The amendment to the RP Act did not empower the Election Commission to introduce electronic voting machines on a nationwide scale in 2004 and 2009. The amendment made to the RP Act in the form of 61A in 1989 allowed use of EVMs selectively and did not envisage blanket use of EVMs on a universal basis.
The amendment to the act states that voting machines “may be adopted in such constituency or constituencies as the Election Commission may, having regard to the circumstances of each case, specify.”
Further Explanation provided under Section 61 A in the RP Act reads as follows:
Explanation.—For the purpose of this section, “voting machine” means any machine or apparatus whether operated electronically or otherwise used for giving or recording of votes and any reference to a ballot box or ballot paper in this Act or the rules made thereunder shall, save as otherwise provided, be construed as including a reference to such voting machine wherever such voting machine is used at any election.
The explanation makes it further clear that the amendment made in the RP Act envisaged that both the voting systems—ballot papers and voting machines– would continue to co-exist and that voting machines will be used with regard to the circumstances of each case.
A similar system works in some countries in Europe (for instance in France) where electronic voting machines are used in a limited manner in select constituencies. Similarly, Indian law makers visualized use of EVMs only in select constituencies or on a limited basis.
It was not in the powers of the Election Commission to conduct nation-wide elections through electronic voting machines violating this provision under the R.P. Act. This becomes clear from the Supreme Court’s ruling in the A.C. Jose vs. Sivan Pillai case, 1984 in which the apex court had clearly stated,
“Where there is Act and express Rules made there under (parliamentary legislation), it is not open to the (Election) Commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Acts and Rules. When there is no parliamentary legislation or rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections.”
Clearly overriding the provisions under the R.P Act and deviating from the stated legal and constitutional position enunciated by the Supreme Court of India, as above, the Election Commission had conducted 2004 and 2009 parliamentary elections using EVMs in all constituencies of the country.
Election Commission officials claimed in discussions that all political parties agreed to the use of EVMs throughout the country in the All Party Meeting held on February 3, 2009 before the April-May, 2009 general elections. This, the Election Commission believes has granted them the legal sanction to use EVMs all over the country. This reasoning is unacceptable. When have all party meetings acquired legislative powers? Where is the need for any legislation if the Election Commission and political parties can mutually agree on electoral laws and reforms in All Party Meetings?
The Election Commission of India is in violation of legal provisions once again, as earlier in 1982. The Supreme Court then held that the election to the Parur Assembly constituency in Kerala was illegal and set aside the election on the grounds that that it was conducted violating the provisions of the R.P. Act.
For a similar violation and using EVMs on a national scale, shouldn’t the parliamentary elections of 2004 and 2009 be also held illegal?
What is your verdict? Judge it for yourself.
I can be reached at nrao@indianEVM.com