Sufficient Safeguards In Place: Delhi High Court Dismisses PIL Against Procedure Adopted For First Level Check Of EVMs For General Elections

The Delhi High Court has dismissed a PIL against the procedure adopted by the Chief Electoral Officer during the First-Level Checking (FLC) of EVMs and VVPATs to be used in the upcoming Lok Sabha polls in 2024.

The PIL was filed by the President of Delhi Pradesh Congress Committee through Advocates Aljo K. Joseph and Sunil Kumar alleging that sufficient notice was not given to political parties before conduct of FLC and that EVM details were not provided despite asking, thus defeating the whole purpose of the process.

A division bench of Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula however observed,

“Ultimately, the aim of the FLC and the entire electoral process is to serve the public and ensure their trust in the democratic process. The safeguards and checks embedded in the guidelines are sufficient to ensure the integrity of FLC process,” the court said.

It added that the FLC process not only involves active participation of engineers from Bharat Electronics Limited and Electronics Corporation of India Limited, but it also encourages involvement of representatives from national and state recognized political parties.

“This inclusive approach guarantees transparency and ensures that the process remains beyond reproach. The representatives are not mere spectators; they are involved at multiple levels, including the sealing mechanism, which acts as an added layer of security to ensure the sanctity of the EVMs, post-check. Their signatures accentuate the rigor and transparency of the process. Additionally, the DEO’s close supervision, coupled with technological measures such as webcasting, ensures further layers of oversight,” the court observed.

Furthermore, the bench added that the involvement of political parties in the process underlines the democratic spirit and the inclusivity. However, the DPCC “chose to stay away.”

“The Petitioner’s reservations regarding the process stem from a perceived lack of prior information regarding the list of EVMs and VVPATs scheduled for checks. The Court, upon perusal of the stipulated instructions and procedures, does not find any such directive demanding prior notification. There are sufficient robust procedures (as delineated above) which exude complete transparency. The sealing process – a crucial part of FLC – is not just demonstrative in nature but also participative, allowing political representatives to mark their approval through signatures,” the court said.

Observing that DPCC’s focus should have been on active participation rather than on “abstaining due to procedural apprehensions”, the bench said that when a procedure like FLC offers opportunities for representation and observation from political entities, it becomes the duty of such representatives to participate actively and ensure credibility of the process.

“Abstaining from participation and later questioning the integrity of the same process does not reflect well on the Petitioner,” the court said.

It added, “The inclusion of political representatives in sealing the EVMs is a significant step towards mutual accountability. Every recognized political party was given an equal opportunity to be a part of the process. Thus, there participation in this democratic process plays a pivotal role in ensuring its sanctity. The petition, in our considered view, lacks substantive ground. Consequently, the Court is not inclined to accede to the relief sought by the Petitioner.”

Kumar sought re-initiation of the FLC process for EVMs and VVPATs which are in the custody of sub-divisional magistrates. He also sought direction on Election Commission of India to ensure that adequate notice is provided to all political parties, enabling them to designate their representatives for meaningful participation in FLC.

DPCC had earlier filed a PIL against the conduct of State Election Commission in the FLC process. However, the same was withdrawn with the liberty to file a fresh plea after the authorities took a stand that the prayers were made against the State Election Commission, which does not have any role in the conduct of general elections.

Senior Advocate Salman Khurshid and Narendera Hooda along with Advocates Aljo K. Joseph, Prashant Jhajariya, Sunil Kumar and Sommya Chaturvedi appeared for petitioner.

Advocate Ankit Agarwal appeared for Election Commission of India.

Senior Advocate Sukumar Pattjoshi along with Advocates Suruchi Suri, Aakash Gupta and Ram Krishna Rao appeared for other respondents.

Case Title: SHRI ANIL KUMAR v. ELECTION COMMISSION OF INDIA AND ORS.

Citation: 2023 LiveLaw (Del) 777