If You Report A Malfunctioning EVM & It Comes Out To Be False, You Could Be Jailed
This election season, completing three out of seven phases has proved to be an arduous task for the Election Commission given the number of hurdles and complaints it has been confronting. Missing names in voters’ list, missing and non-functional buttons in Electronic Voting Machines (EVMs), malfunctioning EVMs, the EC has faced it all. Delay in the voting process due to malfunctioning EVMs have been reported from various constituencies. When a voter in Thiruvantapuram complained to EC officials about his vote going to a party whose button he didn’t hit at all, he was arrested over a false complaint.
Myriad of “malfunctioning” EVMs
During the first phase of 2019 Lok Sabha elections, non-functional EVMs delayed the voting process in parts of Maharashtra, Bihar, Andhra Pradesh, Manipur, J&K, Assam, Uttarakhand, Odisha, Uttar Pradesh and West Bengal. The first few complaints of votes going to BJP even when other party’s buttons were hit, came from Assam’s Tezpur constituency and Meghalaya’s Shillong constituency. But all allegations from these two constituencies were rubbished by the Chief Election Officers (CEOs) of both the states. Mukesh Sahu, CEO, Assam even called it “fake news”, while responding to a media report. According to Manorama, faulty EVMs interrupted polling at 7 booths in Kerala’s Alathur constituency, 11 in Palakkad, 7 more in Kasargod and 10 in Pathanamthitta.
In Meerut, a voter filed a complaint of Electronic Voting Machine (EVM) – Voter Verifiable Paper Audit Trail (VVPAT) mismatch. He recorded a video of him voting for BSP but the vote being credited to BJP. When the video was furnished to the officials, they immediately replaced the faulty EVM and claimed it was malfunctioning. Nearly 300 EVMs had to be replaced in Rampur in UP, reported News 18.
Chief Election Officer of Goa in a response to a tweet alleging votes of other parties being transferred to BJP said that the EVMs were replaced. Thus acknowledging that EVMs are not working properly. BJP secured 17 votes from its quota of just 9 votes.
Entire set of EVM has been replaced for AC 34, PS No 31 as per report from DEO South Goa. https://t.co/MNIwGUdAcU
— CEO Goa Election (@CEO_Goa) April 23, 2019
As per The Quint’s report, in December 2018, during the Telangana elections, there were a few EVM-VVPAT mismatches. Dasoju Sravan Kumar and DK Aruna, members of the Congress Party, filed petitions in the Telangana High Court questioning the mismatch in the EVM – VVPAT vote count. On the counting day (11 December 2018), Aruna’s polling agent found the mismatch and he requested the election agent to count VVPATs of all polling booths in Gadwal Assembly constituency, but the Returning Officer denied to do that. Aruna submitted a specific request mandate under the Conduct of Election Rules, 1961 to the Returning Officer, but hitherto no action has been initiated.
EVMs across India malfunctioning or voting for the BJP. DMs say poll officials untrained to operate EVMs. 350+ being replaced. This is criminal negligence for a polling exercise that costs 50,000 crs.
— Akhilesh Yadav (@yadavakhilesh) April 23, 2019
“Faulty” EVM in Goa also transfers others votes to BJP. Are these really faulty or programmed in this fashion? https://t.co/zI9e6IVFUV
— Arvind Kejriwal (@ArvindKejriwal) April 23, 2019
Why you probably wouldn’t dare to report the fault in EVM
On 23 April 2019, a voter in Thiruvananthapuram claimed that his vote was cast to a candidate whose button he didn’t hit. He complained to the officials about the same. The Presiding Officer after conducting a test vote found his claims to be false and thereby got him arrested under Section 177 of IPC.
Manual on Electronic Voting Machine and VVPAT, 2018, released by the ECI, Chapter 14, 14.2.1 reads: “If any voter alleges about the wrong printing of particulars of a candidate and/ or symbol of that candidate on VVPAT paper slip printed by the printer on pressing of concerned blue (candidate) button on the Balloting Unit to which the printer is connected, the Presiding Officer of the polling station should provide him a ‘Form of Declaration’ (Annexure-24) to lodge a complaint and follow the procedure prescribed under rule 49MA”. It further reads that if the complaint is found true, “..the presiding officer shall report the facts immediately to the returning officer, stop further recording of votes in that voting machine and act as per the direction that may be given by the Returning Officer” and if the complaint is found false, the complainant is liable to face the consequences told to him before filing the complaint. The consequences include imprisonment of 6 months and/or a fine of ₹10,000.
Former Assam DGP, Hare Krishna Dekapoet after casting his vote, told News 18 that his vote was cast to a candidate whose button he didn’t press. Upon reporting this to the officials, he was told that if his complaint is found to be false, he might be imprisoned for 6 months or pay a fine of ₹10,000. He said, “The presiding officer told me my vote could not be cancelled. I would have to pay Rs 2 for challenging the discrepancy, after which an inquiry would be initiated on the basis of my complaint. If deemed false, I would face six months’ imprisonment or have to pay a fine of Rs 10, 000,” he adds, “nobody would initiate a criminal proceeding for raising a complaint. This intimidation is wrong. It is every citizen’s democratic right to cast their vote according to their choice, and it’s sad to see it getting violated.”
Ex-Assam DGP Harekrishna Deka: My polling booth was Lachit Nagar LP School. When I voted,VVPAT displayed someone else's name.I was told I can challenge it but if complaint is found to be false I'll be punished.I don't want to take risk. How do I know how will it be proven? (23.4) pic.twitter.com/gIifM4DMA2
— ANI (@ANI) April 23, 2019
Yogendra Yadav, Swaraj India president, commenting on the issue, called this law “obnoxious” and suggested it be “struck down”, and told News 18, “Unfortunately, this has been written into the rules itself which is completely arbitrary and needs to be challenged and struck down. If the DGP does not have the courage to do this, which sane person in the world would dare to? Then the EC goes on to say it has not received any complaint. How can there be any complaint when there is such a fear? Now there is no system of on-spot verification of a complaint.” N Gopalswami, former Chief Election Commissioner, while speaking to News 18, said, “This is absolutely correct. There are a lot of ways whereby a free and fair poll process can be scuttled. This is one of the ways. If a person makes false allegations then he should not be allowed to go scot-free. If the complainant is genuine, then no one would have any issues. If one makes this allegation then the issue is discussed far and wide. In the absence of any such penal measure, no one would take this seriously.”
The Logical Indian Take
This law is unjust on two counts. One, there is no process to verify if there was an EVM-VVPAT mismatch when the complainant cast his/her vote. A test vote is not a very strong determinant of whether or not the complainant’s claim is true or false. When such an uncertainty persists, how right is it to declare the complainants liable to punishment if their claim is proven wrong by an unreliable test process? Second, fear of punishment deters voters from complaining. This not only threatens the voter’s confidence in EC but also the democratic nature of the polling process.