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2015 DIGILAW 1692 (KER)

Renjith v. State Election Commissioner

2015-12-17

V.CHITAMBARESH

body2015
JUDGMENT : V. Chitambaresh, J. 1. Can a candidate insist for the inspection of the Electronic Voting Machines used for the poll in order to assure himself of the transparency of election otherwise than by an Election Petition? The petitioner contested from Ward No. 8 in Kalady Grama Panchayat and lost the election to the local body by a sizable margin which he least expected. The petitioner entertained a doubt that the Electronic Voting Machines installed in two booths were defective and this paved the way for his ignominious defeat in the election. The petitioner thereupon preferred Ext. P3 representation to the Returning Officer seeking to re-check the Electronic Voting Machines in his presence. The main components of the Electronic Voting Machines used for the poll are stated to be the Detachable Memory Module, the Ballot Unit and the Control Unit. A writ of mandamus has been sought for an expeditious consideration of Ext. P3 representation and not to remove the Electronic Voting Machines from safe custody in the meanwhile. 2. The State Election Commission has filed a statement contending that the Writ Petition is not maintainable in view of the bar under Art. 243-O(b) of the Constitution of India. The petitioner not having filed an election petition in time cannot have the Electronic Voting Machines re-checked in his presence. It is stated that the Electronic Voting Machines or other records relating to the election cannot be produced or inspected by any authority except by an order of Court. Only the Court competent to try the election petition wherein the election is called in question can pass such an order which the petitioner has concededly failed to approach. It is futile to have the Electronic Voting Machines re-checked when the exercise does not at all affect the declaration of the result of the election. 3. I heard Mr. Rajeev K.S., Advocate on behalf of the petitioner, Mr. Murali Purushothaman, Standing Counsel on behalf of the Kerala State Election Commission and Mrs. Sanjeetha K.A., Senior Government Pleader. 4. It was open to the petitioner to have called in question the election by an election petition by resort to S. 87 of the Kerala Panchayat Raj Act, 1994 ('the Act' for short). The plea in essence of the petitioner is that the Electronic Voting Machines installed in the booths did not record the reception of votes correctly. 4. It was open to the petitioner to have called in question the election by an election petition by resort to S. 87 of the Kerala Panchayat Raj Act, 1994 ('the Act' for short). The plea in essence of the petitioner is that the Electronic Voting Machines installed in the booths did not record the reception of votes correctly. The improper reception of votes is very much a ground for declaring the election to be void under S. 102(1)(d)(iii) of the Act. The petitioner could have established the same by causing the production of the Electronic Voting Machines and other records and also by adducing expert evidence in support. The period of 30 days after the declaration of the result for the presentation of the Election Petition under S. 89 of the Act to rake up the question has evidently run out. No useful purpose would be served by re-checking the Electronic Voting Machines in the presence of the petitioner when it cannot affect the result of the election. The Kerala Panchayat Raj (Conduct of Election) Rules, 1995 ['the Rules' for short] have also relevance in the wake of the contentions urged by either parties. R. 55A(2) thereof stipulates that the Electronic voting Machines and other records relating to the election cannot be inspected except by an order of the Court. The 'Court' in the context of R. 55A(2) of the Rules can obviously be the court competent to try the election petition under S. 88 of the Act. Only the Election Court can decide on the basis of the evidence adduced as to whether the Electronic Voting Machines functioned properly to record the votes cast. This court cannot direct the Electronic Voting Machines to be re-checked at this juncture in exercise of its jurisdiction under Art. 226 of the Constitution of India. The Writ Petition fails. Dismissed. No costs.