KHEMCHAND RAJARAM KOSHTI V. ELECTION COMMISSION OF INDIA

WPPIL/36/2019

AI Insights

The case revolves around a Public Interest Litigation (PIL) filed by Khemchand Rajaram Koshti, an advocate, against the Election Commission of India and another respondent, challenging the constitutionality of Rule 56(D)(2) of the Conduct of Election Rules, 1961. This rule grants discretion to the Returning Officer to reject applications for counting VVPAT slips if deemed frivolous or unreasonable. The petitioner argued that this discretion was arbitrary and violated Articles 14, 19, and 21 of the Constitution. The court examined the technical and administrative safeguards in place for EVMs and VVPATs, the historical context of their implementation, and the legal framework governing their use. After a detailed analysis, the court upheld the rule, emphasizing the importance of maintaining the integrity and security of the electoral process.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 693187 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 19-03-2019
• Assessment Year: misc
• Other Referred Cases: Dr. Subramanian Swamy vs. Election Commission of India
• Laws Referred To: Constitution of India, Conduct Of Election Rules, 1961, Representation of People Act, 1951
• Result in Favour of: Revenue
• Court: HIGH COURT
• Assessee Lawyers: K R KOSHTI
• Keywords: Election Commission; Public Interest Litigation; Ultra Vires; VVPAT; EVM; Discretion of Returning Officer; Tamperability of EVMs
• Section: 63; 14; 19; 21; 100; 56(D)(2)

Judgement Text

"C/WPPIL/36/2019 CAV ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/WRIT PETITION (PIL) NO. 36 of 2019 FOR APPROVAL AND SIGNATURE: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE sd/- and HONOURABLE MR.JUSTICE BIREN VAISHNAV sd/- ========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? NO ========================================================== KHEMCHAND RAJARAM KOSHTI Versus ELECTION COMMISSION OF INDIA & 1 other(s) ========================================================== Appearance: MR KR KOSHTI, ADVOCATE AS PARTY IN PERSON(5000) for the Applicant(s) No. 1 for the Opponent(s) No. 1,2 ========================================================== CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE and HONOURABLE MR.JUSTICE BIREN VAISHNAV Date : 19/03/2019 CAV ORDER (PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV) Page 1 of 95 C/WPPIL/36/2019 CAV ORDER 1. This Public Interest Litigation is filed by the petitioner - a practicing advocate of this Court who has come forward with the following prayers: “12. In the facts and circumstances of the above case, the petitioner prays that:- a) Your Lordships may be pleased to allow the present writ petition (P.I.L.); b) pass appropriate Writ, Order or direction declaring and/or striking down the Rule 56(D)(2) as ultra vires Articles 14, 19 and 21 of the Constitution insofar as it vests discretion in the Returning Officer to reject an application made under Rule 56(D)(2) for counting of the printed paper slips in the dropbox of the Printer; c) pass appropriate Writ, Order or direction directing the Respondent No 1 to mandatorily count the printed paper slips in the dropbox of the Printer in respect of any polling station or polling stations in all future Legislative Assembly elections and/or Parliamentary elections were paper trail has been introduced; d) pass appropriate Writ, Order or direction directing Respondent No. 1 to use appropriate technology by which the paper used in the Voter Verifiable Paper Audit Trails (“VVPAT/paper trail”) can be preserved for at least a period of 2 years from the date of election; e) pass suitable order/writ/direction and direct the respondent No. 1 to procure the adequate quantities of EVMs with VVPAT machines which are compatible with each other since respondent no. 1 is unable to procure the adequate quantity of VVPAT machines as per their reply to the RTI application and as per statement made by respondent no. 1 in Contempt Petition (Civil) No. 303/2016 before the Hon’ble Supreme Court; ...” 2. The introductory facts, as narrated in the present petition, are as under: Page 2 of 95 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. 2.2 According to the petitioner, in an all party meeting on 04.10.2017, there was a broad consensus amongst all political parties for the continued use of EVMs. It was also suggested in the meeting that there should be a possibility of incorporating VVPAT in this system. The Election Commission of India, acting on the suggestion, referred the matter to the Technical Expert Committee to examine the possibility of paper trail. The Bharat Electronics Limited, Bengaluru and the Electronics Corporation of India Ltd., Hyderabad were requested to develop a prototype of the VVPAT system. The prototype was created and was tested in the field in extreme environmental conditions in order to get an effective assessment. According to the petitioner, the trial was to take place in real election like conditions. The field trials were Page 3 of 95 C/WPPIL/36/2019 CAV ORDER conducted as averred in paragraph no. 4.4 of the petition in Thiruvananthapuram, Delhi, Jaisalmer, Cherapunji and Leh in the presence and participation of all stake holders including general voters, National and State political parties, Civil Society Organizations and the media. Improvements were suggested in the VVPAT system and after such necessary changes as suggested were carried out, a second trial was conducted. 2.3 According to the petitioner, the Election Commission of India vide a letter dated 28.03.2013, addressed to the Ministry of Law and Justice requested that in order to ensure proper execution of the VVPAT system, it was necessary to carry out ground work to amend The Conduct of Election Rules, 1961. Pursuant to such letter by the Election Commission of India, the Ministry of Law And Justice notified the amendments to the Rules in the official gazette on 14.08.2013 paving the way for the use of VVPAT system with EVMs. The amended rule 66A which contains Rule 56(D)(2) is quoted by the petitioner in the petition. The said rule reads as under: “56(D)(2) On such application being made, the returning officer shall, subject to such general or special guidelines, as may be issued by the Election Commission, decide the matter and may allow the application in whole or in part or may reject in whole, if it appears to him to be frivolous or unreasonable.” 2.4 In the petition, reliance is placed on a decision of the Apex Court in the case of Dr. Subramanian Swamy vs. Election Commission of India reported in (2013) 10 SCC Page 4 of 95 C/WPPIL/36/2019 CAV ORDER 500. According to the petitioner, while holding that the VVPAT system was an indispensable requirement to conduct free and fair elections, the Apex Court while disposing of the petition and directing phase-wise manner of introduction of VVPAT system recognized that the VVPAT system was an indispensable requirement for free and fair elections. According to the petitioner, it was relevant to reproduce paragraph no. 29 of the judgement in the case of Dr. Subramanian Swamy which the petitioner has thought it fit to reproduce in the petition which we also reproduce hereunder: “29) From the materials placed by both the sides, we are satisfied that the “paper trail” is an indispensable requirement of free and fair elections. The confidence of the voters in the EVMs can be achieved only with the introduction of the “paper trail”. EVMs with VVPAT system ensure the accuracy of the voting system. With an intent to have fullest transparency in the system and to restore the confidence of the voters, it is necessary to set up EVMs with VVPAT system because vote is nothing but an act of expression which has immense importance in democratic system.” 2.5 The petitioner, thereafter, relies on a newspaper cutting which appeared in ‘The Hindu’ on 16.08.2015 on the question of vulnerability of use of thermal printing and thermal paper for VVPAT. According to the petitioner, inspite of technological advances, the legibility of the thermally printed paper text lasts only for a period of 50 days which would result in a loss of the records beyond a period of time and preservation of votes would therefore become negatory. 2.6 According to the petitioner, for the first time VVPAT Page 5 of 95 C/WPPIL/36/2019 CAV ORDER system was introduced in the Kancheepuram Assembly Elections. The issue of mismatch between votes entered in Form 17C of the polling booth and the total number of votes recorded in the control unit of that booth will be resolved only as a result of the VVPAT system because when the control unit showed that 554 votes had been recorded, when the VVPAT was opened it was found that the number of votes entered in form no. 17C was correct. According to the petitioner, there are reports of malfunctioning of the EVMs which has generally left the public questioning on the vulnerability of EVMs and therefore it is in the background of such vulnerability apprehensions, that the VVPAT was introduced and the discretion vested in the Returning Officer in Rule 56(D)(2) in the Rules is under challenge. The petitioner in the petition has extensively referred to various communications exchanged between one Mr. Dinesh Chavda and the Election Commission on the introduction of VVPAT system and has submitted that the Election Commission has spent substantial amount on the manufacture of VVPATs and therefore even thereafter it was announced in the All Party Meeting that the Election Commission would endeavour to see that there is 100% coverage of VVPATs in all future elections of the Lok Sabha. 2.7 The petition further goes on to plead that the Commission vide a letter dated 19.09.2017 directed all State Election Commissions to ensure that VVPAT system shall be used with the EVMs at all polling stations. The circular dated 19.09.2017 has been annexed by the petitioner at Annexure ‘L’ to the petition. The petitioner has voiced concern over the shortfalls of the VVPAT systems. Page 6 of 95 C/WPPIL/36/2019 CAV ORDER 2.8 In paragraph no. 4.0 of the petition, the petitioner has brought to the notice of this Court that one Mr. Manubhai Chavda had filed a writ petition no. 1012 of 2017 for challenging the vires of Rule 56(D)(2) of the Rules. According to the learned counsel as averred in the petition, the writ petition was dismissed on the ground since the Code of Conduct was in operation, the Apex Court did not examine the matter on the above grounds. The order of the Apex Court dismissing the SLP is annexed to the petition. 2.9 It may also be clarified at this stage that the learned counsel who has appeared as party-in-person has even tendered a copy of the petition which was filed before the Apex Court. Perusal of the memo of the petition together with the prayers so made would indicate that the prayers in the present petition are identical to the prayers as set out in the writ petition before the Apex Court. The prayers in the petition before the Apex Court are set out as under: a) pass appropriate Writ, Order or direction declaring and/or striking down the Rule 56(D)(2) as ultra vires Articles 14, 19 and 21 of the Constitution insofar as it vests discretion in the Returning Officer to reject an application made under Rule 56(D)(2) for counting of the printed paper slips in the dropbox of the Printer; b) pass appropriate Writ, Order or direction directing the Respondent No 1 to mandatorily count the printed paper slips in the dropbox of the Printer in respect of any polling station or polling stations in all future Legislative Assembly elections and/or Parliamentary elections were paper trail has been introduced; c) pass appropriate Writ, Order or direction directing Respondent No. 1 to use appropriate Page 7 of 95 C/WPPIL/36/2019 CAV ORDER technology by which the paper used in the Voter Verifiable Paper Audit Trails (“VVPAT/paper trail”) can be preserved for at least a period of 2 years from the date of election; ...” 2.10 The bone of contention, by filing the present Public Interest Litigation by the petitioner, in short, is that Rule 56(D)(2) of the Rules when read suggests that on an application made to the Returning Officer, for counting/recounting of votes, the Returning Officer will decide the matter or may allow the application in whole or in part or may reject the application in whole or in part if it appears to him to be frivolous and unreasonable. In the grounds raised in the petition, according to the petitioner, such refusal to count the paper trail is bad and is violative of Articles 14, 19 and 21 of the Constitution of India. 3. According to Mr. Koshti, learned advocate/party-in- person, introduction of the VVPAT system was found to be indispensable requirement for free and fair elections and therefore the discretion vested in the Returning Officer to reject an application for recount is uncanalized and would be contrary to the imperative use of the paper trail introduced in the EVM. Vesting such a discretion which is unguided, in the submission of Mr. Koshti, would jeopardize the transparency and will be dangerous for the confidence of the voter, the sole purpose for which the VVPAT was introduced. 3.1 Mr. Koshti further submitted that the entire purpose of the introduction of VVPAT was to ensure that the electoral verdict is the true representation of the votes cast by the Page 8 of 95 C/WPPIL/36/2019 CAV ORDER voter. In the event of any discrepancy between the results shown by the EVM and by the VVPAT, the VVPAT is supposed to be the barometer of reflecting the choice and therefore the Returning Officer should have a mandate to count the votes displayed on the VVPAT in the event of a dispute. Refusal to count such votes would amount to the destruction of the spirit behind introduction of VVPATs. 3.2 Mr. Koshti relying on Sections 82 & 100 of The Representation of People Act, 1951 (hereinafter referred to as ‘the Act’) submitted that discretion vested under Rule 56(D) (2) cannot be challenged by a candidate or a voter as it is not one of the grounds specified under Section 100 for filing an Election Petition. The only remedy therefore of a recount can be by issuing a mandate to the Returning Officer that in an event of a dispute the Returning Officer ought to count the votes. The discretion to consider the application and the words ‘may grant’ or ‘may not grant’ invests discretion vested in the Returning Officer which is bound to be abused. 3.3 Mr. Koshti further submitted that the very vesting of the discretion under Rule 56(D) with the Returning Officer enabling him to reject an application on the alleged ground that ‘it appears to him to be frivolous or unreasonable’ is a complete affront to the rule of law, tainted with the vice of arbitrariness under Article 14 and effaces the very purpose for which the paper trail was introduced. 3.4 Mr. Koshti therefore relying extensively on the decision in the case of Dr. Subramanian Swamy (supra), submitted that since the Apex Court has held that the paper trail was an Page 9 of 95 C/WPPIL/36/2019 CAV ORDER indispensable requirement for the conduct of free and fair elections, it was mandatory that the counting of VVPAT votes ought to be carried out in every election where the VVPAT is used and the discretion vested in the Returning Officer to reject such applications was unconstitutional and contrary to the pronouncement of the Apex Court in the case of Dr. Subramanian Swamy (supra). 3.5 Mr. Koshti further submitted that the order of rejection of a request for counting of VVPATs could not be challenged in any Court and such stringent provisions of the Act when read, even the election cannot be questioned on such rejection and therefore if the results of the VVPATs do not match with the EVM results, on a request being made, prima facie Rule 56(D)(2) of the Rules is a stumbling block to the goal of transparency in the election process. 4. It is in the background of these pleadings that the petitioner has approached this Court for the prayers reproduced hereinabove and prayed that Rule 56(D)(2) of the Rules be held as ultra vires Articles 14, 19 & 21 of the Constitution of India insofar as it vests discretion in the Returning Office to reject an application made under Rule 56(D)(2) for counting of printed paper slips in the drop box of the printer. 5. Before we advert to the issue on hand, it will be relevant and in the fitness of things to reproduce the relevant provisions of the Act, 1951 and the Rules. “80. Election petitions.—No election shall be called in question except by an election petition presented in Page 10 of 95 C/WPPIL/36/2019 CAV ORDER accordance with the provisions of this Part. 80A. High Court to try election petitions.— (1) The Court having jurisdiction to try an election petition shall be the High Court. (2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice, shall, from time to time, assign one or more Judges for that purpose: Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court. (3) The High Court in its discretion may, in the interests of justice or convenience, try an election petition, wholly or partly, at a place other than the place of seat of the High Court.] 81. Presentation of petitions.— (1) An election petition calling in question any election may be presented on one or more of the grounds specified in [sub-section (1)] of section 100 and section 101 to the [High Court] by any candidate at such election or any elector [within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates]. Explanation.—In this sub-section, “elector” means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. [***] [(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition [***] and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.] 82. Parties to the petition.—A petitioner shall join as respondents to his petition— (a) where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and Page 11 of 95 C/WPPIL/36/2019 CAV ORDER (b) any other candidate against whom allegations of any corrupt practice are made in the petition.] 83. Contents of petition.— (1) An election petition— (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: [Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.] (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.] 86. Trial of election petitions.—(1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117. Explanation.—An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of section 98. (2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of section 80A. (3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups. (4) Any candidate not already a respondent shall, upon application made by him to the High Court within Page 12 of 95 C/WPPIL/36/2019 CAV ORDER fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent. Explanation.—For the purposes of this sub-section and of section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition. (5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. (6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded. (7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.] 100. Grounds for declaring election to be void.— [(1) Subject to the provisions of sub-section (2) if [the High Court] is of opinion— (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act [***] [or the Government of Union Territories Act, 1963 (20 of 1963)]; or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it Page 13 of 95 C/WPPIL/36/2019 CAV ORDER concerns a returned candidate, has been materially affected— (i) by the improper acceptance or any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate [by an agent other than his election agent], or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, [the High Court] shall declare the election of the returned candidate to be void.] [(2)] If in the opinion of [the High Court], a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice [***] but [the High Court] is satisfied— (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and [without the consent], of the candidate or his election agent; [***] (c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt [***] practices at the election; and (d) that in all other respects the election was free from any corrupt [***] practice on the part of the candidate or any of his agents, then [the High Court] may decide that the election of the returned candidate is not void.” PART V OF THE CONDUCT OF ELECTIONS RULES, 1961 COUNTING OF VOTES IN PARLIAMENTARY AND ASSEMBLY CONSTITUENCIES \"50. Definitions.—In this Part, unless the context otherwise requires,— (a) “candidate” means a contesting candidate; (b) “constituency” means a parliamentary or assembly constituency; (c) “counting agent” means a counting agent duly appointed under section 47 and includes a candidate Page 14 of 95 C/WPPIL/36/2019 CAV ORDER and the election agent of a candidate when present at the counting; (d) “notified polling station” means a polling station notified under rule 49; (e) “polling station” means a polling station provided under section 25 other than a notified polling station. 51. Time and place for counting of votes.—The returning officer shall, at least one week before the date, or the first of the dates, fixed for the poll, appoint the place or places where the counting of votes will be done and the date and time at which the counting will commence and shall give notice of the same in writing to each candidate or his election agent: Provided that if for any reason the returning officer finds it necessary so to do, he may alter the date, time and place or places so fixed, or any of them, after giving notice of the same in writing to each candidate or his election agent. 52. Appointment of counting agents and revocation of such appointments.— (1) The number of counting agents that a candidate may appoint under section 47 shall, subject to such general or special direction as the Election Commission may issue in this behalf, not exceed sixteen at the place or each of the places, fixed for counting under rule 51. (2) Every such appointment shall be made in Form 18 in duplicate, one copy of which shall be forwarded to the returning officer while the other copy shall be made over to the counting agent for production before the returning officer 1[not later than one hour before the time fixed] for counting under rule 51. (3) No counting agent shall be admitted into the place fixed for counting unless he has delivered to the returning officer the second copy of his appointment under sub-rule (2) after duly completing and signing the declaration contained therein and receiving from the returning officer an authority for entry into the place fixed for counting. (4) The revocation of appointment of a counting agent under sub-section (2) of section 48 shall be made in Form 19 and lodged with the returning officer. (5) In the event of any such revocation before the commencement of the counting of votes, the candidate or his election agent may make a fresh appointment in accordance with sub-rule (2). Page 15 of 95 C/WPPIL/36/2019 CAV ORDER 53. Admission to the place fixed for counting.— (1) The returning officer shall exclude from the place fixed for counting of votes all persons except— (a) [such persons (to be known as counting supervisors and counting assistants)] as he may appoint to assist him in the counting; (b) persons authorised by the Election Commission; (c) public servants on duty in connection with the election; and (d) candidates, their election agents and counting agents. (2) No person who has been employed by or on behalf of, or has been otherwise working for, a candidate in or about the election shall be appointed under clause (a) of sub-rule (1). (3) The returning officer shall decide which counting agent or agents shall watch the counting at any particular counting table or group of counting tables. (4) Any person who during the counting of votes misconducts himself or fails to obey the lawful directions of the returning officer may be removed from the place where the votes are being counted by the returning officer or by any police officer on duty or by any person authorised in this behalf by the returning officer. 54. Maintenance of secrecy of voting.—The returning officer shall, before he commences the counting, read out the provisions of section 128 to such persons as may be present. 54A. Counting of votes received by post.— (1) The returning officer shall first deal with the postal ballot papers in the manner hereinafter provided. (2) No cover in Form 13C received by the returning officer after the expiry of the time fixed in that behalf shall be opened and no vote contained in any such cover shall be counted. (3) The other covers shall be opened one after another and as each cover is opened, the returning officer shall first scrutinise the declaration in Form 13A contained therein. (4) If the said declaration is not found, or has not been duly signed and attested, or is otherwise substantially defective, or if the serial number of the ballot paper as entered in it differs from the serial number endorsed on the cover in Form 13B, that cover shall not be opened, and after making an appropriate endorsement thereon, Page 16 of 95 C/WPPIL/36/2019 CAV ORDER the returning officer shall reject the ballot paper therein contained. (5) Each cover so endorsed and the declaration received with it shall be replaced in the cover in Form 13C and all such covers in Form 13C shall be kept in a separate packet which shall be sealed and on which shall be recorded the name of the constituency, the date of counting and a brief description of its content. (6) The returning officer shall then place all the declarations in Form 13A which he has found to be in order in a separate packet which shall be sealed before any cover in Form 13B is opened and on which shall be recorded the particulars referred to in sub-rule (5). (7) The covers in Form 13B not already dealt with under the foregoing provisions of this rule shall then be opened one after another and the returning officer shall scrutinise each ballot paper and decide the validity of the vote recorded thereon. (8) A postal ballot paper shall be rejected— [(a) if it bears any mark (other than the mark to record the vote) or writing by which the elector can be identified; or] 3[(aa)] if no vote is recorded thereon; or (b) if notes are given on it in favour of more candidates than one; or (c) if it is a spurious ballot paper; or (d) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established; or (e) if it is not returned in the cover sent along with it to the elector by the returning officer. (9) A vote recorded on a postal ballot paper shall be rejected if the mark indicating the vote is placed on the ballot paper in such manner as to make it doubtful to which candidate the vote has been given. (10) A vote recorded on a postal ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked. (11) The returning officer shall count all the valid votes given by postal ballot in favour of each candidates, record the total thereof in the result sheet in Form 20 and announce the same. (12) Thereafter, all the valid ballot papers and all the rejected ballot papers shall be separately bundled and kept together in a packet which shall be sealed with the seals of the returning officer and of such of the Page 17 of 95 C/WPPIL/36/2019 CAV ORDER candidates, their election agents or counting agents as may desire to affix their seals thereon and on the packet so sealed shall be recorded the name of the constituency, the date of counting and a brief description of its contents.] 55. Scrutiny and opening of ballot boxes.—[(1) The returning officer may have the ballot box or boxes used at more than one polling station opened and the ballot papers found in such box or boxes counted simultaneously.] [***] (2) Before any ballot box is opened at a counting table, the counting agents present at that table shall be allowed to inspect the paper seal or such other seal as might have been affixed thereon and to satisfy themselves that it is intact. (3) The returning officer shall satisfy himself that none of the ballot boxes has in fact been tampered with. (4) If the returning officer is satisfied that any ballot box has in fact been tampered with, he shall not count the ballot papers contained in that box and shall follow the procedure laid down in section 58 in respect of that polling station. 56. [Counting of votes].—[(1) The ballot papers taken out of each ballot box shall be arranged in convenient bundles and scrutinized.] (2) The returning officer shall reject a ballot paper— (a) if it bears any mark or writing by which the elector can be identified, or [(b) if it bears no mark at all or, to indicate the vote, it bears a mark elsewhere than on or near the symbol of one of the candidates on the face of the ballot paper or, it bears a mark made otherwise than with the instrument supplied for the purpose, or] (c) if votes are given on it in favour of more than one candidates, or (d) if the mark indicating the vote thereon is placed in such manner as to make it doubtful to which candidate the vote has been given, or (e) if it is a spurious ballot paper, or (f) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established, or (g) if it bears a serial number, or is of a design, different from the serial numbers, or, as the case may be, design, of the ballot authorised for use at Page 18 of 95 C/WPPIL/36/2019 CAV ORDER the particular polling station, or (h) if it does not bear 3[both the mark and the signature] which it should have borne under the provisions of sub-rule (l) of rule 38: Provided that where the returning officer is satisfied that any such defect as is mentioned in clause (g) or clause (h) has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect: Provided further that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked. (3) Before rejecting any ballot paper under sub-rule (2), the returning officer shall allow each counting agent present a reasonable opportunity to inspect the ballot paper but shall not allow him to handle it or any other ballot paper. [(4) The returning officer shall endorse on every ballot paper which he rejects the word “Rejected” and the grounds of rejection in abbreviated form either in his own hand or by means of a rubber stamp and shall initial such endorsement.] (5) All ballot papers rejected under this rule shall be bundled together. [(6) Every ballot paper which is not rejected under this rule shall be counted as one valid vote: Provided that no cover containing tendered ballot papers shall be opened and no such paper shall be counted. [(7) After the counting of all ballot papers contained in all the ballot boxes used at a polling station has been completed,— (a) the counting supervisor shall fill in and sign Part II—Result of Counting, in Form 16, which shall also be signed by the returning officer; and (b) the returning officer shall make the entries in a result sheet in Form 20 and announce the particulars.]] [***] [57. Sealing of used ballot papers.—The valid ballot Page 19 of 95 C/WPPIL/36/2019 CAV ORDER papers of each candidate and the rejected ballot papers shall thereafter be bundled separately and the several bundles made up into a separate packet which shall be sealed with the seals of the returning officer and of such of the candidates, their election agents or counting agents as may desire to affix their seals thereon; and on the packets so sealed shall be recorded the following particulars, namely:— (a) the name of the constituency; [(b) the particulars of the polling station where the ballot papers have been used; and] [(c) the date of counting.] 58. Counting of ballot papers transferred to bags or covers under rule 44.—The provisions of rules 55, 56 and 57 shall apply so far as may be in relation to counting of ballot papers and votes, if any, which have been transferred from ballot boxes to cloth bags or cloth-lined covers under sub-rule (5) of rule 44: Provided that every reference in the said rules to a ballot box shall be construed as a reference to a bag or cover to which the contents of a ballot box have been transferred. 59. Counting of votes at notified polling stations.—In relation to the counting of ballot papers found in ballot boxes used at notified polling stations, 1[rules 50 to 54] and, in lieu of rules 55, 56 and 57, the following rules shall apply, namely:— “55A. Scrutiny and opening of ballot boxes.— (1) All ballot boxes used at a notified polling station shall be opened at the same time but every ballot box shall be dealt with in such manner that its contents do not get mixed up with the contents of any other ballot box. (2) Subject to the provisions of sub-rule (1), the returning officer may have the ballot boxes used at more notified polling stations than one opened and their contents counted simultaneously. (3) Before any ballot box is opened, the counting agents present shall be allowed to inspect the paper seal or any other seal that might have been affixed thereon and to satisfy themselves that it is intact. (4) The returning officer shall satisfy himself that none of the ballot boxes has in fact been tampered with. (5) If the returning officer is satisfied that any of the ballot boxes has in fact been tampered with, Page 20 of 95 C/WPPIL/36/2019 CAV ORDER he shall not count the ballot papers contained in any of the ballot boxes used at the polling station at which such box was used and shall proceed as laid down in section 58 in respect of that polling station. (6) After each ballot box is opened, the counting agents present shall be allowed to inspect the ballot box and satisfy themselves that it bears the proper symbol inside and has been duly marked in accordance with the provisions of sub-rule (6) of rule 33 as modified by clause (c) of sub-rule (3) of rule 49. (7) If any question arises as to the candidates to whom a particular ballot box was allotted at the poll, the returning officer shall decide such question by a reference to the symbol inside the box: Provided that— (a) if there is no symbol inside the box, or (b) if the symbol inside the box has been damaged or mutilated beyond recognition, or (c) if the same symbol is found on two or more boxes used at the same polling station, the returning officer, shall, wherever possible, decide the question by reference to all relevant circumstances including the distinguishing marks on the ballot box, and where he does not consider it possible to decide the question, he shall immediately refer it to the Election Commission for its decision. (56A) [Counting of votes].—(1) The ballot papers taken out of each ballot box shall be arranged in convenient bundles and scrutinised. (2) The returning officer shall reject a ballot paper— (a) if it bears any mark or writing by which the elector can be identified; or (b) if it is a spurious ballot paper; or (c) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established; or (d) if it bears a serial number, or is of a design, different from the serial numbers or, as the case may be, design, of the ballot papers authorised for use at the particular polling station; or (e) if it does not bear 3[both the mark and the signature] which it should have borne under the Page 21 of 95 C/WPPIL/36/2019 CAV ORDER provisions of sub-rule (1) of rule 38: Provided that where the returning officer is satisfied that any such defect as is mentioned in clause (d) or clause (e) has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect. (3) Before rejecting any ballot paper under sub- rule (2), the returning officer shall allow the counting agents present a reasonable opportunity to inspect the ballot paper but shall not allow them to handle it or any other ballot paper. (4) The returning officer shall record on every ballot paper which he rejects the letter ‘R’ and the grounds of rejection in abbreviated form either in his own hand or by means of a rubber stamp. (5) All ballot papers taken out of any one ballot box and rejected under this rule shall be made into a separate bundle. [(6) Every ballot paper which is not rejected under this rule shall be counted as one valid vote: Provided that no cover containing tendered ballot papers shall be opened and no such ballot paper shall be counted.] [(7) After the counting of all ballot papers contained in all the ballot boxes used at a polling station has been completed,— (a) the counting supervisor shall fill in and sign Part II—Result of Counting in 6[Form 16 which shall also be signed by the returning officer; and (b) the returning officer shall make the entries in a result sheet in Form 20 and announce the particulars.] [57A. Sealing of used ballot papers.—(1) The valid ballot papers found in each ballot box, shall thereafter be bundled together and kept along with the bundle of rejected ballot papers, if any found in that box in a separate packet which shall be sealed with the seals of the returning officer and of such of the candidates, their election agents or counting agents as may desire to affix their seals thereon and on the packet so sealed there shall be recorded the following particulars, namely:— (a) the name of the constituency, (b) the particulars of the polling station where the ballot papers have been used, Page 22 of 95 C/WPPIL/36/2019 CAV ORDER (c) the name of the candidate to whom the ballot box was allotted, and (d) the date of counting. (2) The returning officer shall then place together all the packets made up under sub-rule (1) in respect of each candidate in a separate container which shall be sealed with the seals of the returning officer and of such of the candidates, their election agents or their counting agents as may desire to affix their seals thereon and on the container so sealed shall be recorded the following particulars, namely:— (a) the name of the constituency, (b) the names of the candidates, and (c) the date of counting.]”. 59A. [Counting of votes in specified constituencies.—Where the Election Commission apprehends intimidation and victimisation of electors in any constituency and it is of the opinion that it is absolutely necessary that the ballot papers taken out of all boxes used in that constituency should be mixed before counting, it may, by notification in the Official Gazette, specify such constituency and for counting of such ballot papers, in lieu of rules 55, 56, 57 and 59, the following rules shall apply], namely:— ‘55B. Scrutiny and opening of ballot boxes.—(1) The returning officer shall open, or cause to be opened, simultaneously the ballot box or boxes used at more than one polling station and shall have the total number of ballot papers found in such box or boxes counted and recorded in Part II of Form 16: Provided that discrepancy, if any, between the total number of such ballot papers recorded as aforesaid and the total number of ballot papers shown against item No. 5 of Part I shall also be recorded in Part II of Form 16. (2) Before any ballot box is opened at a counting table, the counting agents present at that table shall be allowed to inspect the paper seal or such other seal as might have been affixed thereon and to satisfy themselves that it is intact. (3) The returning officer shall satisfy himself that none of the ballot boxes has in fact been tampered with. (4) If the returning officer is satisfied that any ballot box has in fact been tampered with, he shall not count the ballot papers contained in that box and shall follow the procedure laid down in section 58 in respect of that polling station. Page 23 of 95 C/WPPIL/36/2019 CAV ORDER (56B) Counting of votes.—(1) Subject to such general or special directions, if any, as may be given by the Election Commission in this behalf, the ballot papers taken out of all boxes 3[used at more than one polling station in a constituency,] shall be mixed together and then arranged in convenient bundles and scrutinised. (2) The returning officer shall reject a ballot paper— (a) if it bears any mark or writing by which the elector can be identified, or (b) if it bears no mark at all or, to indicate the vote, it bears a mark elsewhere than on or near the symbol of one of the candidates on the face of the ballot paper or, it bears a mark made otherwise than with the instrument supplied for the purpose, or (c) if votes are given on it in favour of more than one candidate, or (d) if the mark indicating the vote thereon is placed in such manner as to make it doubtful to which candidate the vote has been given, or (e) if it is a spurious ballot paper, or (f) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established, or (g) if it bears a serial number, or is of a design, different from the serial numbers, or, as the case may be, design, of the ballot papers authorised for use at the particular polling station, or (h) if it does not bear both the mark and the signature which it should have borne under the provisions of sub-rule (1) of rule 38: Provided that where the returning officer is satisfied that any such defect as is mentioned in clause (g) or clause (h) has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect: Provided further that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked. (3) Before rejecting any ballot paper under sub-rule (2), the returning officer shall allow each counting agent present a reasonable opportunity to inspect the ballot paper but shall not allow him to handle it or any other ballot paper. (4) The returning officer shall endorse on every ballot paper which he rejects the word “Rejected” and the Page 24 of 95 C/WPPIL/36/2019 CAV ORDER grounds of rejection in abbreviated form either in his own hand or by means of a rubber stamp and shall initial such endorsement. (5) All ballot papers rejected under this rule shall be bundled together. (6) Every ballot paper which is not rejected under this rule shall be counted as one valid vote: Provided that no cover containing tendered ballot shall be opened and no such paper shall be counted. (7) After the counting of all ballot papers contained in all the ballot boxes used in a constituency has been completed, the returning officer shall make the entries in a result sheet in From 20A and announce the particulars. Explanation.—For the purpose of this rule, the expression “constituency” shall, in relation to an election from a parliamentary constituency, mean the assembly constituency comprised therein. (57B) Sealing of used ballot papers.—The valid ballot papers of each candidate and the rejected ballot papers shall thereafter be bundled separately and the several bundles made up into a separate packet which shall be sealed with the seals of the returning officer and of such of the candidates, their election agents or counting agents as may desire to affix their seals thereon and on the packets so sealed shall be recorded the following particulars, namely:— (a) the name of the constituency; and (b) the date of counting.’ 60. Counting to be continuous.—The returning officer shall, as far as practicable proceed continuously with the counting and shall, during any intervals when the counting has to be suspended, keep the ballot papers, packets and all other papers relating to the election sealed with his own seal and the seals of such candidates or election agents as may desire to affix their seals and take sufficient precaution for their safe custody during such intervals. 61. Recommencement of counting after fresh poll. — (1) If a fresh poll is held under section 58, the returning officer shall, after completion of that poll, recommence the counting of votes on the date and at the time and place which have been fixed by him in that behalf and of which notice has been previously given to the candidates and their election agents. (2) The provisions of rules 56 and 57 shall apply so far as may be to such further counting. Page 25 of 95 C/WPPIL/36/2019 CAV ORDER [***] 63. Re-count of votes.— (1) After the completion of the counting, the returning officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the same. [(2) After such announcement has been made, a candidate or, in his absence, his election agent or any of his counting agents may apply in writing to the returning officer to re-count the votes either wholly or in part stating the grounds on which he demands such re-count.] (3) On such an application being made the returning officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable. (4) Every decision of the returning officer under sub- rule (3) shall be in writing and contain the reasons therefor. [(5) If the returning officer decides under sub-rule (3) to allow a re-count of the votes either wholly or in part, he shall— (a) do the re-counting in accordance with 2[rule 54A,] rule 56 or rule 56A, as the case may be; (b) amend the result sheet in Form 20 to the extent necessary after such re-count; and (c) announce the amendments so made by him.] (6) After the total number of votes polled by each candidate has been announced under sub-rule (1) or sub-rule (5), the returning officer shall complete and sign the result sheet in Form 20 and no application for a re-count shall be entertained thereafter: Provided that no step under this sub-rule shall be taken on the completion of the counting until the candidates and election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by sub-rule (2). [64. Declaration of result of election and return of election.—The returning officer shall, subject to the provisions of section 65 if and so far as they apply to any particular case, then— (a) declare in Form 21C or Form 21D, as may be appropriate, the candidate to whom the largest number of valid votes have been given, to be elected under section 66 and send signed copies thereof to the appropriate authority, the Election Commission and the chief electoral officer; and (b) complete and certify the return of election in Page 26 of 95 C/WPPIL/36/2019 CAV ORDER Form 21E, and send signed copies thereof to the Election Commission and the chief electoral officer.] 65. Counting at two or more places.—If ballot papers are counted at more places than one, the provisions of 1[rules 53, 54 and 55 to 60] shall apply to the counting at each such place, but the provisions of [rules 54A, 63 and 64] shall apply only to the counting at the last of such places. 66. Grant of certificate of election to returned candidate.—As soon as may be after a candidate has been declared by the returning officer under the provisions of section 53, or section 66, to be elected, the returning officer shall grant to such candidate a certificate of election in Form 22 and obtain from the candidate an acknowledgment of its receipt duly signed by him and immediately send the acknowledgment by registered post to the Secretary of the House of the People or, as the case may be, the Secretary of the Legislative Assembly. 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. (2) Before the votes recorded in any control unit of voting machine are counted under sub-rule (1), the candidate or his election agent or his counting agent present at the counting table shall be allowed to inspect the paper seal and such other vital seals as might have been affixed on the unit and to satisfy themselves that the seals are intact. (3) The returning officer shall satisfy himself that none of the voting machines has in fact been tampered with. Page 27 of 95 C/WPPIL/36/2019 CAV ORDER (4) If the returning officer is satisfied that any voting machine has in fact been tampered with he shall not count the votes recorded in that machine and shall follow the procedure laid down in section 58, or section 58A or section 64A, as may be applicable in respect of the polling station or stations where that machine was used. 56C Counting of votes.—(1) After the returning officer is satisfied that a voting machine has in fact not been tempered with, he shall have the votes recorded therein counted by pressing the appropriate button marked “Result” provided in the control unit whereby the total votes polled and votes polled by each candidate shall be displayed in respect of each such candidate on the display panel provided for the purpose in the unit. (2) As the votes polled by each candidate are displayed on the control unit, the returning officer shall have,— (a) the number of such votes recorded separately in respect of each candidate in Part II of Form 17C; (b) Part II of Form 17C completed in other respects and signed by the counting supervisor and also by the candidates or their election agents or their counting agents present; and (c) corresponding entries made in a result sheet in Form 20 and the particulars so entered in the result sheet announced. 57C Sealing of voting machines.—(1) After the result of voting recorded in a control unit has been ascertained candidate-wise and entered in Part II of Form 17C and Form 20 under rule 56C, the returning officer shall reseal the unit with his seal and the seals of such of the candidates or their election agents present who may desire to affix their seals thereon so however that the result of voting recorded in the unit is not obliterated and the unit retains the memory of such result. (2) The control unit so sealed shall be kept in specially prepared boxes on which the Page 28 of 95 C/WPPIL/36/2019 CAV ORDER returning officer shall record the following particulars, namely:— (a) the name of the constituency; (b) the particulars of polling station or stations where the control unit has been used; (c) serial number of the control unit; (d) date of poll; and (e) date of counting.” (ii) the provisions of rules 60 to 66 shall, so far as may be, apply in relation to voting by voting machines and any reference in those rules to,— (a) ballot paper shall be construed as including a reference to such voting machine; (b) any rule shall be construed as a reference to the corresponding rule in Chapter II of Part IV or, as the case may be, to rule 55C or 56C or 57C]. 94. Disposal of election papers.—Subject to any direction to the contrary given by the Election Commission or by a competent court or tribunal— (a) the packets of unused ballot papers shall be retained for a period of six months and shall thereafter be destroyed in such manner as the Election Commission may direct;] [(aa) the voting machines kept in the custody of the district election officer under sub-rule (1A) of rule 92 shall be retained intact for such period as the Election Commission may direct and shall not be used at any subsequent election without the previous approval of the Election Commission;]” 6. At the outset, let us appreciate the issue that was raised before the Apex Court in the case of Dr. Subramanian Swamy (supra). In the said case, the appeal was directed against a judgement and order dated 17.01.2012 passed by the Division Bench of the High Court of Delhi. The Delhi High Court disposed of the petition disallowing the prayer of the appellant, for issuing a writ of mandamus to the Election Commission of India to incorporate the system of paper trails in the EVMs. After the contentions which were raised by the Page 29 of 95 C/WPPIL/36/2019 CAV ORDER learned advocate appearing on behalf of the petitioner therein, the Apex Court, after charting out the course of history that had gone into the introduction of the VVPATs and the EVMs held as under: “30. In the light of the above discussion and taking notice of the pragmatic and reasonable approach of the ECI and considering the fact that in general elections all over India, the ECI has to handle one million (ten lakhs) polling booths, we permit the ECI to introduce the same in gradual stages or geographical-wise in the ensuing general elections. The area, State or actual booth(s) are to be decided by the ECI and the ECI is free to implement the same in a phased manner. We appreciate the efforts and good gesture made by the ECI in introducing the same.” 6.1 Reading of the aforesaid judgment would indicate that looking to the fact that the general elections in India are a large scale exercise, the Apex Court permitted the Election Commission of India to introduce VVPATs in gradual stages or geographical wise in the ensuing general elections. The Apex Court further observed that the area, the State or the actual booths are to be decided by the Election Commission of India and that the Election Commission of India is free to implement the same in a phased manner. The Apex Court, for such implementation in a phased manner, directed the Government of India to give the required financial assistance. In other words, pursuant to the directions given by the Apex Court in the case of Dr. Subramanian Swamy (supra), the Election Commission of India has sought to introduce Voter Verifiable Paper Trails in the general elections held in the country. Page 30 of 95 C/WPPIL/36/2019 CAV ORDER 7. We have extensively reproduced, the relevant prayers and the contentions of the Party in Person in context of the prayer to challenge and declare Rule 56(D)(2) of the Conduct of Election Rules,1961 as ultra vires Article 14, 19 and 21 of the Constitution Of India. The apprehension voiced is insofar as it vests discretion in the Returning Officer to reject an application made under Rule 56(D)(2) for counting of the printed paper slips in the drop box of the Printer. Such discretion appears to be based on a concern that the discretion will be used by the Returning Officer in not entertaining an application for recount at all. 8. We would have expected the Party-In-Person- who in fact is a practicing lawyer of this Court and not an ordinary uninformed litigant acting at the instructions and briefs of his advocate, to have taken us through the Status Paper to demonstrate the justification of the apprehension of the discretion under Rule 56(D)(2) being capable of being abused. We are afraid that except reiterating the submissions from the pleadings and reading out the provisions of the Representation Of People Act, 1951, the paper was not read though it was part of the letter, annexed to the petition and therefore can be safely presumed to be part of the record. 9. We have therefore undertaken the task of reading the paper and from the contents which we extensively reproduce hereinafter, we are assured that the firm conviction about the integrity and non-tamperability and credibility of the EVMs and the confidence in the robustness of the procedural safeguards as voiced in the communication dated 10.01.2019 by the Election Commission Of India, make the decision- Page 31 of 95 C/WPPIL/36/2019 CAV ORDER making process of the Returning Officer and the discretion so vested in him, under Rule 56(D)(2) beyond reproach. 10. It has to be borne in mind that the foundation and the basis of the allegation is a lurking fear repeatedly voiced and demonstrated by the Election Commission Of India that the EVMs are tamperproof. From what we will reproduce hereinafter, the material which was available to the petitioner, a practicing lawyer, as is evident from the communication dated 10.01.2019 addressed to him, a reference has been made to the Commission’s ‘Status Paper on EVM/ VVPAT’ which has comprehensively addressed and cleared all doubts and queries regarding the credibility of EVMs used by the Election Commission of India. The letter unequivocally states that the Commission has firm conviction about the integrity, non-tamperability and credibility of the EVMs and is confident of its robustness and reliability in view of its technical security features,comprehensive administrative protocols and robust procedural safeguards that protect the EVMs and VVPATs against any sort of manipulation at any stage,before,during or after the polls including manufacture, transportation, storage, polling and counting process. (emphasis supplied). 10.1 Once an autonomous constitutional authority like the Election Commission Of India, which has till date, fulfilled the avowed object of conducting free and fair elections in the largest democracy of the world makes such a statement, in its letter addressed to the petitioner assuring the robustness of Page 32 of 95 C/WPPIL/36/2019 CAV ORDER the procedural safeguards, this Court shall be loath to sit in judgement over the assurance of a constitutional authority like the Election Commission Of India and show the zealousness to overstep its jurisdiction vested in it under Article 226 of the Constitution Of India, on mere uncharted reservations and apprehensions voiced by the petitioner. 11. It would also be fruitful to reproduce the information about introduction, present status and the conclusion about EVMs/VVPATs as per the aforesaid Commission’s ‘Status Paper on EVM/VVPAT’ for ready reference and which has been requested by the Election Commission of India to be referred in the communication dated 10.01.2019 addressed to the petitioner. This will also help us to trace the EVMs/VVPATs’ journey into the election process of this country through the Status Paper. “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 Page 33 of 95 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. The Commission has successfully used EVMs in conducting 113 General Elections to the State Legislative Assemblies and 3 Lok Sabha Elections over the last 23 years. The List of States, along with the years in which 100% EVMs were used in the Assembly Elections is placed at ANNEXURE - 1. 55.41 crore (554 million) voters exercised their franchise in 2014 Lok Sabha elections using EVMs. Since the very inception of the EVMs in 1982, as a positive electoral reform on the electoral scene in India, blames and aspersions have been cast on the EVMs from various quarters including political. Recently, after the announcement of the results of the five State Assembly Elections in March 2017, again certain allegations have been levelled against the EVMs. A group of thirteen political parties met the Commission on 10 April 2017 and expressed certain reservations about the use of EVMs. It needs to be emphasized that the wide range of technical security, administrative protocols and procedural safeguards mandated by the Commission robustly ensures the integrity, non-tamperability and credibility of the EVMs. The stringent procedures and well-defined poll processes prescribed by the Commission protect the EVMs against any sort of manipulation. It is also significant to highlight that the Commission is committed to the 100% coverage of VVPATs in all future elections to the Parliament and State Assembly Elections. The requisite funds for the procurement of adequate number of VVPATs and latest generation (M3) EVMs have been sanctioned by the Government and machines are expected to be manufactured and delivered by BEL and ECIL to the ECI by November 2018 as committed by the manufacturers. At the present juncture, when EVMs are once again encumbered with yet another debate on its efficacy and robustness, it is imperative to hold consultations with stakeholders. Page 34 of 95 C/WPPIL/36/2019 CAV ORDER VOTER VERIFIABLE PAPER AUDIT TRAIL (VVPAT) In a meeting of all political parties held on 4th October, 2010, the parties expressed satisfaction with the EVM but some parties requested the Commission to consider introducing Voter Verifiable Paper Audit Trail for further transparency and verifiability inpollprocess.InIndia,thedemandofVVPATtoincrease transparency was floating in the air for some time after such a tool was first demonstrated in New York City in March 2001 and first used in Sacramento, California in 2002. The demand was referred to the Technical Expert Committee (TEC) by the ECI. Introduction of VVPAT implied that a paper slip is generated bearing name and symbol of the candidate along with recording of vote in Control Unit, so that in case of any dispute, paper slip could be counted to verify the result being shown on the EVM. Under VVPAT, a printer is attached to the balloting Unit and kept in the voting compartment. The paper slip remains visible on VVPAT for 07 seconds through a transparent window. The Commission referred the matter to its Technical Expert Committee (TEC) on EVMs for examining and making a recommendation in this regard. The Expert Committee had several rounds of meetings with the manufacturers of EVM, namely, BEL & ECIL, on this issue and then had met the political parties and other civil society members to explore the design requirement of the VVPAT system with the EVM. On the direction of the Expert Committee, the BEL and ECIL made a prototype and demonstrated before the Committee and the Commission in 2011. On the recommendation of the Expert Committee on EVM & VVPAT system, the Commission conducted simulated election for the field trial of VVPAT system in Ladakh (Jammu & Kashmir), Thiruvananthapuram (Kerala), Cherrapunjee (Meghalaya), East Delhi District (NCT of Delhi) and Jaisalmer (Rajasthan) in July 2011. All stake holders including senior leaders of political parties and civil society members participated and witnessed enthusiastically in the field trial. After 1st field trial of the VVPAT system, Commission made a detailed reassessment of the VVPAT system to further fine tune the VVPAT system. Accordingly, the manufacturers developed 2nd version of VVPAT prototype. The same was again subjected to 2nd field trial in the said five locations in July- August 2012. In the meeting of the Technical Expert Committee held on 19th February, 2013, the Committee approved the Page 35 of 95 C/WPPIL/36/2019 CAV ORDER design of VVPAT and also recommended the Commission to take action on amendment of the rules for using VVPAT. The model was demonstrated to all the political parties in an all-party meeting on 10th May, 2013. The Government of India notified the amended Conduct of Elections Rules, 1961 on 14th August, 2013, enabling the Commission to use VVPAT with EVMs. On 4th September, 2013, the Commission used VVPAT with EVMs first time in bye-election from 51-Noksen (ST) Assembly Constituency of Nagaland. On 8th October, 2013, the Hon’ble Supreme Court ordered introduction of VVPAT in phases in its judgment on a PIL and asked Government to sanction funds for procurement. As directed by the Hon’ble Supreme Court of India, the ECI introduced the VVPAT system in a phased manner so that full implementation could be achieved by 2019. In 2013, the ECI procured 20000 VVPATs. On 25th November, 2013, VVPATs were used in 10 ACs in Mizoram; on 4th December 2013, it was used in one AC in Delhi; and thereafter in subsequent elections. The following table gives us the journey of VVPAT in India at a glance: Date Chronology of Events 4th Oct 2010 An all-party meeting held. Agreement on incorporation of VVPATs along with EVMs. 07/01/11 Field trial conducted after the prototype was manufactured, in Thiruvananthapuram (Kerala), Delhi, Cherapunjee (Meghalaya), Jaisalmer (Rajasthan) and Leh (Jammu & Kashmir). July-Aug 2012 A second field trial was conducted 19th Feb 2013 Final model was approved by TEC 10th May 2013 The Model was demonstrated to all political parties 14th Aug 2013 The conduct of Election Rules 1961 was amended and notified Date Chronology of Events 8th Oct 2013 Hon’ble Supreme Court directed ECI to introduce the VVPAT system in a phased manner. full implementation to Page 36 of 95 C/WPPIL/36/2019 CAV ORDER be achieved by 2019 25th Nov 2013 VVPATS were used in 10 ACs of Mizoram 4th Dec 2013 VVPAT was used in one AC in Delhi and thereafter in subsequent elections Feb-Mar 2017 52000 VVPATs were used in 33 ACs in Punjab, 6 ACs in Mani- pur, 3 ACs in Uttarakhand, 30 ACs in Uttar Pradesh and 40 ACs in Goa 04/01/17 Approval of Government received for purchase of 16, 15,000 VVPATs at a total estimated cost of Rs.3173.47 Crores**. ** Cost of 16,15,000 VVPATs reduced to Rs. 2616.30 Cr. After fixation of price by the Price Negotiation Committee. 12th May 2017 All Political Parties Meeting held. The Commission decided to use 100% VVPATs at every polling station in all future elections to Parliamentary and Assembly constituencies. 19th Sept., 2017 The Commission directed to use 100% VVPATs at every polling station was formally communicated to all Chief Electoral Officers to ensure compliance. 11th Oct, 2017 The Commission decoded to conduct mandatory verification of VVPAT slips of randomly selected 01 Polling Station per AC. Subsequently, mandatory verification of VVPAT slips has been further extended to 01 randomly selected Polling Station of each Assembly segment of Parliamentary Constituency also. So, far, VVPATs have been used in 933 Assembly Constituencies and 18 Parliamentary Constituencies. Till date, VVPAT slip verification has been undertaken for 792 polling stations and in all the cases, the results tallied with the electronic result in the CU. Present Status: Hon’ble Supreme Court in its order dated 8 Oct 2013 Page 37 of 95 C/WPPIL/36/2019 CAV ORDER has observed that EVMs with VVPAT system ensures the accuracy of the voting system. With an intent to have fullest transparency in the system and to restore the confidence of the voters, it is necessary to set up EVMs with VVPAT systems because vote is nothing but an act of expression which has immense importance in democratic system. The apex court appreciated the efforts and good gesture made by the ECI in introducing VVPATs and permitted the ECI to introduce the same in a gradual stages or geographical wise in the ensuing general elections. The Court also directed the Government of India to provide required financial assistance for the procurement of units of VVPATs for the implementation of VVPAT system in a phased manner. Amidst the ongoing debate on the EVM, the ECI not only reaffirmed its faith on the transparency, credibility, non-tamperability and robustness of the machines, but also stressed on the immediate deployment of VVPATs for safeguarding the integrity of the voting system as well as strengthening confidence of the voters. In order to ensure the compliance of Hon’ble Supreme Court order The Chief Election Commissioner of India vigorously pursued the allocation of funds to the manufacturers for the timely manufacture and supply of required quantity of VVPATs to the ECI for ensuring 100% VVPAT coverage at all polling stations. The Election Commission also vigorously reviewed the production capacity of the manufacturers impressing upon them the need to strictly adhere to the schedule by enhancing their manufacturing capacity. Based on Commission’s continuous follow up the funds have since been allocated on 19April2017 amounting to Rs.2616.30 crore for purchase of 16,15,000VVPATs and orders have been issued to the manufacturers. It is pertinent to mention that Rs 1939.95 crore has been sanctioned and released by the Government for the manufacture of M3 EVMs. The manufacturers have committed to manufacture the EVMs and VVPATs and supply to ECI by Sep 2018. The Commission is committed to using VVPAT machines along with EVMs in all future elections to be conducted under its superintendence and direction for the Parliament and State Legislative Assemblies. In the All Political Parties Meeting held on 12th May, 2017, the Commission decided to use 100% VVPATs in all future elections. The above decision of the Commission was formally communicated to Chief Electoral Officers of all States and Union Territories on Page 38 of 95 C/WPPIL/36/2019 CAV ORDER 19th September, 2017. The Commission mandated verificationofVVPATpaper slips of randomly selected 01 polling station in addition to the provisions of Rule 56D of the Conduct of Elections Rules, 1961, as under: (a) In case of General and Bye-elections to State Legislative Assemblies, verification of VVPAT paper slips of randomly selected 01 polling station per Assembly Constituency. (b) In case of General and Bye-elections to the House of the People, verification of VVPAT paper slips of randomly selected 01 polling station of each Assembly Segment of the Parliamentary Constituency concerned. Mandatory verification of VVPAT paper slips has been conducted so far in 792 polling stations and no discrepancy was found in electronic result and paper count. Conclusion: As is evident, the EVM used in Indian elections have gone through a long journey of evolution amidst challenges and has emerged as an effective machine of electoral reform over the years since its introduction. It has enhanced public confidence as well as legitimacy of Indian elections in the eyes of the world. The Indian EVM stands as one of the most credible, non-tamperable and transparent machine amongst all such machines used in other parts of the world. Indian EVMs have attracted the attention of many Afro-Asian countries also. Till date, no one could actually demonstrate that EVMs in possession of ECI and used by it, can be tampered with or manipulated. What has been demonstrated or claimed to have been demonstrated is on a privately assembled “look-alike of ECI-EVMs” and not the actual ECI-EVM used by ECI. Recently, on an allegation of EVMs yielding votes for only one political party in Bhind (Madhya Pradesh) and Dholpur (Rajasthan), the ECI promptly conducted an enquiry which found out that such allegations were found to be baseless. Today,the ECI once again completely reaffirms its faith in the non-tamperability of the EVMs of ECI in view of the technical security features and the stringent administrative protocols and procedural safeguards which are mandatorily to be followed during and after the polls. In conclusion, it will be pertinent to refer to the verdict of the Karnataka High Court in this Page 39 of 95 C/WPPIL/36/2019 CAV ORDER respect, which observed that EVM in India is a “national pride” and the fact that Indian elections are widely internationally acknowledged as the “Global Gold Standard”. The Commission and electoral system stakeholders have taken a conscious decision that EVM is the right answer to the formidable task of election management and the huge logistical challenges it throws. The ECI hopes that once the VVPATs cover all the polling booths in the country, the confidence and transparency will be further enhanced. The Commission firmly believes thatthe introduction of VVPAT machines with the EVMs in all future elections will bring utmost transparency and credibility in the EVM-based voting system in our country and conclusively put to rest all misinformed doubts and misgivings regarding these machines. The Commission will launch a comprehensive, concerted and nation- wide voter education and awareness programme under its flagship SVEEP initiative, to educate, orient and inform the voters about the functioning, usage and advantages of the VVPAT machines and their immense utility in reinforcing the transparency, credibility and authenticity if the voting process. The Commission earnestly solicits the cooperation and collaboration of all the vital stakeholders, particularly the political parties, to join hands in spreading awareness about the advantages of VVPAT machines. The Commission is confident that the collaborative efforts of all the stakeholders in the electoral process will lead to continuous improvements in the electoral management and make our system more transparent, participative, informed and credible. The Commission firmly believes in an open, constructive and comprehensive dialogue with all crucial stakeholders in the electoral process and the political parties are a critical stakeholder of the democratic edifice in the country. Considering the recent issues regarding use of EVMs, the Commission convened an All Party Meeting on 12th May 2017. The objective behind the said meeting was to facilitate threadbare discussions and detailed deliberations amongst the important players in the electoral arena on this vital issue, so that all views and counter-views were placed on the table and thrashed out transparently and cogently. In All Political Parties Meeting the Commission assured 100% coverage of VVPATs in all future election to the Parliament and State Assembly Elections. In the said Page 40 of 95 C/WPPIL/36/2019 CAV ORDER meeting the representatives of political parties were informed that the Commission would hold a challenge and offered opportunity to political parties to demonstrate that EVMs used in the recently concluded Assemblies elections were tampered OR that EVMs could be tampered even under the laid down Technical and Administrative Safeguards. Subsequently, 20th May 2017, the Commission announced the EVM Challenge and sent invitation to all National and State Recognized Political Parties to participate in the Challenge from 3rd June 2017 onwards. Only two Political Parties, namely NCP and CPI(M) submitted their interest in participating the EVM Challenge. However, they did not participate in the Challenge but only expressed their interest in understanding the EVM process. They interacted extensively with TEC of the Commission to clear their doubts. The EVM Challenge concluded on 3rd July 2017. Since 12th May 2017, every election to the Parliament and State Assembly Elections has been conducted using VVPAT with EVM and the Commission is committed to 100% deployment of VVPATs in all future elections to Parliament and State Legislative Assemblies. The Commission requests all citizens and stakeholders to remain aware, vigilant and alert about our electoral processes and facilitate the Commission in discharging its Constitutional mandate of conducting free and fair elections in the country.” [Emphasis Supplied] 12. In fact the Election Commission of India has also published a Manual (3rd Edition) on EVMs and VVPATs in view of the 100% use of VVPATs with EVMs and to familiarize the readers with the genesis of the EVM, Process of its development, Procurement, Storage and Legal provisions. It also contains all important instructions on use of EVM and VVPAT making it a useful handbook on the subject for the electoral machinery handling the EVM, and VVPAT. The relevant portions of the said manual are reproduced hereunder. Page 41 of 95 C/WPPIL/36/2019 CAV ORDER “169. Power to make rules. — (1) The Central Government may, after consulting the Election Commission, by notification in the Official Gazette, make rules for carrying out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: — [(a) the form of affidavit under sub-section (2) of section 33A;] [(aa)] the duties of presiding officers and polling officers at polling stations; [(aaa) the form of contribution report;] (b) the checking of voters by reference to the electoral roll; [(bb) the manner of allocation of equitable sharing of time on the cable television network and other electronic media;]; (c) the manner in which votes are to be given both generally and in the case of illiterate voters or voters under physical or other disability ; (d) the manner in which votes are to be given by a presiding officer, polling officer, polling agent or any other person, who being an elector for a constituency is authorised or appointed for duty at a polling station at which he is not entitled to vote; (e) the procedure to be followed in respect of the tender of vote by a person representing himself to be an elector after another person has voted as such elector; [(ee) the manner of giving and recording of votes by means of voting machines and the procedure as to voting to be followed at polling stations where such machines are used;] (f) the procedure as to voting to be followed at elections held in accordance with the system of proportional representation by means of the single transferable vote; (g) the scrutiny and counting of votes including cases in which a recount of the votes may be made before the declaration of the result of the election; 12 [(gg) the procedure as to counting of votes recorded by means of voting machines;] (h) the safe custody of 3[ballot boxes, voting machines], ballot papers and other election papers, the period for which such papers shall be preserved and the inspection and production of such papers; Page 42 of 95 C/WPPIL/36/2019 CAV ORDER [(hh) the material to be supplied by the Government to the candidates of recognised political parties at any election to be held for the purposes of constituting the House of the People or the Legislative Assembly of a State;] (i) any other matter required to be prescribed by this Act. [(3) Every rule made under this Act shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or [in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made,] the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.]. 2. Under rule 94(aa) of the Conduct of Elections Rules 1961, the guidelines of the Commission on retention period of the EVMs after using in election and for using the same in the subsequent elections, are as under: A. Every Voting Machine (EVM) and VVPATs used in an election and kept in the custody of the District Election Officer shall be kept untouched, under the standard protocol of security, till confirmation of Election petition position from the High Court concerned after the completion of the period for filing Election Petition i.e. 45 days from the date of declaration of the result. B. In the case of elections, where no election petition has been filed or no other court cases are pending, afterthe aforesaid period,the EVMs may be allowed to be used by the Election Commission for any future election or any other purpose like movement, physical verification of EVMs and VVPATs, etc. C. In case of any election where election petition has been filed, the following action shall be taken:- i) If the EVMs are the subject of the election petition, the EVMs used at all Polling Stations in the constituency concerned shall continue to be kept in the safe custody of the District Election Officer, till such time the Election Petition is finally disposed of by the Courts. ii) If the EVMs are not the subject of the election Page 43 of 95 C/WPPIL/36/2019 CAV ORDER petition, an application may be moved to the concerned Court for allowing the EVMs concerned to be taken out of the strong room for any future election or any other purpose like movement, physical verification of EVMs etc. 35 iii) In case EVMs not involved in any Election Petition/Court Case are stored with the EVMs involved in Election Petition/Court Case, the following procedure shall be followed for segregating the EVMs not involved in any election petition/court case form the EVMs involved in EP/Court case:- a) A Notice informing the opening of Strong Room having EVMsinvolved in EP/Court Case shall be given to the petitioners/respondents of the EP/Court Case and the representatives of all political partiesin writing at least 72 hours in advance, requesting them to remain present at the time of opening of strong room. b) The strong room shall be opened in the presence of the District Election Officer, Petitioners/respondents of the EP/Court case and representatives of Political Parties. c) The EVMs not involved in any EP/Court Case shall be segregated from the EVMs involved in EP/Court Case for taking out of the strong room. A list of EVMs being so taken out from the strong room shall be prepared. d) The EVMs, which are not involved in any EP/Court Case, should alone be taken out of the Strong room. e) The entire process shall be videographed. f) A copy of the list of EVMs being taken out from the strong room and copy of videography shall be given to the petitioner/respondent of the EP/court case and acknowledgement taken. D. If any other Court Case is pending, like, booth capturing, etc., in which any EVM is involved, the EVM concerned or the EVM(s) used at such Polling Station(s) concerned may also be kept till the final disposal of the said case. After the final disposal of the election petitions or other court cases, as the case may be, referred to above, the EVMs can be used for subsequent elections. 16.5. APPLICATION FOR VVPAT PAPER SLIPS COUNTING After announcement of result sheet entries, any candidate, their election agent or their counting agents may apply in writing to the RO to count the printed VVPAT paper slips in any or all polling stations. If such Page 44 of 95 C/WPPIL/36/2019 CAV ORDER application is made, the RO shall pass a speaking order on whether the VVPAT paper slips should be counted. If the RO decides to allow the counting of the VVPAT paper slips of any or all polling stations, such decision of the RO must be recorded in writing along with the reasons thereof. The RO shall give due consideration to the following: Whether the total number of votes polled in that polling station is greater or lesser than the margin of votes between winning candidate and candidate making the application Whether EVM had a problem and was replaced at that polling station during poll Whether there was any complaint about VVPAT not printing or 76 complaints by any voter under Rule 49MA in that polling station during the poll. 16.6. MANDATORY VERIFICATION OF VVPAT PAPER SLIPS: Mandatory verification of VVPAT paper slips of randomly selected 01 (one) polling station shall be conducted in all future General and Bye Elections to the House of the People and State Legislative Assemblies, in addition to the provisions of Rule 56D of the Conduct of Elections Rules, 1961, after the completion of the last round of counting of votes recorded in the EVMs, as under: a) In case of General and Bye elections to State Legislative Assemblies, verification of VVPAT paperslips ofrandomly selected 01 (one) polling station per Assembly Constituency. b) In case of General and Bye elections to the House of the People, verification of VVPAT paperslips ofrandomly selected 01 (one) polling station of each Assembly Segment of the Parliamentary Constituency concerned. For this mandatory verification of VVPAT paper slips, the following procedure shall be followed: 16.6.1. The verification of VVPAT paper slips of randomly selected 01 (one) polling station for each Assembly Constituency/Segment shall be taken up after the completion of the last round of counting of votes recorded in the EVMs. 16.6.2. The random selection of 01 (one) polling station per Assembly Constituency/Segmentshall be done by Draw of lots, by the Returning Officer concerned, in the presence of candidates/their agents and the GeneralObserver appointed by the Commission forthat Constituency. 16.6.3. The draw of lots must be conducted immediately Page 45 of 95 C/WPPIL/36/2019 CAV ORDER afterthe completion of the last round of counting of votes recorded in the EVMs (Control Units) in the designated Counting Hall for the particular Assembly Constituency/Assembly Segment. 16.6.4. A written intimation regarding the conduct of draw of lots for the random selection of 01 (one) polling station for verification of VVPAT Slips shall be given by the Returning Officer to the Candidates/their election agents well in advance. 16.6.5. The following procedure shall be followed for the conduct of draw of lots: a) White colour paper cards of postcard size shall be used for conducting the draw of lots. b) Total number of such paper cards should be equal to total number of polling stations in the Assembly Constituency. c) The paper cards shall have pre-printed Assembly Constituency/ Assembly Segment number, AC/AS name and date of polling on the top, and the polling station number in the centre. Each digit of the polling station number shall be atleast 1\" x 1\"(1 inch by 1 inch) size and printed in black ink. d) The paper cards to be used for draw of lots should be four-folded in such a way that polling station number is not visible. e) Each paper card shall be shown to the candidates/their agents before folding and dropping in the container. f) The paper cardsshall be kept in the big container and must be shaken before picking up 01 (one) slip by the Returning Officer. 16.6.6. The verification of VVPAT paperslipsshall be done in a 'VVPAT Counting Booth' (VCB), specially prepared for this purpose inside the Counting Hall. The booth shall be enclosed in a wire mesh just like a bank cashier’s cabin so that no VVPAT paper slip can be accessed by any unauthorized person. One of the Counting tables in the Counting Hall can be converted into the VCB and can be used for normal counting of round-wise EVM votes before the count of VVPAT slips as per random selection after the completion of round- wise EVM counting. 16.6.7. The Verification count of the VVPAT paper slips of the randomly selected 01 (one) polling station shall be conducted strictly in accordance with the instructions of the Commission on counting of printed paper slips. 16.6.8. The Returning Officer and Assistant Returning Officer, asthe case may be, shall personally supervise Page 46 of 95 C/WPPIL/36/2019 CAV ORDER the counting of VVPAT paper slips at this booth. The General Observer concerned shall ensure close and careful observation ofthe entire exercise and ensure strict compliance of the Commission's instructions. 16.6.9. The above process shall be fully videographed. 16.6.10. After completion of the above process, the Returning Officer shall give a certificate in the annexed format(Annexure-30). 16.7. ARRANGEMENTS FOR COUNTING OF VVPAT PAPER SLIPS: One ofthe Counting Tablesinside the CountingHallshall be earmarked by the Returning Officer as VVPAT Counting Booth (VCB) for Counting of VVPAT Paper Slips. VCB shall be enclosed in a wire-mesh just like a Bank Cashier Cabin, so that no VVPAT paper slip can be accessed by any unauthorised person. 16.8. PROCEDURE TO COUNT VVPAT PAPER SLIPS: If the RO decides to count the printed paper slips of any polling station(s) on an appeal for recounting of any polling station(s), the following procedures shall be strictly followed: Step-1: a) For keeping VVPAT Paper Slips taken out from the Drop Box of the VVPAT, a sufficiently sized container with lid, of dimensions 14 inch X 10 inch X 5 inch (length x breadth x height), to easily accommodate around 1400 Printed Paper Slips,shall be kept on the table of VCB. This Container should be made of sturdy transparent material like plastic etc. Sample images of the Container are available in Annexure-27. b) For keeping VVPAT paper slips of the respective candidates, a Pigeonhole Framework shall be prepared in advance according to the number of candidatesincludingNOTA, with one additional pigeonhole for keeping self-test slips of the VVPAT, and shall be kept on the table of VCB. i) The minimum number of Pigeonholes in the Framework must be equal to the number of candidates plus 2 (two). ii) The size of each compartment (Pigeonhole) must be atleast 6 inch X 4 inch X 4 inch (length x breadth x height). iii) The pigeonhole structure should be made of sturdy transparent material like plastic etc, having a fixed Page 47 of 95 C/WPPIL/36/2019 CAV ORDER base, to prevent any VVPAT paper slip from slipping underneath. iv) The symbolof eachcontesting candidate aspertheBallot Papershould be affixed on the wall of the pigeonhole allotted to the particular candidates. The symbol should be printed in black and white on a plain paper of minimum size 4inch X 3 inch. Sample images of the Pigeonhole Framework are placed in Annexure- 27. c) At least 100 Rubber bands for making bundles of 25 VVPAT paper slips. Step-2: The VVPAT unit(s) of the respective polling station(s) should be brought to the VCB one by one, as the case may be. In case a VVPAT unit was replaced during poll at that polling station, all the VVPAT units used at that polling station should be brought to the VCB. Step-3: The printed paper slips shall be taken out from all the VVPATs used at the polling station, before beginning the counting of VVPAT paper slips for that polling station. Before taking out the VVPAT Paper Slips from the drop box, the address tag(s) of the drop box shall be crosschecked to ascertain that the VVPAT pertains to the respective polling station. a) The VVPAT Paper Slipstaken out from the Drop Box of the VVPAT shall be first kept in the container as per specification at step-1 (i). b) After taking out the VVPAT paper slips from Drop Box, the Counting Supervisor shall ensure that no VVPAT paper slip is left inside the VVPAT drop box and show the empty drop box to the counting agents. c) In case a VVPAT unit was replaced, it may so happen that an uncut fully or partially VVPAT paper slip is hanging and has not got cut and dropped in the drop box and still connected to the paper roll. This uncut VVPAT paperslip should not be torn and should not be counted because the vote is not recorded electronically in the CU unless the VVPAT paper slip is cut. In such an event, the last voter whose VVPAT paper slip was not cut would have been given an opportunity to cast his vote after replacement of VVPAT and the VVPAT paper slip of the vote cast by him shall be in the next VVPAT used in that polling station. d) The drop box of the VVPAT will also have VVPAT Page 48 of 95 C/WPPIL/36/2019 CAV ORDER slips of self-test report. These are easily identified, as they do not have either the name or the symbol of any candidate. These self-test report slips are to be preserved along with the VVPAT paperslips as part of the record but they are not to be counted. Step-4: i) The VVPAT paper slips should be segregated one-by- one and put in respective pigeon holes after showing each slip to the Counting Agents. The paper slips bearing self-tests report shall also be segregated and put in a separate pigeonhole provided for the purpose. ii) Bundles of 25VVPAT paper slips of respective candidates shall be prepared for counting purpose. iii) VVPAT Paper Slips shall then be counted by the counting staff. iv) Result oftheVVPAT paperslips countshall be prepared in the format as per Annexure-28and attached to Part-II of Form 17-C(Annexure-29). v) The result of the count of VVPAT paperslipsshall be announced loudly in the counting hall and shown to the counting agents. vi) As per Rule 56D (4) (b) of the Conduct of Elections Rules 1961, if there is any discrepancy between EVM count and paper slip count, the paper slip count shall prevail. Hence, if there is discrepancy between the count of votes displayed on the Control Unit and the count of printed-paper slips in respect of that Polling Station, the result sheet will be amended as per the printed-paper slips count. Step-5: After completion of counting of VVPAT paper slips, the bundles of all the VVPAT Paper Slips shall be kept back in the Drop Box of the respective VVPAT and door of the Drop Box shall be sealed using address tags. The candidate(s)/their agents may also be allowed to affix their signature with party abbreviation on the Address Tags. 16.9. Sealing of EVMs after counting of votes After completion of counting, all such Control Units whether result has been retrieved from it or not, the Control Unit should be kept back inside 81 its carrying case. The carrying cases should then be sealed once again. The Returning Officer and Observer should put their signatures on the seal. All candidates and their election agents should also be allowed to put their signature on the seal. The Control Unit should be then Page 49 of 95 C/WPPIL/36/2019 CAV ORDER kept in the strong room(s). 16.10. STORAGE of EVMs & VVPATs after counting of votes: After completion of counting of votes, EVMs and VVPATs containing printed paper slips in its Drop box, shall be kept in the same strong room without removing Power Packs of Control Units and Power Packs and Paper Rolls of VVPATs. The Strong room shall not be opened till completion of Election Petition (EP) period i.e. till EP list is received from respective High Court. After completion of Election Petition Period, the exact EP position should be ascertained from High Court concerned before opening the strong room. 16.11. STORAGE OF VVPAT PAPER SLIPS AFTER EXPIRY OF PERIOD OF FILING OF ELECTION PETITIONS: After expiry of the period of filing of Election Petitions(EPs) i.e. 45-daysfrom the date of declaration of result, District Election Officers shall ascertain the position of EP from the concerned High Court. After obtaining the status of EP from the High Court concerned, the following action shall be taken: Every VVPAT used in an election and kept in the custody of the District Election Officershall be kept untouched, under the standard protocol ofsecurity, till confirmation of Election petition position from the High Court concerned after the completion of the period for filing Election Petition i.e. 45 days from the date of declaration of the result. In the case of elections, where no election petition has been filed or no other court cases are pending, after the aforesaid period, the VVPATs shall be available for use in any future election or any other purpose like training, awareness, movement, physical verification etc. Before moving any VVPAT, printed paper slips shall be taken out from Drop-box of the VVPATs as per procedure mentioned below: 82 A Notice informing the opening of Strong Room having VVPATs shall be given to the representatives of all political parties in writing at least 48 hours in advance, requesting them to remain present at the time of opening of strong room. The strong room shall be opened in the presence of the District Election Officer and representatives of Political Parties. Page 50 of 95 C/WPPIL/36/2019 CAV ORDER Remove the Power Packs of Control Units and Power Packs and Paper Rolls of VVPATs. The VVPAT paper slips shall be taken out from the Drop Box of VVPAT and kept in a paper envelope made of thick black paper, sealed using red wax under the seal of DEO. Name of election, number and name of assembly constituency, particulars of polling station, unique serial number of the VVPAT unit, date of poll and date of counting shall be mentioned on the envelope containing printed paper slips. The envelopes containing VVPAT paper slips shall be kept with all other statutory documents relating to that election till the statutory time limit. Thorough  checking of officials deputed for the removal of VVPAT paper slips and their sealing must be ensured. All pockets need to be emptied before entering the Sealing Room/Strong Room and thorough checking of officials leaving the sealing room should be done in addition to DFMD/Metal Detector Checking. Once the VVPAT paper slips have been taken out, the VVPATs must be kept in their separate designated warehouse. VVPAT should not be kept in the same warehouse where EVMs are stored. To ensure there is no deliberate attempt to remove any paperslips from sealing room/strong room, the entire process should be conducted under high quality CCTV recording/videography. In case of any election where  election petition has been filed, the following action shall be taken:- If the EVMs or Counting of Votes are the subject of the election petition, the EVMs and VVPATs used at all Polling Stations in the constituency concerned shall continue to be kept in the safe custody of the District Election Officer, till such time the Election Petition is finally disposed of by the Courts. 83 If the EVMs or counting of votes are not the subject of the election petition, an application may be moved to the concerned Court for allowing the EVMs& VVPATs concerned to be taken out of the strong room for any future election or any other purpose like movement, physical verification etc. In case VVPATs not involved in any Election Petition/Court Case are stored with the VVPATs involved in Election Petition/Court Case, the following procedure shall be followed for segregating the VVPATs not involved in any election petition/court case from the VVPATs involved in EP/Court case:- A Notice informing the opening of Strong Room having VVPATs involved in EP/Court Case as well as non-EP Page 51 of 95 C/WPPIL/36/2019 CAV ORDER VVPATs, shall be given to the petitioners/respondents of the EP/Court Case and the representatives of all political parties in writing at least 72 hours in advance, requesting them to remain present at the time of opening of strong room. The strong room shall be opened in the presence of the District Election Officer, Petitioners/respondents of the EP/Court case and representatives of Political Parties. The VVPATs not involved in any EP/Court Case shall be segregated from the VVPATsinvolved in EP/Court Case for taking out of the strong room. A list of VVPATs being so taken out from the strong room shall be prepared. The VVPATs, which are not involved in any EP/Court Case, should only be taken out of the Strong room. The procedure mentioned above shall be followed for taking-out power packs, paper rolls and the printed paper slips from all such VVPATs, following which the VVPATs are available for any subsequent deployment/use. The entire process shall be videographed and videography must be preserved for record. ***** DO’s AND DON’Ts ON USE OF VVPAT DO’s DON’Ts Ensure paper roll knob is locked (horizontal position) before transportation. In Polling Station, unlock the paper roll knob (vertical position). Don’t switch ON CU before VVPAT paper roll knob is in unlocked condition (vertical position). Position BU and VVPAT in Voting Compartment. Position CU and VSDU on PO’s Table Establish right connection by following the color scheme. Don’t allow direct light or high power illumination over VVPAT. Ensure the connectors are inserted properly. Don’t insert/remove cables without pressing the clips on the connectors. Page 52 of 95 C/WPPIL/36/2019 CAV ORDER Switch ‘ON’ CU, the Power-On Green LED on VVPAT glows and VVPAT prints all 7 slips. Don’t switch OFF CU unless all 7 slips are printed and cut. Check for any “PRINTER ERROR” message on VSDU. Inform Sectoral Officer (SO) in such case. Don’t start polling in case of “PRINTER ERROR” message on VSDU. Always switch OFF CU before making any connection or disconnection including change of battery. Don’t operate the paper roll knob till the end of the poll. NOTE: In M3 VVPAT there is no VSDU. VVPAT related messages are displayed on the CU’s Display. 13. In the earlier part of the Judgement we have reproduced the relevant provisions of the Representation Of People Act, 1951 and the provisions of the Conduct Of Election Rules, 1961. The perusal of the Conduct of Election Rules and the amendments made therein on the advent of the EVMs reveal that all the procedural safeguards as to counting and recounting of votes, as were part of the rule, the pre-EVM era in the time of use of Ballot Boxes, have been verbatim kept in place for the purposes of count/recount post Ballot Box voting, in the EVM/VVPAT, voting regime. This is notwithstanding the tested technological advancement in the manner and the method of voting and counting of votes, which especially in the context of voting, counting has become more error-free. 13.1 The discretion of the Returning Officer under Rule 56(D) (2) is nothing new, added as a result of the VVPATs. Rule 63 dealing with re-counts, even pre-EVMs had a provision which exists, which is worded the same. Rule 63(3) also provides Page 53 of 95 C/WPPIL/36/2019 CAV ORDER that on an application made to the Returning Officer to re- count votes, the returning officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable. Therefore, it is not a case of introducing an element of discretion in the subjective satisfaction of the Returning Officer, merely on the advent of the VVPATs by the Election Commission. At this juncture, it shall also be relevant to peruse the guidelines as per the Handbook of Instructions to the Returning Officers, Chapter – XV which pertains to Counting of Votes. The same is reproduced hereunder: “15.30. RECOUNT 15.30.1 Normally, there will be no question of recount of votes recorded in the voting machines. Every vote recorded by the voting machines is a valid vote and no dispute will arise as to its validity or otherwise. At the most, some candidates or their agents may not have noted down the result of voting at any particular polling station properly when the control unit displayed that information. If necessity arises for re-verification, the Result Button can preseed, whereupon the result of voting at that polling station will again be displayed in the Display Panels of that control unit. ] 15.30.2 Despite the necessity for recount being totally eliminated by the use of voting machines, the provisions relating to recount contained in Rule 63 of the Conduct of Election Rules, 1961, still apply in relation to your constituency. Accordingly, when the counting is completed and the Final Result Sheet in Form 20 has been prepared, you should announce the total number of votes polled by each candidate as entered in the Final Result Sheet. You should then pause for a minute or two. If during this period any candidate or, in his absence, his election Page 54 of 95 C/WPPIL/36/2019 CAV ORDER agent or any of the counting agents, asks for a recount, you should ascertain from him regarding the time required by him for applying for recount in writing. If you consider that the time applied for is reasonable, allow it and announce the exact hour and minute up to which you will wait for receiving the written application for recount. You should not sign the Final Result Sheet in Form 20 until after the expiry of the time so announced. 15.30.3 When an application for recount is made, you should consider the grounds urged and decide the matter. You may allow the application in whole or in part if it is reasonable or you may reject it in toto, if it appears to you to be frivolous or unreasonable. Your decision will be final, but in every case you should record a brief statement of your reasons for your decision. A candidate has option to make request for recount of polled ballot papers and/or polled EVMs of all or some of the polling stations 15.30.4 If in any case, you allow an application for recount either wholly or in part, you shall have the votes recorded in the voting machines counted over again in accordance with your decision. The postal ballot papers will also be counted over again if so decided by you. After the recount, correct the final result sheet to the extent necessary. Announce the amendments so made, if any, by you. After the total number of votes polled by each candidate after recount has been announced by you, complete and sign the Result Sheet. No candidate has a right to demand a recount after you have completed and signed the Final Result Sheet. Reject any demand for any recount of votes after you have completed and signed the Final Result Sheet. 15.30.5 Where printer for paper trail is used, any candidate or in his absence his election agent or any of his counting agents may apply in writing to the RO to count the printed paper slips in the drop box of the printer in Page 55 of 95 C/WPPIL/36/2019 CAV ORDER respect of any polling station or polling stations after the entries made in the result sheet is announced. If such an application is received, the returning officer shall, subject to such general or special guidelines as may be issued by the ECI, decide the matter and may allow in whole or in part or may reject in whole, if it appears to him as frivolous or unreasonable. Every decision of the RO shall be in writing and shall contain the reasons thereof. If the RO decides the counting of paper slips either wholly or in part or parts, he shall – a. do the counting in the manner as may be directed by the Commission, b. amend the result sheet in form 20 as per the paper slips count if there is discrepancy between the votes displayed on the Control Unit and the counting of Paper Slips,. C. announce the amendment so made by him and, d. complete and sign the result sheet (ECI NO 3/1/2013 VVPAT/SDR dated 15.10.2013.) 15.30.6 As the Returning Officer, your duty is to count accurately the votes and you have therefore always the right to order your staff to recount the votes. But the right of a candidate to demand a recount under Rule 63 does not mean that recount can be granted for the mere asking. The party demanding recount has to make out a prima facie case that the counting was not accurate and recount is necessary in the interest of justice. 15.30.7 It would be unreasonable to demand second recount if the first recount showed only minor variations from the first count and at the same time showed a very substantial majority in favour of one candidate. On the contrary, it would be reasonable to demand further recount where the margin between first two candidates is close and where previous recount has shown differing results. 15.30.8 But you would be justified in refusing a further recount when the previous recount Page 56 of 95 C/WPPIL/36/2019 CAV ORDER showed the same result even if the difference between the contesting candidates may be very small. 15.30.9 The Commission has decided that where the result of an election is going to be decided by difference of postal ballot received by the first two candidates, then there shall be mandatory and comprehensive recount of postal ballot papers, even though no candidate ask for it. 15.30.10 If votes are counted at more places than one, according to rule 65 of the Conduct of Elections Rules, 1961, the demand for recount of votes can be made only at the end of counting in the last place fixed for the purpose. Thus, in the case of Parliamentary Constituency, the recount can be demanded only at the place where the Returning Officer counts the postal ballot papers and completes Part II of the Final Result Sheet in Form 20 and not at the places where the votes have been counted Assembly segment-wise. 15.30.11 As mentioned above, if votes are counted at more than one places, the recount can be demanded at the last place fixed for the purpose. This would be very inconvenient as the voting machines and all relevant papers would have to be taken to the last place of counting and in that way it will defeat the entire effort and the whole purpose of spreading out the counting at different places. Though generally it is intended that a recount of votes of a particular polling station should be done only after the counting for the entire constituency is over, if any doubt is expressed by any candidate immediately after the counting of votes at any polling station is over, it is desirable that you check up again. This is strictly not a recount but a check, which will satisfy all the candidates. 14. On the contrary, as will be evident from the extensive reproduction of the Status Report on EVMs/VVPATs, the system of registering the vote of the voter and reflection of his vote has become more transparent and apparent to regain the Page 57 of 95 C/WPPIL/36/2019 CAV ORDER voter’s confidence in the system. What essentially was the object of introduction of the VVPATs was the restoring of the voter’s confidence by the logging and registering of his vote correctly in the EVM. The Voter Verifier Audit Trail as the name suggests assures the voter of his vote having been correctly recorded in the system. Once the object of the audit of the voter’s vote, from his perception is achieved, who is the end consumer of the franchise, the mere apprehension voiced by the candidate, pales into insignificance. 15. We have also gone through the press notes released by the Commission from time to time. The same read as under: “ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi PRESS NOTE No.ECI/PN/39/2017 Dated: 12th May, 2017 Subject: Meeting of all Political Parties on issues related to EVM/VVPAT and other Electoral reforms The Election Commission held a meeting with all recognised National and State Political parties today at Constitution Club, New Delhi to discuss the following issues: (i) EVMs and VVPATs. (ii) Making Bribery in Elections a Cognizable Offence. (iii) Disqualification on Framing of Charges for the Offence of Bribery in Elections (iv) Suggestions on VVPAT Recount Rules. 07 National Parties and 35 State Parties attended the meeting. In his inaugural address, Chief Election Commissioner Dr. Nasim Zaidi, underlined the contribution of all political parties and stated that systemic improvements and progressive measures Page 58 of 95 C/WPPIL/36/2019 CAV ORDER aimed at improving the electoral processes and systems have been evolved by the Commission in cooperation with all political parties. CEC referred the queries raised by some political parties about the incidents of alleged EVM manipulation at Bhind and Dholpur during the recently concluded Bye-elections, and reiterated that baseless perceptions were generated about these incidents and there was no case of biased vote results. Commission highlighted the wide range of technical, administrative protocol and procedural safeguards that fortify the EVMs and VVPATs against any sort of manipulation or tampering. He said that Commission is open to hear suggestions on how to further improve integrity and credibility of EVMs. CEC also informed the political representatives that the Commission will hold a challenge and offer opportunity to political parties to demonstrate that EVMs used in the recently concluded Assemblies elections were tampered OR that EVMs can be tampered even under the laid down Technical & Administrative Safeguards. CEC stated that the Commission will ensure 100% coverage of VVPATs in all future election to the Parliament and State Assembly Elections. That VVPATs slips of a percentage of EVMs to be determined by ECI will be counted. ECI will soon evolve a framework in this regard. To make the election process more transparent, the Commission has made proposal for electoral reforms on misuse of money power and bribery during elections. The Commission has also made proposal for amendments in the Income Tax Act and in the RP Act, 1951, for enhancing transparency in the funding of political parties. Dr. Nasim Zaidi urged the political parties to ensure their continuous and qualitative participation at all crucial preparatory steps for elections like FLC, Randomization of EVM/VVPAT/Polling personnel, EVM Preparation/candidate setting, Mock Poll, EVM Sealing etc. CEC also stressed that continuous involvement is the shared responsibility of all the stakeholders including the political parties. Page 59 of 95 C/WPPIL/36/2019 CAV ORDER CEC conveyed neutral stand and equidistance of ECI from all political parties as it has no favourite which has enhanced India’s reputation in the eyes of Global Community. A detailed presentation on EVM was presented by Shri. Sudeep Jain, Director General of ECI explaining therein its secured design feature, development process, stakeholders’ participation at various levels, and administrative processes making the EVMs secure. Representatives of the political parties presented their views & suggestions on each of the agenda items. Commission assured the political parties that their concerns & apprehensions regarding EVMs have been taken note of and would be duly considered & addressed through forthcoming challenge and further necessary actions. In respect of other Electoral Reforms, their views/suggestions would be examined and further action would be initiated appropriately. -sd/- (Dhirendra Ojha) Director ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi- 110001 No. ECI/PN/42/2017 Dated:20th May 2017 PRESS NOTE Sub: EVM Challenge by Election Commission of India 1. The Election Commission of India is globally acknowledged as a ‘’Gold Standard’’ in conduct of free and fair elections with integrity in India. It has set ever-higher standards of efficient, smooth and professional conduct of Elections and has been at the forefront of embracing, adopting and implementing the latest technological advancements in improving and fine-tuning the election processes and systems. 2. The Commission has taken the pioneering Page 60 of 95 C/WPPIL/36/2019 CAV ORDER initiative of introducing Electronic Voting Machine (EVM) for recording, storing and counting of votes across the length and breadth of this country in a transparent, credible and secure manner, duly backed by appropriate legal support. 3. Over the last twenty years, the Commission has successfully conducted 107 State Legislative Assembly elections and 03 Lok Sabha elections using EVMs. Since September 2013, Voter Verifiable Paper Audit Trail (VVPAT) machines have also been used in various State Assembly and Parliamentary constituencies for enhanced transparency and credibility in the voting process. 4. The introduction of EVMs in 90’s was a positive electoral reform by the Commission. Some doubts have been raised on the functioning of the EVMs from time to time and from some quarters. 5. After the announcement of the results of the five State Assembly Elections (UP, Uttarakhand, Punjab, Goa and Manipur), in March 2017, again certain doubts have been raised on the functioning of EVMs. Some complaints and suggestions were received by Commission after declaration of results of five State Assembly elections. The Commission duly examined these complaints and asked for evidence and credible material information supporting the claims, but so far no evidence has been provided by complainants to ECI. 6. A group of thirteen political parties met the Commission on 10th April, 2017 and expressed certain reservations about the use of EVMs. Some political parties also raised queries about incidents relating to VVPATs used on 31/3/17 during demonstration (NOT in actual poll) at Bhind (M.P) and Dholpur (Rajasthan) Bye-elections held in the first week of April, 2017. 7. To understand the concerns of political parties, Commission convened an all party meeting on 12th May. A press statement was also issued by ECI the same day to the following effects. (i) The Commission stated before political parties that all future elections will be mandatorily held with VVPATs. The Commission firmly believes that use of VVPAT machines along with the EVMs in all polling stations, in all future elections, will bring utmost transparency and credibility in the EVM- Page 61 of 95 C/WPPIL/36/2019 CAV ORDER based voting system. This will enable each voter to see for himself in VVPAT whether his or her vote has gone to the right candidate. After press of button on BU, name and symbol the concerned candidate will appear on the screen of VVPAT machine and paper slip bearing name and symbol will be dropped in a sealed box connected with VVPAT. These slips will serve as audit trial of the vote cast by voter on EVM. Audit trail will enhance confidence and trust of voters. Use of VVPATs with EVMs must conclusively put to rest all misinformed doubts and misgivings regarding EVMs. It will also be a matter of pride that India will become the first country to deploy 100% VVPATs or paper trail in the world, an element that was missing in many countries including Netherland, Germany and Ireland. Funds for procuring the required VVPATs for 100% deployment have already been sanctioned and production is to begin in August, 2017 and will be completed by September, 2018. (ii) It was also stated that the Commission has also taken into account suggestions made by various political parties regarding counting of VVPAT slips. The Commission will count VVPAT slips up to a definite percentage, which will be determined by the Commission. The ECI will shortly evolve an appropriate framework in this regard. (iii) The Commission will hold a challenge and offer opportunity to political parties to demonstrate that EVMs used in the recently concluded Assembly elections were tampered or that EVMs can be tampered even under the laid down technical and administrative safeguards of ECI. (iv) Commission also urged all parties to ensure their continuous and qualitative participation in all crucial steps during elections such as First Level Checking (FLC), randomisation of EVMs/VVPATs/polling personnel, EVM preparation and candidate setting, mock poll, EVM sealing and storage. The Commission also invited more suggestions from political parties on how to further increase their participation, so that absolute transparency is maintained at all times. (v) Commission, further, urged political parties that improving integrity of election process is a shared responsibility of all the stake holders. We solicited Page 62 of 95 C/WPPIL/36/2019 CAV ORDER their suggestions to fill up gaps, if any, during election and non election period. The Commission made it clear that ECI want total transparency and have nothing to hide from people and other stakeholders. Commission will always receive suggestions from its stakeholders for improvement of its processes. (vi) The Commission also emphasised that Commission is committed and it maintains equidistance from all parties and groups. The Commission further emphasised that ECI has no favourites. Further, this equidistance by ECI has enhanced India’s reputation in the eyes of the global community. 8. The Commission has already issued detailed Press releases on Credibility of Electronic Voting Machines on 16th March, 2017, on alleged VVPAT incident during mock EVM demonstration on 31st March 2017 (and not in actual poll as alleged) at Bhind (Madhya Pradesh) on 07th April, 2017 and also regarding EVMs in Dholpur (Rajasthan) on 11th April, 2017. In Bhind, a wrong notion was created that for any key pressed on the Ballot Unit, only one symbol was printed by VVPAT. Commission’s thorough enquiry clearly established that during the EVM demo held on 31.03.2017 in DEOs office the 4 buttons were pressed during the demo and not the actual poll and every time the correct corresponding symbol was printed. A Status Paper on EVMs has also been circulated to all stakeholders on 12th May, 2017elaborating various aspects about EVMs and VVPATs for information and awareness. (All these documents are available on ECI website). 9. Certain complaints of alleged tampering of EVMs during the recently held Municipal elections in Maharashtra and elsewhere also generated wrong perception about EVMs of ECI. It was noted that confusion exists in the minds of many about the jurisdiction of ECI. We would like to clarify once again on this occasion that ECI is not responsible for the conduct of local body elections by the State Govts in the country and consequently about various protocols and procedures adopted by the concerned State Election Commissions. Election to local bodies, both urban and rural, are conducted Page 63 of 95 C/WPPIL/36/2019 CAV ORDER by separate constitutional authorities State Election Commissions constituted by the State Govts. Under Article 243 of the Constitution. Moreover, a particular complaint of some candidate receiving zero vote in Mumbai Municipal elections has been found to be totally false by SEC Maharashtra. 10. The Commission is confident and has firm conviction about the integrity, non- tamperability and credibility of the EVMs. The basis of confidence of the Commission flows from a wide range of technical and administrative protocols and procedural safeguards that protects our EVMs and VVPATs against any sort of tampering during manufacture, transportation, storage, polling and counting process. Still, the Commission is open to receiving from all stakeholders’ suggestions on how to further improve the integrity and credibility of our EVMs and VVPATs. The Commission will not allow even a shade of doubt about EVM operations. 11. The Commission would like to address some of the important issues that have been raised from time to time in past two months: A. ECI- EVMs are not hackable as these, are stand alone machines and not connected to the internet and /or any other network at any point of time during polling. Hence, there is no chance of hacking. The ECI-EVMs do not have any frequency receiver or data decoder for wireless and hence cannot receive any coded signal by wireless. Hence, no tampering can be carried out through external hardware Wireless, Wi-Fi or Bluetooth device. Moreover, machines are always in the custody of ECI and its election authorities. B. Manipulation at manufacturing stage is ruled out as there is very stringent security protocol regarding the security of software. Further, the Machines have been manufactured in different years starting from 1989. After manufacturing, EVMs are sent by ECI to State and district within a State. The manufacturers are in no position to know several years ahead which candidate will be contesting from a particular constituency and what Page 64 of 95 C/WPPIL/36/2019 CAV ORDER will be the sequence of the candidates on the BU and, therefore, cannot manipulate EVMs in a predetermined manner at manufacturing stage. C. Results cannot be altered by activating a Trojan Horse through a sequence of key presses because 1. Trojan Horse cannot be inserted into the software code of ECI EVM burnt into the Microcontroller Chip since the chip is one time Programmable only. 2. The stringent security measures by ECI make it impossible to access the EVMs which is an essential prerequisite for attempting to change the Micro-controller for inserting a Trojan Horse. 3. Control Unit activates Ballot Unit for only one key press at a time. Any additional key pressed on the Ballot Unit is not sensed by the Control Unit making it impossible to send signals by pressing a sequence of keys or secret codes. Once a ballot key is pressed in CU, the CU enables BU for registering the vote and waits for the key pressing in the BU. During this period, all keys in the CU become inactive till the entire sequence of casting of that vote is complete. Once any of the keys (candidates vote button) is pressed by a voter in BU, the BU transmits the key information to CU in dynamically encrypted form. The CU gets the data and acknowledges it by glowing the corresponding red LED lamps in BU. After the enabling of ballot in CU, only the ‘first key press’ is sensed and accepted by CU. After this, even if a voter keeps on pressing the other buttons, that is of no use as there will not be any communication between CU and BU of those subsequent key presses, nor will BU register any key press. To put it in other words, there can be only one valid key press (the first key press)for every ballot enabled using CU. Once a valid key press (voting process) is complete, until another ballot enabling key press is made there will not be any activity between the CU and the BU. Hence, sending of any malicious signal, by way of so called ‘sequenced key presses’, is impossible in the Electronic Voting Machines being used in the country. D. ECI-EVMs cannot be Physically Tampered with nor their components be changed without anyone Page 65 of 95 C/WPPIL/36/2019 CAV ORDER noticing. It is clarified that replacement of micro controller/chip and the motherboard in earlier generations of machines like M1 and M2 is ruled out due to robust administrative and technical safeguards. Further, the new M3 EVM produced after 2013 have additional features like Tamper Detection and Self Diagnostics. The tamper detection feature makes an EVM inoperative the moment anyone tries to open the machine. The Self diagnostic feature checks the EVM fully every time it is switched on. Any change in its hardware or software will be detected. Rs. 1900 Crore have already been sanctioned to the manufacturers for production of 13.95 Lakh BU and 9.30 Lakh CU of M3 generation.Also, 16.15 Lakh VVPATs are also under production and Rs. 3173 Crore have been sanctioned for the same. E. The latest technological features make ECI- EVMs tamper proof. The ECI- EVMs use some of the most sophisticated technological features like one time programmable (OTP) microcontrollers, dynamic coding of key codes, date and time stamping of each and every key press, advanced encryption technology and EVM-tracking software to handle EVM logistics, among others to make the machine 100% tamper proof. In addition to these, new model M3 EVMs also have tamper detection and self- diagnostics as added features.OTP software implies that the programme in the EVM cannot be altered, re-written or re-read by anyone under safe custody of ECI. This makes EVM tamper proof. If anyone makes an unauthorized attempt, the machine will become in- operative. F. Contrary to misinformation spread and alleged by some, ECI does not use any EVMs produced abroad. EVMs are produced indigenously by two PSU manufacturers viz. Bharat Electronics Ltd., Bengaluru and Electronics Corporation of India Ltd., Hyderabad. The Software Program Code is written in-house by these two companies and not outsourced and approved by TEC of ECI and subjected to strict security procedures at factory level to maintain the highest levels of integrity. The software programme is converted into machine Page 66 of 95 C/WPPIL/36/2019 CAV ORDER code by manufacturers and only then given to the chip manufacturer abroad. (We don’t have the adequate capability of producing semi-conductor microchips within the country). Every microchip has an identification number embedded into memory and the producers have their digital signatures on them. So, the question of their replacement does not arise at all because microchips brought back to manufacturers are subjected to functional tests with regard to the software. Any attempt to replace microchip is detectable and can make EVM in-operative. Thus, both changing existing program and introducing new one are detectable making EVM in-operative because EVMs are tamper detect. Also the technological advancement now permits fusing of the software on the chip at BEL and ECIL itself and hence, in M3 the software is fused on the chip inside BEL and ECIL. G. There are no possibilities of manipulation in EVM during transportation or at the place of storage. At the district headquarters, EVMs are kept in a double-lock system under appropriate security. Their safety is periodically checked. The election authorities do not open the strong room, and they only regularly check whether it’s fully protected and whether the lock is in proper condition or not. No Unauthorized person can get access to the EVMs at any point of time. During the non election period, annual physical verification of all EVMs is done by DEOs and report sent to ECI. Further, strong rooms are always opened in the presence of representative of political parties. H. There are different levels of checks and balances ensuring tamper proofing of ECI-EVMs which are as follows: - First Level Checking: Authorized BEL/ECIL engineers certify originality of components after technical and physical examination of each EVM, which is undertaken in the presence of representatives of political parties. Defective EVMs are sent back to the factory. The FLC Hall is sanitized, entry is restricted and no camera, mobile phone or spy pen is allowed inside. The Mock Poll is conducted on EACH EVM by election officials in the presence of representatives of political parties. Page 67 of 95 C/WPPIL/36/2019 CAV ORDER The Mock poll of at least 1000 votes is conducted on 5% EVMs selected randomly by representatives of political parties and the result shown to them. The entire process is video graphed. - Candidate Setting: Yet another significant safeguard is the process of candidate setting, which is done after the finalization of contesting candidates. A ballot paper is inserted in the Ballot Unit, which is then sealed with Pink Paper Seal. BU is sealed at this stage. Where VVPATs are used, candidates’ symbols are loaded in each VVPAT at this stage. Once again, every EVM is subjected to mock poll and 5% EVMs are randomly picked up for 1000 mock poll. - Randomization: EVMs are randomized twice while being allocated to an Assembly and then to a polling booth ruling out any fixed allocation. As you can appreciate, tillfirst randomization no-one knows the sequence of names on the ballot paper till the finalization of list of contesting candidates, the names of contesting candidates are placed alphabetically on the ballot paper first for National and State Parties, followed by other Registered Parties, followed by independents and NOTA. Thus the Serial no. of any political party, candidate on the BU would be variable from constituency to constituency. It is therefore clear that serial no. of any political party candidate is not fixed or pre- determined in all the constituencies of the state. Hence, till candidate setting, none, not even RO or DEO or CEO or the Commission could know which button on which BU will be assigned to which candidate. - Mock Poll of at least 50 votes at the polling station is also conducted in front of polling agents of candidates on the poll day, before poll begins. - After Poll, EVMs are sealed and polling agents put their signature on the seal. Polling agents can travel up to strong room during transportation of polled EVMs from the polling station to the EVM Strong room. - Strong Rooms: Candidates or their representatives can put their own seals on the rooms, where polled EVMs are stored after the poll and also camp in front of the strong room. These strong rooms are guarded 24x7 in multilayers, with Page 68 of 95 C/WPPIL/36/2019 CAV ORDER CCTV facilities. - Counting Centres: The polled EVMs are brought to the Counting Centres under security and in presence of candidates and Unique IDs of the seals, signature of polling agents on CU are shown to representatives of candidates before the start of counting. 12.Looking at the above series of fool-proof checks and balances that are undertaken by the ECI to make EVMs tamper proof, it is evident that neither the machines can be tampered-withnor they can leave the ECI-EVM system. Further, neither defective machines nor Non-ECI-EVM can get reinducted/ inducted into the polling process at any point of time. Non ECIEVMs will get detected by the above process due to mismatch of BU & CU. 13. Some people argue that why have Developed Nations like the US and the European Union not adopted EVMs and some have even discontinued? ECI EVMs are far superior to any EVMs worldwide. EVM, used in the Netherlands, Ireland and Germany were privately manufactured and had no independent certification system unlike a very robust verification and certification system through independent TEC or an ECI approved third party in case of ECI EVMs. Also, voting data in these NEDAP EVMs in the Netherlands was transferred using CDs, unlike our EVMs where it is stored internally and never transferred. Also these countries lacked full end to end administrative and security safeguards as well as legal framework. Finally their EVMs also lacked auditability. A point is raised from time to time that several foreign countries have discontinued the use of voting machines and why India is using EVMs. With the rapid advances in technology over the years, Election Management Bodies, professionals, experts, and activists (particularly Green Activists) have mooted the idea of using paperless electronic voting methods in different parts of the world in order to overcome the disadvantages of manual marking of paper ballots. The marriage between technology and election management goes back to at least 1892, when the first ‘lever voting machine’ was used in New York, after using the paper ballot for a long time. In the 1960s, punch-card machines Page 69 of 95 C/WPPIL/36/2019 CAV ORDER were introduced in the USA, and the first EVM was introduced there in 1975. Electronic Voting has moved quite ahead since then. Types of Electronic Voting: The process of electronic voting can be of three types: (i) Direct Recording Machines placed at designated polling station, (ii) Internet Voting • Remote Online Voting • At Designated Polling Stations (iii) Optical Scanners • Stand-alone • Networked for centralized counting of results EVMs used in India fall under the first type of stand-alone direct recording machines with no possibility of any kind of network connectivity where voters cast their votes at an assigned polling station on the day of election under strict administrative security ensured by the ECI. Even though ECI EVMs are also direct recording machines ECI EVMs are completely different from any of the EVMs used internationally either for direct recording or for internet voting or for optical scanning. This is clearly highlighted in the comparative analysis of ECI EVMs with the DRMs used in countries like Germany, Netherland, Ireland, and USA as follows: The Netherlands Electronic Voting was used in The Netherlands in between 1990-2007. The voting machines were manufactured by a private Dutch-company called NEDAP (Nederlandse Apparaten Fabriek NV). In 2006, the government ordered an independent testing of the voting machines. Two independent commissions, The Voting Machines Decision- making Commission and the Election Process Advisory Commission (EPAC) were also established on December 19, 2006 and January 18, 2007, respectively, to review the security and reliability features of NEDAP machines. Following the observations of the two Commissions, the use of NEDAP machines and electronic voting was discontinued in 2007 on the following grounds: Page 70 of 95 C/WPPIL/36/2019 CAV ORDER • The Ministry of Interior and Kingdom Relations (MOIKR) of The Netherlands lacked adequate technical knowledge vis-à-vis the NEDAP machines, leading officials to depend on external actors for the conduct of elections. • Technology vendors became part of the decision making process and the ministry was not in a position to exercise effective oversight. • The Dutch Organization for Applied Scientific Research (Toegepast Natuurwetenschappelijk Onderzoek, TNO) certified and tested these machines following “outdated standards” which were not immune to modern IT and security threats. • 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. • It also observed that “it must be possible for the citizen to check the essential steps in the election act and in the ascertainment of the results reliably and without special expert knowledge”. (See the judgment in the following link: http://www.bundesverfassungsgericht. de/SharedDocs/Entscheidungen/EN/2009/03/cs200 Page 71 of 95 C/WPPIL/36/2019 CAV ORDER 90303_2bvc000307en.html;jsessionid=FEA71E86E 2CEE030FF7AAAC905 72279C.2_cid383) Ireland: NEDAP machines were used in Ireland in between 2002 – 2004. The use of these machines was questioned following which two independent commissions were set up. The two Commissions on the Secrecy, Accuracy and Testing of the Chosen Electronic Voting System, concluded the NEDAP machines could not be used in elections in Ireland on the following grounds: • Inadequate technological safeguards • Insecure transfer of data by the use of CDs • Absence of a comprehensive independent end-to- end testing, verification and certification by a single accredited body • Inconsistencies in physical security of machines across constituencies • Absence of a clear policy guideline via-a-vis storage, transport, set-up, use and disposal of voting equipment; and • Absence of comprehensive electronic register to record the identity, location and movement of the electronic voting devices. (Seelinks:http://www.umic.pt/images/stories/public acoes1/00Index.pdf;http://www.umic.pt/images/stor ies/publicacoes1/Part200%20Index.pdf) United States of America: In 2000, after the dispute on the voting method in the USA presidential elections, the voting method was reviewed (Esteve, Goldsmith, & Turner, 2012: 185). Accordingly, Direct Recording Electronic (DRE) Systems (like the widely used AccuVote TS developed by Premier Election Solutions, commonly called Diebold) were introduced. DRE Systems uses “one of three basic interfaces (pushbutton, touchscreen or dial)” through which “voters record their votes directly into computer memory. The voter’s choices are stored in DREs via a memory cartridge, diskette or smart card...Some DREs can be equipped with Voter Verified Paper Audit Trail (VVPAT) printers...” Currently, in the USA, the Direct Recording Machines are used in 27 states, among which paper audit trails are used in 15 states. The other voting methods include: Optical Scan Paper Ballot Systems, Ballot Marking Devices, Page 72 of 95 C/WPPIL/36/2019 CAV ORDER and the Punch Card Ballot. (See link: https://www.verifiedvoting.org/resources/voting- equipment/) Other countries: In Brazil, the machines used in elections are called ‘electronic ballot boxes’ which are stand-alone direct electronic recording systems. In Venezuela, SATIS (Smartmatic Auditable Election Systems) voting machines are used which were fully implemented across the nation in 2004. (Esteve, Goldsmith, & Turner, 2012: 185) India: Indian EVMs are truly unique compared to the e- voting machines used in other parts of the world for the following reasons: • ECI-EVMs are stand-alone non-networked machines • The ECI-EVMs are manufactured in two PSUs namely ECIL and BEL, unlike machines used in other countries, which were manufactured entirely by private entities. Hence there is no chance of involvement of vested interest of private players or technology vendors in decision making or production of the ECI-EVMs. • ECI-EVMs have been time and again successfully verified and certified by an independent Technical Experts Committee after an end-to-end testing process. STQC under Ministry of Information and Technology, an accredited third party entity, conducts standardization and certification of ECI EVMs produced by manufacturers, unlike the machines used in Netherlands, • In ECI EVMs data is stored internally and not transferrable by any device, unlike other countries where voting data recorded in the DRM is transferred by means of CD, etc. • Commission has evolved full end to end security protocol and administrative safeguards for the use, storage, transportation and tracking of ECI EVMs, unlike in other countries where NEDAP machines were used. • Unlike MOIKR of Netherlands, the Commission is fully backed by a Technical Expert Committee comprising of eminent professors. • Every EVM has a unique number attached to it, Page 73 of 95 C/WPPIL/36/2019 CAV ORDER which is recorded in the Election Commission’s database through EVM Tracking Software. This number of the EVM can always be cross-checked against the database. • The software used in these EVMs is One Time Programmable (OTP), which can’t be re-written after manufacture. • The ECI-EVMs are always under strict, uniform, high profile administrative and physical security as per legal framework across the country. • Section 61 A of the Representation of the Peoples Act 1951 allows the use of EVMs by ECI. The different High Courts across the country have also upheld the use of EVMs time and again in various judgments and the Karnataka High Court in 2004 declared ECI-EVMs as “national pride” because of its transparency and robustness. • Following the direction of the Hon’ble Supreme Court, the ECI has introduced the technology of VVPAT in order to ensure public verifiability. The Commission is committed to implement VVPATs nation-wide by 2019. Thus there will be 100% voter verifiability and auditability of every vote cast as opposed to lack of such facility in the NEDAP machines, which was struck down by the German Supreme Court as un-Constitutional, whereas Indian Supreme Court has upheld the validity of use of EVM for conducting elections in the country. • Thus any comparison of ECI-EVMs with machines used elsewhere is misplaced. The Commission has always worked in an open and transparent manner and always welcome questions, doubts and constructive and decent criticism of our processes so that we can further strengthen electoral processes. During political party meeting on 12 May 2017, Commission had promised to organise an open challenge to give an opportunity to political parties to demonstrate that EVMs used in five States were tampered or EVMs even under technical and administrative safeguards can be tampered. Accordingly, ECI now proposed to open a challenge on 3rd June 2017 onwards to all political parties. Frame-work of the challenge: Election Commission of India invites the nominees of National and State Recognized political parties Page 74 of 95 C/WPPIL/36/2019 CAV ORDER who contested and claimed that the EVM machines held under the ownership of Election Commission of India and used in the recently held General Assembly Elections of five states namely Punjab, Goa, Manipur, Uttarakhand and Uttar Pradesh in Feb-Mar 2017 were tampered or that these could be tampered even under technical and administrative safeguards of ECI, to demonstrate their claims at the ECI Headquarters within the framework of the extant administrative and security protocols prescribed by the Commission. Salient features of the EVM Challenge of the Commission are as follows: Challenge Statement I: That the EVMs used in the General Elections to five States-2017 were tampered to favour a particular candidate/political party by altering the results stored in the EVMs after the polls. The claimants will hence have to alter the results in the Control Units used during these polls in exactly the same scenario as the EVMs remain within the technical and administrative safeguards of ECI after the poll, i.e. during the storage in strong rooms or during counting, through a. using press of combination of keys on CU or BU or BOTH, or b. By communication to CU or BU or Both via external wireless/Bluetooth/mobile phone etc. Challenge Statement II That the EVMs used in the General Elections to the five States-2017 were tampered before or during the poll day. The claimants will hence have to alter the results in the EVMs used during these polls in exactly the same scenario as the EVMs remain within the technical and administrative safeguards of ECI before the poll, i.e. during the storage in strong rooms or during the poll, through c. using press of combination of keys of CU or BU or Both, or d. by communication to CU or BU or Both via external wireless/Bluetooth/mobile phone etc. Common Procedure for Challenge I and Challenge II 1. The EVM Challenge is open for participation from the National and State Recognized Political Parties only which participated in the five States’ Page 75 of 95 C/WPPIL/36/2019 CAV ORDER Assemblies Elections viz. Goa, Punjab, Manipur, Uttarakhand and Uttar Pradesh. 2. Each National and State Recognized Party intending to participate may nominate a maximum of 3 persons only to participate in the EVM Challenge. Each Party shall intimate the names of maximum 3 authorized persons, if any, who wish to accompany the chosen EVMs from the Warehouses to the Commission at New Delhi during transportation at their own cost. 3. The Political Parties willing to participate in the EVM Challenge must mandatorily confirm their interest to ECI by 5.00 pm on 26th May, 2017 through the email ([e-mail]), wherein the details of the Nominated members must be furnished as per the prescribed Performa. Only those Political Parties, which respond by 5.00 pm on 26th May, 2017 to the ECI, shall be allowed to participate in the EVM Challenge. The response of the political parties shall mandatorily be made on the official letter-head of the party duly signed by the President or General Secretary of the political party concerned, which shall be scanned and emailed to the email id mentioned above. 4. Further, if the Nominees of any Political Party, to whom a Challenge date-time Slot has been allotted, fail to report at the designated time and venue without prior intimation or approval, shall forfeit their right to participation in the EVM Challenge. 5. Each Political Party will be allowed to choose a maximum of 4 EVMs of their choice from any 4 polling stations out of the Five poll-gone States. Examples; Maximum of 4 EVMs only form 4 polling stations can be chosen, either from one AC or from multiple ACs in a State or from any of the five States. It is clarified that any EVMs involved in EP (Election Petition) or those under any sealing by the orders of a competent Court, shall not be part of this EVM Challenge. If a Political Party does not wish to specify a particular EVM but wants ECI to provide any EVM of Commission’s choice, then the same should be intimated by 26th May, 2017. 6. The choice of the EVMs shall be emailed ([e-mail]) in the prescribed proforma by 5.00 pm on 26th May, 2017. Page 76 of 95 C/WPPIL/36/2019 CAV ORDER 7. The chosen EVM machines, including Control Units (CU), Ballot Units (BU) (one or more as deployed) and VVPAT (wherever deployed) shall be brought to the ECI at New Delhi, on as-is-where basis, in compliance of the extent of established protocol of ECI regarding opening of EVM strong- rooms/warehouse and EVM transportation. 8. The representatives of the Political Parties at State Level are at liberty to witness the opening of EVM Strong-rooms at the District/AC level where the EVMs are presently stored, inspect the machines for the various seals (as in protocol) and accompany the machines during their transportation to ECI in sealed trunks, if they so desire. 9. As these EVMs were used in the recently held elections and were stored post counting, the EVMs would still have the candidate setting and the result of the said election. 10. The results of the machines as recorded during the counting in the previous elections shall be available in paper form also, having details like total votes polled and votes casted for each candidates etc. 11. A Challenge Slot of 4 Hours shall be allotted to each participating Political Party, wherein their registered nominees shall be given access to one of their chosen EVMs (CU+BU + VVPAT if deployed) for the purpose of PROVING the Challenge Statement 1 and 2. In case the first chosen EVM is in-operative as a result of transportation, then the second of the chosen EVM shall be allowed to be used for the challenge and so on. However, if a Political Party desires to avail of more time, the request shall be made in writing to the Commission, which shall decide the issue on merits and demands of reasonability. 12. The nominees may before proceeding for challenge if they want, check the result of previous election already stored in CU and verify that these are same as given by ECI in item 10 above as per ECI protocol of declaring results from CU. This step is optional and will be recorded if they opt for it in writing. The result of re-count also will be recorded. 13. The Nominees of the participating Political Page 77 of 95 C/WPPIL/36/2019 CAV ORDER Parties shall be allowed the following methods on the Challenge EVMs to prove the challenge: a. Pressing any sequence of buttons on the CU or BU or Both. b. The use of any external wireless/Bluetooth/Mobile Phone device/Transmitter. 14. All Key Presses made by the Challenger shall be declared prior to the actual execution of key presses and these will manually be recorded by the ECI Counter Staff for keeping a “written record of exact process of conduct” of the “challenge proving” poll. In case the challenger wishes to use mobile or blue tooth during poll, he should inform the Election officials and this should also be recorded. This is especially relevant, in case the Challenger wishes to conduct any mock poll or full poll by either use of key presses or mobile phone / blue-tooth during his tamper attempt to prove the Challenge Statements. 15. All Key Presses shall be made in clear and unhindered view of the ECI Counter Staff and the recording Cameras and made with a Specially Designed Presser, so as to avoid any confusion or ambiguity in the key presses made by the Challenger using his fingers. 16. EVMs can be opened and only visually inspected during Challenge-II as this is allowed during First Level Check (FLC). However, EVMs cannot be opened during Challenge- I as EVMs are always kept sealed after the Poll till counting in actual poll scenario. 17. During the Challenge period, with regard to any written representation or any dispute or interpretation issues, the decision of the ECI Officer In-charge shall be final. 18. The EVM challenge shall be organised from 03.06.2017 onwards at Nirvachan Sadan, Ashoka Road, New Delhi. Challenge Conclusion: 1. The Challenger under Challenge I shall be deemed to have ‘’FAILED’’ if: a. The EVM becomes non-functional after the tamper attempt made by the Challenger. (Reason: ECI EVMs are designed to go into error mode if any Page 78 of 95 C/WPPIL/36/2019 CAV ORDER unwarranted technical operations are conducted rather than recording any wrong results). b. The EVM is functional and results displayed on the CU after conduct of challenge attempt are the same as ECI declared results stored on the chosen CU (prior to the pressing of CLEAR Button). c. If the Challenger violates any of the guidelines prescribed for the EVM Challenge. d. The challenger withdraws from current challenge. 2. The Challenger under Challenge II shall be deemed to have ‘’FAILED’’ if: a. The EVM becomes non-functional after the tamper attempt made by the Challenger. (Reason: ECI EVMs are designed to go into error mode if any unwarranted technical operations are conducted rather than recording any wrong results). b. The EVM remains functional and after erasing the earlier stored result, a mock poll or full poll is conducted by the Challenger along with his challenge attempt and manually recorded votes(by ECI staff) are the same as that stored on the chosen CU after the said mock/full poll. c. If the Challenger violates any of the guidelines prescribed for the EVM Challenge. d. The challenger withdraws from current challenge. 10. Certain naysayers have demanded that ECI should either permit them to take the EVMs with them for tampering or allow changing of internal circuit etc. of the EVM. This is like saying that they should be permitted to manufacture a new machine and introduce their new EVMs in our system. Further, it is common knowledge that changing the ‘ internal circuit’ of any electronic device is like changing the whole device itself, after which it is no longer the same device. As any person with common sense will be able to appreciate, a non-ECI EVM or an EVM with a different ‘internal circuit’ is simply a different machine or look alike of ECI EVM hence can never be guaranteed by ECI to give correct results. Such a scenario is completely ruled out within our administrative safeguards and that’s why it is not proposed in the Challenge. 11. The Commission is thankful to all the citizens, voters, political parties and all stakeholders for Page 79 of 95 C/WPPIL/36/2019 CAV ORDER their unwavering faith in the Commission for more than 67 years. The Commission would further like to thank all political parties for showing their continuous trust and confidence in the Election Commission of India as expressed during interventions of political parties on 12th May in the All Party Meeting. The Commission would like to reassure the people of the country that the Commission would leave no stone unturned in preserving the purity, integrity and credibility of the Elections and reinforcing the faith and trust of the people in the electoral democracy of our country. I wish to reassure that citizens of the country that the Commission will never ever allow the faith of the people in the integrity of the election process to be shaken. The Commission desire all citizens and stakeholders to remain aware ,vigilant and alert about our electoral processes so that conduct of free and fair election by Commission is further strengthened. (Dhirendra Ojha) Director ANNEXURE-6 ELECTION COMMISSION OF INDIA NIRVACHAN SADAN, ASHOKA ROAD, NEW DELHI-110001 No. ECI/PN/47/2017 Dated: 3rd June, 2017 Press Note Subject- EVM Challenge concludes. At the outset ECI thanks all the stakeholders for reaffirming their faith and confidence in the EVMs whether by participation or otherwise in the whole exercise of EVM Challenge. The Election Commission of India had, in an extraordinary measure, invited all national and state recognized political parties to come and participate in the EVM challenge announced by it on 20th May, 2017 as per the framework of the challenge. Only two political parties namely, NCP and CPI(M) submitted their interest in participating the EVM challenge till 5.00 PM on 26th May, 2017. Page 80 of 95 C/WPPIL/36/2019 CAV ORDER Since none of the two political parties specified their choices for EVMs to be chosen from five poll gone states, the Commission brought 14 EVMs randomly in sealed condition kept in strong rooms from 12 Assembly Constituencies of Punjab, Uttarakhand and Uttar Pradesh for the EVM challenge scheduled for 3rd June, 2017. Earlier, Commission had a meeting with all National and State Political Parties on 12 May 2017 in which 42 parties participated. While majority expressed full confidence on the integrity of EVMs, a few continued to raise doubts on functioning of the ECI-EVM. Commission held a press conference on 20 May 2017 and explained in great detail why it has absolute confidence on non-tamperability of ECI- EVMs working within the technical and administrative safeguards. Commission then announced an EVM Challenge and spelt out a complete framework and send to all political parties on 20th May, 2017 alongwith invitation. Today both the parties (NCP and CPI-M) reported to the Challenge Venue on the 7th floor. However CPI(M)told they do not wish to participate in the challenge but only want to understand the EVM process. A detailed demonstration of the entire process was given to them by our technical team. They also expressed desire to interact with the TEC and had a detailed doubt clearing session in which in depth technical doubts were clarified by TEC of the Commission. CPI(M) team then expressed complete satisfaction and suggested that to allay any such doubts Commission should hold such demonstrations and awareness sessions with technical community proactively. Commission welcomes their very constructive suggestion. NCP team led by Mrs Vandana Chavan, MP, informed that they too do not want to participate in any challenge but were only interested to participate in an academic exercise. She referred to her earlier request to provided them the memory number and battery number of the EVM four days in advance. The Director General Mr Sudeep Jain informed her that Commission had already replied to their request mentioning that the EVMs have to Page 81 of 95 C/WPPIL/36/2019 CAV ORDER be kept under sealed conditions it is not possible for the Commission to open the EVMs to take out the memory and battery numbers in the absence of party representatives in the Commission. Commission had accordingly informed that the party can access these numbers at the time of the Challenge by opening themselves the sealed EVMs which is provided as per Challenge Framework. DG again informed her that they can choose an EVM and open the same to access these memory numbers. However NCP representative submitted a letter saying they cannot participate in the challenge because of non-provision of this information. In the letter NCP representative also raised an objection of last minute change in the EVM selection protocol by asking them to select an EVM out of the list of 14 EVMs. Commission then offered her to have all her technical doubts clarified by interacting with TEC. NCP team then had a detailed discussion with TEC which clarified all their issues, including the 8 issues listed by them in their letter submitted today to which the response would be sent separately. NCP team again met the Commission where the Commission reiterated their offer that they can still participate in the Challenge or by way of academic exercise by selecting the EVM and then accessing the memory and battery numbers by opening the machines themselves. Commission also offered them that they can come back, as they had demanded, to prove their point. However NCP representative mentioned that the source of all their doubt had been alleged problems with EVMs during Municipal Elections in Maharashtra. Commission clarified that EVMs used by SEC, Maharashtra for urban local bodies elections do not belong to ECI. The NCP team then expressed their willingness to opt out requesting that Commission should evolve a system which clearly distinguishes ECI-EVMs form SEC EVMs. Commission has taken note of NCPs suggestion. The Commission has already stated publicly and before political parties that all future elections will be mandatorily held with VVPATs. The Commission firmly believes that use of VVPAT machines along with the EVMs in all polling stations, in all future Page 82 of 95 C/WPPIL/36/2019 CAV ORDER elections, will bring utmost transparency and credibility in the EVM-based voting system. Audit trail will enhance confidence and trust of voters. Use of VVPATs with EVMs must conclusively put to rest all misinformed doubts and misgivings regarding EVMs. Honourable Uttarakhand High Court in its judgement yesterday said “Prima facie, it is evident from a combined reading of the entire press release of ECI that this system is seal proof. The EVMs are not hackable. There cannot be any manipulation at manufacturing stage. The results cannot be altered by activating a Trojan Horse through a sequence of key presses. The ECI-EVMs cannot be physically tampered with. The EVMs use some of the microcontrollers, dynamic coding of key codes, date and time stamping of each and every key press etc. These EVMs also cannot be tampered with during the course of transportation or at the place of storage. There are checks and balances to ensure tamper-proofing of EVMs”. It is clarified that for visual Inspection EVMs can be opened and visually inspected during Challenge- II as this is allowed during First Level Check (FLC). The Commission is thankful to all the citizens, voters, political parties and all stakeholders for their unwavering faith in the Commission for more than 67 years. The Commission would further like to thank all political parties for showing their continuous trust and confidence in the Election Commission of India as expressed during interventions of political parties on 12th May in the All Party Meeting. The Commission would like to reassure the people of the country that the Commission would leave no stone unturned in preserving the purity, integrity and credibility of the Elections and reinforcing the faith and trust of the people in the electoral democracy of our country. I wish to reassure that citizens of the country that the Commission will never ever allow the faith of the people in the integrity of the election process to be shaken. The Commission desire all citizens and stakeholders to remain aware, vigilant and alert about our electoral processes so that Commission can further strengthen the conduct of free and fair elections in Page 83 of 95 C/WPPIL/36/2019 CAV ORDER the country. -------Sd-- (Suman Kumar Das) Under Secretary” 16. From the reproduction of the contents hereinabove, the salient features of the EVM/VVPATs mode used in the election process of the country when appreciated, can be enumerated as under: A) The Election Commission Of India, an autonomous constitutional authority has the constitutional mandate of superintendence, direction and control of elections to the Parliament and the State Legislature. Article 324 of the Constitution Of India vests the Commission with such power to conduct elections. The introductory Chapter to the Status Report is self-explanatory of the role of the Commission and its responsibilities, which we no further re-iterate and elaborate. Judicial notice can be taken of the fact that the Indian Democracy has seen multiple elections in the vast geographical expanse, without a murmur of the elections not being conducted in a free and fair manner at the hands of the Commission. This is notwithstanding the voices of the disgruntled candidate who has voiced unfounded allegations on the tamperability of the EVMs, which have to be nipped in light of the Election Commission’s conviction in its letter of 10.01.2019 coupled with the action so taken as demonstrated in the Status Report regarding the unjustified apprehensions. B) The voting system in India has gone through multiple changes. The use of ballot paper was time consuming, prone to malpractices booth-capturing and ballot box stuffing. There Page 84 of 95 C/WPPIL/36/2019 CAV ORDER was a recognizable possibility of casting of votes and large number of invalid votes due to wrong/incorrect marking, subject to prolonged counting drills, more disputes and delayed result announcements. C) The introduction of EVMs has made voting, from the perception of the voter, much more simpler and voter-friendly. The voter has to merely press a button on the Balloting Unit. Under the EVM system, there is no invalid vote unlike the ballot system where there were large number of invalid votes to an extent that in some cases the number of invalid ballot papers were more than the winning margin of the elected candidate. The EVMs are more auditable, accurate, transparent reducing human error. The Commission conducted several field trials and involved all stake holders and political parties in evolving a error free EVM. D) The addition of the Voter Verifiable Paper Trail (VVPAT) which was introduced in 2013 brought in additional transparency. E) The status report has in detail, highlighted in a separate chapter - LEGAL INTERVENTION AND COURT CASES eliciting decisions of various Courts where the election mode and manner has successfully stood up when the credibility of the technology was at stake. F) The Voter Verifiable Paper Trail is an additional unit attached to the EVMs. It prints a small slip of paper that carries the symbol, name and serial number of the candidate voted by the Voter, which is visible for some seconds in the Page 85 of 95 C/WPPIL/36/2019 CAV ORDER viewing machine in the viewing window. The voter after pressing the button on the Balloting Unit can view the printed slip on the VVPAT through the window. The paper slips are then automatically cut and stored in the sealed compartment of VVPAT to be used later to cross check the votes in the Control Unit. This is an additional verification to the voter. Therefore, the mechanism has been introduced to be more voter-centric and not with a view to address the apprehensions of a losing candidate or for that matter a contesting candidate. G) The report has highlighted the safety and security features of the EVMs which indicate that the technological safeguards that contribute to the non-tamperability of the EVMs are : * They are stand-alone non-networked machine which are neither computer controlled nor connected to any network and hence cannot be hacked. In fact, as the Press Notes reproduced earlier the exercise to see whether it was “hackable” were undertaken and it has stood the test. * The machine is electronically protected. The software is developed in-house and tested. * The software is so designed that it allows the voter to cast the vote only once. The vote can be recorded by a voter from the ballot unit only after the Presiding Officer enables the ballot on the Controlling Unit. The machine does not receive any signal from outside at any time. The next vote can be recorded only after the Presiding Officer enables the ballot on the Control Unit. In Page 86 of 95 C/WPPIL/36/2019 CAV ORDER between, the machine becomes dead to any signal from outside( except from the Control Unit). H) The administrative procedures as highlighted by the Report for handling EVMs are also stringent. They are : • Before every election, a first level checking is done for every EVM to be used in the election by the engineers in the presence of political parties. • The manufacturers certify at the time of first level checking that all components in the EVM are original. After this, the plastic cabinet of Control Unit of the EVM is sealed using a Pink Slip which is signed by the representatives of the political parties and stored in strong rooms. • A mock poll is conducted with a few votes at the time of first level checking using EVMs and VVPATs and after the poll printed VVPATs slips are counted and the result is tallied with the electronic result of the Control Unit. Representatives of the political parties are allowed to do mock poll themselves. Such a mock poll by casting 50 votes is conducted at every polling station on the poll day in the presence of the representative of the candidates and the polling agents and a mock poll certificate is obtained from a Presiding Officer. • The entire EVM is then sealed and the candidates and their agents are allowed to put their signature. I) Reading the extract in the Status Report at Pages 46-49 (of which the table at page 47 is reproduced hereinbelow at the cost of repetition) reveal from the chronology of events Page 87 of 95 C/WPPIL/36/2019 CAV ORDER that so far VVPATs have been used in 933 Assembly Constituencies and 18 Parliamentary Constituencies. Till date, VVPAT slip verification has been undertaken for 792 polling stations and in all cases, the results tallied with the electronic result in the CU. This gives no manner of room for the petitioner to contend that the discretion vested in the Returning Officer under Rule 56(D)(2) is wrought with the fears expressed by the Petitioner. Date Chronology of Events 4th Oct 2010 An all-party meeting held. Agreement on incorporation of VVPATs along with EVMs. 07/01/11 Field trial conducted after the prototype was manufactured, in Thiruvananthapuram (Kerala), Delhi, Cherapunjee (Meghalaya), Jaisalmer (Rajasthan) and Leh (Jammu & Kashmir). July-Aug 2012 A second field trial was conducted 19th Feb 2013 Final model was approved by TEC 10th May 2013 The Model was demonstrated to all political parties 14th Aug 2013 The conduct of Election Rules 1961 was amended and notified J) Reading of the Status Report indicates that on 12.05.2017, a meeting with all political parties was organized by the Election Commission of India. The Election Commission highlighted the wide range of technical, administrative protocol and procedural safeguards that fortify the EVMs and VVPATs against any sort of tampering or manipulation. The Commission informed the political representatives that an Page 88 of 95 C/WPPIL/36/2019 CAV ORDER opportunity will be offered to the political parties to demonstrate that EVMs can be tampered with. The Commission has assured 100% coverage of VVPATs in all future elections to the Parliament and State Assembly Elections. A Press Conference was held on 20.05.2017 to announce the EVM Challenge and invitation was sent to all National and State Recognized Political Parties to participate in the EVM Challenge from June 3, 2017 onwards. Only two political parties reported for the challenge. They reported for the challenge but they did not wish to participate in the challenge and instead only expressed their interest in understanding the EVM Process. They interacted extensively with the Technical Expert Committee of the Commission to clear their doubts. The Press Notes of 12.05.2017, 20.05.2017 and 03.06.2017 are self-explanatory K) The Election Commission of India had issued instructions to all Chief Electoral Officers on 13.02.2018 for mandatory verification of VVPAT paper slips-Pilot Testing. Evident it is, on reading the August Edition of the Status Report, that there has been no complaint as to the defect on the VVPAT’s credibility. The same is reproduced hereunder: “ELECTION COMMISSION OF INDIA NIRVACHAN SADAN, ASHOKA ROAD, NEW DELIII-l 10001 No.51/8/VVPAT-INST/2018-LMS Dated: 13lh February, 2018 To The Chief Electoral Officers of All States and Page 89 of 95 C/WPPIL/36/2019 CAV ORDER Union Territories. Subject: Mandatory verification of VVPAT paper slips- Pilot Testing - regarding. Sir. I am directed to state that the Commission has already mandated that VVPATs will be used with EVMs at all polling stations in all future General/Bye-Elections to the Parliament and the State Legislative Assemblies. The Commission conducted mandatory verification of VVPAT paper slips of randomly selected 01 (one) polling station per Assembly Constituency on a 'pilot' basis in the recently concluded General Elections to State Legislative Assemblies of Gujarat and Himachal Pradesh, in addition to the provisions of Rule 56D of the Conduct of Elections Rules, 1961, and the same has been extended to the ongoing General Elections to the State Legislative Assemblies of Meghalaya, Nagaland and Tripura. on 'pilot' basis. The Commission has further, directed that henceforth, mandatory verification of VVPAT paper slips of randomly selected 01 (one) polling station shall be conducted in all future General and Bye Elections to the House of the People and State Legislative Assemblies, in addition to the provisions of Rule 56D of the Conduct of Elections Rules, 1961, after the completion of the last round of counting of votes recorded in the EVMs, as under: (a) In case of General and Bye elections to State Legislative Assemblies, verification of VVPAT paper slips of randomly selected 01 (one) polling station per Assembly Constituency. (b) In case of General and Bye elections to the House of the People, verification of VVPAT paper slips of randomly selected 01 (one) polling station of each .Assembly Segment of the Parliamentary Constituency concerned. For this mandatory verification of VVPAT paper slips, the following procedure shall be followed: 1. The verification of VVPAT paper slips of randomly selected 01 (one) polling station for each Assembly Page 90 of 95 C/WPPIL/36/2019 CAV ORDER Constituency/Segment shall be taken up after the completion of the last round of counting of votes recorded in the EVMs. 2. The random selection of 01 (one) polling station per Assembly Constituency/Segment shall be done by Draw of lots, by the Returning Officer concerned, in the presence of candidates/their agents and the General Observer appointed by the Commission for that Constituency. 3. The draw of lots must be conducted immediately after the completion of the last round of counting of votes recorded in the EVMs (Control Units) in the designated Counting Hall for the particular Assembly Constituency/Assembly Segment. 4. A written intimation regarding the conduct of draw of lots for the random selection of 01 (one) polling station for verification of VVPAT Slips shall be given by the Returning Officer to the Candidates/their election agents well in advance. The following procedure shall be followed for the conduct of draw of lots: a. White colour paper cards of postcard size shall be used for conducting the draw of lots. b. Total number of such paper cards should be equal to total number of polling stations in the Assembly Constituency. c. The paper cards shall have pre-printed Assembly Constituency/Assembly Segment number, AC/AS name and date of polling on the top. and the polling station number in the centre. Each digit of the polling station number shall be atleast 1\" x 1\" (1 inch by 1 inch) size and printed in black ink. d. The paper cards to be used for draw; of lots should be four- folded in such a way that polling station number is not visible. e. Each paper card shall be shown to the candidates/their agents before folding and dropping in the container. f. The paper cards shall be kept in the big container and must be shaken before picking up 01 (one) slip by the Returning Officer. Page 91 of 95 C/WPPIL/36/2019 CAV ORDER The verification of VVPAT paper slips shall be done in a 'VVPAT Counting Booth' (VCR), specially prepared for this purpose inside the Counting Hall. The booth shall be enclosed in a wire mesh just like a bank cashier's cabin so that no VVPAT paper slip can be accessed by any unauthorized person. One of the Counting tables in the Counting Hall can be converted into the VCB and can be used for normal counting of round-wise EVM votes before the count of VVPAT slips as per random selection after the completion of round-wise EVM counting. The Verification count of the VVPAT paper slips of the randomly selected 01 (one) polling station shall be conducted strictly in accordance with the instructions of the Commission on counting of printed paper slips. 8. The Returning Officer and Assistant Returning Officer, as the case may be shall personally supervise the counting of VVPAT paper slips at this booth. The General Observer concerned shall ensure close and careful observation of the entire exercise and ensure strict compliance of the Commission's instructions. 9. The above process shall be fully videographed. 10. After completion of the above process, the Returning Officer shall give a certificate in the annexed format. The above direction of the Commission shall be brought to the notice of all concerned. CC. Standard Distribution” 17. Keeping the aforesaid facts on hand and collectively appreciating the purpose of the introduction of the VVPAT, in exercise of powers under Section 169 of the Representative Of People Act, 1951, the Central Government has the powers to Page 92 of 95 C/WPPIL/36/2019 CAV ORDER make Rules in consultation of the Election Commission for carrying out the purposes of the Act. Amendments have been made in the Conduct Of Election Rules, 1961 looking to the technological advancement in the method of voting i.e. through EVMs rather than casting of votes in a Ballot Box through a Ballot Paper. The Rules as existing for the method of voting through a Ballot Paper and counting of such votes, have been added and renumbered as new Rules by virtue of introduction of VVPATs. The language and the spirit of the Rules which erstwhile existed when the franchise was exercised through the Ballot Paper has remained the same for the EVMs too, though notwithstanding the fact that from the perception of the Voter, who is the prime consumer of the institution of democracy has had the benefit of the voting becoming more easier and transparent through the concept of EVMs and VVPATs. 17.1 The entire step-wise procedural safeguards that the Election Commission undertakes in the manner of the conduct of elections through the EVMs and VVPATS, in exercise of its constitutional obligation under Article 324 of the Constitution Of India coupled with the technology, leaves no room of doubt for the petitioner to contend that the discretion of the Returning Officer to entertain an application under Rule 56(D) (2) of the Rules can be said to be an unguided discretion when they are qualified with the words that the rejection will only be on the ground of the application being frivolous or unreasonable. Such a rule existed even when the voting was carried out through the Ballot Box. The apprehension of the petitioner seems to be based on the unjustified apprehension of a malfunction and tamperability of the EVMs, which claims Page 93 of 95 C/WPPIL/36/2019 CAV ORDER have been rendered completely unfounded and unjustified. 17.2 It is required to be noted that the provisions of law reproduced hereinabove and the guidelines laid down by the Election Commission of India specifically ensure demonstration of transparency in the conduct of elections. In fact the provisions of Rule 56D(2) allows the Returning Officer to address cases of genuine complaints and there is no reason why the prayers prayed for by the petitioner should be granted. The communication dated 10.01.2019 addressd by the Election Commission of India to the petitioner and the conviction of the Election Commission, a constitutional authority more an autonomous body, assures of the fact that the discretion so vested in the Returning Officer will be exercised with due care and in accordance with law. Reading of the provisions of Section 100(d)(iv) of the Representation Of People Act, 1951 indicates that in the event such an application is rejected, the aggrieved candidate or the elector has a remedy which is inbuilt to file an Election Petition. On these counts, therefore, we see no reason to entertain the Public Interest Petition and grant the prayers therein. 18. Before parting, we may just make a reference to the fact that the petitioner has with his petition, annexed a copy of the order of the Supreme Court rendered in Writ Petition (Civil) No.1012/2017. By the order dated 20.11.2017, the Apex Court dismissed the petition filed by Mr. Manubhai Chavda against the Election Commission. In the pleadings in the PIL before this Court, a reference is made that the Writ Petition before the Supreme Court was filed challenging Rule 56(D)(2) of the Conduct of Election Rules, 1961 by the writ petitioner Page 94 of 95 C/WPPIL/36/2019 CAV ORDER therein. Mr. Koshti, Party-In-Person has furnished a copy of the Writ Petition so filed. The grounds and particularly the prayers of the Writ Petition before the Apex Court and this Court are identical. When Mr. Koshti was confronted with the question whether it was appropriate for the petitioner to file the present petition, when the Supreme Court had dismissed the petition with similar prayers, Mr. Koshti relied on several decisions of the Apex Court, namely in the cases of DM Wayanad Institute Of Medical Sciences versus Union Of India and Anr. (Writ Petition (C) No.448 of 2015) : Indian Oil Corporation versus State Of Bihar 1986(4) SCC 146 to submit that merely because Article 32 of the Constitution of India is invoked, there is no bar to a subsequent petition under Article 226 of the Constitution of India. Since we have extensively dealt with the issue on merits, we are not going into the said question of maintainability of this Petition. 19. The Writ Petition PIL is therefore dismissed with no orders as to to costs. sd/- (ANANT S. DAVE, ACJ) sd/- (BIREN VAISHNAV, J) DIVYA Page 95 of 95 "