MICHAEL B FERNANDES Vs. C K JAFFER SHARIEF

JUDGEMENT

(1.) THIS Election Petition does not only challenge the integrity of the election of the first respondent but also the efficacy and integrity of the electronic voting machine used in the election of Yelahanka Parliamentary Constituency. The petitioner is the 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. This Court deleted respondents 6 to 8 as not necessary parties. The Supreme Courl confirmed the order.

(2.) THE gist of the objections raised by the petitioner in the Election Petition disclose that the amendment to Representation of the People Act by incorporating Section 61a and making provision for use of electronic voting machines 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 has 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 pro-visions of the Constitution, Act, rules or orders made 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 cpncerned? 2. Whether S. 61 of the Representation of the People 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 that 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?