Must Maintain Technological Integrity Of EVMs & VVPATs, Can't Share With State Election Commissions: ECI Opposes AAP's Plea In Delhi HC

The Election Commission of India (ECI) has opposed the plea filed by Aam Aadmi Party before the Delhi High Court, seeking directions on State Election Commission to conduct the upcoming MCD polls using EVMs (Electronic Voting Machine) with VVPAT (Voter-verified paper audit trail).

It said that for maintaining the technological integrity of the EVMs and the VVPATs, it is unexceptionally necessary that such equipments, which are currently used by ECI, are not given to any other entity and are exclusively used by the it for the conduct of elections under Article 324 of the Constitution of India.

"Election Commission of India, having regard to the size of the population and various other socio-geographical factors, continuously remains engaged in discharging its responsibilities for undertaking the Elections all over the country. It cannot afford to make available the EVMs and VVPATs, which the Election Commission of India is itself using for conduct of the elections required to be conducted by it under the Constitution of India, to any other agency outside its supervision and control," the affidavit states.

The body further told the Court that it is the obligation of the State Election Commissions (SEC) to create their own infrastructure for the conduct of local elections including the elections for Municipal Corporations as well as Panchayats.

In the counter affidavit filed, ECI has informed the Court that it is making available on loan basis, the EVMs of the previous technology, to the State Election Commissions on the basis of availability.

It has further been stated that it is on such uniform procedure followed by the ECI that 30,000 EVMs of M-2 Technology and 33,000 Ballot Units have been made available to the Delhi State Election Commission.

In this backdrop, stating that the plea should be rejected, the ECI has stated thus:

"It is respectfully stated that it has not been stipulated under any of the provisions of either the Constitution of India or any other statutory provision that there is any responsibility or obligation on the part of the Election Commission of India to provide or make available any of the infrastructure created by the Election Commission of India to the State Election Commissions. The Election Commission of India cannot afford to make available EVMs and VVPATs being used by it to any other State Election Commission, for avoiding any allegation of any compromise with the technological integrity of the machines."

The plea stated that EVM's without VVPAT machines make it almost impossible to ascertain the accuracy of the machines and rule out any sort of tampering.

It further averred that the use of the old M-2EVM's without VVPAT are in contravention of the directions issued by the Supreme Court in Subramanian Swamy v. Election Commission of India, (2013) 10 SCC 500, wherein it was recognized that the incorporation and implementation of a system of paper trail in EVMs is an indispensable requirement of a free and fair elections.

The plea added that the decision of State Election Commission to hold the upcoming MCD Elections with M-2 EVMs without VVPAT is manifestly wrong and amounts to a colourable exercise of power.

"This raises genuine apprehension about the sanctity of the entire electoral process. This decision has been conveyed in the reply to the Petitioner's representation dated 02.03.2022 made to the Respondent No. 1 to use the EVMs compatible with the VVPATs," the plea stated.

The plea also stated that the Election Commission of India cannot escape from its responsibility in the free and fair conduct of the Delhi Municipal Elections and that it has sufficient numbers of EVMs of the latest version at its disposal.

"There is no Assembly Election slated after 7th March 2022 anywhere in the country. As such there is no hassle for them to loan out these new generation EVMs, compatible to VVPAT, to the SEC Delhi for conducting the MCD Elections 2022," the plea added.

Case Title: AAM AADMI PARTY (THROUGH SAURABH BHARDWAJ, MLA) v. STATE ELECTION COMMISSION AND ANR