Supreme Court Dismisses Congress Leader's Plea Challenging ‘First Level Check’ Of EVMs, VVPATs Carried Out By Election Commission

The Supreme Court today refused to entertain a petition challenging the “First Level Check" of Electronic Voting Machines (EVMs) and Voter Verified Paper Trails (VVPATs) conducted by the Election Commission of India in July this yer at eleven district offices in Delhi for their use in the 2024 Lok Sabha polls. 

A bench comprising CJI DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra was hearing a petition moved by Anil Kumar, President of Delhi Pradesh Congress Committee, which is a unit of Indian National Congress party.

At the very outset, the CJI expressed his disinclination towards entertaining the petition stating–

"Not for us to interfere. Now for us to enter into this would completely delay the elections. We don't want to enter into this."

However, the counsel for petitioner argued that the petitioner's party - Delhi Pradesh Congress Committee (DPCC)- was not provided with the "unique identification number" of the EVM and VVPAT machines. To this, the CJI stated that the party should have approached the Election Commission for the same and instead, it did not participate. The counsel responded by stating that no parties had participated.

The CJI then remarked–

"Possibly that no parties joined means that there is faith in the process."

Here, the counsel further elaborated upon his point and said–

"When these machines are manufactured and dispatched from the warehouse of the concerned District Magistrates, they prepare unique identity of each machines. The identity is sent with machines. What happens on the way- no one knows and it is received in Delhi warehouse. There is no tally on numbers sent and ones they receive..."

However, the CJI was not convinced and remarked–

"The High Court has gone into this at length. The involvement of political party is one step. Just because party doesn't participate doesn't mean the process is bad."

The counsel asserted–

"I went to them and they didn't respond to me till after the FLC process was done. This unique identification which they have supplied to me after the FLC was done- why didn't they give me before?"

Dismissing the plea, the CJI said–

"The process is very detailed. Parties have faith in it. It has been replicated across India. We'll leave it at that. Dismissed as withdrawn."

Plea Before Delhi High Court 

The plea had been filed against a Delhi High Court judgement which had dismissed a PIL filed on similar grounds. The PIL before Delhi High Court had been moved against the State Election Commission. However, the Delhi High Court had refused to entertain the plea. A division bench of Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula had permitted Kumar to withdraw the PIL and granted him liberty to file a fresh petition after the counsel appearing for Election Commission of India submitted that the prayers were made against the State Election Commission, which does not have any role in the conduct of General Elections.

Thus, the plea in Supreme Court challenged the Chief Electoral Officer's conduct.

Grounds Raised In Petition

The petition underlines that as per the directions issued by the Election Commission, the First Level Check (FLC) ordinarily is to be commenced 180 days in case of a general election to Lok Sabha or as instructed by the commission. The estimate date for commencement of FLC is to be based on the last general election notice. The last general election notice was issued by the election commission on March 10, 2019. The petition argues that the FLC should have commenced in the second week of September. However, the procedure for FLC was commenced well in advance almost 9 months before and completed. The political parties could not prepare themselves for the FLC and were not in the position to instruct or engage properly trained persons to participate in the FLC process. 

The plea alleges 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 FLC. Kumar had therefore sought a direction upon the EC to re-convene the FLC of the EVMs and VVPATs which are in the custody of all 11 district election offices in Delhi.

A direction was also sought to give sufficient notice regarding the said checking so that the representatives of the political parties, including DPCC, can participate in the process.

As per the petition, the FLC of EVMs and VVPATs with respect to Delhi was scheduled from July 15 to July 30 however, notices were given regarding this only vide letters dated July 12 and July 13.

It is further Kumar’s case that on July 15, letters were written through the authorised person of DPCC requesting all the SDMs to provide the serial number, including manufacturing company, of all the EVMS and VVPAT which are undergoing FLC at all the 11 district election offices.

Submitting that the letters were not responded to by any of the SDMs, Kumar has said that without having the knowledge and details of EVMs, it does not make any sense for the stakeholder political parties to participate in the FLC process.

“In order to have a transparent, free and fair election, the machines which are used needed to be checked and verified and satisfied by the representatives of all stakeholders,” the plea states.

It adds that if the procedure itself is not transparent, how can the Election Commission of India ensure a free and fair election.

Case Title: Anil Kumar v. Election Commission Of India And Ors SLP(C) No. 21693/2023