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Somnath Bharti filed an election petition challenging the results of the New Delhi Parliamentary Constituency election held on May 25, 2024. Bansuri Swaraj won the most votes and was declared elected on June 4, 2024. Bharti, who contested on the Aam Aadmi Party ticket, lost to Swaraj. He alleged that Raaj Kumar Anand, the Bahujan Samaj Party (BSP) candidate, was strategically placed to split the votes.
The Delhi High Court, on Monday, rejected the oral prayer by AAP Leader Somnath Bharti seeking burnt memory or microcontroller of 1489 electronic voting machines (EVMs) deployed in the New Delhi Parliamentary Constituency during the election for the Member of the House of the People.
The bench of Justice Manmeet PS Arora held, “Petitioner has not made any allegation of tampering or modification of the EVMs which is the sine qua non for maintaining a request for seeking the burnt memory of the EVM. However, as noted above in the entire election petition there is no allegation of the tampering or modification of any EVM and on this ground alone the prayer of seeking burnt memory of the EVMs is not maintainable. This Court is, therefore, of the considered opinion that the oral request of the Petitioner for seeking burnt memory of the 1489 EVMs is whimsical and untenable both in law and in facts”.
Advocate Anand Prakash Gautam, representing Somnath Bharti, submitted that there was no necessity for the burnt memory of the EVM used at the Polling Station, as he was personally present during the VVPAT verification at the said polling station. However, Bharti asserted that ECI should retain the burnt memory of the remaining 1489 EVMs for determining the issues raised in this election petition. Bharti also requested that the court waive the charges of Rs. 40,000/- (plus 18% GST) per EVM for retrieving the burnt memory, as he was unable to bear the said costs.
Advocates Rajeev Sharma and Vinayak Sharma, representing the Election Commission of India, argued that the Electronic Voting Machines (EVMs) used in the New Delhi Constituency should be released to enable the Election Commission of India (ECI) to use them in ongoing elections, particularly for the upcoming State Assembly elections. It was emphasized that Bharti’s challenge did not involve the counting or recounting of votes; hence, the EVMs should be permitted for reuse to avoid unnecessary hardship.
Further, Advocates Rajeev Sharma and Vinayak Sharma noted that Bharti’s allegations concerned the counting of VVPAT slips at Polling Station No. 041 in the Assembly Constituency. The VVPAT slips had been preserved in compliance with the Election Manual and would be made available as directed by the court for the petition's adjudication.
Regarding Bharti’s request for preserving the burnt memory or microcontroller for all 1490 EVMs used in the election, ECI argued that this request contradicted the Supreme Court's ruling in Association for Democratic Reforms v Election Commission of India (2024 INSC 341), which limited candidates placed second or third to a written request for verification of up to 5% of EVMs per assembly segment. It was also asserted that Bharti failed to submit such a request within the stipulated seven-day period after the declaration of results.
ECI notified that retrieving the burnt memory required the involvement of EVM manufacturers, with each retrieval process costing Rs. 40,000/- plus GST. Since no objections had been raised concerning 1489 of the EVMs, Bharti had no grounds to request burnt memory retrieval for all the machines. Nevertheless, Advocates Rajeev Sharma and Vinayak Sharma informed the court that ECI was willing to retrieve the burnt memory from the EVM used at the Polling Station, subject to Bharti covering the associated costs. Lastly, it was argued that once EVMs are reused in subsequent elections, they are reprogrammed, and the old data is erased. However, the VVPAT slips would remain accessible as per the Election Manual.
The court reiterated the Supreme Court Judgment noting that an eligible candidate's right to request the examination and verification of EVMs was restricted to instances where concerns about tampering or alteration of the EVMs had been raised. Such requests could not be made routinely or without cause. The judgment also mandated that the costs associated with this verification, as charged by the manufacturer, were to be borne by the candidate, with no more than 5% of the EVMs being subject to the verification process.
The court noted that, on June 1, 2024, the ECI issued an Administrative Standard Operating Procedure (SoP) for the checking and verification of burnt memory or microcontrollers in EVMs, post-election results. The SoP outlined the eligibility criteria, including that candidates ranked second or third in an election could request this process for up to 5% of the EVMs used in their constituency. The process involved submitting a written request within seven days of the results being declared and bearing the cost of Rs. 40,000 per EVM set, payable to the manufacturers. The SoP also stated that any administrative expenses would be borne by the government.
The court rejected Bharti’s request seeking a waiver of the Rs. 40,000 cost per EVM while emphasizing that the law required the candidate to bear these costs unless tampering was proven. Consequently, the court rejected the petitioner’s oral request for burnt memory retrieval from all 1,489 EVMs, reaffirming that such requests were only permissible for up to 75 EVMs following the Supreme Court’s ruling.
Accordingly, the court allowed the release of the EVMs for use in upcoming elections while directing the preservation of VVPAT slips as per ECI procedures. The matter was further listed for November 5, 2024.
Case Title: Somnath Bharti v Bansuri Swaraj And Others (2024:DHC:6934)
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