Wednesday, October 5, 2022
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Election Commission moves Supreme Court to access EVMS used in 2021 state elections

The ECI is seeking directions for fixing a timeline for filing of Election Petitions in the States/Union Territories of Assam, Kerala, NCT of Delhi, Puducherry, Tamil Nadu and West Bengal, as in absence of the same, all EVMs used in these States/Union Territories are currently stuck or unable to be used/deployed for upcoming/future elections due to the Order dated 27.04.2021 passed by the Supreme Court.

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The Election Commission of India has filed an interlocutory application in the Supreme Court in the suo motu case In Re Cognizance for Extension of Limitation arising out of the challenge faced by the country on account of Covid-19 and resultant difficulties that could be faced by the litigants across the country.

The ECI is seeking  directions for fixing a timeline for filing of Election Petitions in the States/Union Territories of Assam, Kerala, NCT of Delhi, Puducherry, Tamil Nadu and West Bengal, as in absence of the same, all EVMs used in these States/Union Territories are currently stuck or unable to be used/deployed for upcoming/future elections due to the Order dated 27.04.2021 passed by the Supreme  Court.

Consequently, the Top  Court, by its Order dated 23.03.2020, directed that the “period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings”. It was further directed by the Supreme  Court, “This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction”.

Thereafter the Apex Court, while noting that the country is returning to normalcy and that all the Courts and Tribunals had started functioning either physically or by virtual mode, disposed of the Suo Motu by issuing certain directions, thereby regulating the extension of limitation and bringing it to an end.

Pursuant to the same, the Supreme Court Advocate on Record Association (SCAORA) filed certain Interlocutory Applications (IAs), highlighting the daily surge in Covid cases in Delhi and sought restoration of the order dated 23.03.2020 .

The Apex Court, by its order dated 27.04.2021 in suo motu writ petition, was pleased to direct as under: “We also take judicial notice of the fact that the steep rise in Covid-19 Virus cases is not limited to Delhi alone but it has engulfed the entire nation. The extraordinary situation caused by the sudden and second outburst of Covid-19 Virus, thus, requires extraordinary measures to minimize the hardship of litigant–public in all the states. We, therefore, restore the order dated 23rd March, 2020 and in continuation of the order dated 8th March, 2021 direct that the period(s) of limitation, as prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings, whether condonable or not, shall stand extended till further orders.”

It was further directed by the Supreme  Court that “This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction”.

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In this background, it is stated  that the instant application is being preferred on behalf of the Election Commission of India (ECI) , as due to the  Order dated 27.04.2021 passed by the Supreme  Court, the statutory period for filing Election Petitions as prescribed under the Representation of the People Act, 1951 has also been relaxed. Resultantly, all the Electronic Voting Machines (EVMs) and Voter Verified Paper Audit Trail machines (VVPATs) belonging to the Election Commission of India that were used in recently held Assembly Elections are blocked and cannot be used in future/upcoming elections.

ECI further referred  to the Instruction dated 15.07.2016, issued by the Election Commission of India to the Chief Electoral Officers (CEOs) of all States and Union Territories regarding the period of retention of EVMs used in elections.

Thus, as a result of the statutory provisions/rules, the relevant instructions issued by the Election Commission of India and the Order dated 27.04.2021 passed by the Supreme  Court, the Election Commission of India is unable to use a substantial number of EVMs. The same is a cause for concern for the Election Commission of India as it is scheduled to conduct assembly elections in a few states next year. The term of Legislative Assemblies of Goa, Manipur, Uttarakhand, Punjab and Uttar Pradesh are coming to an end in 2022, the ECI states.

In the Application, it is pointed out  that in order to ensure proper physical distancing during polls, the Election Commission of India had restricted the number of electors in a polling station to 1000 electors in the latest elections. Therefore, additional polling stations were created in the polling stations where the number of electors was more than 1000. Hence, if we take the same logic, then around 37.73% additional polling stations would need to be created in the aforesaid elections.

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Moreover, it is humbly submitted that in order to conduct General Elections to State Legislative Assemblies, generally 135% EVMs and 145% VVPATs (on total polling stations) are provided to States. With expected increase of polling stations, requirement of EVMs and VVPATs may also be further increased i.e. 51% additional EVMs and 55% additional VVPATs need to be allocated in addition to normal requirement of EVMs and VVPATs in these States.

The ECI further mentioned that 37.73% additional polling stations would need to be created in the aforesaid elections. Moreover, it is humbly submitted that in order to conduct General Elections to State Legislative Assemblies, generally 135% EVMs and 145% VVPATs (on total polling stations) are provided to States. With expected increase of polling stations, requirement of EVMs and VVPATs may also be further increased i.e. 51% additional EVMs and 55% additional VVPATs need to be allocated in addition to normal requirement of EVMs and VVPATs in these States.

“The Applicant therefore submits that it would be in the interests of justice that the present Application is allowed and that this Hon’ble Court may kindly direct a timeline for filing Election Petitions during the continuance of the Orders passed by this Hon’ble Court extending the normal statutory period of limitation so that the EVMs/VVPATs used in the States/Union Territories of Assam, Kerala, NCT of Delhi, Puducherry, Tamil Nadu and West Bengal may be released on the basis of the status of filing of Election Petitions by that due date. It is trite to mention that the Election Commission of India releases for reuse only those EVMs which have been used in constituencies in respect of which no Election Petition/Writ Petition has been filed raising any EVM related issue. The Applicant further craves for liberty to file a detailed affidavit, if so required by this Hon’ble Court,” the application reads.

The Application is filed through Advocate Amit Sharma.

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