GUJARAT PRADESH CONGRESS Vs. ELECTION COMMISSION OF INDIA

JUDGEMENT

(1.) This petition has been filed by leading political party taking up issue of deployment of proper machinery for casting and recording votes at the ensuing State Assembly elections to be held on 9th and 14th December 2017. Mainly, the concerns raised were that during the initial scrutiny of EVMs and VVPATs to be deployed for the purpose of conduct said elections, large number of machines were found to be defective. The apprehension of the petitioner was that the elections may be conducted without proper repair of such machines, which may affect the results. It was around this central issue that various averments were made in the petition and consequential prayers made. The petitioner, by way of prayers, has made suggestions to ensure that any possibility of using defective machines can be eliminated. One of the prayers is for a direction to conduct the elections through ballot papers and not through electronic voting through EVMs and VVPATs. Such prayer was not elaborated. Instead, the main anxiety projected before us by the Counsel for the petitioner was that the machines, be it EVMs or VVPATs, which have been found defective, may not be reused without proper corrections required to be made through reliable and independent agency.

(2.) In response to notice issued, Election Commission of India as well as Chief Electoral Officer, State Election Commission have appeared and through their replies, pointed out inter alia that all the defective machines have been withdrawn and are not going to be used for the purpose of ensuing elections and replacement machines have already been summoned. The replies further suggest that as per the guidelines of the Election Commission of India, there would be multi-layer checking of these machines in presence of authorized representatives of all recognized political parties. We are informed that first level checking is over and two more checkings would take place before voting actually takes place on the date of election.

(3.) In view of the stand taken by the respondents and in particular, firm declaration on oath that all machines, which were found defective at the time of initial checking, have been withdrawn, substantial grievance of the petitioner would not survive. In rejoinder filed by the petitioner, however, a few new issues were sought to be raised. Without proper pleadings and corresponding prayers, we were not inclined to examine such additional grievance. Learned Counsel for the petitioner, however, confined his submissions to one particular aspect flowing from the guidelines issued by the Election Commission of India dated 30.08.2017. This circular, which is issued in supersession of existing instructions, contains detailed guidelines for the purpose of carrying out first level checking of EVMs and VVPATs. Our attention was drawn to para-7 of these guidelines pertaining to sealing of plastic cabinet of Control Unit of EVMs with Pink Paper Seal. These instructions provide, inter alia, for affixing Pink Paper Seal on EVMs so that the Control Unit cannot be opened after first level checking and that the Pink Paper Seal to be supplied by Nasik Security Press in presence of the representatives of the political parties present at the time of FLC. It is further provided that the representatives of political parties should be allowed to note down serial number of the Pink Paper Seal affixed on the Control Unit. A register is to be maintained to note down the serial number of Pink Paper Seal used on the Control Unit by clearly mentioning the unique ID number of the Control Unit and the Pink Paper Seal number. Signatures of representatives of political parties would also be obtained in this register. The guidelines also provide that photocopy of this register shall be given free of cost to all National and State level recognized political parties as soon as FLC is over. It is also provided that the photocopy of this register shall be given to all contesting candidates as soon as last date of withdrawal of candidature is over.