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K.C. Mathew Vs. Election Commissioner of India and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKerala High Court
Decided On
Case NumberO.P. No. 3356 of 1982
Judge
Reported inAIR1982Ker265
ActsConstitution of India - Articles 226, 324 and 329; Representation of the People Act, 1951 - Sections 59 and 100
AppellantK.C. Mathew
RespondentElection Commissioner of India and ors.
Appellant Advocate S. Easwara Iyer, Adv.
Respondent Advocate C.M. Devan and; T.K. Nambiar, Advs.
Cases ReferredDr. John Mathai v. Returning Officer
Excerpt:
election - voting machine - articles 226, 324 and 329 of constitution of india and sections 59 and 100 of representation of the people act, 1951 - petition for restraining respondents from introducing electronic voting machines - no violation of section 59 and rules 33, 38 and 39 in introduction of electronic voting machines for exercise of franchise - grant of injunction to cause incalculable harm to other candidates and result in avoidable confusion amongst voting public - held, petition not maintainable. - - the balloting unit is a rectangular box like machine. 8. the election commission maintains that by the employment of this mechanical device 'there is no departure in the essential elements of the existing election procedure like maintenance of secrecy, identification of the.....orderk. sukumaran, j.1. kerala state goes to polls, for the eighth time, on 19th may, 1982. the election commission appears to have announced on 8-4-1982 its decision to hold the elections in this state. the election process commenced with the governor's notification issued in that behalf on 12-4-1982. parur -- referred to by the election commission as '70 parur l. a. constituency' --is one among the constituencies in which the electorate will exercise their franchise. shri sivan pillai is one of the candidates contesting from that constituency. he belongs to the communist party of india. another candidate is shri a. c. jose, described by the petitioner as belonging to the indian national congress (antony group)'.2. the petition states in para 4 'the united democratic front which has.....
Judgment:
ORDER

K. Sukumaran, J.

1. Kerala State goes to polls, for the eighth time, on 19th May, 1982. The Election Commission appears to have announced on 8-4-1982 its decision to hold the elections in this State. The election process commenced with the Governor's notification issued in that behalf on 12-4-1982. Parur -- referred to by the Election Commission as '70 Parur L. A. Constituency' --is one among the Constituencies in which the electorate will exercise their franchise. Shri Sivan Pillai is one of the candidates contesting from that Constituency. He belongs to the Communist Party of India. Another candidate is Shri A. C. Jose, described by the petitioner as belonging to the Indian National Congress (Antony Group)'.

2. The petition states in para 4 'The United Democratic Front which has sponsored the candidature of Shri A. C. Jose consists of the Indian National Congress (I) which is the ruling party at the Centre apart from other political parties in the State '

3. The Election Commission, apparently, does not recognise one Front or the other. In its counter-affidavit it states :

'..... the Election Commission doesnot recognise any front known as United Democratic Front under the Election Symbols Order. The Commission is concerned only with the recognised national and State parties. This respondent is not concerned with nor has he anything to do with the setting up of the official candidate of the United Democratic Front which includes the Indian National Congress (I) which is the ruling party at the Centre.'

4. The Parur Constituency is to witnesswhat may be said to be a pioneering attempt in the voting mechanism in elections. It is the legality of that innovation that is challenged in the writ petition, the petitioner being the Chief Election Agent of the candidate, Shri Sivan Pillai, and the three respondents being respectively, the Election Commission of India, the Chief Electoral Officer and the Returning Officer.

5. The Election Commission, it is claimed, has evolved and designed this electronic voting machine. The machine consists of two units : one the control unit operated by the Presiding Officer and kept in, the presence of the Agents of the candidates; the other, the balloting unit. The sequence of operation, is given in these words by the Commission in its counter-affidavit;

'13 (b). The Presiding Officer presses a button enabling the balloting unit so that one voter can enter and cast one vote. As soon as the Presiding Officer enables his button a busy lamp comes on in the controlling unit which can be seen by the agents who are present. When the voter enters and casts his vote by pressing the button there is a distinct 'Peep' sound in the control unit which can be heard by the agents present. At the same time the busy lamp goes off indicating that one vote has been cast, in the balloting unit while the button a pressed by the votes the red light against the name and the symbol of the candidate also appears indicating to the voter that his vote has been registered for that candidate. Therefore, it can he seen that manipulation in any manner by a Presiding Officer to cast multiple votes is completely ruled out, as all the operations of the Presiding Officer are done in front of the agents and for every vote cast there is a corresponding 'Peep' sound in addition to the cross verification possible by checking the total number of votes polled so far at any point of time '

6. Fifty such machines are to be used in about one hundred of the booths in this Constituency. The instructions on how to vote on the electronic voting machine are given (in both languages, English and Malayalam) in the pamphlet issued by the Election Commission and produced by the petitioner as Ext. P3 along with the original petition. A pictorial representation of the act of recording vote on the machine is also given therein. The instructions are:

'As usual identify yourself to the Presiding Officer of your booth.

He will be having a small electronic machine in front of him -- which is the control unit.

When he presses a button in this control unit, the balloting unit inside the booth is ready to register your vote. You will now enter the booth.

Inside the booth you will see a balloting unit.

The balloting unit is a rectangular box like machine. Names of the candidates and their symbols are printed on this box.

Alongside each symbol and name there is a round button and a rectangular light.

Think and choose your candidate. Press the round button which is against your candidate's name. You will see the light glowing in the rectangular space.

This means your vote in registered for your candidate. You can then leave.

To ensure that no one could register more than one vote; the machine will not operate after the button is pressed once -- until the Presiding Officer clears this by pressing his control button again for the next voter.'

The machine has been subjected to various 'severe tests' according to the Election Commission. The pamphlet Ext. R1 gives the details of the tests conducted in respect of those machines.

7. Under this system also, ballot paper a used. It is to be insertes inside the machine before its use in the polling station.

8. The Election Commission maintains that by the employment of this mechanical device 'there is no departure in the essential elements of the existing election procedure like maintenance of secrecy, identification of the elector, voting inside the screen compartment and ascertaining the total number of votes, and at the time of counting break up of votes held'.

9. The Commission states that the idea of employing an electronic device did not emerge as a bolt from the blue. It appears that efforts were being made for the last two years for the introduction in the electoral system of the country the use of electronic voting machine for facilitating the poll and the counting of the votes. Discussions were held with prestigious public undertakings like Bharat Electronics Ltd. and Electronic Corporation of India Ltd. After such discussions, the Commission evolved and designed the machine raking all precautions to meet the essential requirements and to checkmate all possible manipulations. The Commission felt, perhaps rightly, that in the scheme of things, this innovative attempt should be discussed with the political parties and that their views in the matter should be ascertained. A conference of all political parties was called for that purpose in Delhi nearly two years back, in July, 1980. The representatives of all National Parties were invited. The Commission states that participants in the meeting did not express any doubts about the efficacy of the device. On the other hand, they welcomed the approach of the Commission in perfecting the electronic machine and introducing the same at any convenient future elections. The Commission maintained a register for recording suggestions and objections. Experts from all political parties were allowed to inspect the machine.

10. The Commission further states that it was decided in advance that the machine would be introduced in the Parur Constituency and that wide press coverage and publicity through mass media was given about the same. According to the Commission, the State of Kerala was chosen for the introduction of the machine for the first time 'having regard to the high literacy and the enlightened electorate in the State who have seen a series of elections'. Parur (which abuts the industrial belt of Kerala) had the added distinction of having 'both rural and semi urban electorate', and that was an added reason for the choice of Parur Constituency for the experiment

11. It is claimed that it is in exercise of the powers of the Election Commission under Article 324 of the Constitution that the use of the electronic voting machine was directed. The direction of the Commission has been notified in the Gazette of Kenila. Such directions, it is claimed, are generally issued by the Commission in certain contingencies.

12. The petitioner had written on the 11th of May, 1982 a letter Ext. P2 to the Returning Officer stating that it was improper to introduce a new system of voting. It was complained therein that they did not receive any intimation from the Returning Officer about the introduction of any change of system. Protest was registered against the manner in which the experiment was attempted to be conducted. In para 4 of Ext P2 he stated :

' 'That the quality of the electronic equipment manufactured in India at present is fairly poor is accepted by one and all and this also may materially affect the results entailing unnecessary hardship to the candidates and electors in the eventuality of a re-poll becoming necessary.'

The letter wound up with a request for 'the entire details of any departure from the existing system and procedure'. The right for opposing any departure from the existing voting system, was reserved.

13. On 12th of May, 1982 the Returning Officer issued Ext, P1 letter informing Sri Sivan Pillai that electronic machines were likely to be used in the Constituency and requesting him to participate in the demonstration of the machines to be held at Town Hall, Parur at 11 a.m. either on the 14th or 15th May, 1982. The Election Commission states that the demonstration of the machine to the electorate was being done intensively from 14th May, 1982 and that the candidates and political parties were being invited to inspect the machine and participate in the demonstration. On 13th May, 1982 the petitioner had met the Secretary of the Election Commission and presented what according to him were the objectionable features in the introduction of the electronic machines. 'These features are now incorporated in para 8 of the affidavit in the Original Petition). The technicians of Bharat Electronics Ltd. and Electronic Corporation of India Ltd. explained to the petitioner how the apprehension was unfounded. The petitioner, was not satisfied with the attitude of the respondents.

14. This writ petition was filed on 13th of May, 1982 praying for a writ of mandamus to restrain the respondents from introducing the electronic voting machines. An interlocutory application for injunction on similar terms has also been moved.

15. The main contention pressed by counsel at the time of admission of the writ petition related to a violation, according to him, of the Election Rules of 1961 (hereinafter referred to as the Rules), particularly Rules 33, 38 and 39 framed under Section 59 of the Representation of the People Act, 1951, (hereinafter referred to as the Act). The complaint shadowed in Ground B, and relating to the absence of a method by which the correctness of the results shown by the machine, could be checked, was also referred to by counsel. In support of this ground, factual averments are made in para II of the affidavit which contains the petitioner's 'substantial objections regarding the use of the machine'. To sum up, they relate to : (a) not allowing the machines to be tested for their accuracy by technical experts of the choice of the candidate; (b) the possibility of non-recording of the votes or mistakes therein due to mechanical or manufacturing defects; (c) the possibility of manipulation by attachment of a 'time device' inside the machine; (d) the possibility of a deflection in the recording of the votes by a presence of powerful magnet, if carried by any person; and (e) the possibility of the Presiding Officer manipulating without the release of the button or releasing it in such a manner as to enable a person to record more than one vote; and possibility of a breakage of the cable resulting in the stoppage of the polling.

16. The first respondent intervened through counsel at the time of the preliminary hearing. The very maintainability of the writ was questioned, relying on Article 329 of the Constitution. The complaints relating to the working of the machine and about the possible prejudice that could be caused were pointed out to be baseless. Government Pleader Sri T. K. Nambiar appeared on behalf of respondents 2 and 3.

17. At the request of the Court, the officials of the 1st respondent and the technicians of the concerned Public Sector Undertakings, usefully extended their co-operation in an endeavour to demonstrate the efficacy and efficiency of this electronic election equipment.

18. The 1st respondent, as directed by the Court, has filed a counter-affidavit, incorporating therein the factual details and legal contentions, which have a bearing for a proper decision of the writ petition. In the fore of its contentions, is the bar of Article 329 of the Constitution.

19. The various facts referred to above starting from the thinking of the Election Commission regarding the introduction of the electronic device and culminating in the publication in the Gazette of the direction under Article 324 of the Constitution relating to the employment of the machine in the Parur Constituency, have been sketched in the counter-affidavit. The fact that the machines to be used on the 19th of May, 1982 have been subjected to severe environmental and other tests is referred to in paragraph 7. The equipments have been subjected to the various tests, such as vibration, high temperature, damp heat test, the low temperature test, bump test, tropical exposure test, corrosion (salt) test, drop test, these being the iests in unpacked condition. In respect of 'packaging evaluation' tests such as the drop test, roll over test and bump test have been conducted. These are referred to under the head 'Environmental Specifications', in Section 6 of the Technical Specifications. The details are given in Ext. R1 produced along with the counter-affidavit.

20. The counter-affidavit further asserts that the apprehensions expressed by the petitioner are unfounded having regard to the elaborate precautions made by the Election Commission, and the authorities under it. The steps taken for removing all possible objections raised in Ext. P2 have been indicated in para 10. It is stated that to educate 'he electorate as regards the manner of exercise of votes by the use of the machine, is not difficult, as the procedure is so simple : it is done by simply pressing a button. It has been stated that the essential elements of the existing rules relating to recording of votes have been kept up, and that only minor changes have been made in the procedure for enabling the use of an electronic machine. The sequence of operation is, as stated earlier, explained in para 13 (b). With reference to the specific complaints referred to in para 11 (d) and (a) of the petitioner's affidavit, it is stated that the machines are of such nature that they are totally unaffected by extraneous electrical and magnatic fields, however powerful they be. No manipulation in any manner is possible for the Presiding Officer, having regard to the operation of the machines and particularly in view of the fact that all the operations of the Presiding Officer are done in front of the agents of the various candidates and the further fact that a cross-verification is possible by checking the number of votes polled at any point of time. These aspects also have been explained in the counter-affidavit.

21. Having regard to the contentions raised between the parties, the following questions may arise : (a) Is the writ petition maintainable at all in view of the bar under Article 329 of the Constitution (b) Is there any violation of Section 59 of the Act and Rules 33, 38 and 39 of the Rules in the introduction of the electronic voting machines for the exercise of the franchise? (c) Having regard to the circumstances, is the petitioner entitled to invoke, and at this juncture, the extraordinary jurisdiction of this court under Article 226 of the Constitution

22. I shall consider these questions seriatim.

(a). Bar of Article 329 :

23. For considering the maintainability of the writ petition, it is desirable to set out, at the outset, Article 329(b) of the Constitution. It reads :

'329. Bar to interference by Courts in electoral matters: Notwithstanding anything in this Constitution -

(a) .....

(b) No election to either House of Parliament or to the House or either House of the Legislature of a Slate shall be called in question except by as election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature.'

24, As observed by the Supreme Court in Mohinder Singh v. Chief Election Commissioner, AIR 1978 SC 851, 'the span ofthe ban under Article 329(b) is measured by the sweep of Section 106 of the Representation of the People Act'. That section too, can be given for facility of easy reference. (Before the section is read, it is desirable to bear in mind that under Section 80-A of the Act, the Court having jurisdiction to try an election petition is the High Court as defined in Section 79). Section 100(1)(d)(iv) which is relevant reads :

'100. Grounds for declaring election to bevoid

(1) Subject to the provisions of Sub-section (2) if the High Court is of opinion -

XX XX XX XX (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected -

xxxxx (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.'

25. The law on the interpretation of Article 329 has been encapsulated in Ponnuswami v. Returning Officer. Namakkal Constituency, AIR 1952 SC 64, rightly termed as 'a landmark case in election laws'. The later decisions including Durga Shankar Mehta, AIR 1954 SC 520; Hari Vishnu Kamath, AIR 1955 SC 233 and Indira Gandhi, AIR, 1975 SC 2299, and the decision already referred to, Mohinder Singh's case (AIR 1978 SC 851) (supra), are all applications of those basic principles to differing situations.

26. After surveying the historical background of the provision, the Supreme Court observed that in a country with democratic constitution in which the legislatures have to play a very important role it will lead to serious consequences if the elections are unduly protracted or obstructed. It is in that view that immediate individual relief at an intermediate stage when the process of election is under way has to be sacrified for the paramount public good of promoting the completion of elections. Any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special Tribunal and should not be brought up at an intermediate stage before any Court. Areference to Section 100(1)(d)(iv) will show that a complaint regarding such an action may be grounded even on the non-compliance with the provisions of the Constitution or the Representation of the People Ac! or other Rules or Orders made under the Act. It was further observed that the provisions of the Act provide for only one remedy, and that remedy is an election petition to be presented after the election is over, and that there is no remedy provided at any intermediate stage. The non obstante clause in Article 329 had been particularly noticed. Article 226 of the Constitution, it was observed, 'stands pushed out where the dispute takes the form of calling in question an election', except in certain situations with which we are not concerned. Anything done or directed by the Commissioner in furtherance of the election is thus barred under Article 329. Section 100 of the Act is exhaustive of all grievances regarding an election,

27. The usefulness of such a provision in a Constitution has perhaps been felt by other countries too. Article 118 of the Malaysia Federal Constitution of 1957 contains a corresponding provision, almost in similar words.

27-A. The Supreme Court took the view that a poll formed a vital part of the election but that with the poll the election was not over. The declaration determines the election. It was noted in Hari Vishnu Kamnath's case, AIR 1955 SC 233, that even proceedings under Article 226 of the Constitution are excluded during the ongoing process of election, though beyond the decision of the Tribunal, the ban of Article 329(b) does not bind. The conclusion of the Court in Mohinder Singh's case (AIR 1978 SC 851) was categorically staled in the following words (at p. 868):

'Article 329 (b) halts judicial intervention during this period, provided the act possesses the pre-requisites of 'election' in its semantic sweep.'

28. The decisions rendered till then have been surveyed in Mohinder Singh's case (AIR 1978 SC 851) (supra) by a constitutional Bench of five Judges where Krishna Iyer, J., posed one of the problems arising in that case in the following words (at p. 861)'

'Is Article 329(b) a blanket ban on all manner of questions which may have impact on the ultimate result of the election, arising between two temporal termini viz., the notification by the President calling for the election and the declaration of the result by the Returning Officer? Is Article 226 also covered by this embargo .....'

29. The question as to when election commences and when it concludes is also no longer in controversy now. It commences, according to the decisions of the Supreme Court, with the Presidential (or Governor's) notification, and concludes, as noted earlier, only with, the declaration of the results of the election. The following observations of Goswami, J., who delivered the judgment in Mohinder Singh's case (AIR 1978 SC 851) (supra), on behalf of himself and Singhal, J., is particularly apposite in this connection (at p. 894):

'As already pointed out, it is well-settled that election covers the entire process from the issue of the notification under Section 14, to the declaration of the result under Section 66 of the Act ..... We are not concerned with the question whether the impugned order is right or wrong or invalid on any account. Even if it is a wrong order it does not cease to be an order passed by a Competent Authority charged with the conduct of elections with the aim and object of completing the elections. Although that is not always decisive, the impugned order itself shows that it has been passed in the exercise of power under Article 324(1) and Section 153 of the Act ..... Such an order, relating, as it does, to election within the width of the expression as interpreted by this Court, cannot be questioned except by an election petition under the Act.'

30. It has been already noticed that the claim of the Election Commission in exercise of powers under Article 324 issued in the counter-affidavit is that the direction relating to the employment of the electronic machines for the recording of votes has been issued in the exercise of the power under Article 324 of the Constitution. This order too, is, therefore one passed by the Competent Authority charged with the election, namely, the Election Commission and with the aim and object of completing the election.

31. In this view of things, there cannot be any doubt whatever in this case that with the promulgation of the notification by the Governor on 12-4-1982 relating to the election proposed on the 19th of May, 1982, the election process commenced. The step taken, namely, the introduction of the electronic machines for recording of the vote is a step integrally connected with the election, it being one manner of giving votes contemplated under Sec. 59 of the Act. The step is also one to further, the election process and not to retard it. Even if such a step be one in contravention of the Constitution or the Act or the Rules such a complaint is indubitably a grievance regarding an election and based on something which the Commission does or has directed in furtherance of the election. The complaint of the petitioner therefore is one calling in question a step in election and is therefore barred by Article 329 of the Constitution.

32. A long chain of cases where the High Courts in India held writ petitions pertaining to election matters in diverse circumstances as not maintainable in view of the bar of Article 329 is given in Rameshwar Daepal's 'Election Law', 3rd Edn., page 23. I am not examining in detail those decisions, as the matter is clearly covered by the pronouncements of the Supreme Court.

33. In the light of the foregoing discussion I am clear in my mind that the sweep and amplitude of Article 329(b) is such as to bar, at the very threshold, the entry into this Court of this election litigation.

(b) Violation of Section 59 of the Act and Rules 33, 38 and 39:

34. Under the statutory scheme, Sec. 59 of the Act provides for the manner of voting at elections. The section reads:

'At every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed, and no votes shall be received by proxy.'

The prescription of the method as envisaged in that section, is to be done by rules, for that is the mode indicated with reference to the definition of the term 'prescribed' under Sec. 2(g) of the Act. The enabling provision for framing rules is contained in Section 169. Clause (c) of Section 169(2) provides for the framing of rules in respect of the manner in which votes are to be given. It is in exercise of these powers that the rules referred to above have been framed. The powers of the Election Commission as provided under Article 324 of the Constitution, with 'no hedging' (as observed by the Supreme Court), are indicated in the following words :

'Article 324, on the face of it, vests vast functions which may be powers or duties, essentially administrative and marginally even indicative or legislative.'

It is well established that Article 324 is wide enough to supplement the powers under the Act. The Commission may be required to cope up with the situations unprovided for in the enacted laws and the rules. That according to the Supreme Court is 'the raison d'etre for the opening clause in Articles 327 and 328 and which leaves the exercise of powers under Article 324 operative and effective when it is reasonably called for in a vacuous area'. The Commission will have however to conform, in the exercise of its powers and the performance of its manifold duties for the conduct of free and fair elections, to the existing laws and rules.

35. The counter-affidavit has stated that the present changes have been effected on the basis of a direction from the Election Commission and that such a direction has traced the source of its power to Article 324. Can it be said that the direction operates in a vacuous area? Or is it in conflict with any of the existing rules

36. Rule 33 of the Conduct of Election Rules refers to preparation of ballot boxes for poll, and deals with the precautions to be taken in order to ensure the securing of a ballot box. The requirement of a stamping of the ballot paper and the counterfoil attached thereto before it is issued to an elector is dealt with in R. 38. The other provisions contained in Clauses (2) and (3) relate to the formalities to be observed at the lime of is uing a ballot paper to the voter. Do these rules have the effect of providing that the vote shall be given solely and exclusively in the manner now provided Is an additional or further mode of giving the votes permissible? Is there a prohibition in the area with impact on the direction given by the Commission under Article 324 of the Constitution? When Sir Wintson Churchil extolled the English electoral system by referring to 'the little man, walking into a little both with a little pencil, making a little gross on a little bit of paper', was he emphasising on the little booth, the little pencit or the little bit of paper? Or was the emphasis on the man and the free expression of his selection These and other questions may have to be answered. There have been complaints on the mechanical aspects too. The complaints, some of them vague and hypothetical, regarding the alleges lack of efficacy of the machine have been answered by the statements in the counter-affidavit. Here again, it is not necessary 10 express any opinion at this Juncture. One strand of thought may be as stated by Stephen, J., in Reg v. Collins Exp., 50 ALJR 471 (472), that 'the novelty is itself no obstacle to its success'

37. The complaints about the possible manipulations.' including manipulations by the Presiding Officer, are absolutely hypothetical at this stage. No doubt, a free and fair election should be one in which 'dirty tricks' or manipulations should not have their way. W. J. M. Mackenzie postulated four pre-requisjtes for elections to be free : (i) The country must have an independent judiciary, free from political influence or control, which can interpret the electoral laws fairly and impartially, (ii) there must be an honest, competent, non-partisan administration to run the elections; (iii) there must be a developed system of political parties, since, if this is not so, the voter may not be Clear what policies the candidate stands for, or which potential government he would support it elected: (iv) there must be general acceptance, both by the politicians and by the general public, of what might vaguely be described as the 'rules of the game'. Candidates must play fair: they must not try to evade legal restrictions upon their electoral activities, such as bribery or misrepresentation, either in the letter or in the spirit of the Jaw, nor must they refuse to admit defeat if the verdict of the ballot boxes goes against them. Equally, the voters who supported defeated candidates must accept the decision of the majority'. (W. J. M. Mackenzie: Free Election 1958). But then, are not the rules of the game violated and employment of even dirty tricks resorted to even in systems where gadgets, electronic or otherwise, arc not employed? That may happen even in advanced democracies. An insight of such 'dirty tricks' practised in the United States Election is available in Jaworski's hook. 'The Right and the Power'. That there had been incursions against the rules of the game in Asian countries where elections are held if one may have an eastward look too!) are referred to in 'Constitution of Malaysia, Its Development: 1959 to 1977 edited by Tun Mohamed Suffian, Lord President of the Federal Court of Malaysia, 1979 Edition page 227.

38. The possibilities of abuse referred to in paragraph II of the affidavit of the petitioner have been answered in the counter-affidavit of the 1st respondent. Is the answer satisfactory As noted earlier, the Commission asserts that it will not take much time for the electorate to be familiar with the manner of exercising the vote on the machine; for all that is necessary is to press the button, against the candidate's name and his symbol, almost in the same fashion as making a cross or pulling a seal in a similar ballot paper. The electorate of the State had had sufficient education and experience (more education and more experience probably than others in all other States in India) in the exercise of franchise. To the enlightened character of the electorate reference has been made by the Election Commission. Probably the reference is to the men (and women) even in the interior parts of the State, who devour the news in the 'papers' and debate on events, national and international, even while they partake their frugal meal or sip their milkless tea.

39. The averment of the petitioner that the quality of the electronic equipment manufactured in India at present is fairly poor is accepted by one and all, I apprehend is unjustified. There may be many in this country who take the accusation as a calumny on the talents and dedication of the large number of men and women, who by their sincere service, project the fame and image of their undertakings here and abroad, and their achievements transcending even ethereal spheres.

40. The working of the machine, as stated earlier, had been demonstrated to me. Prima facie, its working appears to be satisfactory. A better assessment of the efficacy of the machines could be done only after the elections are over. Even if there be any complaint about the accuracy of the recording of the machines, that would be a matter for precise pleading and proper proof in the Election Petition, which under law as exposed by judicial decisions, is the only legal remedy.

41. Yet another way of looking at this aspect of the case may be to find out whether Rules 33, 38 and 39 are mandatory or directory. If they be directory the departure, if it be a marginal one as asserted by the Election Commission, may not be legally condemnable. There have been cases where some of the Election Rules have been held to be only directory. It is not necessary to burden this judgment by copious reference to such decisions. A problem of interpretation of some of the election provisions arose in Raghbir Singh Gill v. Gurucharan Singh Thora, 1980 Supp SCC 53 : (AIR 1980 SC 1362).

42. In view of ray conclusion on topic (a), a discussion on these questions is unnecessary and perhaps tabooed, going by the indication contained in the judgment of the Supreme Court in Mohinder Singh's case, AIR 1978 SC 851 (vide paragraph 9 of the judgment at pp. 858 and 859). No observation or discussion by this Court shall in any way influence the adjudication of these issues, which may arise if and when they are sought to be raised in an Election Petition filed at the instance of any of the aggrieved parties. I therefore refrain from expressing any views on this vexed question

c. Invocation of discretionary power under Article 226.

43. The further question that arises is as to whether even if there is no bar for this writ petition under Article 329(b) of the Constitution and even if the direction of the Commission is violative of the Rules aforesaid, should this Court at this stage exercise its discretionary power to entertain this writ petition There have been cases where this Court had declined interference even when infraction of statutory rules was established but the conduct of the petitioner, or other reasons, disentitled him to the discretionary and extraordinary relief. Applying the principles underlying such non-exercise of power, I feel justified in declining jurisdiction in the present case.

44. As has been noted earlier, the evolution and design of the electronic voting machine was a matter which had taken place nearly two years back. The Election Commission did apprise of the National Political Parties about its intention regarding the introduction of the machine. No party did demur to its introduction; on the other hand, all welcomed it. Facilities were given for the experts to examine the machine and to offer their suggestions. Registers have been kept in that behalf. It is further stated that all precautions had been taken for obviating the errors in the working of the machine. The numerous tests which the machines have undergone are referred to in Ext. R-1. The intention to introduce these machines in the Parur Constituency had been notified sufficiently early by press-release and other mau media -- claims the Election Commission. The prayer, if granted, will in effect upset the arrangements hitherto made and will lead to waste of time, energy and money. It was only a few weeks back that the Supreme Court of India speaking through the Chief Justice, cautioned that the 'High Court must observe a self-imposed limitation on their power to act under Article 226 of the Constitution by refusing to pass orders or give directions which will inevitably result in an undefinite postponement of elections to the legislative bodies which are the very essence of the democratic foundation and functioning of our Constitution'.

45. The matter vitally concerns the voter. No voter has approached the Court with any grievance. A litigation like the present one, in the words of the Supreme Court, is one where the entire constituency is interested, for 'an election dispute is not like an ordinary is between private parties. The entire electorate is vicariously and not inertly before the Court'. In the present circumstances, it would be extremely hard on the other candidates who might have proceeded to educate their supporters to vote with the electronic voting machines to be confronted with a disconcerting situation where they have to reverse their entire process. Entertainment of the writ petition and grant of an interim relief in such circumstances will cause incalculable harm to the other candidates and result in avoidable confusion among the voting Public, virtually on the eve of the poll-day. Any interim relief as sought for, will, to all intents and purposes, tantamount to allowing the writ petition and granting all that it sought for in the writ petition itself at a time when the entire legal and other issues could not be property processed in accordance with law or dealt with fairly or justly. That too is a dissuading circumstance for curial intervention at this stage. These grounds too impel me to reject the writ petition, by not Invoking the discretionary power under Article 226 of the Constitution.

46. When in the dawn of the Constitution the elections were announced in the whole nation, an election litigation was ignited from this part of the State, The very first case which found place in the Official Election Law Reports is the decision of the Travancore-Cochin High Court in Dr. John Mathai v. Returning Officer, Kottayam, (1951) 1 Ele LR 1 : (AIR 1952 Trav-Co 1). That writ petition was held to be not maintainable because of fee bar under Article 329 of the Constitution and was dismissed. On the introduction of a new electronic voting machine for the first time in this country, again it is this State that witnesses a legal challenge. This challenge too fails under Article 329 of the Constitution. It has also therefore to be dismined.


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