Nagpur Sahar (Zilla) Congress ... vs The Collector And Returning Officer, ... on 7 April, 2019

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Bombay High Court

Nagpur Sahar (Zilla) Congress ... vs The Collector And Returning Officer, ... on 7 April, 2019

1. In the order dated 6-4-2019, we have noted in the third part that "The complaint in the petition is that during 25-3-2019 to 28-3-2019 when EVMs were undergoing the first level check, ...", it is informed to us by the learned counsel for the petitioners that what was argued was that after the first level check was over and the second level check was to begin, the CCTV cameras installed outside the strong room were not functioning. In view of this, we correct the order dated 6-4-2019 and in place of the sentence that "when EVMs were undergoing first level check", the sentence "after first level check was over and second level check was to begin", be substituted. Necessary corrections be carried in the order.

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2. We have heard Ms Meenakshi Arora, the learned Senior Advocate, assisted by Shri R.S. Akbani, Advocate for the petitioners; Shri A.M. Deshpande, the learned Additional Government Pleader, for the respondent No.1; Shri J.B. Kasat, the learned counsel for the respondent No.3; and Shri Narayan Phadnis and Ms Neerja Choubey, the learned counsels for the respondent No.4. We have also heard the respondent No.1- Collector and Returning Officer in person; and Shri Satish Uke, who filed Civil Application No.1020 of 2019 for intervention in the matter.

3. Civil Application No.1020 of 2019 for intervention is allowed. The intervenor is also heard on merits of the matter.

4. We made it very clear to the learned counsels and parties appearing before us that we are neither entering into factual dispute nor intend to decide any position of law so as to cause any prejudice to the rights of the parties, which can be worked out in appropriate proceedings at appropriate point of time. We also made it clear to them that we shall not pass any order, the implementation of which may give rise to a distinct controversy and vitiate the process of election. In our earlier order itself, we have made it clear that the litigation is not being considered as adversarial, but we wanted to see and ensure that appropriate steps are taken as per the guidelines of the Election Commission of India, which are to be strictly followed to maintain transparency, purity, security and accountability in respect of the election to be conducted in the Constituency, which is considered to be sensitive. The safety and security of the sensitive machines and other electronic equipments used in the process is also of utmost importance. The representation or participation to the candidates and their representatives in the conduct of election has to be in an effective ::: Uploaded on - 07/04/2019 ::: Downloaded on - 08/04/2019 03:34:49 ::: 3 0704wp2898.19.odt manner, as is provided in the guidelines laid down by the Election Commission of India with an object of maintaining the trust and confidence in the entire system, including conduct of elections by the officers responsible for it. It is from that point of view, in the interest of all the candidates and public at large, we are entertaining this petition so that the public grievance is satisfied as far as possible, leaving minimum scope for any controversy about violation of the guidelines, and the further that the process of election remains transparent and fair.

5. The first grievance made on behalf of the petitioners is that the representatives of the candidates are not being permitted to put 1000 strokes on each selected EVM as per the guidelines of the Election Commission of India. We called upon the Returning Officer to furnish explanation in respect of it.

6. The Returning Officer has assured this Court that 1000 strokes shall be permitted to be put on each selected EVM for the mock trial. We put a specific question to the Returning Officer as to who shall be permitted to put 1000 strokes on EVMs during the mock trial. His response is that it is the officer who shall do this in presence of the representatives of the candidates. We asked him to show us the specific provision in this regard, contained in the instructions. Our attention is invited to clause 12.5.5 in the "Handbook for Returning Officer", which we reproduce below :

"12.5.5 Casting of votes against all 16 candidate switches, observation of result and clearing of mock poll data will be done for each EVM. In 5% (five percent) of randomly selected CVMs with VVPATs, 1000 votes shall be polled during the mock poll and ::: Uploaded on - 07/04/2019 ::: Downloaded on - 08/04/2019 03:34:49 ::: 4 0704wp2898.19.odt CU result shall be tallied with VVPAT paper slips count. Representatives of candidates shall be allowed to do the mock poll themselves. Signature of representatives of candidates shall be taken in a register as a token of having done mock poll themselves. It may be ensured that the pink paper seal of the CU which has been stuck on the CU at the time of FLC is not damaged in any manner in this process." [Emphasis is ours] It is conceded before us by the Returning Officer that in terms of the aforesaid provision, it is the representatives of the candidates who are to be allowed to do the mock poll themselves. Hence, according to the Returning Officer, there shall be no problem in permitting the representatives of all the candidates to put 1000 strokes on each selected EVM.

7. The second grievance highlighted is that during the mock trial, only one representative of each candidate is permitted to attend and to carry out the mock trial of EVM chosen for testing. The Returning Officer makes it clear before us that even otherwise two representatives of each candidate is permitted to attend the mock trial and one more representative of each candidate is allowed as per the discretion, keeping in view the situation, position and security to be observed at the relevant time.

8. The petitioners, have pointed out that if there are about 30 candidates contesting the election, hardly few of them are interested in remaining present at the time of conducting the mock trial. Keeping in view this aspect of the matter, it is the request made by the petitioners that the participation of number of representatives of the candidates remaining interested in conducting the mock trial can be increased ::: Uploaded on - 07/04/2019 ::: Downloaded on - 08/04/2019 03:34:49 ::: 5 0704wp2898.19.odt depending upon the situation. The response of the Returning Officer is that in his discretion, keeping in view the number of representatives attending the mock trial and the aspect of security, a decision can be taken to increase the representation by any of the candidates during the mock trial within the four corners of law.

9. It is the apprehension expressed by the petitioners that on the day of polling, the mock polls are conducted by permitting the candidates or their agents to put 50 strokes in EVMs randomly. But, according to the petitioners, if at all there is any tampering, it would be discovered if more than 50 strokes are permitted because the mock drills are designed suitably to conduct only 50 strokes. It is, therefore, the demand that the strokes be enhanced to beyond 50 strokes.

10. In response to this demand, the learned Returning Officer invites our attention to clause 13.17.2 under the heading "mock poll", which we reproduce below :

"13.17.2 The Presiding Officer shall start mock poll one hour before the commencement of poll. All contesting candidates should be informed in writing by Returning Officer wll in advance that mock poll would start one hour before the commencement of poll and they should be advised to instruct their polling agents to be present on time for the mock poll. Polling agents of at least two candidates should be present at the time of Mock Poll. However, if polling agents of at least two candidates are not present, the Presiding Officer may wait for 15 more minutes before conducting the mock poll and if the agents still do not come, then the Presiding Officer may go ahead and start the mock poll. It is further clarified that after waiting for 15 minutes, there ::: Uploaded on - 07/04/2019 ::: Downloaded on - 08/04/2019 03:34:49 ::: 6 0704wp2898.19.odt is a possibility that only one Polling agent may be present, in that situation also, the Presiding Officer should go ahead and start mock poll. In such case, there should be specific mention in the mock poll certificate on this aspect. Mock poll is to be done for at least 50 votes and at least three votes for every unmasked button. For Mock Poll, the Balloting Unit(s) and VVPAT unit should be placed in the voting compartment and Control Unit and VSDU (Note that there is No VSDU in M3 VVPAT) on the table of the Presiding Officer/Polling Officer who will operate the Control Unit after being properly connected. One polling officer should be present in the voting compartment along with the polling agents to watch operations on the Balloting Unit(s) and the ballot slips printed by the VVPAT unit. This polling officer will keep a record of the votes cast." [Emphasis is ours] What we find from the aforesaid provision is that the mock poll is to be done for at least 50 votes and at least three votes for every unmasked button.

11. We put a specific question to the Returning Officer to point out any difficulty in conducting the mock poll for more than 50 votes at least up to 60 votes. The learned Returning Officer invites our attention to clause 13.3 in respect of mock poll on the day of polling, which is reproduced below :

"13.3. The mock poll should be conducted with the polling agents voting at random for each of the contesting candidates. A total of at least 50 votes should be polled in the mock poll. In the case of absence of polling agents of any of the candidates, one of ::: Uploaded on - 07/04/2019 ::: Downloaded on - 08/04/2019 03:34:49 ::: 7 0704wp2898.19.odt the polling officers or other polling agents may record the votes for such candidates. The polling officers present in the Voting Compartment should ensure that votes are recorded for each of the contesting candidates. After the mock poll, Presiding Officer will ascertain the result in the CU, count the VVPAT paper slips in the presence of the polling agents and confirm that the results tally for each candidate."

The Returning Officer submits that a total of at least 50 votes should be polled in the mock poll. In view of this requirement, according to the learned Returning Officer, the VVPAT containing the entire material, ballot units and control units were supplied to the constituency sometime in the month of September, 2018. According to him, the system is not designed to permit more than 50 votes in the mock poll and, therefore, it is not possible to increase the limit 50 votes for want of requisite material and technical problems. We, therefore, keep this question as to whether the EVM and its connected units are designed to favour or disfavour any candidate at an election, open to be agitated at appropriate point of time in appropriate proceedings, without entering into this controversy on merits for the present.

12. In response to the demand of making CCTV footages available, as was referred in our last order dated 6-4-2019, it is responded by the Returning Officer that the CCTV cameras installed were functioning. It is informed to us by the Returning Officer that the CCTV surveillance was going on after the first level check was over and the second level check was to begin. It is further informed that during some period, the CCTV machines were inoperative for some time, but everything is videographed and the record of it is preserved and available.

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13. We do not want to enter into the aforesaid controversy for the present, and we leave it open to be agitated at appropriate time and in appropriate proceedings. The Returning Officer is categorical in his submission that neither the videography nor the CCTV footages after the first level check was over and the second level check was to begin, can be supplied to the candidates. In view of this, it is open for the petitioners to adopt such legal course for this purpose as may be permissible in law.

14. It is the suggestion given by Shri Satish Uke, appearing in person, that two CCTV cameras can be installed outside the strong room to monitor so that if one camera fails, the other can continue. The response of the Returning Officer is that there shall be multiple CCTV cameras everywhere so that there shall be no scope for apprehension about insecurity. The another demand is to provide jammers in the area so as to avoid any interruption in the electronic devices, i.e. EVMs or other connected electronic devices. It is the response of the Returning Officer the EVMs and other electronic devices are internally connected and they are not in any way prone to outside interference. It is also informed that LED displays shall be at more than one place. It is also informed to us that a three-layer tight security shall be maintained for the post-poll arrangement. Therefore, according to the Returning Officer, there shall be no scope or danger in respect of safety and security of the sensitive machineries employed during the course of election.

15. We are assured by the learned Returning Officer that as far as possible, the efforts shall be made to meticulously comply with each ::: Uploaded on - 07/04/2019 ::: Downloaded on - 08/04/2019 03:34:49 ::: 9 0704wp2898.19.odt and every direction or guideline of the Election Commission of India in the conduct of poll as well as post-poll arrangements.

16. Our attention was also invited by the Returning Officer to the news item appearing in Channel "TV-9 Marathi", wherein it was represented that the High Court has directed the Election Commission to provide strong room footages of EVMs to the petitioner Shri Nana Patole. It can hardly be a matter of comment by this Court. The public at large would normally go by the terms of the order passed by the Court rather than believing the rumours and distorted version of the order passed by this Court published in the news channel. We believe that the right of freedom of speech and expression conferred on the media under Article 19(1)(a) of the Constitution of India is exercised after going through the entire contents of the order passed by the Court, which we believe to be very clear, conveying the specific directions of the Court, and the people, after going through it, understands the mischief or distorted version of the order passed by this Court, if any, published either on the social media or under the news item.

17. We have already made it clear that we are neither entering into any factual dispute nor adjudicating upon any question of law involved in the matter. Hence, any observation made in this order - even remotely having bearing on the merits of any controversy involved in the matter - shall not come in the way of any of the parties in any future litigation, if at all instituted.

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18. With these observations and directions, the petition stands disposed of.

                               (S.M. Modak, J.)            (R.K. Deshpande, J.)
Lanjewar, PS




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Bombay High Court