The plea alleged that putting the onus on the elector in cases of arbitrary deviant behaviour of machines used in election process, infringes upon a citizen's right to freedom of expression under the Constitution.
The Supreme Court on Monday sought a response from the Election Commission on a plea seeking setting aside a rule which provides for prosecution of an elector if the complaint alleging malfunctioning of EVMs and VVPATs eventually turns out to be false.
A bench headed by Chief Justice Ranjan Gogoi took note of the plea, which alleged that Rule 49MA of ‘The Conduct of Elections Rules’ was unconstitutional as it criminalizes reporting of malfunctioning of Electronic Voting Machines and Voter Verified Paper Audit Trails.
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The plea alleged that putting the onus on the elector in cases of arbitrary deviant behaviour of machines used in election process, infringes upon a citizen’s right to freedom of expression under the Constitution.
The bench, which comprised justices Deepak Gupta and Sanjiv Khanna, also issued a notice to the Centre on the plea filed by Sunil Ahya.
His plea has sought a direction to the EC to register a complaint of any deviant behaviour of equipment used in the election process.
The petition said that presently, the burden of proof, rests on the elector for reporting any deviant behaviour of EVMs and VVPATs, who will face criminal charges irrespective of whether the complaint was truthful and honest.
It said that when an elector is asked to cast test vote as prescribed under Rule 49MA, he may not be able to reproduce the same result which he was complaining about, one more time in a sequence, because of the pre-programmed deviant behaviour of the electronic machines.
“In the course of reporting the deviant behaviour of an electronic machine used in the election process, an elector has to cast two votes; first one in secrecy and the second a test vote in the presence of the candidates or polling agents. A test vote cast subsequently in the presence of others cannot become a conclusive evidence of the deviant behaviour or otherwise of the previous vote cast in absolute secrecy,” the plea said.
It said that holding an elector accountable for deviant behaviours of EVMs and VVPATs could deter them from coming forth and making any complaint which is essential for improving the process.
“This may also create an illusion of free and fair elections, whereas the fact would be that people have simply not come forward to lodge complaints,” the plea said.
It also added that since only an elector could be a witness to the secrecy of his vote cast, it would violate Article 20(3) of the Constitution which says that no person accused of an offence shall be compelled to be a witness against himself.
The plea also referred to an incident where a retired senior police office, even after finding the discrepancy in the VVPAT, could not dare to complain as falsity of such complaint would have led to his imprisonment and heavy fine.
The plea said the penal consequences for making complaints against EVMs and VVPATs may deter an elector from reporting any deviant behaviour and lodging a complaint which is an essential ingredient in a continuous exercise for improving a election process.
Rule 49MA reads: 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.