Indian Kanoon - Search engine for Indian Law

..."

2. The introductory facts, as narrated in the present petition, are as under:

         C/WPPIL/36/2019                                            CAV ORDER




2.1    The Election Commission of India is an autonomous body

carrying out elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies in India and the offices of the President and Vice President of the country. Reliance is placed on a circular dated 19.09.2017 by which the Election Commission of India directed all the State Commissions to ensure that Voter Verifiable Paper Audit Trails (hereinafter referred to as 'VVPATS') shall be used with the Electronic Voting Machines (hereinafter referred to as 'EVMs') in all polling stations during the general and the bye elections to the State Legislative Assemblies and the Lok Sabha. According to the petitioner, suitable amendments have been made in The Conduct Of Election Rules, 1961 (hereinafter referred to as 'the Rules') which were notified in the Gazette of India on 14.08.2013.

66A. Counting of votes where electronic voting machines have been used.--In relation to the counting of votes cast at a polling station, where voting machine has been used,--

(i) the provisions of rules 50 to 54 and in lieu of rules 55, 56 and 57, the following rules shall respectively apply, namely:--

"55C. Scrutiny and inspection of voting machines.--(1) The returning officer may have the control units of the voting machines used at more than one polling station taken up for scrutiny and inspection and votes recorded in such units counted simultaneously.

"Introduction:

India is the largest Participatory Democracy of the world, with about 850 million registered voters. The Constitutional mandate of superintendence, direction and control of Elections to the Parliament and the State Legislative Assemblies has been conferred on the Election Commission of India.

The Election Commission of India is an independent Constitutional entity, which has successfully conducted regular elections to the Parliament and various State Legislative Assemblies for the past 66 years in a free, fair, participative, informed and credible manner. The Commission is widely acknowledged as a ''Global Gold Standard'' in Election Management across the World, setting ever-higher standards of efficient and professional conduct of Elections. The Commission has been at the forefront of embracing, adopting and implementing the latest technological advancements in improving and fine- tuning the election processes and systems. The C/WPPIL/36/2019 CAV ORDER Commission has taken the pioneering initiative of introducing Electronic Voting Machine (EVM) for recording, storing and counting of votes across the length and breadth of the Country in a transparent, credible and secure manner, backed by appropriate legal support. The use of EVM demonstrates the Commission's unflinching resolve to continually improve, upgrade and strengthen the Electoral Process in the country.

• Moreover,the certification and testing reports were not made public depriving independent experts to verify the analysis.

• The legal framework, particularly the necessary security requirements, was inadequate to deal with the specificities of the electronic voting process. (For a comprehensive report on electronic voting in The Netherlands, see link:

https://www.ndi.org/sites/default/files/5_Netherland s.pdf) Germany:

In Germany, the e-voting machines manufactured by NEDAP were used in between 2005 - 2009 before it came under criticism and finally discontinued. The Bundesverfassungsgericht (the Federal Constitutional Court of Germany) ordered the discontinuation of the use of NEDAP machines in 2009 because of the below-mentioned reasons: • The use of Nedap electronic voting machines violated the principle of the public nature of elections (Article 38 in conjunction with Article 20.1 and 20.2 of the Basic Law) that requires that all essential steps in the elections are subject to public examinability unless other constitutional interests justify an exception.