on the Ballot Unit
against the candidate of his/her choice. When the voter presses
a button against the candidate of his/her choice on Ballot Unit,
a red LED glows against the chosen candidate’s button on BU.
A paper slip showing the serial number, name and the symbol
of the candidate of his/her choice is generated and is visible for
about 7 seconds through transparent window of VVPAT.
Hence the voter is able to see the “printed slip” and verify that
vote is cast as per his/her choice. Thereafter, the printed paper slip
gets cut automatically and stored in sealed Drop Box of VVPAT.
A loud BEEP is heard from the Control Unit which confirms that
the vote is registered successfully. The signal flow at the time
of voting between BU, CU & VVPAT is shown in Annexure of
FAQs. The VVPAT paper slips can be later used for verifying
the electronic count obtained from CU in case of a dispute. This
record of VVPAT printed paper slips verified by voter and the

process of correlating VVPAT and CU count as per established
mandatory verification procedure makes the voting on EVMs
trustworthy. Hence it can be seen that no technical knowledge is
required for casting a Vote on the EVM and ordinary citizens can
easily cast their votes on ECI EVMs.
Advantages of ECI-EVM voting system:
(i) As voting is done by pressing a button, these is no invalid
vote as in paper ballot system.
(ii) Booth capturing has been eliminated by technology used in
EVMs and administrative procedures such that capturing
booth is not worthwhile even if attempted. EVM voting
system does not permit more than 4 votes per minute under
any circumstances. Thus it takes too long a time to cast
a substantial number of votes giving sufficient time to
security forces to respond to the Booth Capturing attempt.
(iii) No possibility of voting after CLOSE button is pressed at the
close of poll.
(iv) It ensures quick, error free and mischief free counting of
votes.
(v) Voter is instantly able to verify that his / her vote has been
cast correctly by verifying the VVPAT’s printed slip.
Q.3 Whether transportation of EVMs to the polling stations is
more difficult compared to the ballot boxes?
Ans. It is easier to transport the EVMs, as compared to ballot boxes as
EVMs are lighter, portable and come with custom-made carrying
cases for ease of carriage/transport. EVMs are transported under
extreme security and following elaborate safeguards.
Q.4 When were EVMs used for the first time in an election?
Ans. Electronic Voting Machines (EVMs) consisting of Ballot Unit
(BU) & Control Unit (CU) were used for the first time in the by-
elections to Parur Assembly Constituency of Kerala in 1982.

Q.5 When was VVPAT introduced?
Ans. Voter Verifiable Paper Audit Trail (VVPAT) with EVM was used
for first time in the by election to Noksen Assembly Constituency
of Nagaland in 2013.
Q.6 What is the Model of EVMs used now?
Ans. Presently, the M3 Model of ECI-EVM and VVPAT are used.
Similar to the earlier Models, M3 EVMs / VVPATs are also non-
networked, stand-alone units that run on power-packs / batteries
of their own.
Q.7 Where are the EVMs manufactured? Are they imported?
Ans. EVMs/VVPATs are not imported but indigenously designed
and manufactured by two Public Sector Undertakings (PSUs)
namely Bharat Electronics Limited (BEL), under the Ministry of
Defence and Electronics Corporation of India Limited (ECIL),
under the Department of Atomic Energy under the guidance
of the Technical Experts Committee (TEC) constituted by the
Election Commission of India.
Q.8 What is the maximum number of votes which can be cast in
EVMs?
Ans. The ECI-EVM system can record a maximum of 2,000 votes but
generally it is used for recording 1500 votes only.
Q9 What is the maximum number of candidates which EVMs
can cater to?
Ans. Each Ballot Unit can cater to 16 candidates including NOTA.
A total of 24 BUs can be connected to a CU to make a set of
EVM. Therefore, when required, one set of EVM can cater up to
a maximum of 384 candidates including NOTA.
Q.10 How can EVMs be used in areas where there is no electricity?
Ans. EVM and VVPAT do not require any external power supply. EVM
and VVPAT run on their own battery/ power-packs supplied by
Bharat Electronics Limited / Electronics Corporation of India

Limited. EVM runs on a Power Pack of 7.5 Volts and VVPAT
runs on a power-pack of 22.5 Volts
Q.11 What will happen if the EVM in a particular polling station
goes out of order during poll?
Ans. During poll, as per defined Replacement protocol, if a BU or
CU of a particular polling station goes out of order, (the fault
is displayed on CU display) then the full set of BU, CU, and
VVPAT is replaced with a new set from the Reserve EVMs in the
presence of the polling agents appointed by the candidates. The
votes recorded until the stage when the EVM went out of order,
remain safe in the memory of the Control Unit and the VVPAT
ballot slips compartment. In case only the VVPAT goes out of
order, the votes recorded in the CU remain safe in its memory
and therefore the polling is resumed after replacing the non-
functional VVPAT with another VVPAT from the Reserve
machines. On the counting day, votes recorded in all EVMs used
in that polling station are counted to give the aggregate result of
that polling station. If the recorded votes in the Control Units
cannot be ascertained due to any technical reason, VVPAT slips
of the respective Control Units are counted to get the result.
Q.12 Is it true that many petitions have been filed against EVMs in
courts? What is the outcome?
Ans. After declaration of result, if candidate has any grievance on the
voting in his/her constituency, he/she can file an Election Petition
in the court. Over the decades there have been numerous Election
Petitions. Multiple courts including the Supreme Court of India
have reposed their faith in the Indian EVMs. A comprehensive
study in the booklet Legal history of EVMs provides a useful
insight into the relevant statutory framework governing EVMs
and VVPATs.
Q.13 Is it possible to use EVMs for simultaneous elections for
Parliament and State Legislative Assembly?
Ans. Yes, during simultaneous elections two separate sets of EVMs
are required in a polling station; one for the Parliamentary

Constituency and the other for the Legislative Assembly
Constituency.
Q.14 How long does the Control Unit store the result in its memory?
Ans. The Control Unit can store the result in its memory until the data is
deleted or cleared. Post every election, after the Election Petition
period ECI ascertains the status of Election Petitions filed with
the Hon’ble High Courts and releases the EVMs for further use
if no Election Petitions have been filed. In cases where Election
Petitions have been filed the related EVMs are retained securely,
as per defined protocol, till the final disposal of the petition. In
cases if the Hon’ble court orders a recount the control unit can be
reactivated by fitting the battery to display the results stored in
its memory. Moreover, VVPAT slips are also preserved till final
disposal of Election petition.
Q.15 How can a voter be sure that the EVM is working and his/her
vote has been recorded.
Ans. As soon as the voter presses the `blue button’ on the BU against
the serial number, name and symbol of the candidate of his/her
choice, an LED against the candidate button glows red and the
VVPAT prints a slip having serial number, name and symbol of
the chosen candidate which is visible for about 7 seconds before
getting cut and stored in the sealed Drop Box of the VVPAT. A
loud beep sound from the CU confirms the registration of the
vote. Thus, there is both audio and visual indication for the voter
to be assured that his/her vote has been recorded.
Q.16 Do EVMs malfunction?
Ans. EVMs are electronic machines and like any other machine they
are also vulnerable to failures. The failed machines are sent to
the factories for rectification. However, there is no question
of any machine ‘malfunctioning’ in a way so as to favour a
particular candidate, which is called tampering as per defined
EVM protocol. This scenario is just not possible with the many
safeguards incorporated in design of EVM itself.

Q.17 The Ballot Unit has provision for 16 candidates. If in a
constituency, there are only 10 candidates and the voter
presses any of the buttons from 11 to 16 will these votes not
be wasted?
Ans. There is no wastage of any vote in EVMs. The unused BU
buttons are masked. For example: if there are only 10 candidates
including NOTA in a constituency, the unused ‘Candidate’
buttons provided at Sl. Nos: 11 to 16 will be physically ‘masked’
(covered) at the time of preparation of EVM by Returning Officer.
Therefore, there is no possibility of any voter pressing any of the
masked buttons at Sl Nos: 11 to 16.
Q.18 What is the cost of CU, BU & VVPAT? What is the life of
EVM?
Ans. The cost of CU, BU and VVPAT is finalised by the Price
Negotiation Committee constituted by the Government of
India. The present cost of a BU is Rs.7,991/-, CU is Rs.9,812/-
and VVPAT is Rs.16,132/-. The economic life of EVMs is
approximately 15 years.

EVM Procedures
Q19. Is there any provision for a Voter to lodge a complaint if the
paper slip generated by VVPAT shows the name or symbol of
a candidate other than the one he voted for?
Ans. Yes, if an elector after having recorded his/her vote alleges that
the paper slip generated by the printer has shown the name or
symbol of a candidate other than the one he/she voted for, as
per the provisions of Rule 49MA of Conduct of Elections Rules,
1961, the Presiding Officer obtains a written declaration from the
elector as to the allegation, after informing the elector about the
consequence of making a false declaration as per Indian Penal
Code.
If the elector gives the written declaration referred to in sub-rule
(1) of Rule 49MA, the Presiding Officer permits the elector to
record a test vote in the voting machine in his/her presence and
in the presence of the candidates or polling agents who may be
present in the polling station, and observe the paper slip generated
by the printer.
If the allegation is found true, the Presiding Officer will report the
facts immediately to the Returning Officer, stop further recording
of votes in that voting machine and act as per the directions that
may be given by the Returning Officer.
If, however, the allegation is found to be false and the paper
slip so generated under sub-rule (1) matches with the test vote
recorded by the elector under sub-rule (2), then, the Presiding
Officer shall:
• Make a remark to that effect against the second entry relating
to that elector in Form 17A, Rule 49L mentioning the serial
number and name of the candidate for whom such test vote
has been recorded;
• Obtain the signature or thumb impression of that elector
against such remarks; and make necessary entries regarding
such test vote in item 5 in Part I of Form 17C.

Q20. Where are the EVMs stored during election and non-election
period? After announcement of the result, where are the BU,
CU and VVPATs kept and for what period?
Ans. EVMs are always in secure storage during pre-poll, poll and post
poll stages.
They are kept in EVM warehouse/Strong room under the custody
of District Election Officer at all times.
Also, EVMs are always stored in warehouse/strong room with:
i). 24x7 CCTV coverage
ii). Double lock System
iii). Armed security (Minimum half Section during non-election
period and full section during election period)
iv). Polled EVMs are kept in strong rooms with One Platoon of
CAPF security at the inner cordon and State Armed Police at
the outer cordon
v). DEOs conduct Monthly inspections to check the external
condition of the EVM warehouse and Quarterly inspections
to check the internal condition of the warehouse and submit
inspection reports along with photos.
vi). After announcement of result, in the presence of the
candidates/their representatives, BU, CU are sealed in
their carrying case and VVPAT slips are taken out from the
VVPATs and sealed in black envelopes. The BU, CU and
VVPAT slips and other election materials are kept in the
Strong Room under the custody of the District Election
Officer concerned till the timeframe for filing Election
Petition gets over i.e. 45 days from the date of declaration
of result. If any Election Petition is filed before the Hon’ble
High Court concerned, the respective Units are kept till final
disposal of the petition. VVPAT slips are kept as per Rule 94
of the Conduct of Elections Rules 1961.

Q21. Whether representatives of recognised political parties/
candidates are present while opening and closing of EVM
warehouse/strong room?
Ans. EVM warehouse/strong room is always opened and closed
under prior intimation to and in the presence of the stakeholders
namely representatives of recognised political parties/candidates
and under videography.
Q22. Who conducts the First Level Checking of EVMs?
Ans. Before every election all EVMs to be used in an election
undergo a thorough physical and functional check to ensure poll
worthiness. These checks are called FLC (First Level Check).
Manpower in FLC consists of only authorized engineers of the
manufacturers, namely Bharat Electronics Limited (BEL) and
Electronics Corporation of India Limited (ECIL), who conduct
the First Level Checking (FLC) of EVMs and VVPATs under
control of District Election Officer and direct supervision of Dy.
DEO in the presence of representative of recognised Political
Parties.
Q23. Ballot boxes are engraved so as to avoid any scope
for complaint of replacement of these boxes. Is there any
system of numbering EVMs?
Ans. Yes. Each Ballot Unit, Control Unit and VVPAT has a unique
Serial Number (ID), which is engraved on the cabinet or on metal
plate riveted to the cabinet. While all EVM units are identical in
operation and looks their allocation is subject to various process
like randomisation, need to be transported and pre-tested (FLC)
before polls. Hence for accounting purpose ID is needed for every
Unit. For example, EVMs go through First Randomisation, first
time to allocate them Assembly Constituency wise and Second
Randomization, second time to allocate them Polling Station
wise. The list containing unique ID number of EVM (Ballot
Unit, Control Unit & VVPAT) to be used in a particular assembly
constituency and polling station is provided to the contesting
candidates / their agents. The same can be tallied anytime during
the polling / counting.

i) Unique ID of Control Unit also displayed on display panel
of Control Unit.
ii) Unique ID of VVPAT is printed on each VVPAT slip.
Q24. Who loads the Serial numbers, names of candidates and
symbols allotted to contesting candidates in VVPAT unit and
how?
Ans. Before poll, details like serial number, symbol etc. are allocated to
the candidates. During Commissioning of EVMs or Preparation
of EVMs, serial numbers, names of candidates and symbols
allotted to them are used to prepare the Ballot sheet on laptop /
PC provided by DEO. This sheet is loaded in VVPAT units using
Symbol Loading Unit (SLU). The preparation of Ballot sheet and
its loading in the VVPAT is done with the help of Manpower
for preparation. (Authorised engineers of the manufacturer i.e.,
ECIL / BEL) in the presence of candidates / their agents. The
SLU also facilitates the representatives of recognised political
parties / candidates / their agents to simultaneously view symbols
being loaded in the VVPAT on a big monitor or TV screen.
Q25. Whether the test printout of the Serial numbers, names of
candidates and symbols that are loaded in VVPAT is taken?
Ans. During the Preparation of VVPAT, the test printout of the Serial
numbers, names and symbols of candidates loaded in VVPAT is
mandated to be taken by the Returning officer /Assistant
Returning officer at the time of preparation for cross checking
with the ballot paper in Ballot Unit. Thereafter, one vote to each
candidate including NOTA is cast to check that the VVPAT is
printing the paper slips correctly in respect of all the candidates.
Q26. Whether changing of thermal paper roll of VVPAT is allowed
at polling stations?
Ans. Changing of thermal paper roll is strictly prohibited at polling
stations. In case, the thermal paper roll gets exhausted by any
chance, a reserve VVPAT is used as replacement.

Q27. In the conventional system, before the commencement of poll,
the Presiding Officer shows to the polling agents present that
the ballot box to be used in the polling station is empty. Is
there any such provision to satisfy the polling agents that
there are no hidden votes already recorded in the EVMs?
Ans. Yes. On the Poll Day before the commencement of poll, the
Presiding Officer demonstrates to the polling agents present
that there are no “hidden” votes already recorded in the CU by
pressing the result button on CU. The CU display shows zero
vote against all candidates. Similarly, the P.O also opens the
ballot compartment of VVPAT and shows to polling agents that
it is empty. Thereafter, he/she conducts a Mock -Poll with at
least 50 votes in the presence of the polling agents and tallies the
electronic result stored in the CU with VVPAT slip count. After
mock poll, the Presiding Officer presses the “Clear Button” to
clear the result of the mock poll before commencing the actual
poll. Then he again demonstrates to polling agents, by pressing
‘Total’ button that CU display shows ‘0’ votes and that VVPAT
ballot compartment is empty. He then seals the Control Unit
and VVPAT in the presence of polling agents before starting
actual poll.
Q28. In the conventional system, it will be possible to know the
total number of votes polled at any particular point of time.
In EVMs ‘Result’ portion is sealed and will be opened only
at the time of counting. How can the total number of votes
polled be known on the date of poll?
Ans. In addition to the ‘Result’ button, there is a ‘Total’ button on
Control Unit of EVMs. By pressing this button any time during
poll, the total number of votes polled up to the time of pressing
the button will be displayed without indicating the candidate-
wise result. At the end of poll, the ‘Close’ button is pressed after
which the machine does not accept any more votes. By pressing
the Total button at end of poll, the total number of votes polled
in the CU after poll is obtained and recorded by the Presiding
Officer in Form 17-C and Presiding Officer’s diary. Copy of
Form 17-C is shared with the polling agents of the candidates.

Q29. With ballot boxes counting is done after mixing the ballot
papers. Is it possible to adopt this system when EVMs are
used?
Ans. Yes, a prototype of the device called ‘Totaliser’ that can
accommodate up to 14 CUs at a time and aggregate votes without
revealing the candidate-wise count of individual EVMs used at a
particular polling station was considered. However, Totalisers are
not in use at present as its technical aspects and other statutory/
administrative related issues are under examination and matter is
sub-judice.
Q30. Whether counting of printed paper slips of VVPAT is
compulsory on the counting day?
Ans. Compulsory counting of printed paper slips of VVPAT is done
only in the following cases:
i) In case of “no display” of result on the Control Unit, the
printed paper slips of respective VVPAT(s) are counted.
These slips have been verified by voters at the time of casting
their votes.
ii) As directed by the Honourable Supreme court of India,
mandatory verification of printed VVPAT paper slips of
five randomly selected polling stations of each Assembly
Constituency or each Assembly Segment in case of election
to the House of the People, before declaring result.
Q31. The integrity of the VVPAT slips and the EVM machines
during the entire time after polling and before counting and
auditing must be ensured in a manner that is verifiable by all.
There should be no trust requirement on the custody chain.
Ans. After the poll, the EVMs are stored in a strong room with a single
access door and a two layered security cordon. Agents appointed
by the candidates are allowed to keep watch over the EVMs round
the clock till the counting. Locks to the strong rooms where the
EVMs are stored are sealed with signatures of election officials
as well as those of candidates or their representatives. The extant
instructions of ECI make sure that all stake holders are involved

in all the steps of EVM storage and movement. Thus, there is no
implicit trust requirement and all stake holders jointly guard the
polled EVMs.
Some of the safeguards to maintain integrity are as under:
i). List of Serial numbers of EVMs used in the poll is shared
with candidates/their agents along with the detail of number
of votes polled in respective EVMs to verify the same at the
time of counting of votes.
ii). After poll, EVMs are sealed in their carrying cases at the
polling stations in the presence of polling agents and they are
also allowed to put their signatures on the seals besides the
polling officer.
iii). The only power source (battery) available for the VVPAT to
function is removed at the polling station in the presence of
the polling agents after completion of the poll.
iv). Live feed of CCTV covering entry of Strong Rooms of polled
EVMs is given to representatives of candidates camping at
counting centre.
v). Two-tier security arrangements are made at the Strong Room
having polled EVMs.
vi). Further, on counting day the EVM Seals and Serial Nos: are
also checked by the counting agents of candidates before
start of counting.
As can be seen every aspect of polled EVMs is handled
transparently with active participation of representatives of
candidates and nothing is left to trust on the custody chain.
Q32. The mere agreement of electronic and VVPAT counts cannot
rule out spurious vote injections or deletions in both. What
are the safeguards in place on this crucial matter?
Ans. ECI-EVM is designed in such a way that no vote can be cast once
the CLOSE button is pressed. After poll, machines are sealed
in their carrying cases at the polling stations in the presence of
polling agents and they are also allowed to put their signatures

on the seals. Candidates and their Agents are allowed to escort
the machines to the collection centres and permitted to watch the
Strong Rooms having polled EVMs till the counting day. Further,
Poll start time and poll end time is displayed in the Control Unit at
every switch ON. Hence, spurious injection or deletion of votes
after polling and before counting can be detected. These timings
are also recorded in the Presiding Officer’s diary and can be cross
verified with the time displayed by the EVM. The number of
votes as per Form 17C is also a record of the total votes polled
in EVM in that PS, thus completely eliminating the possibility of
“spurious injection or deletion” of votes.
Q33. Can the ECI implement an independent review system to
review the voting system and the integrity of election process?
Ans. The voting system designs go through an independent review
and even an independent audit by Technical Expert Committee.
Various design details are also available on the site at a level that
the stakeholders may be interested in. The outcomes accepted by
voters and candidates are the biggest form of review (Appendix-I
and Appendix-II).
The ECI-EVM voting system goes through an independent
review by way of third party (STQC) checks. They also go
through independent audit by various political parties/candidates/
their representatives like in mock polls. The processes are well
defined and are put on the website of the ECI for public view.
Q34. What are the provisions to handle any claimed discrepancy
in the votes cast?
Ans. The contesting candidates have opportunity to request for the
VVPAT slip count under Rule 56D of the Conduct of Elections
Rules, 1961 after completion of counting of votes from the
EVMs. Further, as per existing legislation, Rule 56D (4) (b) of the
Conduct of Election (Amendment) Rules in case of a discrepancy
between the Electronic Count in the CU and the ballot slip count
of the VVPAT, the VVPAT slip count shall prevail.

Q35. ECI claims that its EVM protocols are transparent and
stake holders are involved in the various processes of EVM
preparation in the run up to every Election. How are the
political parties and candidates / their representatives
involved in EVM processes? What information on EVMs is
made available to them?
Ans. The Election Commission of India has put in place an elaborate
administrative system of security measures and procedural
checks-and-balances aimed at prevention of any possible
misuse or procedural lapses on use of EVMs and VVPATs in
elections to the State Legislative Assembly and Parliamentary
Constituencies. These safeguards are implemented rigorously
and transparently with the active involvement of the stakeholders
i.e. National and State Recognised Political Parties or candidates/
their representatives covering all the activities involving EVMs/
VVPATs across the electoral process. All these activities are well
documented by way of proceedings, letters, intimation, etc. by
the District Election Officers (DEOs), Returning Officers (ROs)
and Assistant Returning Officers (AROs) and other field officials.
Listed below are the various stages in the electoral process where
active participation of political parties and candidates is solicited
by ECI for transparency and confidence building of the stake
holders:
1. Opening and Closing of EVM warehouse
a) During non-election period till finalization of list of
the contesting candidates, EVM-VVPAT warehouses
are opened/closed (for any purpose like movement
of EVMs, quarterly inspection etc.) in the presence of
the representatives of National and State Recognised
Political Parties
b) With finalization of list of the contesting candidates,
candidates and their representatives are involved while
opening and closing of EVM-VVPAT warehouses/strong
room.
c) Opening and Closing of EVM warehouse/strong room is
done under videography.
2. First Level Checking of EVMs and VVPATs
a) First Level Checking of EVMs and VVPATs is conducted
before every election by the authorised engineers of
Bharat Electronics Limited (BEL) and Electronics
Corporation of India Limited (ECIL) at DEO level.
b) For this purpose, National and State Recognised Political
Parties at district headquarters are invited in writing by
DEO concerned at least two days before the beginning of
FLC and a copy is endorsed to state headquarters.
c) The representatives of National and State Recognised
Political Parties are involved to oversee entire FLC
process.
d) Higher Mock-Poll is conducted in 5% randomly selected
EVMs (i.e. 1200 votes in 1% EVMs, 1000 votes in 2%
EVMs and 500 votes in 2% EVMs). The electronic
result of EVM is tallied with the VVPAT slips count.
The representatives of National and State Recognised
Political Parties are allowed to pick 5% EVMs randomly
and also to do Mock-Poll.
e) List of FLC ok EVMs is shared with all National and
State Recognised Political Parties.
f) The representatives of National and State Recognised
Political Parties are allowed to sign the seals, forms,
register during FLC.
3. Taking out of EVMs for Training and Awareness after FLC
a) After completion of FLC, maximum up to 10% EVMs
and VVPATs are taken out for awareness and training
purpose in the presence of National and State Recognised
Political Parties.
b) The list of awareness and training EVMs is shared with
them.
4. Randomization of EVMs.

a) First Randomization of EVMs is conducted in the
presence of National and State Recognised Political
Parties to allocate EVMs Assembly constituency/
segment-wise.
b) List of first randomized EVMs (AC/AS-wise) is shared
with National and State Recognised Political Parties.
c) After finalization of list of contesting candidate, list of
first randomized EVMs (AC/AS-wise) is also shared
with contesting candidates.
d) Second Randomization of EVMs is conducted to allocate
EVMs polling station wise as well as for marking the
Reserve EVMs which are to be used for replacement of
machines which become non- functional on poll day. List
of second randomized EVMs is shared with candidates.
5. Commissioning of EVMs.
a) Commissioning of EVMs for use in poll is done in the
presence of contesting candidates.
b) Candidates/their representatives are allowed to sign the
seals used in sealing EVMs
c) Higher Mock-Poll is conducted in 5% randomly selected
EVMs by casting 1000 votes. The electronic result of CU
is tallied with the VVPAT slips count. Candidates/their
representatives are allowed to pick 5% EVMs randomly
and also to do mock poll.
6. Dispersal of EVMs with Polling Parties.
a) Dispersal of EVMs is done in the presence of the
contesting candidates.
7. Mock Poll and Actual Poll on Poll Day
a) Mock-Poll on Poll day is conducted at every polling
station in the presence of the polling agents nominated
by the contesting candidates.
b) Polling agents nominated by the contesting candidates

are allowed to remain in polling stations to observe
polling process.
c) Polling agents are allowed to sign the seals used in
sealing CU,BU and VVPATs (before commencement of
poll and after close of poll).
8. Transportation of polled EVMs from Polling Stations to
Collection Centre
a) Candidates/Polling agents are allowed to follow vehicles
carrying polled EVMs from polling station to collection
centre.
9. Storage of Polled EVMs.
a) Polled EVMs are stored in the strong room in the presence
of Candidates/their representatives.
b) Candidates/their representatives are also allowed to put
their seals on the locks of the strong room.
c) Candidates/their representatives are also allowed to
monitor storage and security of polled EVMs.
10. Counting Day
a) Polled EVM Strong Room is opened in the presence of
Candidates/their representatives, Returning Officer, ECI
Observer on counting day.
b) Counting of votes is done in the presence of candidates
and counting agents appointed by them.
c) After completion of counting of votes, VVPAT slips are
taken out from VVPATs and stored in black envelope in
the presence of the candidates/their representatives.
d) After counting of votes, CU, BU and VVPAT slips are
kept in the strong rooms in the presence of candidates/
their representatives. They are allowed to put their seals
on the locks of the strong rooms.
As can be seen from the above, all stakeholders,
representatives of political parties and candidates witness
and participate in all electoral processes on EVMs and are
also kept well informed about the status and list of EVMs to
be used for various purposes during the election.
Q36. Regarding Lok Sabha, 2019 elections, after the final vote
was cast there were video reports from at least 10 different
places of new EVMs being moved into strong rooms. The
ECI said these were reserve EVMs but provided no evidence
for this and no explanation for why they need to be moved
just before counting rather than at the time of voting, when
there were, in some cases, a period of several weeks between
the voting and counting. There were no security officers
accompanying the vehicles and why these vehicles were
often unnumbered, unofficial vehicles? There have also been
reports of irregularities in the counting process.
Ans. As explained in answer to question 35 above information about
EVMs being used in an election is shared with political parties /
candidates at different stages of preparation for the election and
was accordingly done in this case too. All these allegations were
false and factually incorrect. A press note No: ECI/PN/56/2019
was issued by the Commission on 21st May 2019 and is still
available for reference on ECI website.
Q37. Electronic processes, if they are to be used for voting, should be
in sync with changing technologies and technological practices
and be subjected to public scrutiny and examinability. Has
ECI taken any steps in this regard?
Ans. The design of ECI-EVM has indeed been periodically updated to
take advantage of advancements in technology. For example, the
current model (M3) of the ECI-EVM uses public key encryption
and digital certificates for mutual authentication by units of the
EVM.
Thus, in EVMs, newer models have upgraded technology
including security measures commensurate with emerging
threats.
The salient features of ECI-EVMs are in public domain as in
publications namely, Presentation on EVM, Manual on EVM,

Status Paper on EVM and Legal History of EVM, starting from
broad overview go to minute details. Further there are Laws and
Rules in above mentioned references that allow voter or candidate
to make a complaint or take a legal recourse. ECI also holds open
debates around EVM and election processes time to time.
Q38. In spite of many videos on social media regarding tampering
of EVMs, why ECI is keen to use EVMs? What steps is ECI
taking to allay the fear that EVMs can be tampered?
Ans. None of the videos showing tampering of EVMs use the ECI-
EVM nor do they follow the procedure prescribed by ECI for
polling.
ECI has put in stringent technical safeguards and administrative
safeguards, procedures for the EVMs so that the machines cannot
be subjected to tampering or manipulation at any time. Further,
all the election activities related to the EVMs are carried out in the
presence of stakeholders, namely the political parties/candidates
in the most transparent manner. Additionally, it is worth noting
that EVM units are connected only to each other and cannot be
accessed by any external machine. In this sense, the ECI-EVM
units are a “stand alone” system.
The BU, CU and VVPAT units are manufactured using a Secure
Manufacturing Facility (SMF). After the program has been loaded
into the EVM unit it is one-time-programmed (OTP), hence re-
programming is permanently disabled by the secure processors
used in these units.
Each unit of the ECI-EVMs contains an “Unauthorised Access
Detection Module (UADM)” which renders the machine
unusable if it detects an attempt to open the UADM. Thus, any
attempt to modify the machine after its production will fail.
Q39. Is it possible to vote more than once on an EVM by pressing
the button again and again?
Ans. No, it is not possible to vote more than once on an ECI-EVM by
a particular voter. As soon as a particular button on the Ballot
Unit is pressed, the vote is recorded on CU for that particular

candidate and a loud beep is emitted for officials and election
agents to note that the vote has been completed. Thereafter,
the ECI-EVM machine does not respond any further and any
subsequent button pressing is ignored. The next vote is enabled
on BU only when the Presiding Officer in-charge of the Control
Unit releases the Ballot by pressing the Ballot Button on the
Control Unit, for the next voter after due verification of his/her
identity. This is a distinct advantage of the EVM over the ballot
paper system where the Ballot Box can be physically captured
and stuffed with votes.
Q40. Is it possible to program the EVMs in such a way that
initially some votes will be recorded exactly in the same way
as the blue buttons of BU are pressed, but thereafter, votes
will be recorded only in favour of one particular candidate
irrespective of whether the `blue button’ against that
candidate or any other candidate is pressed? Does the Date,
Time and Session information available with EVM units not
introduce a possible way to bypass the mock poll?
Ans. No. The original program is ported onto the microcontroller
during manufacturing at the factory and is done many months
before it is deployed in elections. It is impossible to know the
name and Serial number of any candidate so much in advance
to be able to pre-program the EVM to favour any particular
candidate. After loading the original firmware during production,
the microcontroller is One Time Programmed (OTP) to eliminate
any programmability subsequently. During production in the
factories all EVMs are checked to ensure they carry the original
programme. Once the original programme is ported onto the
microchip and it is One Time Programmed (OTP), it cannot be
reprogrammed at all. One machine is used election after election
with different sets of alphabetical names of candidates and
recognised political parties. Further, before use in any election
the First Level Checking and Commissioning of all EVMs is
conducted in the presence of recognised political party / candidate
representatives. High level mock poll is conducted using 1%
randomly selected EVMs with 1200 votes, 2% randomly selected

EVMs with 1000 votes and 2% randomly selected EVMs with
500 votes. The electronic result on CU is tallied with VVPAT
slip count to ensure proper functioning of the EVMs during FLC
and Commissioning. The EVMs are stand-alone machines which
are not accessible from any wired/wireless network nor are they
connected with any external devices outside the EVM system.
There is no operating system used in these machines. Therefore,
there is absolutely no chance of reprogramming or manipulation
of the program of EVM in a particular way to favour a particular
candidate or political party. Various administrative safeguards,
procedures and the participation of political parties / candidates
or their representatives during different processes add strength
to the overall robustness and transparency in the use of EVM
systems. Till date, slips of 41,629 randomly selected VVPATs
have been counted and not a single case of transfer of vote meant
for candidate A to candidate B has been encountered. Differences,
if any, between CU and VVPAT count have always been traceable
to human errors.
Q41. How can one rule out the possibility of recording further
votes at any time after close of the poll and before the
commencement of counting by interested parties?
Ans. After completion of poll i.e. when the last voter has voted, the
Officer in-charge of the Control Unit/Presiding Officer presses
the ‘Close’ button. Thereafter, the EVM does not accept any
vote. The poll ‘start time’ and ‘end time’ are recorded in the
machine as well as by the Presiding Officer. After the close of
poll, the Control Unit is switched off and thereafter the Ballot
Unit is disconnected from the Control Unit and kept separately in
their respective carrying cases and sealed. Further, the Presiding
officer has to hand over to each polling agent a copy of the
account of total votes recorded in Form 17-C. At the time of
counting of votes, the total votes recorded in a particular control
unit is tallied with this account and if there is any discrepancy,
this can be pointed out by the Counting Agents of candidates.

Q42. The ECI says an EVM can be programmed only once, making
hacking unlikely. However, there are reports that it can be
programmed several times. There are other reports saying
that EVM machines can be manipulated by connecting it to
cell phones, Bluetooth devices, replacing parts of it and other
forms of manipulation, apart from physical replacement of it
by other EVMs.
Ans. The ECI-EVM use secure controllers which can disable further
programming after a step known as one-time-programming
(OTP). The technical information about the micro controllers is
available in public domain and can be accessed on the website of
micro controller manufacturers.
i). Further, ECI-EVM is a standalone device without any wired
or wireless connectivity outside the EVM systems.
ii). BU, CU, and VVPAT units have digital certificates, and carry
out mutual authentication when connected together. Hence
any other look alike machine cannot be connected to the
ECI-EVM
iii). There are elaborate and robust technical safeguards and
administrative safeguards, procedures for use of EVMs.
Unauthorized access to EVM units during storage,
transportations, randomisation, allocation, conduct of FLC,
commissioning, conduct of Mock-Polls, conduct of main
poll, result counting etc. is not possible. All these steps are
carried out in the presence of stakeholders. Hence, there
is no way anybody can approach the machines to attempt
modification of the EVMs.
iv). Mock-Polls are routinely held and five percent of randomly
selected EVMs undergo a mock poll with a large number of
votes where the electronic results from CU are tallied with
VVPAT slip count to ensure proper functioning of the EVMs.
Hence, there is no question of EVMs being programmed
several times, or manipulated by connecting to cell phone,
Bluetooth devices, replacing part of it or through any other
form of manipulation.

Q43. Whether it is possible to know much beforehand about the
sequence of names on the Ballot paper of the BU or about
deployment of an EVM in a particular polling station?
Ans. No, the arrangement of names of candidates in the ballot paper
of the Ballot Unit is in alphabetical order, first for the National
& State Recognised Political Parties, followed by other State
Registered Parties, and then by independent candidates. Thus,
the sequence in which the candidates’ names appear on the Ballot
paper of the BU is dependent on the names of the candidates and
their party affiliation and keeps changing from one election to
another. Therefore, the sequence cannot be ascertained much in
advance.
EVMs are allocated to polling station after two stages of
randomisation process through EVM Management System,
EMS software application developed by the Commission. After
First Level Checking FLC of EVMs, First Randomization of
EVMs is done at the District Election Officer level to allocate
them Assembly Constituency-wise in the presence of the
representative of recognised political parties. Thereafter, before
Commissioning of EVMs, Second Randomisation of EVMs
is done at the Returning Officer level to allocate them Polling
Station-wise in the presence of candidates / their agents. Two
levels of randomisations eliminate any scope of determining
before-hand the polling station-wise deployment pattern of
machines.
Q44. Whether the Election Commission has full control of the
entire voting process through EVM?
Ans. Yes, Election Commission has full control over entire voting
process. All election officials work directly under the direction,
supervision and control of Election Commission of India during
the election period.
Q45. In case of election dispute is reconstruction of vote for
authentication possible in EVM voting?
Ans. In case of election dispute reconstruction of the vote for
authentication is possible in EVM-VVPAT system from the data

stored in Control Unit of EVM. The same has been demonstrated
in the Courts whenever there was a need in cases of election
disputes.
Q46. It is claimed that EVM machines can be manipulated by
connecting it to cell phones, Bluetooth devices, replacing
parts of it and other forms of manipulation, apart from
physical replacement of it by other EVMs.
Ans. The claim is baseless and unscientific claim. The technical
information about the micro controllers is available in public
domain and can be accessed on the website of microcontroller
manufacturers. The EVMs / VVPATs use controllers which are
One Time Programmable (OTP). This feature is activated by
a code /command, fed via a software program, and in the first
time run at power ‘on’ sets an internal register to shut off any re-
programmability capability. The code / command and procedure
are also available in public domain in the datasheets/ application
notes on use of these microcontrollers.
If these controllers had internal Bluetooth or Wi-Fi module then
information in the form of features, internal block diagram of
the microcontrollers, pin assignment and signals at all pins of
the module would be available in the data sheets. Also, if such
Transmitters or Receivers were available in the microcontrollers
then power supply pins, antenna pins, frequency assignment pins,
crystal oscillator pins etc that are specific to Bluetooth or Wi-Fi
would also be available in data sheets. The microcontrollers used
by BEL ECIL do not have such modules and this can be verified by
information in their data sheets available in the public domain. In
spite and despite above available technical information the ECI-
EVM is subjected to strong quality checks by electromagnetic
testing to verify that no Wi-Fi, Bluetooth or unwanted frequency
capability is present.
Hence, ECI-EVMs are standalone devices without any wired
or wireless connectivity with units outside the EVM system.
Advanced technical features and robust administrative safeguards
are in place to rule out any such possibility of manipulation.
The BU, CU and VVPATs have digital certification and carry

out mutual authentication when connected together before
communicating. Any other lookalike machine, therefore, cannot
be connected to ECI EVMs. Apart from the technical safeguards
there are very elaborate and tight administrative safeguards,
procedures mandated by ECI to ensure the physical safety and
security of the EVMs at all times.
In addition, only the authorised, well-trained engineers on the
rolls of the PSUs (BEL / ECIL) are entrusted with the critical
task of carrying out the First Level Checking FLC and loading
of symbols, and providing other technical support as per need.
The entire process is carried out in a transparent manner in the
presence of the stakeholders.
Q47. To conduct free, fair and transparent elections, elections
must be conducted assuming that the EVMs may possibly
be tampered with. The long-time window-over the cycle of
design, implementation, manufacture, testing, maintenance,
storage, and deployment-may provide ample opportunity for
insiders or criminals to attempt other means of access. There
is an overwhelming requirement of trust on such custody
chains; such assumptions of trust in various mechanisms
make the election process unverifiable. What are the actions
taken to address this important aspect?
Ans. The EVMs were introduced for the first time in 1982, forty
years ago and have been continuously used since 2000, with all
possible permutations of electoral outcomes, both favouring and
disfavouring all National and State Political Parties (Appendix-I
and Appendix-II). This would not have been possible if there was
even a remote possibility of tampering the machines. The strong
technical safeguards and stringent administrative safeguards,
procedures underwritten by publicly available disclosures of its
movement, checking, randomisation and, special disclosures of
detail to the National and State Political Parties and Candidates
ensure the integrity of the EVMs. The stakeholder participation
is so designed that each step of ECI-EVM deployment is in
full view and participation of all stakeholders. More than trust
on individuals or groups of persons, the system-based safety

and security protocols are the foundation of ECI-EVM secure
handling.
Q48. Can the details of the EVM microcontrollers be explained
along with the OTP features?
Ans. Both BEL and ECIL use standard microcontrollers available off
the shelf and hence all information on the microcontrollers is
available in the public domain via manufacturers’ data sheets/
application notes and user manuals. The One Time Programmable
(OTP) feature is not activated by any hardware or pin-based
signal/command at external pins of the microcontrollers, rather
this code/ command is fed via a software programme and in the
first time “run” at power on sets an internal register to shut off
any re-programmability. Once this is done the programme cannot
be changed. The procedure is available in public domain in the
datasheets / user manuals on use of the microcontrollers.
Q49. It is claimed that the EVMs cannot be assumed to be tamper-
proof so the electronic voting system should be redesigned
to be software and hard-ware independent in order to be
verifiable or auditable. Views on the same?
Ans. If a DRE produces a voter verifiable paper audit trail, it is software
independent. The ECI EVM produces a paper audit trail and is
therefore software independent.
(a) Firstly, ECI-EVM is thoroughly verifiable, as the voter
verifies the vote cast on BU for candidate of his choice
from the slip printed on paper by VVPAT that has details
(Serial number, name and symbol) of the candidate voted
for. Secondly the correlation between the ballot slip printed
by VVPAT and the vote recorded in the EVM is established
statistically with a high degree of confidence by tallying the
electronic count of the Control Units with the VVPAT slip
counts of five randomly selected polling stations in each
assembly constituency/ segment. This is done as mandated
by the Hon’ble Supreme Court of India.
(b) Evaluation of ECI-EVM design at its formulation stage as
well as prototype and pilot stages are done traditionally

by testing for worst case considerations, and performance
measured on established statistical principles. Hence, EVM
design as well as voting through EVM is reliable.
The extant instructions of ECI make sure that all stake holders are
involved in all the steps of EVM storage, movement, checking
FLC and preparation, Commissioning, distribution to polling
parties, Mock-Poll on poll day and during polling itself. This is
to ensure transparency and to build trust amongst the public at
large.
Q50. VVPAT system should be redesigned to be fully voter-verified.
The voter should be able to approve the VVPAT printout
before the vote is finally cast and be able to cancel if there is
an error. Why shouldn’t ECI implement this?
Ans. Every vote is verified by the voter and given the available
provision in the statute (Rule 49 MA) for the voter to report any
discrepancy between his choice of vote in the BU and VVPAT
slip, such a modified system may be superfluous.
Q51. Testing is never adequate to declare an electronic system as
complicated as an EVM fail safe and verified. What are the
extra precautions and control mechanisms of ECI on this
matter?
Ans. ECI-EVMs are simple to operate and use, stand-alone and robust
vote recording machines. EVMs use advanced cryptographic
methods to maintain their overall integrity. EVMs cannot be
connected by wires or wirelessly to any unauthorized device. By
design the EVMs are safe and tamper-proof. However, to build
trust and confidence, various testing/checking/observation and
mock poll protocols have been introduced across various stages
of EVM deployment. With the addition of VVPATs to the BU
& CUs the voter can instantly verify if his vote has been cast as
intended. All processes of EVM handling are in full view and
participation of stakeholders.

Q52. EVM with VVPAT introduction is no more a standalone
device since it has to be connected to Symbol Loading Unit
for symbol loading. Sensors, printer, Light mechanism needs
drivers along with micro-controller, hence how can it still be
called a rudimentary device?
Ans. Symbol Loading Unit (SLU) is part of the EVM infrastructure.
The CU, BU with VVPAT still remains a standalone device. In
order to print the VVPAT slips, VVPAT needs to have the Symbol
information and the Candidate information loaded as data in
graphical format. This can only be done through an authorized
EVM specific device known as Symbol Loading Unit.
Q53. Does the VVPAT have a programmable memory? If yes,
then at what stages in the election process is it accessed by an
external device? If no, then where are the names and symbols
of the candidates stored in the VVPAT for it to print the same
in the VVPAT slip later?
Ans. A VVPAT has two different memories. One, where the program
instructions are kept for the microcontrollers, is One Time
Programmed (OTP). The VVPAT firmware is stored in the One
Time Programmed memory. After the firmware is ported in the
microcontroller at the manufacturers’ site, no changes in the
program are possible subsequently. The other memory is for
storing graphical images containing serial number, name, and
symbol of the candidates as data. This is done with the help of
a symbol loading unit, during the commissioning of VVPATs
before each election. Live display of the symbols being loaded
into the VVPAT is done during the Commissioning process in
presence of candidates /their representatives to make the process
more transparent.
Q54. The voting system design should be subjected to independent
(of the government and the ECI) review; and the integrity of
the election process should be subjected to an independent
audit. The findings should be made public.
Ans. ECI is an independent Constitutional authority in itself. The
technical review of EVM is done by TEC of ECI. The printed

paper slip of VVPAT is duly verified by the voter and the
correlation between the electronic count of Control Unit and
corresponding VVPAT slip count is established statistically with
high level of confidence level.
Q55. In an EVM, where votes are recorded electronically by the
press of a button, and the voter cannot examine what has
been recorded, there is no way to provide a guarantee to a
voter that his/her vote is cast as intended (recorded correctly
in the EVM), recorded as cast (what is recorded in the EVM
is what is collected in the final tally) and counted as recorded.
This casts doubts on a purely EVM-based system.
Ans i) The voter verifies the vote cast on BU for candidate of his/her
choice from the slip printed on paper by VVPAT that has details
(serial number, name and symbol) of the candidate voted for.
Thus, there is verification that the vote has been cast as intended.
ii) The count from the Control Unit where the vote is recorded
and from VVPAT slips are strongly correlated as per the
sampling plan advised by reputed experts in statistics. This
correlation process has been accepted by the Hon’ble Supreme
Court of India in 2019, wherein as an additional measure for
enhancing public confidence, the apex court recommended
a higher sampling rate compared to that suggested by the
experts. ECI has indeed been following this higher sampling
rate.
iii) The vote count reported by the Control Unit and that
obtained from a count of VVPAT slips has matched over a
large number of machines and over several elections. Till
date, slips of 41,629 randomly selected VVPATs, with more
than 2.3 Cr votes, have been tallied and not a single case of
transfer of vote meant for candidate A to candidate B has
been encountered.
After successive elections, the excellent match between the
Control Unit count and VVPAT slip count strengthens the
correlation between votes cast, votes recorded and votes counted.
A close look at the results of Legislative Assembly Elections and

the Lok Sabha Elections (Appendix-I and Appendix-II) shows
how the party with maximum number of seats has changed over
time and amply proves the integrity of the EVMs. This should
remove all doubts cast on EVM-based systems used in India.
In addition to the technical strengths as summarised above, the
extant instructions of ECI make sure that all stakeholders are
FLC and preparation, Commissioning, distribution to polling
parties, Mock Poll on poll day and during polling itself. This is to
ensure transparency and to build trust amongst the public at large.
Q56. Is there transparency in the counting of votes and
ascertainment of the results from the EVM reliably without
special knowledge on EVM?
Ans. At time of poll, a voter casts his/her vote by pressing the candidate
button of his/her choice and verifies from printed slip of VVPAT
which has the details of candidate he/she has voted for. Counting
of votes is conducted in absolute transparency in the presence
of all the contesting candidates and counting agents authorised
by the candidates. To ascertain the result from the Control Unit,
no special knowledge is required. The Counting Officials just
press the “RESULT” button of the Control Unit, and Candidate-
wise result is automatically displayed on the display panel of the
Control Unit. For this only the basic training required for the
officials is imparted to them. A list giving Serial Nos. of BU,
CU, and VVPAT deployed in all polling stations in the AC/AS
is shared with the candidates after the second randomisation. All
votes of CUs and VVPATs are counted in the presence of political
parties and candidates present after verifying the intactness of
seals and serial numbers of the EVMs with the list of EVMs
deployed in the polling stations which was given in advance.
Subsequently, the matching of VVPAT slips of five randomly
selected polling stations with their CU counts is also done in
the presence of all political parties and candidates to establish
the correlation between the ‘vote cast and vote counted’ with a
very high level of confidence. The voters can therefore ascertain
that their vote has been ‘cast as intended, recorded as cast, and

counted as recorded’ without any expert knowledge. The tallying
of a sample of five VVPATs per AC/AS with the CU count has
been mandated by the Hon’ble Supreme Court of India. In fact,
for the parliamentary general elections this mandate boils down
to tallying the ballot slip counts of 20,625 randomly chosen
VVPATs with the electronic counts of their Control units. If no
mismatch between EVM and VVPAT counts is found in such a
sample, then it provides a very high statistical guarantee that the
sanctity of the election process is not affected by the use of EVMs.
Till date ballot slips of 41,629 randomly selected VVPATs have
been tallied with the electronic counts of their Control Units and
not a single case of transfer of vote meant for candidate ’A’ to
candidate ‘B’ has been encountered. Differences in count if any
have always been traceable to human errors like non-deletion of
Mock-Poll votes from Control Unit or non-removal of Mock-
Poll slips from VVPAT.
Q57. How ordinary citizens can check the essential steps in the
voting process without technical knowledge on EVMs?
Ans. The EVM system is as simple as a basic calculator. No expert
knowledge is required to operate or cast votes on EVM. All ECI-
EVM related processes are easy to monitor and are conducted
transparently in the presence of stakeholders. Ordinary Citizens
are able to check the truthful recording of their votes through
verification of printed VVPAT ballot slip by each voter, and the
subsequent tallying of VVPAT slips of five randomly selected
polling stations of every AC/AS with the electronic count of the
corresponding Control Units to establish a strong correlation
between the vote cast and the vote counted as cast with an
extremely high level of confidence.
In fact, for the parliamentary general elections the mandate of
the Hon’ble Supreme Court of India boils down to tallying the
ballot slip counts of 20,625 randomly chosen VVPATs with the
electronic counts of their Control units. If no mismatch between
EVM and VVPAT counts is found in such a sample, then it can be
said with near certainty that the sanctity of the election process is
not disturbed by the use of EVMs. Till date ballot slips of 41,629

randomly selected VVPATs have been tallied with the electronic
counts of their Control Units and not a single case of transfer of
vote meant for candidate ’A’ to candidate ‘B’ has been detected.
Differences in count if any have always been traceable to human
errors like non-deletion of Mock-Poll votes from Control Unit
or non-removal of Mock-Poll slips from VVPAT, wherein it is
possible to identify and remove the mock poll votes.
Q58. Do BEL/ECILshare the confidential software programme with
foreign chip manufacturers to copy it on to microcontrollers
used in the EVMs?
Ans. Microcontrollers are ported with firmware by BEL/ECIL inside
their factories under high level of security and safeguards.
Out of a 4 layered secure manufacturing process (SMF) the
microcontrollers are ported in the L3 area where only designated
engineers are authorised access through access cards and
biometric scans. No external agency either indigenous or
foreign is involved in loading the firmware programme in micro
controllers.
Q59. In an EVM, a vote is recorded electronically by press of a
button. But the voter cannot examine what has been recorded,
there is no way to provide a guarantee to a voter that her/
his vote is cast as intended, recorded as cast and counted as
recorded. How then, can elections conducted with EVMs be
democratic and how then, can India continue to be considered
an electoral democracy?
Ans. ECI-EVM has always been a truthful machine. A close look
at the results of Legislative Assembly Elections and the Lok
Sabha Elections (Appendix-I and Appendix-II) shows how the
party with maximum number of seats has changed over time and
amply proves the integrity of the EVMs. With the introduction
of VVPAT the ECI EVM system enables voters to immediately
verify that their vote is cast as intended by observing the VVPAT
ballot slip which contains the name, serial number and symbol
of the candidate for whom vote is cast. The votes are counted
as recorded in Control Unit. The correlation between the ballot
slip printed by VVPAT and the vote recorded in the EVM is

established statistically with a very high degree of confidence by
tallying the electronic count of the Control Unit with the VVPAT
slip count of five randomly selected polling stations in each
assembly constituency /segment.
The matter regarding mandatory verification of VVPAT slips
count has already been settled by the Hon’ble Supreme Court of
India by its order dated 8th April, 2019. In pursuance of that order
ECI has been mandatorily verifying VVPAT slips of randomly
selected 5 polling stations per assembly constituency/segment
(in Parliamentary constituency elections).
It is highlighted that apart from the above, verification of
VVPAT slips is done at various stages of the election process
in the presence of representatives of recognised political parties/
candidates as follows:
i) During FLC – in 5% machines selected randomly (1200
votes in 1%, 1000 votes in 2% & 500 votes in 2%)
ii) During Commissioning – in 5% machines selected randomly
(1000 votes)
iii) Mock-Poll before actual poll – in 100% machines (at least
50 votes)
The extant instructions of ECI make sure that all stake holders are
FLC and preparation (Commissioning), distribution to polling
parties, Mock-Poll on poll day and during polling itself. This is to
ensure transparency and to build trust amongst the public at large.
Q60. With modern data analytics it may require targeting the
EVMs in just a few polling stations to swing the election
results for a constituency. What are the safeguards against
such targeted attacks?
Ans. ECI-EVMs are absolutely stand-alone machines without any
scope for wired or wireless connectivity with any other system/
machine. Having no communication channel from outside
ensures that there is no mechanism to influence data from
outside. Moreover, the firmware of the microcontrollers is One

Time Programmed (OTP) and runs out of a Read only Memory
and hence cannot be updated, modified or enhanced in terms of
functionality. Therefore, the election results cannot be modified
by anyone and the results will be exactly as per votes cast by the
voters through process of voting.
In addition to the technical safeguards the administrative
safeguards, procedures ensure that unfettered access to EVMs is
denied to attackers. The technical safeguards and administrative
safeguards together ensure the impregnability of EVMs.
Q61. There must be stringent audit of the electronic vote count
before the results are declared. The post-counting audit
should not be based on ad hoc methods but by counting a
statistically significant sample of the VVPAT slips according
to rigorous and well-established statistical audit techniques.
Why can’t the audit/verification/counting of VVPAT slips be
done in some cases depending on the margin of victory?
Ans. Firstly, the counting of VVPAT slips is done as per well-
established procedure as directed by the Hon’ble Supreme
Court of India and is not done in an ad-hoc manner. Further, the
statute also provides an opportunity for the candidates to request
for the VVPAT slip count under Rule 56D of the Conduct of
Elections Rules, 1961. The option of filing an Election Petition
after declaration of result is also available for the contesting
candidates wherein each and every VVPAT slip may be counted
as per direction of the Hon’ble Court.
Q62. At the request of the Election Commission, a committee of
eminent experts in statistics provided a report describing
how many EVMs should be cross-checked and why. The
report recommends the cross-checking of only 479 EVMs
across the country, independent of how many total EVMs are
used (some reports mention that a total of 10.35 lakh EVMs
were used in GE 2019). It says that, if a fraction of 2% or
more of the EVMs are faulty, cross-checking 479 chosen at
random across the country will be sufficient to detect this
fact with near certainty. Therefore a) the faulty EVM in a

random sample will be detected only if the number of such
EVMs in a parliamentary election is more than 20,000; and
the presumption that the entire quantity of EVMs used in the
country can be considered as the population is incorrect. Can
this be elaborated and explained?
Ans. The following two points are raised in the question above:
(i) The margin of error in the report of the Committee was
put as 2%. Hence a random sample of size 479 will detect
a mismatch between EVM and VVPAT count with ‘virtual
certainty’ only if the number of such mismatches in EVMs in
a parliamentary election is more than 20,000.
(ii) The premise of using the whole country as the population is
‘profoundly mistaken.’
Regarding the first point-- A general perception is that a small
sample will not be able to make any valid inference about a large
population. There have been several suggestions that ECI should
sample a certain minimum percentage of EVM systems and
verify the electronic counts with the slip counts for ensuring that
there are no mismatches between EVM and VVPAT counts. The
suggested percentage of EVMs to be sampled varies from 10%
to 50%.
This of course is completely erroneous as any of the suggested
figures of 10% or 30% or 50% has no statistical basis whatsoever
and the numbers have no sanctity. The accuracy of the results
obtained by a sampling procedure mainly depends on the
‘absolute sample size’ and not on ‘the sample size as a percentage
of the population size.’ While non-intuitive this is the standard
statistical result and is well validated in all standard books on
Sampling Theory.
While it is true that a 2% margin of error has been considered in
the report but the confidence level considered is also far higher
at 99.993665752% (4 sigma level) than considered by most
commentators.

Similarly, the question about what to use as the population for the
study?
To answer this question, it was first necessary to decide over
the level at which the statistical guarantee was required. In this
case the basic unit of the study was the EVM machine and it
was required to check the working of the EVM through VVPAT
counts. It is noteworthy that all EVMs are similar, having come
up through the same manufacturing and testing process. Every
machine is connected to a VVPAT. Before poll each EVM
undergoes FLC and multiple mock polls and verifications as per
established protocols in the presence of political parties. It is also
to be noted that there is no systematic bias in allotting particular
EVMs to particular states / constituency/ booths. Machines
are randomised twice, first time for allocating to assembly
constituencies and second time for allocating to polling stations.
Thus, the report considered as a unit all the elections that are
announced on a given day and typically counted on the same
day. This could be any combination of assembly elections in a
few states, or Lok Sabha elections along with assembly elections
and bye elections and so on. All were considered as one set of
elections and since the Statistical unit of study was the EVM, the
population consisted of all EVMs being used in a particular set
of elections for which counting was done on the same day.
However, the mandate of the Hon’ble Supreme Court to the ECI
to tally five randomly chosen VVPAT systems per assembly
constituency /segment goes far beyond the recommendation of
taking a sample size of 479 as given by the expert committee.
In fact, for the parliamentary elections, this mandate boils down
to testing 20,625 randomly chosen VVPAT systems (five in each
of the 4125 assembly segments). If no mismatch in the EVM
and VVPAT count is found in such a sample, then it can be said
with very high level of confidence or with near certainty that
the sanctity of the election process is not affected by the use of
EVMs.

Q63. The ECI has to define which one is true representation of
the will of the voter? Vote recorded on Control Unit or voter
verified SLIP in VVPAT? If Counting is based on the Control
Unit count what is the use of Verifiable paper SLIP?
Ans. The system of VVPAT has been introduced only for the purpose
of greater transparency and enhancing the confidence of voters
by way of immediate verification of the printed ballot slip having
the chosen candidate’s Name, Serial Number and Symbol and
recording of vote in the Control Unit.
As per existing legislation, Rule 56C of the Conduct of Elections
(Amendment) Rules clearly states that after the returning officer
is satisfied that a voting machine has not been tampered with, he
shall have the votes counted by pressing the appropriate button
marked “Result” provided in the control unit whereby the total
votes polled and votes polled by each candidate shall be displayed
in respect of each candidate on the display panel provided for the
purpose in the unit. The candidate wise result so obtained from
all control units used in the election is to be tabulated in a result
sheet in Form 20 and the particulars so entered in the result sheet
announced.
Contesting candidates have the opportunity to request for the
VVPAT slip count under Rule 56D of the Conduct of Elections
Rules, 1961 after completion of counting of votes from the EVMs.
Rule 56D (4) (b) clearly states that in case of a discrepancy
between the Electronic Count in the Control Unit and the ballot
slip count of the VVPAT, the VVPAT slip count shall prevail.
Q64. There must be compliance audit, verifiable by all candidates
and interested members of the general public, to ensure
the integrity of the VVPAT slips. The VVPAT slips may be
trustworthy at the time of voting, but it is necessary to ensure
that they remain trustworthy later while auditing.
Ans. Mandatory verification of randomly selected five polling stations
per assembly constituency/segment is a strong post audit of
the veracity of vote count, all in the presence of stakeholders.
Till date, slips of 38156 randomly selected VVPATs have been

counted and not a single case of transfer of vote meant for
candidate A to candidate B has been encountered. Differences
if any have always been traceable to human errors such as not
removing votes cast in the mock poll. Moreover, contesting
candidates have opportunity to request for the VVPAT slip
count under Rule 56D of the Conduct of Elections Rules, 1961
after completion of counting of votes from the EVMs. Further,
aggrieved candidate(s) / voter can challenge the election by
way of Election Petition before the competent court where upon
directions of the Hon’ble Court each and every VVPAT slip may
be counted.

EVM Tampering
Q65. An EVM has not yet been hacked provides no guarantee
whatsoever that it cannot be hacked. Therefore, elections
must be conducted assuming that the electronic voting
machines may possibly be tampered with. What is the view
of the Commission?
Ans. Indeed, the design of security mechanisms incorporated in the
ECI-EVM units start with the assumption that attempts may be
made to tamper their contents. Based on various scenarios for
such attempts, strong security features have been incorporated in
the EVM design.
i). ECI-EVM design incorporates a “mutual authentication”
process so that EVM units cannot connect or communicate
with any external device.
ii). These undergo strict quality checks to ensure that there is
no Wi-Fi, or Bluetooth connectivity.
iii). These are so designed that they can detect an attempt to
tamper the unit, and on detection of such an attempt, the
EVM unit is set in a mode where it simply cannot be used
in a poll. It has to be sent to the factory for enabling it to
function as an EVM again.
iv). Additionally, administrative safeguards and robust security
and stakeholder participation and media scrutiny ensure
that there is no other scope for manipulating the EVMs.
v). Further, every EVM that is to be deployed for the election
process undergoes rigorous testing and three stages of
Mock-Polls, coupled with double randomisation of EVMs.
vi). While ECI supervises and controls the election process, it
encourages stakeholder participation across all stages.
vii). In addition to the above, ECI regularly undertakes the repair
of EVMs/VVPATs that may have become non-functional in
the field. It conducts pre-checks and preventive maintenance

on EVMs to weed out machines likely to fail during
elections.
Q66. There are numerous examples of hacking electronic devices
through electromagnetic and other channels from all over
the world, including of the Software Guard Extensions of
sophisticated Intel processors. In view of such possibilities,
the claims that the EVM has no external communication
channels appear to be naive, especially considering that so
much is at stake.
Ans. Designers of ECI-EVMs are aware that electro-magnetic
interference can impair the operation of some electronic devices.
Accordingly, sufficient care has been taken in the design and
testing of these EVMs to ensure that externally applied fields
over a wide spectrum of frequencies do not affect the correct
operation of EVMs. Additionally, emissions from the EVM units
are monitored to ensure that these do not emit significant levels of
RF which could provide an “external communication channel”.
During functional testing of EVMs, CU, BU and VVPAT units
are subjected to RF fields from 10 kHz to 6 GHz (from 10,000
to 6,000,000,000 cycles per second) in specified steps as per IEC
standards. RF emissions from these units are monitored to rule
out the presence of RF communication devices such as Wi-Fi or
Blue tooth etc.
These measures ensure that no hidden “external channels” exist
and EVM units are indeed a closed system with no communication
with external world during their operation.
Q67. The non-verifiability of the EVM and VVPAT based voting
protocol makes it impossible to rule out unpredictable
manipulations by unpredictable entities, including foreign
players. It is essential that all aspects of an election be
observed, audited, and independently verified by the public
to engender trust. What are the mechanisms of ECI to avoid
such a possibility?
Ans. Firstly the ECI-EVM is thoroughly verifiable, as the voter
verifies the vote cast on BU for candidate of his choice from the

slip printed on paper by VVPAT that has details (name, serial
number and symbol) of the candidate voted for, and secondly
the result as per Control Unit count is strongly correlated to the
corresponding VVPAT slips count with a high level of confidence
as per sampling plan mandated by Hon’ble Supreme Court of
India.
Evaluation of ECI-EVM design at its formulation stage as well
as prototype and pilot stages is done traditionally by testing
for worst case considerations, and performance measured on
established statistical principles. Hence, EVM design as well as
voting through EVM is reliable.
Also, the extant instructions of ECI make sure that all stake-
holders are involved in all the steps of EVM storage, movement,
checking FLC and preparation Commissioning, distribution to
polling parties, Mock-Poll on poll day and during polling itself.
This is to ensure transparency and to build trust amongst the
public at large.
Q68. “Experts” have declared that the ECI machines are non
tamperable and safe but this does not make the EVM+VVPAT
verifiable. None of the ECI experts have credentials in
computer security and the majority of them are not even
computer scientists. In addition to experts the ECI is
also dependent on many other entities and organisations-
including hardware manufacturers, software developers and
testers, system assemblers, and un-modelled custody chains
for the integrity, safety and security of its machines and is
thus not entirely in control. In this situation what is the need
to use EVMs for elections in India?
Ans. Comments on ECI experts are uncalled for. The EVM detractors,
self-appointed technical experts and certain social media
personnel have repeatedly failed to realise that the EVMs cannot
be compared to a computer which runs on an operating system.
The microcontrollers of EVMs and VVPATs run on a specific
program designed to faithfully record the voters’ choice. That
the EVM is a truthful machine has been proved over decades of
usage through changes in several governments at the state and

central level, whenever the public wanted to. In fact, the EVM
has made elections safe and virtually eradicated booth capturing
by limiting the rate of vote casting to four votes a minute and thus
significantly increasing the time required for stuffing false votes.
Invalid votes a bane of the paper ballot system was at times greater
than the winning margins and have been completely eliminated
by the EVMs. Vote cast is verifiable by voter on VVPAT and
the Control Unit-VVPAT vote count matches are done on well-
established principles of statistics to provide a very high level of
confidence.
Q69. Is the entire process on use of EVMs transparent, free and
fair?
Ans. The strong technical safeguards and elaborate administrative
safeguards, procedures put in place by ECI along with
encouraging wide participation of all stakeholders at every stage
of the election process ensures that the elections are transparent,
free and fair.
The elections are transparent as these are conducted openly
under the watchful eyes of the public. For example, all
processes involving ECI-EVMs such as storage, transportation,
randomisation, FLC, Commissioning, voting procedure,
Counting etc. is conducted in full view and participation of
stakeholders and representatives of recognised political parties.
Hence the election is held in transparent way.
Elections conducted with ECI-EVMs are free since elaborate
security arrangements are made at election booths and in their
vicinity, so that voters can come and vote feely without influence
of inducement, fear or coercion.
Fairness of the election is ensured through the technical design
of the EVM system as well as the strong processes followed in
election steps.
A vote cast on BU is verified by the voter by viewing the slip
printed on VVPAT with the candidate’s name, serial number and
symbol on it. The voter verified slips are later correlated with
Control Unit count during counting as per specified procedure.

The EVMs used for elections are thoroughly tested during First
Level Check (FLC) in presence of stakeholders and Mock-Poll is
conducted during FLC, commissioning as well as at start of the
poll to ensure that EVMs used are functioning properly.
Due to double randomisation of EVM units, which is conducted
in the presence of recognised political parties / candidates, it
is not known in advance as to which machine will go to which
constituency or polling station.
Insider attacks on the machines are prevented through secure
manufacturing processes, SMF where all steps used in the
manufacturing process are strictly monitored and automatically
recorded.
Thus, it can be seen that the strong technical safeguards in EVMs
and elaborate administrative safeguards, procedures and security
put in place by ECI along with encouraging wide participation of
all stakeholders at every stage of the election process ensures that
the elections are transparent, free and fair.

Judicial Scrutiny
Q70. It is claimed that ECI is silent in respect of serious discrepancies
in the two sets of data (data initially shared by the ECI and
the final voter turnout/votes polled data on the EVMs) in 373
constituencies which went to elections in the first four phases
of the elections of Lok Sabha, 2019.
Ans. There is no case where any candidate or his agent complained
that there is any discrepancy in the total votes polled in EVM and
result obtained from the EVM. It is also pertinent to highlight
that the voter turnout is a dynamic figure. The final voter turnout
is finalised by the Returning Officer when related documents are
scrutinised and shared with all the contesting candidates.
Q71. It is well circulated in the Media that according to replies to
Right to Information (RTI) queries about two million EVMs
were stated to be missing from ECI. Whether it is true or not?
Ans. The matter is sub-judice and necessary clarifications have
been provided to the Hon’ble High Court of Bombay. The
issue is nothing more than the twisting, selective and wrongful
representation of facts by vested interests.
Q72. While banning electronic voting, the German Constitutional
Court made the following observation: The use of voting
machines which electronically record the voters’ votes
and electronically ascertain the election result only meets
the constitutional requirements if the essential steps of
the voting and of the ascertainment of the results can be
examined reliably and without any specialist knowledge of
the subject…The legislature is not prevented from using
electronic voting machines in elections if the possibility of a
reliable examination of correctness, which is constitutionally
prescribed, is safeguarded. A complementary examination
by the voter, by the electoral bodies or the general public
is possible for example with electronic voting machines in
which the votes are recorded in another way beside electronic
storage. How are ECI EVMs different from the voting systems
banned by the German Constitutional Court?

Ans. Across the world, both paper ballot voting system as well as
EVMs are used for conducting elections as per the preference and
mandate of the authorities concerned. The Election Commission
of India is a Constitutional Body mandated to conduct elections
to State Legislature, both the houses of the Parliament and the
offices of the President of India and Vice-President of India,
as per Act and Rules passed by the Parliament of India. Use
of ECI-EVMs for conducting elections in India is approved by
the Parliament and upheld by various High Courts and Hon’ble
Supreme Court of India.
ECI EVMs are manufactured by central government public
sector undertakings in a secure manufacturing facility. Rigorous
third-party testing is carried out by STQC (Standardization
Testing and Quality Certification) at the manufacturing premises
before acceptance and dispatch to various states of deployment.
Stringent and elaborate protocols as mandated by ECI are
followed during EVM movement, storage, and deployment. The
German Constitutional Court made its observation in the context
of EVMs used in German elections and in relation to German
law. Indian EVMs are robust and implement technologies and
processes which are different and noncomparable. Hon’ble
Supreme Court of India and various High Courts have time and
again scrutinised the machines and have reposed their confidence
and faith in ECI EVMs.
Q73. The general opinion was that at a time when there had been
strong calls for the back to ballot paper system, it was the duty
of ECI officials, who were strongly opposed to the demand, to
ensure maximum transparency to belie any suspicion over
EVMs.
Ans. EVMs are used in the Indian elections as mandated by the
Representation of People Act, 1951. Therefore, EVMs are used
in Indian elections as per the statutory mandate of Parliament.
The same has the backing of judiciary also. The matter of
bringing back the manual ballot system and discarding the
use of EVMs has been brought up before various courts time
and again. However, on all occasions the courts including the

Hon’ble Supreme Court of India have dismissed the petitions.
In a latest such judgement dated 03/08/2021 (C.R. Jaya Sukin vs
ECI, SLP (Civil) 13278/2021), the Hon’ble High Court of Delhi,
even imposed cost on the petitioner while dismissing the pleas to
stop the use of the EVMs. Further, ECI constantly strives to bring
in more transparency and wider participation in the electoral
process.
Additional Topics
Q74. Which model of the EVM and VVPAT is presently in use?
How many VVPATs were deployed in the General elections –
2019? What is the amount of money spent on the procurement
of M3 model machines?
Ans. Post -Lok Sabha Election, 2019, ECI has been using only M3
Model EVMs and VVPATs in all the elections. M3 EVMs
were first introduced in year 2013-14, and the model gradually
replacing the earlier models as and when they were phased out.
During Lok Sabha, 2019, VVPATs were deployed in all polling
stations of the country, and a total of 17.40 Lakhs VVPAT units
were available for the Elections. The amount of money spent on
the procurement of M3 model machines is given in table below:
S.No. Year of Procurement Budget (Rs Cr)

1. 2013-14 645.75
2. 2017-19 4876.71
3. 2021-23 3960.10
4. Total 9482.56
Q75. Why is it not worthwhile to bias the EVM in advance (during
production or storage) to favour a particular symbol /
candidate?
Ans. This issue has been dealt with in FAQ No 38, 40 and 43, however
it is being elaborated below for more clarity:
i. The BU, CU and VVPAT units are manufactured using
a Secure Manufacturing Facility (SMF) where all steps

used in the manufacturing process are strictly monitored
and automatically recorded to prevent “Insider attacks”
on the machines. After the program has been loaded into
the EVM unit it is one-time-programmed (OTP), hence
re-programming is permanently disabled by the secure
processors used in these units. In addition, each unit of
the ECI-EVM contains an “Unauthorised Access Detection
Module (UADM)” which renders the machine unusable if it
detects an attempt to open the UADM. Thus, any attempt to
modify the machine after its production will fail.
ii. It may also be noted that the ECI EVM is agnostic to Names
& symbols of candidates. The EVM (CU) recognises only
the key numbers of the BU. The ballot paper placed under
the BU screen only aligns the names and symbols of the
candidates with the key numbers on the BU but there is no
electrical connection between the two. The arrangement of
names of candidates on the ballot paper of the Ballot Unit is in
alphabetical order, first for the National & State Recognised
Political Parties, followed by other State Registered Parties,
and then by independent candidates. Thus, the sequence
in which the candidates’ names appear on the Ballot paper
of the BU is dependent on the names of the candidates
and their party affiliation and keeps changing from one
election to another. The list of contestants is finalised after
the date of withdrawal, that is a few days before the poll,
after which the EVMs are Commissioned and kept in the
Strong Room under tight security. It may be noted that the
sequence of names cannot be ascertained much in advance.
In addition, EVMs are allocated to polling station after two
stages of randomisation process through EVM Management
System (EMS) software application developed by the
Commission. After First Level Checking (FLC) of EVMs,
First Randomization of EVMs is done at the District Election
Officer level to allocate them Assembly Constituency-wise
in the presence of the representative of recognised political
parties. Thereafter, before Commissioning of EVMs, Second
Randomisation of EVMs is done at the Returning Officer

level to allocate EVMs Polling Station-wise in the presence
of candidates / their agents.
iii. As can be seen from above the candidate-agnostic nature
of EVM, the process and time of finalisation of the list of
contestants and two levels of randomisation in the allocation
of EVMs eliminate any scope of EVM manipulation through
any prior biasing.
Q76. In some constituencies due to a high number of contesting
candidates more than one ballot unit may be required to be
connected to the CU. In such cases how does the CU know that
a particular vote has been cast from the 1st BU, or 2ndBU,or
3rd BU and so on?
Ans. Each BU can accommodate up to 16 candidates (including
NOTA). Accordingly, first BU has the names of candidates from
S.no 1 to S.no 16, the second BU has names of candidates from
S.no 17 to S.no 32 and so on. At the time of Commissioning the
BU the top cover of the ballot unit is opened and the Ballot sheet
with the S.no, name and symbol of the candidates is inserted
under the transparent screen of the ballot unit and the screen is
sealed. At the same time the thumbwheel switch on each BU is
set to the physical position of the BU i.e. at 1 for 1st BU,2 for
2nd BU, 3 for 3rd BU and so on. This setting is done as per the
ballot sheet inserted in the BU. All unused keys in the BU are
masked to avoid them from being pressed by any voter and the
top cover of the BU is sealed with Pink Paper seal to eliminate
access to the Ballot sheet, thumbwheel switch and inside circuit
of BU. In the polling station if any BU is connected in the wrong
position the CU display will give an error message.
A combination of the thumbwheel switch position and BU key
number is used by the microcontroller of CU to determine the
key number pressed and the BU number from which the key is
pressed eg: 7 ( BU1 & key 7), 23 (BU2 & key 7), 39(BU 3 &
key 7) etc.
Q77. What are the specifications of powerpacks used for CU/BU/
VVPAT?

Ans. Rating of power pack of CU is 7.5Volts, 2AH. Rating of power
pack of VVPAT is 22.5 volts, 4AH. BU uses the same power
pack as the CU when more than four BUs are used. May also
please refer FAQ Qn.no.10.
Q78. How do we know when the powerpack is about to get over
(CU and VT) and they are to be replaced?
Ans. The power packs of CU and VVPAT are periodically monitored
and the balance power status is displayed by the Control Unit as
“High”, “Medium”, “Low”, “Marginal” and “Change Battery”
along with the percentage.
The power packs are replaced from the “Reserve” power packs
available with the Sector Officers when the “Change Battery”
status is displayed by the CU.
Q79.⁠ What happens if the power pack of a CU/VVPAT gets drained
out completely at the time of voting?
Ans: i.If powerpack of Control Unit of EVM gets drained out on voting
day, the powerpack is replaced with Reserve power pack of the
EVM by the Presiding Officer in presence of the polling agents
and Sector Officer. Upon replacement, the powerpack Section of
the Control Unit is re-sealed with address tag and signatures of
the polling agents are also obtained on the tag.
ii. If power pack of VVPAT goes non-functional on voting day,
the power pack is replaced with reserve power pack of VVPAT
by the Presiding Officer in presence of the polling agents and
sector officer.
However, the need to change power packs occurs rarely.
Q80. What is the size of VVPAT slips and what are the properties
of VVPAT slips?
Ans. The VVPAT printed slip is approximately 99mm x 56mm in size.
The VVPAT slip is basically thermal paper with a print retention
capability of about five years when stored properly.

Q81. What are the details printed on the slips?
Ans. Printed slip of VVPAT contains the following information:
i. Candidate Serial Number
ii. Name of the Candidate.
iii. Symbol of party or Candidate
iv. Session Number
v. VVPAT ID
These details could be viewed by the voter.
FAQ Qn.no.55may also be referred
Q82. ⁠If we get hold of a VVPAT printed slip can we know from
which VVPAT machine it was printed?
Ans. Yes. VVPAT slips have the unique ID number of the VVPAT
that printed the slips. Therefore, from the unique ID number
mentioned on the VVPAT printed slips, we will be able to identify
the source VVPAT.
Q83. Why is the VVPAT display window of a darker shade?
Ans: The colour of glass is a delicate balance between visibility to voter
for vote verification, as provided in law, with illumination vis-à-
vis to comply with the constitutional requirement to maintain the
secrecy of vote. The VVPAT window glass has a tint necessary to
maintain the secrecy of voting so that, even by mistake, anyone
other than the voter is not able to view the slip easily. It may
be noted that while the initial samples of VVPATs made for
conducting trials had a viewing window with transparent glass,
based on experience and other practical considerations, the final
model of VVPAT was approved by the TEC (January, 2013)
with a tinted glass so that the print slips are not visible unless
internal LED lights are turned on. The same was demonstrated
to the political parties in a meeting on 10th May 2013. Bulk
production of VVPATs has always been done with tinted glasses
only.

Q84. What are the important legal provisions on the use of
VVPATs?
Ans. Voter Verifiable Paper Audit Trail (VVPAT) was introduced by
the ECI in compliance to the pronouncement of the Supreme
Court in Dr. Subramanian Swamy Vs. Election Commission
of India (2013) to ensure further transparency in the system by
introducing ‘paper trail’ in respect of EVMs. Accordingly, the
necessary amendments were made to The Conduct of Elections
Rules, 1961 as under:
Rule 49A (Design of Electronic Voting Machines)-
Every electronic voting machine (hereinafter referred to as the
voting machine) shall have a control unit and a balloting unit
and shall be of such designs as may be approved by the Election
Commission.
Provided that a printer with a drop box of such design as
may be approved by the Election Commission may also be
attached to a voting machine for printing a paper trail of the
vote, in such constituency or constituencies or parts thereof as
the Election Commission may direct.
(B) Rule 49M (Maintenance of secrecy of voting by electors within
the polling station and voting procedures)-
(1) Every elector who has been permitted to vote under rule
49L shall maintain secrecy of voting within the polling
station and for that purpose observe the voting procedure
hereinafter laid down.
(2) Immediately on being permitted to vote the elector shall
proceed to the presiding officer [.. ] for recording of
elector’s vote.
(3) The elector shall thereafter forthwith
(b) record his vote by pressing the button on the balloting
unit against the name and symbol of the candidate
for whom he intends to vote; and

(c) come out of the voting compartment and leave the
polling station:
Provided that where printer for paper trail is used, upon
casting the vote by pressing the button under clause (b), the
elector shall be able to view through the transparent window
of the printer, kept along with the balloting unit inside the
voting compartment, the printed paper slip showing the
serial no, name and the symbol of the candidate for whom he
has cast his vote before such paper slip gets cut and drops in
the drop box of the printer”.
Q85. When was legal framework for VVPAT was introduced?
Ans. 14th August 2013.
Q86. How does signal/command flow between various units of
EVM viz. BU, CU and VVVPAT? Since the VVPAT is kept
along with BU inside the voting compartment of the voter,
does VVPAT receive any signal/command from BU and vice-
versa?
Ans. In M3 EVMs, CU always acts as Master, irrespective of the
position in which it is placed or connected. BU and VVPAT
act as Slave units in the connected network, which receive
commands from CU to act as per the application programme.
BU and VVPAT do not communicate with each other. It is the
CU that communicates with both the BU and VVPAT. When a
voter presses a candidate button on BU, the BU sends the button
number to CU and in turn, the CU communicates to VVPAT to
print the slip of the corresponding button number. Only after
printing and cutting of the printed VVPAT slip, the CU registers
the vote.
Recording of votes in EVM-VVPAT system:
Votes are recorded only in CUs and not in BUs or VVPATs. When
a particular Candidate’s button in BU is pressed by the voters, BU
sends the button number to CU and CU commands printing of slip
related to that button number to VVPAT. The VVPAT slip so printed
remains visible to the voters for about seven seconds to verify their

votes cast through the VVPAT display window. VVPAT then sends an
acknowledgment to the CU to mark completion of printing of slip. The
CU then initiates the cut of the printed slip and the slip falls in the
sealed drop box of the VVPAT (Rules 49A and 49M, The Conduct
of Elections Rules, 1961). After the successful completion of all these
steps, i.e. printing and cutting of the VVPAT slips, the VVPAT sends
an acknowledgement to the CU. Upon receiving the message from
VVPAT, the CU records the vote electronically and emits a long BEEP.
The BEEP marks the completion of the voting process for the voter.
Signal Flow Details in M3 Model EVM-VVPAT
In M3 model, Master-Slave bus architecture is used. VVPAT can be
connected anywhere in the EVM M3 bus. The Control Unit (CU)
implements communication, command processing, handling of key
operations and handling of all the commands/responses to/from BU
and VVPAT. The Master-Slave protocol is used to control access to
the communication bus. Communication on the bus is initiated by the
“Master” (CU) with a “Command” to a “Slave”(BU & VVPAT). The
“Slave” which is constantly monitoring the bus for “Commands” will
recognize only the “Commands” addressed to it and will respond by
performing an action and by returning a “Response”. Only the Master
can initiate a command. CU is always the Master in the ECI M3 EVM
system setup.
VVPAT signal Flow in M3 Model EVM-VVPAT
The signal flow diagram in Annexure of FAQs may also be referred for
further clarity.
Annexure to FAQs

Legal History of Evms and Vvpats: A Compilation and Analysis of Case Laws Edition 1 January 2024

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LEGAL HISTORY OF

EVMs AND VVPATs

Nirvachan Sadan, Ashoka Road, New Delhi-110001

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This book will essentially service as a practical guide in making the

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1. ABHAY B. CHAJED vs. SMT. MADHURI MISAL

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