"Even Elon Musk Has Flagged Issues With EVMs": Plea In Bombay HC Challenges Ravindra Waikar's Poll Victory From Mumbai North West Constituency

Bharat Khimji Shah, a candidate who contested the recently held Lok Sabha elections from the Mumbai North West constituency, has filed a writ petition in the Bombay High Court challenging the victory of Shiv Sena's Ravindra Waikar.

The petition, filed through advocate Asim Sarode, seeks to declare Waikar's win null and void, citing multiple concerns about transparency and alleged malpractices during the vote counting process.

“It is the first time that, through this incidence a specific process of fraud through EVM has come to light and hence must be dealt with iron hands. This has become an important issue of discussion not just throughout India but even Mr. Elon Musk has thrown light on the issue of risk involved while using EVMs recently through his post on his X (formerly, twitter) account…”, the petition states.

"We should eliminate Electronic Voting Machines. The risk of being hacked by humans or AI, while small, is still too high," Musk had said in his post.

As per the HC website, the case is likely to be heard on June 28, 2024 by a division bench.

Ravindra Waikar was declared the winner of the Mumbai North West constituency by a narrow margin of 48 votes over his nearest rival, Amol Kirtikar of Shiv Sena (UBT). Kirtikar was initially declared as the winning candidate but recounting, Waikar emerged victorious.

The final tally showed Waikar with 452,644 votes and Shah securing 937 votes out of the total 954,939 votes polled. Shah's petition raises questions about the legality of the vote counting and the declaration of results dated June 4, 2024.

Shah has alleged that a mobile phone belonging to Dinesh Gurav, a temporary staff member of the district election office, was used inside the NESCO polling centre during the counting of votes on June 4, 2024. “There are several indicators which show that the counting of the polled votes at the NESCO Centre was not fair”, the petition states.

The petition claims that Prajakta Waikar-Mahale, an advocate and daughter of Ravindra Waikar, was seen using the phone, a violation of electoral rules.

The petition also accuses Mangesh Pandilkar, a relative of Waikar, of using a mobile phone connected to an EVM. It is alleged that the phone generated an OTP that unlocked the EVM, raising suspicions of tampering with the vote count.

Despite raising a verbal complaint with the Returning Officer as well as the government observer, no immediate action was taken, the petition states. The petitioner further states that while Shah filed a written complaint subsequently, it was not taken in his name and was registered as if it is given by the Tehsildar and he has been made a mere witness. The petition alleges that the police registered an FIR only after a lot of insistence by the petitioner and thereafter did not conduct the investigation as per due process.

The petition contends that the events on June 4 constitute violations of the Representation of People's Act, 1950, and the Model Code of Conduct.

The petition asserts that the Election Commission failed to ensure transparency in the electoral process, as required by law.

“The issue with the utilization of Electronic Voting Machines (EVM) for unfair practices and selective misuse in specific constituencies was being discussed for a long period of time. Due to this incident, some serious concerns have been further raised about the transparency in the electoral process.”

The petition also claims that Shah's fundamental right to information, guaranteed under Article 19(1) of the Constitution, was denied when his requests for CCTV footage and other relevant information were refused.

Shah's petition seeks the following reliefs from the Bombay High Court:

• Declare the vote counting and election results of June 4, 2024, as void.
• A writ of mandamus directing the Election Commission and District Election Officer to provide the CCTV footage from the NESCO Centre polling station on June 4, 2024.
• A direction for a thorough investigation into the incident under the supervision of the High Court.
• An order for the police to complete their investigation within 60 days and submit a report to the court.

Case Title – Bharat Khimji Shah v. Election Commission of India & Ors.