Validity of penal provision in case of wrong complaint against EVM’s deviant behavior challenged in SC

Is a threat of FIR in case of a wrong complaint against EVM’s deviant behavior justifiable? Can a person accused of any offence be compelled to be a witness against himself? We will get answers to these question after hearing of a petition in the Supreme court. Mumbai based Lawyer and RTI activist Sunil Ahya has challenged the validity of the penal provision in case of mismatched voting. Ahya mentioned this petition before Chief Justice on 24 April. Court ordered to list the matter On 26 April however on that case was not listed hence Ahya again mentioned it on 26th and court ordered to list it on 29th. So petition may be admitted on 29th of April.

Ahya has prayed Supreme Court to set aside Rule 49MA of the Conduct of Election Rules, 1961 except for the procedure prescribed for purpose of creating a statistical record of the complaints; and to register the complaint of any deviant behavior of the electronic machines/equipment used in the process.

There may be counter arguments on the complaint that ‘Press Any EVM Button and vote go to an unintended candidate”. But the political leaders like Sharad Pawar, Arvind Kejriwal, sushilkumar Shinde, Akhilesh Yadav, Mayavati and thousands of other people across India have complained outside polling booths about EVM VVPAT vote mismatch. However, not sure if machine’s behavior during test vote & scared of facing FIR, no one except one in Sangli of Maharashtra challenged mismatched vote under section 49 (MA) of election rules. 

Even ex DGP of Assam alleged EVM tampering after casting vote but didn’t dare to complain. This needs to be changed. The person casting vote should be sure of his vote has gone to the intended candidate only. If there is doubt in his mind it should be cleared immediately. 

Rule 49MA of the Conduct of Election Rules, 1961 mandates elector to give declaration in case of mismatched voting. This rule read with section 177 of the Indian Penal Code, criminalizes the reporting of deviant behavior of EVM & VVPAT. After complaint of mismatched voting the presiding officer if an elector after having recorded his vote under rule 49M alleges that the paper slip generated by the printer has shown the name or symbol of a candidate other than the one he voted for, the presiding officer has to obtain a written declaration from the elector as to the allegation. And after such declaration is obtained the Presiding Officer then permits the elector to record a test vote in the voting machine in his presence and in the presence of the candidate or his representative.

Also, is it fair and just to charge an elector for reporting such deviant behavior and to ask himself to be a witness against himself? As per article 20(3) of the Constitution. No person accused of any offence shall be compelled to be a witness against himself.

This all system puts the burden of proof on the elector, who has to face the criminal charges irrespective of whether that reporting is truthful and honest. This deters an elector from coming forth and making any complaint. This system also gives clean chit to the machine against which complaint has been made. Faulty machines sometimes may also record correct results. And that is the reason people don’t dare to complain even if they are sure of deviant behavior of EVM. Hence should be allowed to complain without fear of any action against him. 

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Bombay HC Asks Hyderabad Forensic Science Lab to Test Electronic Voting Machines

Amidst all the controversies of tampering of Electronic Voting Machine ( EVM), the Bombay High Court has asked Hyderabad based Central forensic Science laboratory  (CFSL) to investigate whether two EVMs used in Maharashtra Assembly Election 2014  were tampered or not. The HC has given this order in a election petition filed by Abhay Chhajed then congress candidate of Parvati Legislative Assembly Constituency in Pune. HC has also asked the collector pune to provide  the technical data ,  if any , if asked for and if possible to the CFSL Hyderabad .

Image cortsey The Voice of Nation

The HC has asked CFSL to investigate;

a) Whether there exists any electronic part/ device within EVM, which can remotely connect with external devices with the help of infrared/ blue tooth or similar technologies?

b) Whether there exists any additional memory chip inside EVMs to store any program counter data inside the EVM Machine?

c) Whether the machine codes ( One Time Programmable/OTP Codes) of all the exhibit EVM machines have been tampered?

d) Whether the has values and metadata of the aforesaid machine codes ( One Time Programmable/OTP Codes ) are same or different?

e) Whether the enclosed program counter data in the control unit give the same result as declared be the returning officer of the Election Commission dated 19.10.2014 at Parvati Assembly Constituency?

f) Whether the EVM machines and its data have been accessed in any manner during the period from the Date of polling and Date of Result?

g) Whether there is evidence or material indicating tampering or manipulation of the machines i.e counting unit and the ballot unit along with the connecting cables either from any internal or external remote device or source?

h) Is there any reason as a result of which the votes cast in favor of the candidate would either not be recorded or may  be recorded in favor of another candidate .Inspection and evaluation of the EV machines and its components?

i) Is it possible to find out how many such votes are cast . if yes , then how many and whose favor?

It was  the case of the Petitioner Abhay Chhajed  that the electronic voting machines used during the Maharashtra State Legislative Assembly elections, 2014 in Pune were tampered with. More specifically Booth No.185 and Booth No. 242 in the 212 Parvati Legislative Assembly Constituency. Chhajed  had also led evidence of voters who had cast their votes in his favor. The number of such voters from booth no. 185 exceeds the number of votes recorded in his favor in the Electronic Voting Machines used at the said booth.

Chhajeds’ argument was that ,the tampering of the machines was  quite evident because only 79 votes were counted in favor of him, in stead of 89.,In his support  89 such voters, who voted at Booth No.185 and Booth No. 242, had signed an Affidavit stating that they had voted for   him during the said election.

Abhay Chhajed had  lost to BJP's Madhuri Misal from that constituency, had challenged her October 2014 victory the same year. Misal was the first to be declared a winner during the 2014 assembly elections. She had defeated her two main rivals, Chhajed and Subhash Jagtap of the NCP.

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Pune Civic Polls; system admits mistakes, terms it "human errors"

In a shocking revelation, Returning Officer ( RO) of Pune civic polls has admitted that  ballot units ( BU) were changed and mock poll was conducted one day before actual polling in absence of candidates or their representatives .In an explanation to  this writer’s earlier post “EVMs may not be but system is vulnerable to fraud” and in a reply to candidate of ward no 33, the returning officer    ( RO) has admitted many mistakes during election process , but has termed those as human errors. RO’s  explanation has raised more doubts about election process that was conducted for Pune Municipal Corporation in February 2017.

 As all the ballot units (BU)  and control units ( CU)  were sealed and kept in tight security (?) question of  any change in it does not arise at all. However on actual polling day (21st February)  when polling staff opened BUs serial no’s of BUs were different from those recorded and sealed on 2^nd randomization of EVMs i.e. 15th February. In polling station no 10,12,28, 49 and 50  BU numbers were P44052, P 43551, MO22334, P143888 & P14390 respectively .But on  actual poling day those were P14992, P11947, MO23334, P 14386 & Mo 27617 respectively . If on voting day Ballot units are found faulty they can be changed after following proper procedure. Then how come and when  these ballot units were changed?

In an answer to this question of candidate RO has categorically said that BUs were changed  one day before polling day and on same day mock poll was conducted in absence of candidates or their representatives. In Marathi he has said उपरोक्त बदल हे दि २०/२/२०१७ रोजी मतदान केंद्राध्यक्ष यांनी मतदान केंद्रावर पोहचल्यानंतर रात्री उशीरा मॉकपोल बॅलेट युनिटमधील बटण मध्ये तांत्रिक अडचण उद्भवल्यामुळे झोनल अधिकारी यांचेकडे उपलब्ध करून दिलेल्या राखीव बॅलेट युनिटचा वापर  करण्यात आला आहे . वेळेअभावी या बाबतची सुचना उमेदवार किंवा उमेदवार प्रतिनिधी यांना देण्यात आली नव्हती.

That means , Such changes  were made because after arriving late night on 20/2/2017 on polling station, the technical difficulty was observed by presiding officer in a button of ballot unit and hence reserved BUs provided by zonal officer was used . Due to time constraint this was not communicated to candidate or their representatives.How come presiding officer goes to Polling station one day erlier of actual poll, changes the Bus and   conduct mock poll in absence of candidates or their representatives?

Normally as per election procedure mock poll is conducted thrice. 1^st  at first Randomization of ballot and control units in presence of representatives of political parties,2^nd at the time of second randomization and candidate setting in presence of candidates or their representative and 3^rd  on actual polling day before polling starts. So question of mock poll on day before actual polling day doesn’t arise at all. The major question is, if such mock poll was conducted in all the civic poll constituencies or how?. If mock poll was conducted for all ballot units in Pune polls in absence of candidate then this is very serious matter.

Actually as per election procedure When the EVMs are taken out of the strong room for dispatch, they have to  inform  the date and time of opening of strong room in writing to the candidates or their representatives. In a communication to this writer  RO  has mentioned that all CU & BU were changed at the time of dispatch only so presiding officer has not mentioned the change in his diary.This is something ridiculous . Polling party is not supposed  to touch any ballot unit button or take mock poll while taking possession of election material.

 If any defect arises in the Ballot Unit (BU)or Control Unit (CU) of the EVM during poll process, it is mandatory to replace the entire set of EVM (both BU & CU) by new set of EVM (BU & CU).And presiding officer has to record the reasons of replacing CUs or BUs in his diary. In instant case presiding officer has not recorded any reason for changing BUs in his diary.

There are some other serious issues that RO has termed them as human error. In  ward no 33 in around 21 polling stations  sequence of BU was changed. on 15th February  as per procedure EVMs were checked randomized , allotted polling station  wise, sequence wise  and sealed in presence of candidate or their representatives. Sequence of candidates was also set on the same day .Copies of serial no of polling station  wise ballot units (Bu) , Control unit and sequence of candidates set were given to candidate.

As per rules  Ballot Unit should be connected to control unit according sequence allotted to them only. Changing that sequence amounts to exchange of votes to another candidates. On upper right side of ballot unit there is slide switch that indicates sequence No of ballot unit . Polling staff wrote the sequence as they saw it on BU. Then how come sequence of ballot unit was changed and who changed it ?.This amounted to interchange of BUs. This has happen in 21 polling stations . This Number is very high. RO says this was human errors. If his version has to be admitted then Election commission has to admit that the staff on election duty was poorly trained or under educated.

In the upgraded model of the voting machines in case of change in sequence of ballot unit  linking error appears on the display panel of the control unit. The linking error can  be set right by interlinking the Ballot Units in the proper sequential order. Now election commission has to clarify whether EVM used in pune civic polls were of upgraded version or not and whether staff on election duty was poorly trained or under educated.

Election commission of India has clarified that in case of elections to Municipal bodies or Rural bodies like Panchayat Elections, the EVMs used do not belong to the Election Commission of India. Above local bodies elections come under the jurisdiction of State Election Commission/s (SECs), which procure their own machines and have their own handling system. ECI is not responsible for functioning of EVMs used by SECs in above elections. In my entire posts on election I have not blamed the EVMs but what about the system that handle the EVMs. Is that different in case of election commission of India?

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EVMs may not be but system is vulnerable to fraud ...

While Arvind Kejriwal and Mayavati are criticizing Electronic Voting Machines Anna Hazare has ridiculed these accusations of sore loser.No doubt Electronic Voting Machines (EVM)  are safe in protected environment and there may be rival arguments on whether EVMs are vulnerable to fraud or not.There are several possibilities that definitely raise doubts. In this post I don’t want to make any allegations but want to put plain facts that point the finger at entire  procedure followed in Pune Municipal Corporation (PMC ) elections. These facts are based on documents provided by election department. Election commission has to clarify on those doubts.

In  ward no 33 around 5 ballot units were changed without any reason or notice to candidates and in same ward  in around 21 booths sequence of ballot unit was changed. However due to lack of awareness nobody complained. This is something very serious. Before actual voting day EVM's were sealed in presence of candidates or their representatives. So question of change  of ballot units or their sequence  doesn't arise at all.

This time in PMC elections were conducted panel wise.Each ward electors had to elect 4 candidates. Elections were conducted in February 2017. 21 February was actual voting day and on 23 results were declared. But before that on 15^th February  as per procedure EVMs were checked randomised , allotted booth wise, sequence wise  and sealed in presence of candidate or their representatives. Sequence of candidates was also set on the same day .Copies of serial no of booth wise ballot units (Bu) , Control unit and sequence of candidates set were given to candidate. ( see Annexure 1).

As all the BU and CU were sealed and kept in tight security question of  any change in it does not arise at all. However on actual polling day (21^st February)  when polling staff opened Ballot units serial no’s of units were different from those recorded and sealed on 15^th February. In booth no 10,12,28, 49 and 50  Ballot unit numbers were P44052, P 43551, MO22334, P143888 & P14390 respectively (see Annexure 1).But on  actual poling day those were P14992, P11947, MO23334, P 14386 & Mo 27617 respectively ( Annexure2) . If on voting day Ballot units are found faulty they can be changed after following proper procedure. Then how come these ballot units were changed ? Isn’t this serious?.

Control Unit numbers are also different in booth no 24 and 30 in copy handed over to candidate those were M22232 and M 21591 but on actual polling day those were changed to  7507 and 21595 respectively ( Annexure 3). In some cases on polling day control unit or ballot unit numbers were not recorded at all ( Annexure 4)

Sequence of ballot units was also changed in almost 20 booths. As per rules  Ballot Unit should be connected to control unit according sequence allotted to them only. Changing that sequence amounts to exchange of votes to another candidates. In ward no 33 almost on 20 booths sequence of  ballot units was changed. In booth no 1,5,8,11,15, 17,18,2224,32,40,54,57,62,65,66,71,76 and  79 ballot unit 1 was connected  to 2 and 2 to 1 (Annexture 5). This is also serious because machine doesn’t read panel number or names of candidates . It reads numbers serially.

In the nutshell somebody from the system itself or from outside had access to the sealed machines and strong rooms. Election commissions has to clarify on these issues. 

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Reshma Bhosale’s Candidature is Abuse of Election Procedure

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Vijay Kumbhar

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Phone – 9923299199

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