SC stays HC order restraining parties from criticising EVMs

The Supreme Court today stayed an Uttarakhand High Court order restraining politicial parties, NGOs and individuals from criticising the use of EVMs in the state assembly elections in "larger public interest".
A bench comprising Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud also sought the response of the Election Commission of India (ECI) on the plea challenging the June 2 order of the high court.
The high court had dismissed a petition filed by Ramesh Pandey, a state Congress leader, who had questioned validity of ECI's electronic voting machine (EVM) challenge held in June.
It had restrained political parties, NGOs and individuals from criticising the use of EVMs "in the recently conducted elections of the state assemblies even by approaching the electronic media, press, radio, Facebook, Twitter etc till the decision of the election petitions".

Advocate Devadatt Kamat, appearing for the petitioner, assailed the high court's order in the top court saying such a restraint order was unsustainable as the criticism was not with respect of ECI but about the vulnerability of EVMs which were used in the assembly polls held earlier this year.
"It is pertinent to note that the subject matter of the PIL (in high court) was not 'criticism of the ECI'. Therefore, it was not necessary in the absence of any plea as to the reasonableness/unreasonableness of criticism being levelled in respect of use of EVMs, for the high court to pass such restraining order," the appeal filed in the apex court said.

It said the power to adjudicate disputes and doubts arising out of or in connection with elections to either House of the Parliament or state legislatures was removed from the ECI and vested with the high courts.

"The high court has failed to appreciate that the power of the ECI to entertain grievances in relation to any dispute or doubt arising out of or in connection with an election has been taken away by way of an amendment, way back in the year 1966," the plea, filed through advocate Kamat, said.
It further alleged that it was "improper" on the part of the ECI to conduct the EVM challenge when petitions were pending before the high court in which alleged tampering of these machines was the subject matter of dispute.

"A constitutional body ought to respect its limits especially when its conduct amounts to defeating the basic democratic principle of separation of powers between the organs of the state," the appeal said.
It said courts ought to step in to preserve, nurture and maintain independence of functionaries of the constitutional body and insulate them from unhealthy criticism, but the courts should not restrain criticism of the means and methods adopted by such functionaries in the election process.
"It is so because only reasonable criticism would help the functionaries of the constitutional body to regularly introspect and regularly check whether the means and methods employed by them are vulnerable in any manner and take steps to improve the same," the plea said.