Need to release EVMs ‘stuck’ after 2021 polls: Election Commission to Supreme Court

The Election Commission of India (ECI) on Wednesday asked the Supreme Court to intervene in releasing its Electronic Voting Machines “stuck” in Delhi and five other States/Union Territory that went to the polls in 2021.

The top poll body said the EVMs had to be moved to States like Uttar Pradesh, where elections are due in early 2022.

Senior advocate Vikas Singh, for the Election Commission of India (ECI), made an urgent oral mention of its plea before a Bench led by Chief Justice of India N.V. Ramana on Wednesday. The court indicated that it would consider listing the application for an early hearing.

The ECI said the problem lay with a Supreme Court order of April 27, which open-endedly extended the “period of limitation” or the deadline for moving court due to the pandemic. The court’s relaxation of the limitation period stretched to a large chunk of court proceedings, including filing of suits, appeals, petitions. This included election petitions.

The ECI said it was time the apex court intervened urgently and fixed a timeline for filing election petitions in Delhi, which had gone to the polls in 2020, and Assam, Kerala, Tamil Nadu, West Bengal and Puducherry, where Assembly elections were held in 2021.

The “absence” of a timeline had left “all EVMs used in these States/Union Territories stuck or unable to be used/deployed for upcoming/future elections due to the order dated April 27, 2021 passed by the Supreme Court”, the ECI said.

Section 81 of the Representation of the People Act of 1951 mandates that a petition “calling in question” an election should be filed in the High Court concerned by a candidate or elector within 45 days from the date of declaration of results.

The Conduct of Election Rules of 1961 requires the EVMs used in an election to be kept in the custody of the District Election Officer and not be used in any subsequent elections without the approval of the Election Commission.

The application also referred to an instruction issued by the ECI on July 15, 2016 to District Election Officers to keep EVMs “untouched” till the High Courts had confirmed the “position” of the election petitions in question.

“It is trite to mention that the Election Commission of India releases for reuse only those EVMs which have been used in constituencies in respect of which no election petition/writ petition has been filed raising any EVM-related issue,” the ECI said in the application.

The ECI said there are back-to-back Assembly elections due in Goa, Manipur, Uttarakhand and Punjab in March 2022. The election in Uttar Pradesh is on May 14, 2022.

Considering the COVID-19 protocol, it has to create 37.73% more polling stations next year. Consequently, the requirement for EVMs and VVPATs (voter verifiable paper audit trail) would increase by 51% and 55%, respectively, next year.

The extension of the limitation period by the apex court on April 27 has frozen the deployment of 4.48 lakh ballot units, 3.73 lakh control units and 3.95 lakh VVPATs in Assam, Kerala, Delhi, Puducherry, Tamil Nadu and West Bengal.

To conduct elections in 2022, it needs 4,55,149 ballot units, 3,77,037 control units and 4,04,612 VVPATs, the ECI said. The total present availability was 1,37,131 ballot units, 77,375 control units and 1,01,047 VVPATs.

If the EVMs continue to remain stuck in Delhi and the five States/Union Territory, then machines have to be transported from other States, leading to “serious logistical challenges which may delay the first-level checking of ECMs and VVPATs”, the poll body noted.

The preparatory work for the 2022 elections, like shifting EVMs and VVPATs, ought to have started in July 2021. The first-level checking, a mandatory process, has to start in the first week of September this year.

“It will be in the interest of justice that the application [of the ECI] is allowed… That this Court may kindly direct a timeline for filing election petitions,” the ECI said.