No order on RO's discretion on VVPAT papertrail counting: SC

Ahead of the Gujarat assembly polls, the Supreme Court today refused to pass any order on a plea challenging the discretionary power of a returning officer to refuse counting of the paper trail from VVPAT machines.
The apex court said no "advance ruling" can be given in the matter and in case of any dispute over the result of the poll, the challenge can be made by way of a poll petition.
A bench of Chief Justice Dipak Misra refused to agree with the contention of the president of a political party 'Gujarat Jan Chetna Party' that they cannot challenge the discretionary powers of returning officer in case of any dispute over election results by way of a writ petition.

"We cannot give advance ruling. You always have an option to file election petition in case of dispute in the poll results," the bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, said while dismissing the plea.
Advocate Devadatt Kamat, who appeared for petitioner, Manubhai Chavada, opposed Rule 56(D)(2) of the Conduct of Elections Rules 1961, which confers discretionary power on the returning officer to refuse counting of the Voter Verifiable Paper Audit Trail (VVPAT).
He said VVPAT machines were earlier allowed by apex court to be used in the upcoming Gujarat election but the returning officer has discretionary power to refuse counting of the paper trail, which cannot be challenged in case of a dispute.

"You always have an option to file election petition if there is any dispute over the outcome of results," the bench said.

Chavada, in his plea, has contended that such a discretion was "ex-facie illegal, arbitrary and an infraction of the fundamental rights of the citizens".
The apex court on November 10 had agreed to hear the plea which 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).