Karnataka High Court
Michael B. Fernandes vs C.K. Jaffer Sharief And Ors. on 5 February, 2004
Equivalent citations: AIR2004KANT289, AIR 2004 KARNATAKA 289, 2004 AIR - KANT. H. C. R. 1267, (2004) 16 INDLD 548, (2004) 2 KCCR 1239
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
ORDER K. Sreedhar Rao, J.
1. This Election Petition does not only challenge the integrity of the election of the first respondent but also the efficacy and integrity of the electronic voting machine used in the election of Yelahanka Parliamentary Constituency, The petitioner is the unsuccessful contestant at the 13th Loksabha Parliamentary Election held on 6-10-1999. The first respondent is the successful candidate. The respondents 2 to 5 are the other contesting candidates. Respondents 6 to 8 are Election Commission and its Officers. This Court deleted respondents 6 to 8 as not necessary parties. The Supreme Court confirmed the order.
2. The gist of the objections raised by the petitioner in the Election Petition disclose that the amendment to Representation of the People Act by incorporating Section 61A and making provision for use of electronic voting machines and the consequent amendment to Rules is bad in law as it permits arbitrariness and ultra vires the Constitution. An election conducted with the aid of electronic voting machine does not ensure the free and fair polling and counting, in view of the inherent defects in the electronic voting machine. It is also contended that electronic voting machine is vulnerable to tampering. Besides it is alleged that on account of the inherent errors in the electronic voting machine, there has been no proper counting of the votes.
3. The first respondent has denied the allegations made in the petition. The following issues were framed by my predecessor.
1. Whether the petitioner proves that there has been non-compliance of the provisions of the Constitution, Act, rules or orders made under the Act from the time of polling to counting resulting in materially affecting the result of the election in so far as the first respondent is concerned?
2. Whether Section 61 of the Representation of the People Act and consequent rules under Chapter 2 of the Conduct of Election Rules, 1961 is ultra vires the constitution?
3. Whether the petitioner proves that elections held to No. 12, Bangalore North Parliamentary Constituency by using the Electronic voting machines is null and void?
4. Consequently, whether the petitioner is entitled for a declaration that the result of the 1st respondent electing him from No. 12 Bangalore North Parliamentary Constituency is liable to be declared as null and void?
5. Whether the petitioner has made out a case for re-poll?
4. In view of the disputed contentions, an additional issue is framed in the following manner ;
Whether the electronic voting machines used in the conduct of the election is vulnerable to mischief or whether the electronic voting machine has in-built safeguards of tamper proof?
5. This case as usual of the civil litigations does not stand out as an exception for expeditious disposal. By the time the evidence is commenced and concluded, the political scenario of the country has undergone a thorough change, threatening a premature dissolution of Loksabha. In view of the changed context, the Counsel for the petitioner submits that factual contentions regarding impropriety and illegality of election canvassed in the petition are given up and confine to challenge only on the legal aspects and feasibility of the use of electronic voting machines in the election process.
6. The Supreme Court in Mohinder Singh Gill v. Chief Election Commissioner, New Delhi with lucidity has explained the scope and powers of the Election Commission while interpreting article 324 of the Constitution. Primarily the Legislature has to frame Rules regarding the Superintendence, control and conduct of elections. Any gray area not covered by the rules, the Election Commission is empowered to regulate with the approval of the Government. The Election Commission cannot conduct itself overriding the provisions of the Act and the Rules.
7. In A.C. Jose v. Sivan Pillai, , for the first time the legitimacy of user of electronic voting machine in an election came in question. The Supreme Court held that in the existing structure of Act and Rules, there is no provision for using electronic voting machine without necessary amendment and such a user was held to be bad in law. The Supreme Court further in para 36 listed out the serious faults in the use of electronic voting machine and found that with such defects it would not be advisable to use the electronic voting machine in the election.
8. Much water has flown under the bridge. There has been a tremendous advancement in the electronic technology. The electronic voting machine used in the election during 1982 is an obsolete model. The Scientist who is one of the co-designer of the electronic voting machine is examined as a court witness and his evidence unflinchingly supports the feasibility of use of electronic1 voting machines in the election. The defects of the machine pointed out in A.C. Jose's case no longer remain relevant. The present improved version of E. V. M. takes care of all those defects. The amendment to Representation of the People Act and Rules is carried out pursuant to the observations of the Supreme Court. Therefore, it is untenable to contend that the amendment of the Act and Rules is ultra vires and bad in law.
9. About the functional efficacy of E.V.E., one of the scientists of the Bharat electronic Limited (in short B. E. L.), who is the co-designer of the machine is examined as a court witness. The following is the gist of his evidence:
Voting machine has two major units : one is control unit and other is balloting unit. Control unit is handled by the Presiding Officer, who is in-charge of the Polling Booth. The control unit has all the intelligence inbuilt. The ballot unit is a dummy unit or otherwise called non-intelligence unit. The ballot unit has buttons and a lamp for each candidate arranged in a line. The ballot unit is kept in the polling compartment, 5 meters away from the control unit. The ballot Unit has a cable permanently attached. At the time of polling, the cable is connected to the control unit, when the voter press the button casting the vote to a candidate, the lamp by the side of the button will glow to indicate that the voting done is proper and simultaneously in the control unit a beep sound is heard to a range of 30 ft. The control unit functions in a non-reversible cycle of voting process.
After the publication of the list of the candidates, the Returning Officer sets the number of contesting candidates in the control unit, which functions on a battery specially manufactured and supplied by B.E.L. The effective life of the battery is 48 hours of continuous functioning. In the balloting unit the printed ballot sheet is put behind the transparent screen. The balloting unit is capable of handling the ballot sheet containing 16 contestants and on the whole EVM is designed to handle a maximum of 64 contestants at an election. The balloting unit has got 16 buttons operatable through a panel cut out. After inserting the balloting paper in the ballot unit, the Returning Officer closes the lid and put a seal provided by the election commission in presence of the candidates /their agents. The lid and the flaps once closed and sealed cannot be opened without tampering the seal. The Returning Officer simultaneously will set the control unit to receive the information about the number of candidates contesting in the election. By pressing the last "Can set" button in the control unit, the number of contesting candidates is recorded. The candidate set compartment of the control unit is closed and sealed in the presence of the candidates/their agents. Thereafter the control unit and the balloting unit are put separately in a carrying cases and are sealed by the Returning Officer in presence of the candidates/agents. The carrying cases containing control unit and balloting Unit are delivered to the Presiding Officers on the previous day to the election and would be carried to the polling booth.
The Polling Officer will verify the seals of the carrying cases, take out the control unit and balloting unit, verify the correctness of the seals. An hour before the polling time, mock poll is conducted to verify the functional capacity. The agents/candidates are asked to press the button in the balloting unit to cast their votes. Later on the "result button" in the micro controller is pressed which display the number of votes polled. After demonstration of the correctness of the function, the 'clear button' is pressed which will erase all the data of the mock poll. After the mock poll, the Presiding Officer will close the result compartment by putting the seal provided by the election commission by which the voting machine is ready for polling.
The voter presents before the Presiding Officer, after verifying the identity, the Presiding Officer will press the 'balloting button' in the control unit and send the voter to the polling cabin. When the voter press the 'balloting button' casting vote to the candidate of his choice, the lamp by the side of the button will glow indicating the correctness of voting. The control unit will give a beep sound to indicate that the vote casted is registered in the control unit. For the next vote to be cast, again it is necessary that the 'balloting button' in the control unit is to be pressed by the Presiding Officer, otherwise, mere pressing of button in the balloting unit by the voter will be of no consequence. For every next vote to be cast, it is necessary that the 'balloting button' in the control unit is to be pressed by the Presiding Officer. After polling time is over 'close button' in the control unit is pressed by the Presiding Officer by which the machine gets locked. Thereafter, the balloting unit is disconnected from the control unit, they are separately packed in the carrying cases and sealed in presence of the agents by the Presiding Officer. Later on they are transported to the counting centers and ballot unit and control unit are kept in a strong room before they are taken to the counting centers. At the time of counting, seals put by the Presiding Officer to the control unit is verified to ensure that no tampering has taken place. When the 'result button' is pressed, machine will display the number of votes polled against each candidates sequentially.
Control unit has two main devices: one is micro controller and another is memory. Micro controller is one time programmable component. Micro controller once fused with program code and data is unchangeable and irreversible. The memory device is functionally efficient and retain the voting data without the aid of a battery. The micro controller will record and register the voting data by cross checking with the memory for every vote. The programme code is encrypted and stored in the memory. It is not possible to replace the memory device in order to play mischief. If the Memory device is removed, micro controller will detect and declare that the machine is in error state. The memory device and one time programmable micro controller are the pivotal devices of the EVM and they act as tamper proof device for the programme code and poll data.
If a voter damages the button of the balloting unit or for accidental reason the button of the balloting unit gets struckn, such errors are indicated in the control unit. In such cases, a spare balloting unit is used. The sound of error message is heard in the control unit like a alert sound, simultaneously the display panel will show letters "PE" indicating that balloting unit has gone but of order. If the connecting cable is damaged or cut, letter 'LE' is displayed in the display panel of the control unit with an alert sound and these are the possible errors that can happen during use of machine during polling. If there is any error in the memory device, the machine is declared dead. The weak battery can also lead to error and the panel display will indicate by six dash marks. The Presiding Officer will change the battery and continue polling. The defect in the battery is a rare phenomenon. If the machine is not functioning, there will be no battery consumption.
The Micro controller manufactured with a given programme code is only useful for EVMS made for the elections by the B. E. L. company and cannot be used for any other purpose. The programme code is encrypted by out-source agency in the presence of the responsible official of the BEL and the programme code is a business secret. Out-source agency would keep the encrypted data as utmost secrecy. It is further stated that the encrypted code and data is unchangeable and indelible by anybody, even by the manufacturer. Any attempt to tamper with the encrypted code would only result in damage to the machine. But the micro controller and memory cannot be manipulated by anybody. It is also stated that the EVM is tested to the temperature condition of 20 degree C to + 55 degree C, and electromagnetic radiation also would not affect the functioning of the machine. The witness categorically states that either by manipulation or by accident there is no possibility of transfer of votes from one candidate to another and the machine designed is fully tamper proof.
10. The witness is cross-examined at length by the counsel for the petitioner and nothing is elicited in the cross-examination from the witnesses about the vulnerability of the machine. The evidence on the other hand fully inspires the confidence of the Court that the EVMS are fully tamper proof. There is no possibility of manipulation of mischief at the instance of anyone. The Supreme Court in T.A. Ahammed Kabeer v. A.A. Azeez, , has approved the fact that in the present version of EVM used in the 1999 general election, it is possible to get at the disputed impersonated votes by decoding. However, it is not possible to identify the impersonator, that shortcoming is well with the manual ballot system also.
11. The evidence further discloses that the EVM has seeming advantage over the traditional manual ballot method. In the manual method, there is possibility of swift rigging at the end of polling time, But when the votes are cast through EVM there has to be necessary minimum time lag between one vote and the next vote. Therefore, when the EVMs are used, the malpractice of rigging swiftly and quickly at the closing hours of the polling time stands avoided.
12. The EVMs have been put in use in the last general elections and in the last assembly elections in U. P. and other States. The practical wealth of experience has dispelled abundantly the theoretical unfounded apprehensions of the possible misuse. Cost-wise also, use of EVMs is economical. Traditional manual method involves huge cost towards printing charges and counting expenses. The said expenses will almost account to 30-40% of the election expenses. On one time investment by purchasing required EVMs, the cost of general elections to Parliament and assembly and by-elections would get largely reduced. The life span of EVM is 15 years.
13. The invention of EVM has an interesting history. According to the evidence of the witness CW. 1, the scientists of Bharath Electronics Limited developed electronic voting machine to handle the trade union elections. The election commission grasping the utility and its relevance to the country's general elections approached the B. E. L. for manufacturing a EVM suitable for the general elections. The scientists got involved themselves personally including C. W. 1 in the general elections to study the nuances of the pattern and procedures of the elections. After thorough practical experimentation and research the present version of EVM is designed. This invention is undoubtedly a great achievement in the electronic and computer technology and a national pride. It has come in the evidence of the witness that country like Singapore, Malasiya and U. S. A. are interacting with BEL for supply of EVMs suitable for their election requirements.
14. For the reasons and discussions made above Issue No. 2 and Additional Issue is answered in Affirmative, Issues Nos. 1 and 2 and 4 pertain to the factual aspects of the election. In view of the imminent premature dissolution of Lokasabha the Counsel has given up those issues. Accordingly, they are answered in negative and the election petition is dismissed. In the circumstances, no order as to costs.
The Registry is directed to furnish the copy of this judgment to the counsel appearing for the petitioner, to enable to her to submit the same to the election commission.