Supreme Court seeks Election Commission reply on voter prosecution

Source:- indiatimes.com.

New Delhi: The Supreme Court has sought the Election Commission’s response on a plea which sought striking down of a provision in election rules that envisages prosecution of an elector if a complaint alleging malfunctioning of EVMs and VVPATs cannot be proven.

A bench comprising Chief Justice Ranjan Gogoi and justices Deepak Gupta and Sanjiv Khanna took note of the plea, filed by Mumbai-based lawyer Sunil Ahya, that said 49MA of the Conduct of Elections Rules was unconstitutional as it criminalised reporting of malfunctioning of EVM or VVPATs. The plea contended that the onus of proving an allegation cannot be on a voter when machines used for voting showed ‘arbitrary deviant behavior’.

The plea sought direction to the EC to register a complaint of any deviant behaviour of equipment used in the election process while pointing out that the burden of proof rests on the elector at the moment, and one risks criminal charges even if the complaint is correct as the machines need not repeat its arbitrary behavior for a second consecutive time. When an elector is asked to cast a test vote, under Rule 49MA, s/he may not get the same result because of a pre-programmed deviant behavior of EVMs, the plea said.

“In the course of reporting deviant behavior 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 conclusive evidence of the deviant behavior or otherwise of the previous vote cast in absolute secrecy,” the plea said. It said that holding an elector accountable for deviant behaviors of EVMs and VVPATs could deter them from making a complaint, 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 referred to retired Assam DGP Harekrishna Deka, who after finding the discrepancy in the VVPAT did not complain as falsity of such complaint would have led to his imprisonment and a heavy fine.