Gujarat Assembly Elections: PIL in SC against returning officer's discretion to count papertrail

New Delhi: Ahead of the Gujarat Assembly polls, a PIL was on Friday filed in the Supreme Court challenging the discretionary power of a returning officer to refuse counting of the paper trail from the VVPAT machines.

A bench headed by Chief Justice Dipak Misra agreed to hear the matter and directed the petitioner, who claims to be the president of a Gujarat-based political party, to provide a copy of his plea to the Election Commission's (EC) counsel.

With the direction, the bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, listed the matter for hearing on November 20.

The petitioner, Manubhai Chavada, has opposed Rule 56(D) (2) of the Conduct of Elections Rules 1961 which confers discretionary power on the returning officer, who conducts the election, to refuse counting of the Voter Verifiable Paper Audit Trail (VVPAT).

Chavada, who claims to be the president of the Gujarat Jan Chetna Party, has contended that such a discretion was "ex-facie illegal, arbitrary and an infraction of the fundamental rights of the citizens".

The petition, filed through advocate Devadatt Kamat, has also claimed that the paper used by the machine has a shelf life of a few months after which the printed matter on it fades away or disappears.

Apart from seeking directions to the poll panel to use appropriate technology to preserve the paper of VVPAT machines for at least a period of two years from the date of election, the PIL has also sought mandatory counting of the paper slips in each assembly or parliamentary election in future.

The petition has said that the apex court in a 2013 ruling had categorically held that paper trails were an indispensable requirement in the conduct of free and fair elections and therefore, it was mandatory to count the paper slips in every election where VVPATs are used.

"The introduction of paper trail was for the purpose of ensuring a safety valve against any defect/tampering of the electronic voting machine (EVM). The entire purpose of introduction of the VVPAT was to ensure that the electoral verdict is the true representation of votes cast by the voter," the PIL said.

It said that in the event of any discrepancy between the result shown by the EVMs and the VVPAT, "the result shown by the VVPAT was supposed to be the barometer reflecting the peoples' choice in the election."

It has contended that giving the discretion to a returning officer to refuse the application of a candidate or an election agent for counting of the paper trail would undermine the purpose behind introduction of VVPATs and sought striking down of Rule 56(D)(2).