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Dravida Munnetra Kazhagam,Rep by its, R.S. Bharathi, filed case /EVM /in MHC

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Dravida Munnetra Kazhagam,
Rep by its, R.S. Bharathi,

Dravida Munnetra Kazhagam,
Rep by its, R.S. Bharathi,

IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Special Original Jurisdiction)

W.P. NO OF 2024

Dravida Munnetra Kazhagam,
Rep by its, R.S. Bharathi,
Organisation Secretary, No.367 & 369, Anna Salai, Teynampet, Chennai – 600 018.

Residing at
No. 18, 29 th street, Thillai Ganga Nagar,
Nanganallur,
Chennai- 600 061
…Petitioner
-VS-
The Chief Election Commissioner,
Election Commission of India,
Nirvachan Sadan,
Ashoka Road, New Delhi – 110001.
…Respondent

AFFIDAVIT OF THE PETITIONER

I, R.S. Bharathi S/o. D.J. Raman, aged about 74 Years, residing at No.18, 29th Street, Thillai Ganga Nagar, Nanganallur, Chennai – 600 061, do hereby solemnly affirm and sincerely state as follow:

I humbly submit that I am in public life for the past five decades. I served as chairman of Alandur Municipality for about twenty-five years. I had an opportunity to contest in both assembly and parliament elections. I was elected as Rajya Sabha member during 2016 – 2021. I was holding different posts in DMK Party. Now I am holding the post of Organising Secretary of DMK Party.

  1. I submit that Part XV of the Constitution of India deals with
    ‘Elections’. Article 324 of the Constitution of India states as follows:
    “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).

…”

  1. Further, Article 327 of the Constitution of India states as follows:

“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.

  1. I further submit that the Parliament, in exercise of the powers conferred on it under Part XV of the Constitution, has enacted the Representation of People Act, 1950, (“RP Act, 1950”) and the Representation of People Act, 1951 (“RP Act, 1951”).
  2. I submit that Section 169 of the RP Act, 1951 reads as follows.
  3. 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 validity of anything previously done under that rule.

  1. I submit that in view of the powers given to the Central Government to make rules after consulting Election Commission of India for carrying out the purpose of the RP Act, 1951, particularly for the purposes of Section 169(2) of the said Act, the Central Government originally passed the Representation of the People (Conduct of Elections and Election petitions) Rule, 1956. On 15.04.1961, through S.O. No. 859, the Central Government, in supersession of the above said Rules, notified the Conduct of Election Rules, 1961 (“1961 Rules”).
  2. I submit that from 1950 to 1990, elections were conducted through paper ballots in a conventional method. The Election Commission of India, in an election in Kerala in 1982, introduced Electronic Machines at few polling stations of a constituency. This was done by exercising the powers of issuing directions under the 1961 Rules. It is pertinent to note that when the decision to use electronic machines was submitted to the Government of India for approval, it denied sanction.
  3. I submit that the candidate who was defeated at the above said election had approached the Hon’ble Supreme Court in A.C. Jose vs Sivan Pillai, 1984 2 SCC 656. The contention of the unsuccessful candidate was that the Election Commission of India, under the garb of passing orders for regulating the conduct of elections, cannot take upon itself a purely legislative activity which is reserved under the scheme of Constitution of India for the Parliament of India. Accepting the above contention, the Hon’ble Supreme Court of India was pleased to set aside the elections in the polling stations where Electronic Machines were used. While deciding the case, the Hon’ble Supreme Court held as follows:

“24. It is pertinent to indicate that the High Court fell into an obvious fallacy 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.

  1. 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.”

  1. 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.”

  1. 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.”

  1. It was submitted that having regard to the modern 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’ includes voting by machines. Section 59 proceeds to explain its intention in setting up the mode, manner, and method of voting by prescribing express rules as to how the voting should be done. In this connection, reference may be 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 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.”
  2. I submit that in this backdrop, the RP Act, 1951 was amended through Act 1 of 1989, which came into force on 15.03.1989. Section 61A was inserted, which reads as follows:
    Section 61A: Voting machines at elections.
    Notwithstanding 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 the circumstances of each case, specify.
    Explanation – For the purpose of this section, “voting machine” 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.
  3. I submit that in pursuance to the amendment to the RP Act, 1951, the 1961 Rules were also amended by inserting Sections 49A to 49X. The matters relating to the design of Electronic Voting Machines (“EVMs”) and counting of Electronic Voting Machines etc. are dealt with very elaborately in Sections 49A to 49X of the 1961 Rules. As per Rules 49A of the 1961 Rules, an Electronic Voting Machine shall have only a Control Unit and a Balloting Unit and shall be of such design as may be approved by the Election Commission.
  4. I submit that in the case of Subramanian Swamy vs Election Commission of India, reported in 2013 10 SCC 500, the Hon’ble Supreme Court was pleased to permit the Election Commission of India to introduce VVPAT i.e., Voter Verifiable Paper Audit Trial. The relevant paragraphs are extracted herein:

“17. When the matter was listed before this Court for hearing on 279-2012, Mr Ashok Desai had brought to our notice that Election Commission of India is contemplating foolproof method in Electronic Voting Machines for which they are taking various steps in consultation with the Technical Experts Committee and the views of all recognised political parties. Mr Desai also promised to apprise this Court about the deliberations and the ultimate decision to be taken by them in this regard. Accordingly, this Court granted [Subramaniam Swamy v. Election Commission of India, SLP (C) No. 13735 of 2012, order dated 27-9-2012 (SC), wherein it was directed: “Dr Subramanian Swamy initially filed writ petition before the High Court, Delhi, praying for writ of mandamus directing the Election Commission of India that in future election if it desires to use Electronic Voting Machines, to utilise such Electronic Voting Machines, incorporate a paper trail and issue a paper receipt to each voter and prohibit Election Commission of India in any future election from utilising any Electronic Voting Machine unless the same incorporates a paper trail. Since the High Court disallowed the petitioner’s prayer, he approached this Court by way of present SLP. We heard Dr Subramanian Swamy appearing in person and Mr Ashok Desai, learned Senior Counsel appearing on behalf of the Election Commission of India at length. In the course of arguments, Mr Desai has brought to our notice that at present the Election Commission is contemplating foolproof method in Electronic Voting Machines for which they are taking various steps in consultation with the Technical Experts Committee and the views of all recognised political parties. He also promised to apprise this Court about the deliberations and the ultimate decision to be taken by them in this regard. In view of the same, the learned Senior Counsel seeks some reasonable time to submit a status report. For this purpose, the matter is adjourned. List the matter on 22-1-2013 as part heard.”] sufficient time to Election Commission of India to file status report regarding introduction of VVPAT system in Electronic Voting Machines to be used in the elections.

  1. The affidavit dated 21-8-2013, filed on behalf of ECI, shows that the Ministry of Law and Justice, on 24-7-2013, referred the draft notification to amend the Conduct of Election Rules, 1961 to provide for use of VVPAT system of elections to Election Commission of India for its views and comments. Election Commission of India suggested certain minor modifications in the draft notification and sent the same back to the Ministry of Law and Justice on 2-8-2013 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. SO 2470(E) dated 14-8-2013 to enable the use of VVPAT with Electronic Voting Machines.
  2. The aforesaid affidavit of Election Commission of India also shows that Election Commission of India and also convened a meeting of all the recognised national and State political parties on 10-5-2013 and demonstrated before their representatives the working of VVPAT system. Separately, on the same day, Election Commission of India also held a meeting with individuals including the appellant herein who had been engaged with Election Commission of India over the past several years regarding the functioning of Electronic Voting Machines. The VVPAT system was demonstrated before them as well. The representatives of political parties and other individuals expressed their satisfaction over the VVPAT system. Thereafter, Election Commission of India has decided to use the VVPAT system in the by-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. Election Commission of India also organised special training sessions for poll officers for the use of VVPAT and steps were taken to educate the electors for the same.
  3. 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 Electronic Voting Machines can be achieved only with the introduction of the “paper trail”. Electronic Voting Machines 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 Electronic Voting Machines with VVPAT system because vote is nothing but an act of expression which has immense importance in a democratic system.
  4. In the light of the above discussion and taking notice of the pragmatic and reasonable approach of Election Commission of India and considering the fact that in general elections all over India, Election Commission of India has to handle one million (ten lakh) polling booths, we permit Election Commission of India to introduce VVPAT in gradual stages or geographical-wise in the ensuing general elections. The area, State or actual booth(s) are to be decided by Election Commission of India and Election Commission of India is free to implement the same in a phased manner. We appreciate the efforts and good gesture made by Election Commission of India in introducing the same. 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.”

I submit that the notification amending the 1961 Rules was issued in view of the pendency of the above case on 14.08.2013.

  1. I submit that recently, a lot of concerns have been raised about the use of Electronic Voting Machines and Voter Verifiable Paper Audit Trail (VVPAT, for short) Printers by all the sections of society. These concerns are most justified, and the possibilities highlighted therein are technically feasible. India being a democracy, a discrepancy of even one vote between the votes cast and votes counted is unacceptable. The Hon’ble Supreme Court, in a catena of decisions, such as Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 and Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, has held that democracy contemplates that elections should be free and fair, so that the voters may be able to vote for candidates of their choice. Further, in Rameshwar Prasad (VI) v. Union of India, (2006) 2 SCC 1, the Hon’ble Supreme Court has observed that “Democracy” and “free and fair election” are inseparable twins. There is almost an inseverable umbilical cord joining them.” It is also important to note that for the conduct of free and fair elections, in addition to formal procedural compliances, substantive fairness must also be incorporated in the processes. The proper and transparent functioning of Electronic Voting Machines is central to the substantive fairness in the conduct of free and fair elections, which is a part of the basic structure of the Constitution.
  2. I submit that the constitutional mandate of free and fair elections under the principle of universal adult franchise is a central pillar of the Indian democracy. Under the Indian political system, elected representatives do not have any political legitimacy in and of themselves but derive their authority from the will of the people. The will of the people is reflected in the votes cast by them at the various elections conducted by the ECI. The lack of transparency surrounding the functioning of Electronic Voting Machines and the violation of statues governing the same casts a shadow on democracy and the principles of rule of law and transparency in India, and the substantive fairness of the processes. The present system has come this way due to violation of statutory provisions and due to failure to exercise plenary powers available to the Hon’ble Election Commission of India in respect of matters not covered by the RP Act, 1951 and 1961 Rules.

I. VIOLATION OF DIRECT CONNECTION BETWEEN BALLOT
UNIT AND CONTROL UNIT IN VIOLATION OF THE RULES

  1. Rule 95 of the 1961 Rules reads as follows:

Power of 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.

  1. I submit that it requires no elucidation that the directions issued by the Election Commission of India under Rule 95 are subject to the Rules made by the Central Government under Section 169 of the RP Act, 1951.
  2. I submit that an amendment which came through SO 2470 (E) dated 14.08.2013 added proviso to Rule 49A of the 1961 Rules. Consequently, Rule 49T of the 1961 Rules was also amended, and the amended Rule 49T reads as follows:

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 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.

  1. I submit that Election Commission of India’s Manual on the third generation Electronic Voting Machines shows that the configuration of Electronic Voting Machine and VVPAT is in direct contravention to the above Rules. Rule 49T, read with the proviso to Rule 49A, Rule 49B (4) and Rule 49E, Reveal that a direct access of Balloting Unit (Ballot Unit) with Control Unit (Control Unit) is prescribed in the Rules. I submit that a printer with a drop box could be attached to the Balloting Unit, but as per the Rules, there is no provision to attach the same, sandwiching it between Ballot Unit and Control Unit. The second-generation machines were in compliance with this Rule. A photograph of M2 machines is annexed (Annexure -1)
  2. I submit that as per the Manual of Election Commission of India, in the present M3 machines, the printer is placed in the middle of Ballot Unit and Control Unit. This paves way for the output of the printer (VVPAT) to flow to the Control Unit. This opens a myriad of technical possibilities to corrupt the integrity of the data that is fed to the Control Unit from the Balloting Unit. A photograph of the M3 machine is annexed (Annexure -2)
  3. I submit that a process involving a fourth unit, namely, the Symbol Loading
    Unit (SLU, for short) that feeds the symbols to the VVPAT printer is the root
    cause that paves way for other possibilities. It is not the symbols alone that are fed to the printer. The sequential numbers in the order of candidates in the constituency which match with each of the particular symbol are also fed to the VVPAT Printer. This process happens a few days ahead of the actual polling. The risks involved are elaborated as below.

a. The use of Electronic Voting Machine is enabled through Section 61A of the RP Act, 1951. As per this Section, the giving and recording of votes by voting machines in such manner as prescribed by the Rules may be adopted. Rule 49A of the 1961 Rule lays down that the Electronic Voting Machine has two units, namely, the control unit (Control Unit) and a balloting unit (Ballot Unit). However, the proviso to this Rule enables a printer with a drop box to be attached to the Electronic Voting Machine in such constituencies as may be directed by the ECI.

b. Considering the phrasing of Rule 49T and sub-rules (a), (b) and (c) of Rule 49B (4), it is quite clear that the connection between Ballot Unit and Control Unit must be direct. In Rule 49T, it is stated that as soon as practicable after the closing of the poll, the presiding officer shall close the control unit ‘and shall detach the balloting unit from the control unit and from the printer, where the printer is also used.’ It is to be noted that setting up of printer comes only in those cases where printer is used. In those cases also, printer (VVPAT) is connected to the Ballot Unit, without disturbing the direct connection between the Ballot Unit and the Control Unit. There is no provision in the RP Act, 1951 or the 1961 Rules allowing the printer to be in direct connection with the Control Unit. When read with the proviso to Rule 49A, it is clear that the statute also contemplates a situation wherein printer is not at all in use. This means that categorically, there must be an in-built provision for connecting the Ballot Unit directly to the Control Unit. The provision to connect a printer is in addition to the direct connection between Ballot Unit and Control Unit, and without affecting the direct connection between Ballot Unit and Control Unit.

c. If a signal output produced by the printer is used as an input to the Control Unit, which records the vote, then such recording of vote becomes dependent on the printing unit and in turn, such recording becomes independent of the choice made on the balloting unit (Ballot Unit). The present arrangement provides for such a scenario. The output that is being sent to the control unit is from the printer, and not the Ballot Unit. In this scenario, there is no guarantee that the integrity of the input signal received by the printer from the balloting unit is maintained, while the printer sends another signal to control unit. The printer is acting as a ‘receiver’ of data from the balloting unit and as a ‘sender to the control unit’. The signal is received by it through a socket and is sent out through another socket and cable. What goes from the printer into the Control Unit is a processed output of the printer which has its own processor. It is important to remember that the printer has already received external inputs through the Symbol Loading Unit (SLU). Computations and algorithms used in the printer and in the SLU are not available for the voter to verify, nor are they available in the public domain. It is to be noted that the Symbol Loading Unit is fixed after finalising the candidates. There is no mechanism of randomizing Symbol Loading Units, as it is done in the case of the Ballot Unit, Control Unit and the VVPAT. These SLUs are fixed by the manufacturers of the machines and there is no involvement of any of the officers of the Election Commission of India. An agency namely the manufacturers fixing the SLUs without any supervision by the Election Commission of India or the Candidates or his agents creates considerable doubt in the process. The technological features of SLU are also not known. Hence, sandwiching VVPAT in between Balloting Unit and Control Unit and fixing SLU in the VVPAT is in clear violation of the rules framed.

II. ABSENCE MECHANISM FOR COUNTING THE PAPER
TRAIL

  1. I submit that sub-rules (1) and (2) of Rule 56D of the 1961 Rules read as follows:
    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.

  1. I submit that sub-rule (2) mandates that the application to count the printed paper slips has to be decided by the returning officer subject to such general
    or special guidelines, as may be issued by the Election Commission. In this regard, it is submitted that:

(i) General or special guidelines issued by the ECI, if any, for the returning officer are not available in the public domain;
(ii) The processes involved in deciding the application, and the parameters for rejecting an application as ‘frivolous and unreasonable’ are not laid out;

(iii) The Rules do not provide for an appellate authority to which the matter can be immediately appealed to; and

(iv) The procedure in case of a mismatch in Form 17C is not provided or tailed into this scheme. It is apprehended that the Election Commission of India is governing this aspect in a vacuum, and there is a lack of transparency regarding the same.

(v) There is no transparent scheme to have a prompt escalation and disposal of an appeal against a refusal to count paper trail as demanded by the candidates before the result is announced for the constituency.

  1. I submit that a one-on-one communication/guideline to the individual returning officer on a case-to-case basis is against the principle of ‘rule of law’. Also, a scenario wherein individual officers of the Election Commission of India or returning officers can pass orders and decisions as per their personal discretion/whims and fancies goes against the ‘rule of law’. Discretion, whenever available, has to be exercised judicially, as per the law
    and in furtherance of the law. For this, the law has to be necessarily laid down, duly covering the yardsticks and procedures with respect to scrutiny of paper trail on the request of the candidates. Further, the decisions that can go against or in favour of a candidate at the hands of a public authority are amenable to the dictums of administrative law. Also, it is undoubtably a matter of adjudication through a quasi-judicial process. A decision, sans such adjudication, by authorities of the ECI/ returning officer, is against the ‘rule of law’. When Election Commission of India is mandated to give guidelines, the Election Commission of India is lawfully bound to use its executive powers under Article 324 of the Constitution to lay down guidelines and to install a system to put such guidelines to practice so as to cover all foreseeable contingencies. Avoiding such a mandate amounts to contravention of the law.

III. MISMATCH IN FORM 17C:

  1. I submit that at present, any mismatch between figures at Serial Nos. 6 & 7 of Form 17C is automatically attributed to ‘non-deletion of data in the mock poll’. This is not a logical conclusion which can stand the scrutiny of law. The mismatch could well be due to the malfunctioning of the program written/embedded into the Chip or due to any other error-some signals passing through or processing of such signals in the Ballot Unit or printer or the Control Unit. There is no technological provision to conclusively determine the reason. If such misfunctioning is detected anywhere in the country, it is indicative of the compromise of the technology, and the technology is liable to be discarded pan-India, so that the faith of the citizens of India in the democratic processes is not eroded. However, this issue is yet to be addressed by the Election Commission of India with the seriousness it deserves. It is bare minimum that configuration and the technical infrastructure must necessarily pass the muster of complete reliability of the machine. For this, there is another
    bare minimum requirement of pre-empting any man-made error in the system. The system must pre-empt it well in advance. Therefore, the Election Commission of India could not be heard saying that there have been human errors. The one and only conclusion could be the compromise of the ‘technology’.
  2. I submit that the response of Election Commission of India in ‘FAQ’ of the website section (question No: 56) mentions “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”. This is an unacceptable explanation, as all differences in count cannot be mechanically and arbitrarily attributed to human errors. The Citizens Commission on Elections, headed by Justice (retired) Madan. B. Lokur, in its report (Volume I, Chapter 2, page 25) reported that “There were discrepancies in the voter turnout/votes polled data on the Electronic Voting Machines (Electronic Voting Machines) and the votes counted data on Electronic Voting Machines in over 373 constituencies. The four highest discrepancies were of 18,331, 17,871, 14,512 and 9,906 votes where the Electronic Voting Machine votes were in surplus. These numbers are clearly too large to be explained by inadvertently counted mock polling data”. Such figures are really alarming.
  3. I submit that the Election Commission of India has also admitted to the mismatch in previous polls. The above mismatch could be either due to compromise of technology or due to human error. To label all errors as human errors, and to rule out technological errors without any scientific basis or evidence, is unlawful. In this context, the Hon’ble Commission’s Instruction
    No. 70 issued vide letter No. 51/8/7/2019 – EMPS dated 21st May 2019 which
    is placed at page 249 of Volume I of Compendium of Instructions, 2024 is to be treated as unlawful.

IV. ECI’S PROCESSES FOR APPROVAL OF ‘DESIGN’ AND COMPONENT CONFIGURATION OF ELECTRONIC VOTING MACHINES – THE MANDATE UNDER RULE 95 IS NOT EXERCISED.

  1. I submit that Rule 49A lays down that the Electronic Voting Machines shall be of such design as approved by ECI. The procedure to exercise such power to ‘approve’ is neither legislated in the parent statute, nor laid out in the Rules. Therefore, such authorisation given to Election Commission of India necessitates formulation of statutory guidelines/directions within Rule 95 with respect to software driven capabilities and configurations of components of Electronic Voting Machines.
  2. I submit that considering the complexities, electronic and software technology involved, the non-visibility attached to such technology, the internal processes of Electronic Voting Machines and the stakes involved for the whole republic, it is clearly not a subject matter to be left merely to the internal decisionmaking process of the ECI. The approval process needs to be transparent, public and duly documented with all the procedural safeguards of a subordinate/delegated legislation. It is important to note that the Election Commission of India plays a crucial role in making rules under Section 169 of the RP Act, 1951.
  3. I submit that, in the frequently asked question ECI claims that the committee of Eminent Experts in statistics cross checked the machines and gave a report on the EVM. It is to be noted that the Hon’ble Supreme Court in Subramanian swamy Vs. Election Commission of India reported in 2013 10 SCC 500 , held
    that the Election Commission of India had introduced the VVPAT only after a demonstration of the said unit to all the recognised National and State parties on 10.05.2013 and after eliciting their views. It is to be further noted no such step was taken while introducing generation 3 i.e., M3 machines. Further, having been placed in such a strategic position, the Election Commission of India has a positive duty to play a proactive role in formulating Rules under the Section 169 of the RP Act, 1951. Also, Election Commission of India has to play a positive role in issuing instructions/ directions under Rule 95, in cases where Rules are not formulated in time. Election Commission of India has been placed at an elevated position in the statutory and constitutional scheme and also through various judgments of the Hon’ble Supreme Court.
  4. I submit that the essential features, logics/software to be embedded in the electronic chips, the standards of reliability of the machines, the need to ensure data integrity, the process to ensure that malicious coding is not embedded in any chip used in the Electronic Voting Machine, the process of cloning of the software into lakhs of Electronic Voting Machines, the basic internal configuration, pre-emption of duplicate voting by voter, data retention and data deletion processes, the levels to which authentication is to be granted, the aspect of laying down ‘process supervision’, controls to be exercised by appropriate authorities etc. are to be determined through a lawful procedure. Similar is the case with the process involved in deciding upon the various functionalities/ features/ logics, the manner of involving major players of technology in determination of these parameters, the mode of contracting the manufacturing/testing after initial purchase and repairing of these components & units. Stakeholders should be co-opted in a transparent manner in the above aspects. Globally reputed technical consultants ought to be co-opted as part of a statutory scheme to receive wide range of inputs. The present sequence of actions in this respect are arbitrary and unlawful. The entire processes of the Election Commission of India are to be placed in the public domain. When Election Commission of India has been given the power to approve, then it is bounden duty of the Election Commission of India to make procedures to accord such approvals which the Election Commission of India did not do.
  5. I submit that in fact, the FAQ section in the Election Commission of India website “eci.gov.in” reads as follows:

Q62. At the request of the Election Commission, a committee of eminent experts in statistics provided a report describing how many Electronic Voting Machines should be cross-checked and why. The report recommends the cross-checking of only 479 Electronic Voting Machines across the country, independent of how many total Electronic Voting Machines are used (some reports mention that a total of 10.35 lakh Electronic Voting Machines were used in GE 2019). It says that, if a fraction of 2% or more of the Electronic Voting Machines are faulty, crosschecking 479 chosen at random across the country will be sufficient to detect this fact with near certainty. Therefore a) the faulty Electronic Voting Machine in a random sample will be detected only if the number of such Electronic Voting Machines in a parliamentary election is more than 20,000; and the presumption that the entire quantity of Electronic Voting Machines 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 Electronic Voting Machine and VVPAT count with ‘virtual certainty’ only if the number of such mismatches in Electronic Voting Machines 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 Election Commission of India should sample a certain minimum percentage of Electronic Voting Machine systems and verify the electronic counts with the slip counts for ensuring that there are no mismatches between Electronic Voting Machine and VVPAT counts. The suggested percentage of Electronic Voting Machines 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 Electronic Voting Machine machine, and it was required to check the working of the Electronic Voting Machine through VVPAT counts. It is noteworthy that all Electronic Voting Machines are similar, having come up through the same manufacturing and testing process. Every machine is connected to a VVPAT. Before poll each Electronic Voting Machine 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 Electronic Voting Machines 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 Electronic Voting Machine, the population consisted of all Electronic Voting Machines 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 Election Commission of India 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 Electronic Voting Machine 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 Electronic Voting Machines.

  1. I submit that from the above, it is gathered that an expert committee at the request alone had verified the reliability of the Electronic Voting Machines. In a democratic set up, such an exercise should have been undertaken in the presence of all the stake holders, viz. the citizens of India and the political parties. The difference between 3 sigma level and 4 sigma level would cause great prejudice to the election results. It is in such situation that the evaluation of the reliability of the M3 Electronic Voting Machines ought to have been done in the minimum presence of all the recognised political parties. The Election Commission of India has a duty to instil confidence in the minds of the citizens and all other stake holders in the election process that Electronic
    Voting Machines meet 100% confidence level and not anything lesser than
    that. They should also meet the clearance level of 6 sigma and not 4 sigma. I further submit that whether a mechanism is in conformity with the 6 sigma level or 4 sigma level ought to have been ascertained by the stakeholders and not by an expert committee unanimously appointed by the ECI.

GROUNDS

A. Because the 1961 Rules mandate that the Balloting Unit and the Control Unit of the Electronic Voting Machine have to be placed in direct contact with each other.

B. Because neither the 1951 Act, nor the 1961 Rules allow the printer to be in direct connection with the Control Unit.

C. Because the placing of the printer between the Balloting Unit and the Control Unit in the M3 model of the Electronic Voting Machine is contrary to the Rules 49A, 49B (4), Rule 49E and 49T of the 1961 Rules.

D. Because placing the printer between the Balloting Unit and the Control Unit tampers with the integrity of the data that is fed to the Control Unit.

E. Because in the M3 model of the Electronic Voting Machine, the data which is transmitted by the printer to the Control Unit is a processed output of the printer, which has its own processor. This gives rise to an apprehension of corruption of data.

F. Because the Hon’ble Supreme Court, in a catena of decisions, such as Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 and Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, has held that democracy contemplates that elections should be free and fair, so that the voters may be able to vote for candidates of their choice.

G. Because for the conduct of free and fair elections, in addition to formal procedural compliances, substantive fairness must also be incorporated in the processes.

H. Because proper and transparent functioning of Electronic Voting Machines is central to the substantive fairness in the conduct of free and fair elections, which is a part of the basic structure of the Constitution.

I. Because lack of transparency surrounding the functioning of Electronic Voting Machines and the violation of statues governing the same casts a shadow on democracy and the principles of rule of law and transparency in India, and the substantive fairness of the processes.
J. Because Rule 56D of the 1961 Rules mandates the Election Commission of India to issue guidelines governing how applications for counting the printed paper slips are to be decided by the returning officer.

K. Because no guidelines for the purposes of Rule 56D have been issued so far, thereby giving the returning officers unguided and untrammelled discretion and rendering the exercise of power under the said Rule arbitrary and unreasonable.

L. Because the parameters on which an application under Rule 56D has to be allowed/rejected have not been laid down, thereby conferring unfettered and uncanalised discretion on the returning officer to decide the applications whimsically and arbitrarily.

M. Because the 1961 Rules do not provide for an appellate authority before which a decision under Rule 56D may be appealed against.

N. Because the power conferred upon the Election Commission of India to issue guidelines for the purposes Rule 56D is coupled with a duty to exercise such power.

O. Because the mechanical attribution of any mismatch in Form 17C (Account of Votes Recorded) to human errors such as non-deletion of data in mock poll, without conducting any enquiry to ascertain the actual reason behind such mismatch, is arbitrary and cannot be countenanced in law.

P. Because India being a democracy, a discrepancy of even one vote between the votes cast and votes counted is unacceptable.

Q. Because the declaration under Rule 49MA travels beyond the scope of the 1951 Act and the 1961 Rules, insofar as it provides for application of Section 177 of the IPC, and is therefore ultra vires the enabling Act and the Rules.

R. Because a subordinate law making body is bound by the terms of its delegated or derived authority.

S. Because the procedure for approval of the Electronic Voting Machines by the Election Commission of India has not been laid down either in the 1951 Act or in the 1961 Rules.

T. Because the absence of any procedure for approval of Electronic Voting Machines renders the existing process of approval of Electronic Voting Machines arbitrary and non-transparent.

U. Because considering the crucial role played by Electronic Voting Machines in the electoral processes in our democracy, the Election Commission of India shall formulate guidelines under Rule 95 of the 1961 Rules for the approval of Electronic Voting Machines and the manner of configuration of their components.

V. The representation dated 23.02.2024 with respect to issuing guidelines for the purpose of Rule 56 (D) vide SO 2470(E), dated 14.08 and Form 17 C and requesting not to place the printer between the Balloting Unit and the Control Unit as done in M3 Electronic Voting Machine was sent to Respondent and the same has not been considered till date.

In view of the above, it is most humbly prayed that this Hon’ble Court may be pleased to issue WRIT OF MANDAMUS, or any other appropriate writ or order or direction in the nature of writ directing the respondent (Election Commission of India) to issue guidelines under Rule 95 of the Conduct of Election Rules, 1961, laying down the procedure to be followed for approval of Electronic Voting Machines and directing the Respondent (Election Commission of India) to issue guidelines for the purpose of Rule 56 (D) vide SO 2470(E), dated 14.08.2013 and Form 17 C further direction not to place the printer between the Balloting Unit and the Control Unit as done in M3 Electronic Voting Machine as contrary to Rule 49 T read with Proviso to rule 49 A, Rule 49B (4) and Rule 49E of the 1961 rules by considering my representation dated 23.02.2024 and thus render justice.

Solemnly affirmed at Chennai on this the } BEFORE ME day 02nd of April 2024 that the contents } were explained in Tamil and signed his name }
in my presence } Advocate: Chennai

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