A Bench of Chief Justice of India Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna issued notices on the petition moved by Sunil Ahya.
Ahya urged the court to “issue a writ/ order/ direction in the nature of mandamus to the Respondent, to set aside Rule 49MA of the Conduct of Election Rules, 1961” which when read with section 177 of the Indian Penal Code, criminalizes the reporting of deviant behavior of EVM & VVPAT as it casts a duty upon the voter to prove his complaint or face criminal prosecution with upto six months in jail.
“The Conduct of Elections Rules, 1961 was amended to insert a new rule 49MA to prescribe the procedure to be followed in case of complaint about alleged wrong particulars of a candidate and /or symbol on paper slip generated by the printer on pressing of the blue button against any candidate on the balloting unit.
Rule 49MA reads that: 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.
If a voter complains to the presiding officer, the elector will have to record a test vote in presence of the presiding officer and other agents who will observe the paper slip generated by the printer.
“Rule 49MA of the Conduct of Election Rules, 1961 read with section 177 of the Indian Penal Code, criminalizes the reporting of deviant behavior of EVM & VVPAT. Presently, in all eventuality, the onus / burden of proof is on the elector, who will face the criminal charges irrespective of whether that reporting is truthful and honest. This could deter an elector from coming forth and making any complaint which is an essential ingredient in a continuous exercise for improving a process,” says the petition.
Ahya says “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” and “infringes upon a citizen’s right to freedom of expression, which is a fundamental right guaranteed under Article 19(1)(a) of the Constitution of India as held in Peoples Union for Civil Liberties & Anr. Vs. Union of India & Anr. (2013)”.
**Test Vote equal to holding voter witness against himself
Ahya also challenges the provisio envisaged in the said Rule 49MA as per which, in the course of reporting the deviant behavior of an electronic machine / equipment 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 behavior or otherwise of the previous (first) vote cast in absolute secrecy. However, the said elector is being compelled under Rule 49MA to declare and thereby warned of a criminal charge for the first vote casted in absolute secrecy on the basis of the second vote casted in the presence of others. Therefore, the elector cannot be convicted by the evidence of second vote for the alleged incorrect reporting of the discrepancy in the first vote cast in absolute secrecy, unless and until he himself is made a witness in his own case, in violation of the provision of Article 20(3) of the Constitution”.
Ahya has also made some illustrations to buttress his argument on loophole in Rule 49MA.
As one such illustration, he says, “the Possibility of an unsolicited program, whereby the ballots casted for one candidate may be transferred, not sequentially, but rather intermittently (at pre-programmed intervals or otherwise) to another candidate, And therefore, where 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 aforesaid intermittent pre-programed deviant behavior of the electronic machines.
The petitioner suggests ways to address the issue of reporting the discrepancy in future.