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Saturday, April 27, 2019

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.

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.