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2017 DIGILAW 1865 (GUJ)

Khemchand Rajaram Koshti v. Chief Election Commissioner

2017-12-04

R.SUBHASH REDDY, VIPUL M.PANCHOLI

body2017
ORAL ORDER : VIPUL M. PANCHOLI, J. By way of this petition in the nature of public interest litigation, the petitioner party-in-person, has prayed for the following relief/s: “(A) Your Lordships may be pleased to allow the present writ petition (PIL); (B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ/order/direction to direct the respondents to initiate the process for creating awareness among the voters as regards functioning and usage of NOTA and EVMs with VVPATs so that the free and fair election process is safeguarded and the voters can realize and ensure to whom their vote has been cast. (C) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ/order/direction to direct the respondents to implement the guidelines/instructions issued by the Election commission of India dated 16.10.2017 more particularly as contained in Annexure-III appended to the guidelines in the interest of justice. (D) Your Lordships may be pleased to pass such suitable order/direction and direct all the respondents to submit the action taken report of representation dated 1.11.2017 made by the petitioner by way of interim relief in the interest of justice. (E) Any other and further relief/s may kindly be granted in the interest of justice.” 2. Heard petitioner Mr. K.R. Koshti as party-in-person and learned advocate Ms. Megha Jani assisted by learned advocate Mr. Sahil M. Shah for the respondents. 3. The petitioner submitted that on 25.10.2017, the Election Commission has issued notification for election of Gujarat Assembly 2017. As per the declaration of the election programme, the election would be conducted in two phases i.e. on 09.12.107 and 14.12.2017 At this stage, petitioner has referred to the directions issued by the Hon'ble Supreme Court in the case of Subramaniam Swamy v. Union of India, and more particularly after referring to para 28 of the said decision, it is contended that pursuant to the aforesaid decision, the Election Commission has already declared that now any election for Assembly or Parliament should be conducted as per the directions given by the Hon'ble Supreme Court and bring the system of Electronic Voting Machines (EVMs) with Voter Verifiable Paper Audit Trail system (VVPAT). 4. 4. Petitioner thereafter submitted that since the EVMs with VVPAT system is going to be introduced for the first time in India, the public at large is not aware about the functioning and usage of the I same. It is submitted that most of the voters in India are not educated and some of them are not well-versed with the use of electronic gadgets. Therefore, with a view to ensure that the purpose of usage of EVMs with VVPAT is not defeated, the voters should be made aware about the functioning and usage of the EVMs with VVPAT. However, it is alleged that the respondent authorities have not issued any direction to the State authorities for taking measures to create awareness in the public at large. Petitioner, therefore, made a representation on 01.11.2017 to the State Election Commission for issuing necessary direction to the State Government Machinery for taking appropriate measures to create awareness in the public at large with regard to usage and functioning of the EVMs with VVPAT. However, till filing of the petition, no reply was given by the respondent authorities. The petitioner has referred to the communication dated 16.10.2017 issued by the respondent No. 1 to the Chief Electoral Officers of all the States and Union Territories which is produced at page 17 of the compilation. Petitioner has therefore submitted that the reliefs prayed for in the present petition be granted and necessary directions be issued to the respondents. At this stage, it is submitted that though the respondents have stated in the affidavit that they have prepared a short film explaining how vote is to be cast by using EVM-VVPAT, as per the say of the respondents, such short film is of a duration of about 30 minutes. Therefore, the respondents should prepare short clips explaining the usage of EVM-VVPAT 5. On the other hand, learned advocate Ms. Megha Jani appearing for the respondents has referred to the affidavit and further affidavit filed on behalf of respondent No. 2 and from the said affidavits, learned advocate Ms. Megha Jani has pointed out that various awareness activities, and more particularly demonstrations on the use of EVM VVPAT have already been held by the concerned Election Officers and approximately 17,000 demonstration camps have been organized for the purpose of spreading awareness about the usage of VVPAT system, amongst the voters, Election Personnel including Returning Officer. Megha Jani has pointed out that various awareness activities, and more particularly demonstrations on the use of EVM VVPAT have already been held by the concerned Election Officers and approximately 17,000 demonstration camps have been organized for the purpose of spreading awareness about the usage of VVPAT system, amongst the voters, Election Personnel including Returning Officer. It is submitted by learned counsel Ms. Megha Jani that the said process will continue till the election. 6. Learned advocate Ms. Megha Jani further submitted that several street plays, cultural activities have been carried out for the awareness of functioning and usage of EVM VVPAT by the concerned Election Officers. Further, mock polling stations are established at educational institutions, Government Offices and public places in all the Districts. Moreover, awareness about the usage of EVM and VVPAT system is being spread through hoardings at suitable locations. There are approximately 5100 hoardings in the State of Gujarat which are being utilized for spreading information regarding the functioning of EVM-VVPAT. The said hoardings/banners provide information as to how the votes are to be cast by using EVMs-VVPAT. 7. Learned advocate Ms. Megha Jani also pointed out from further affidavit filed on behalf of the respondent No. 2 that the concerned officers are also spreading awareness about EVM-VVPAT through social media like twitter, Facebook, etc. For the purpose, special Facebook page has been created. Moreover, a booklet named “Voters Guide” has been prepared in Gujarati language which contains all information relating to election, including use of None Of The Above (NOTA), EVM and VVPAT. This booklet will be distributed to every household along with Photo Voter Slip by the Booth Level Officers, at least one week prior to the polling date. Learned advocate Ms. Jani further pointed out from the said affidavit that the District Election Officers have distributed more than 75 lakh sankalp patras, which contains photographs of EVM VVPAT and explanation of their functioning, to the parents through their children studying in the schools. Moreover, the posters regarding how to cast vote by using EVM and VVPAT shall be pasted at the polling stations on the day of polling. 8. Learned advocate Ms. Jani further pointed out that the concerned Senior Election Officers have also given interviews on Doordarshan/TV Channels wherein the functioning of EVM-VVPAT has been explained at regular intervals. Moreover, the posters regarding how to cast vote by using EVM and VVPAT shall be pasted at the polling stations on the day of polling. 8. Learned advocate Ms. Jani further pointed out that the concerned Senior Election Officers have also given interviews on Doordarshan/TV Channels wherein the functioning of EVM-VVPAT has been explained at regular intervals. Moreover, press conferences have been held by the concerned Election Officers with print media wherein press notes issued by the Chief Electoral Officer/District Election Officers are brought to the notice of the media persons so that awareness amongst the voters also be spread through them. It is also brought to our notice that a short film has already been made wherein it has been explained as to how the vote is to be cast by using the EVM-VVPAT. Suitable short clips have also been made of the short film for the benefit of voters, so as to show as to how to cast the vote using EVM-VVPAT. These short clips will be started to show on Cable TV Network till the election. So far as rural and urban areas are concerned, mobile vans are being used to spread awareness regarding functioning and usage of the VVPAT by way of short clips of around 2-3 minutes. 9. It is stated that the pamphlets depicting use of VVPAT have also been distributed to more than 1.2 crore households. It is submitted by learned advocate Ms. Megha Jani that no vote is recorded in the CU electronically unless the paper slip has been printed and cut by VVPAT. Learned advocate Ms. Jani, therefore, submitted that since the grievance of the petitioner is addressed and nothing survives, the present petition may be dismissed. 10. We have heard the petitioner - party-in-person and learned advocate appearing for the respondents. We have also gone through the material produced on record and the affidavit and further affidavit filed by the respondent No. 2. Present petition is filed with a grievance that though the Election Commission of India has given instructions by communication dated 16.10.2017 to all the Chief Electoral Officers of all the States and Union Territories, which is produced at page 17 of the compilation, respondent No. 2 has not taken appropriate steps for bringing awareness of functioning and usage of the EVM-VVPAT system amongst the public at large. However, from the affidavit filed by the respondent No. 2 and from the submissions canvased by learned advocate Ms. Megha Jani for the respondent No. 2, it is clear that demonstrations on the use of EVM-VVPAT have already been held by the concerned Election Officers and approximately 17,000 demonstration camps have been organized for the purpose of spreading awareness about the usage of VVPAT system, amongst the voters, Election Personnel including Returning Officer. Several street plays and cultural activities have been carried out for the awareness of functioning and usage of EVM-VVPAT. Mock polling stations are established at educational institutions, Government Offices and public places in all the Districts. 5100 hoardings are also placed at suitable locations. Further, Senior Election Officers have also given interviews on Doordarshan/TV Channels wherein the functioning of EVM-VVPAT has been explained at regular intervals. Press notes are also issued by the Chief Electoral Officers/District Election Officers pointing out the usage of EVM-VVPAT. Short film has already been made wherein it has been explained as to how the vote is to be cast by using the EVM-VVPAT. Suitable short clips have also been made of the short film for the benefit of voters. Such short clips will be started to show on Cable TV Network till the election. In rural and urban areas, mobile vans are being used to spread awareness regarding functioning and usage of the VVPAT by way of short clips of around 2-3 minutes. In view of the same, the submissions canvassed by the petitioner are misconceived and it appears that such submissions are without proper information. Further, the posters regarding how to cast vote by using EVM and VVPAT shall be pasted at the polling stations on the day of polling. 11. In view of the foregoing discussion, we are of the view that the respondent authorities have been taking various measures to educate the voters regarding use of NOTA, EVM-VVPAT as per the instructions of the Election Commission of India issued vide communication dated 16.10.2017 Therefore, there is no merit in the present petition. Accordingly, the same is dismissed.