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(b) The petitioner suffered prejudice on account of the conduct of the poll by the ballot method, The petitioner lost the election by a margin of only 1975 votes, while the number of votes rejected as "Invalid" were 5127. Such large number of rejection of votes was the consequence of polling by the conventional method, If voting were conducted by the use of electronic voting machines, there would not have been such large number of rejected votes. The Supreme Court of India, in A. C. Jose v. Sivan Pillai, while declining to pronounce on the relative advantages or defects of either the conventional system of voting or voting by the use of electronic voting machines, had observed that it is for the legislature and the Government to decide on the merits one or the other system, The Supreme Court, however, observed that voting by electronic machines is a better and sound method to avoid any defects and irregularities that might arise from the manual system, Consequent on the above decision of the Supreme Court, the Representation of the People Act, 1951 (for short the 'Act') was amended by inserting Section 61 (A), by the Amending Act 1 of 1989 and the amended provision came into force with effect from 15-1-1989. Consequent amendments were also made to the Conduct of Election Rules, 1961 (for short the Rules') by amending Rule 49 and introducing Rule 49 (A) to (W). Despite the lapse of ten years since the amendment to the Act, the Election Commission, by adopting a pick and choose method, has directed use of electronic voting machines only in respect of some constituencies and not the entire country. The Election Commission, by it's notification published ort 12-8-1999 in the Andhra Pradesh Gazette, notified that polling to the Hyderabad and Secunderabad Parliamentary Constituencies shall be conducted by the use of electronic voting machines and to the Assembly Constituencies concerned with the above two Parliamentary Constituencies. Other Assembly Constituencies were not notified for use of the electronic voting machines. In India, electronic voting machines are used only to the extent of 15% and in rest of 85%, manual system is adopted. This irrational and discriminatory system causes prejudice to the candidates contesting in the constituencies, where the mechanical system is followed. The petitioner has similarly suffered. The Election Commission acted illegally in not adopting uniform procedures for conduct of elections by use of the electronic voting machines.

7. In respect of the second ground of attack, the 1st respondent in her counter affidavit reiterates, there was no illegality, that the petitioner never voiced any objection to the conventional system of voting adopted in the constituency and the petitioner is, therefore, estopped from urging this aspect. According to the 1st respondent, the system of voting by use of the electronic voting machines is not a mandatory procedure and the adoption of the conventional system or the electronic voting machines is a matter of policy and convenience left to the convenience and discretion of the election authority and the State Government, The decision of the Supreme Court relied upon by the petitioner in support of this aspect of his contention is characterized in the written statement of the 1st respondent as "Irrelevant" to the facts of the case. The 1st respondent further pleads that this part of the challenge in the election petition is based on a mis-conception of the relevant provisions of law and the decisions of the Courts.

16. Learned counsel for the petitioner places reliance on the judgment of the Supreme Court in A. C. Jose's case (supra) in support of his contention. In this case, the election to the No. 70 -- Parur Assembly Constituency in Kerala held on 19-5-1982, at which, the respondent (Sivan Pillai) has declared elected, was questioned. The elected candidate secured 123 votes more than the appellant. Of the 30,450 votes polled, 11,268 were cast manually according to the conventional ballot method as provided in the Rules and 19,182 votes were cast by means of electronic voting machines. The electronic voting machines were employed in fifty (50) out of 84 polling stations of the Constituency, pursuant to a direction issued by the Election Commission of India by virtue of a notification published in the Kerala Gazette on 13-5-1982. This notification was purportedly made by the Election Commission under Article 324 of the Constitution of India. The trial Court upheld the validity of the election rejecting the contention of the appellant that the conduct of the election by electronic voting machines was contrary to the provisions of the Act. The Issue, thus, fell for consideration of the Supreme Court. On an analysis of the constitutional position, in particular the provisions set out in Part-XV of the Constitution of India and the provisions of the Act and the Rules, the Supreme Court declared that the power of superintendence, direction and control of elections vested in the Election Commission is neither un-canalized or paramount, but is available for operation only in areas left unoccupied by Legislation. Reiterating the ratio enunciated in Mohinder Singh Gill v. Chief Election Commissioner, New Delhi. , the Apex Court ruled ".......when Parliament or any State legislature has made valid law relating to or in connection with elections, the Commission shall act in conformity with, not in violation of such provisions, but where such law is silent, Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from pushing forward a free and fair election with expedition." Applying this principle to the statutory position applicable, as on the date the impugned election was held, the Supreme Court ruled that as the Act and the Rules prescribed a particular method of voting, the Commissioner could not innovate a new method and contend that the use of the mechanical process was not covered by the existing law and, therefore, did not come in conflict with the law in the field. Interpreting the provisions of Section 59 of the Act and Rule 49 of the Rules, the Apex Court concluded that the provisions of the Act and the Rules completely excluded conduct of elections by employment of electronic voting machines. Consequent on the above conclusion, the Supreme Court allowed the appeal and set aside the election of the respondent in respect of fifty (50) polling stations where electronic voting machines were used and directed that re-poll be held in those fifty polling stations. After repoll, the court directed, the result of the election should be announced afresh after taking into account the votes already secured by the candidates. In paragraph Nos. 36 and 37 (of the AIR Report), the Supreme Court merely set out the contentions urged on behalf of the respondent enumerating the advantages and disadvantages of conduct of elections by employing the electronic voting machines or by the conventional method of ballot.

22. Nothing is, however, apparent either expressly or by any necessary implication, from the analysis of the provisions of the Act and the Rules, signifying any obligation on the part of the Election Commission to conduct elections only by employing electronic voting machines nor is there any obligation discernible disabling the conduct of elections by the conventional method of the ballot. The relevant provisions of the Act and the rules are in the nature of enabling provisions empowering the Election Commission to conduct elections in such constituency or constituencies, as it may, having regard to the circumstances of each case, specify. This is a discretion the Act has reposed in the Election Commission having regard to its Constitutional powers and functions under Article 324 of the Constitution of India. In exercising it's discretion, the Election Commission may legitimately consider the multitude of relevant factors, such as the extent of the availability of electronic voting machines, practicability of employing them in particular constituency/constituencies, the awareness of the electors of particular constituency/constituencies to make effective and efficient use of the voting machines and a host of other such factors. Such a broad discretion conferred on a constitutional functionary like the Election Commission cannot be confined or cribbed by construing the enabling and facilitative provision in Section 61-A of the Act, as a mandatory fiat directing a linear obligation on the Election Commission to hold elections only by employing the mechanical process -- i.e., by electronic voting machines. The relevant provisions of the Act and the rules either construed on their terms or in the setting in the statutory text as a whole permits no such extravagant curial voyage as is urged by the Election Petitioner.