Presently, voter can be jailed for filing false complain of discrepancy, but verification process discounts tampering or malfunctioning



Elections are just round the corner and amidst fears about the tampering of Electronic Voting Machines (EVM), there is also a grave concern with respect to penal provisions related to Conduct of Election Rules. These provisions punish voters if they point out discrepancies in their Voter Verified Paper Audit Trail (VVPAT) but are unable to prove it while casting a test vote.

 
The provisions are governed by Rule 49MA of the Conduct of Elections (Amendment) Rules 2013. Here is what the rule says:
 

49MA Procedure in case of complaint about particulars printed on paper slip-

(1) Where printer for paper trail is used, if an elector after having recorded his vote under rule 49M alleges that the paper slip generated by the printer has shown the name or symbol of a candidate other than the one he voted for, the presiding officer shall obtain a written declaration from the elector as to the allegation, after warning the elector about the consequence of making a false declaration.

(2) If the elector gives the written declaration referred to in sub-rule (1), the presiding officer shall make a second entry related to that elector in Form 17A, and permit the elector to record a test vote in the voting machine in his presence and in the presence of the candidates or polling agents who may be present in the polling station, and observe the paper slip generated by the printer.

(3) If the allegation 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.

(4) If, however, the allegation is found to be false and the paper slip so generated under sub-rule (1) matches with the test vote recorded by the elector under sub-rule (2), then, the presiding officer shall-
(i) make a remark to that effect against the second entry relating to that elector in Form 17A mentioning the serial number and name of the candidate for whom such test votes has been
recorded;
(ii) obtain the signature or thumb impression of that elector against such remarks; and
(iii) make necessary entries regarding such test vote in item 5 in Part I of Form 17C.

So far so good. But the declaration signed by the complainant says,
 

“I am aware of the penal provisions of section 177 of the IPC that I shall be liable to be punished with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both, if the declaration given by me in para 1 above to the Presiding Officer appointed under section 26 of the RP Act, 1951 is found to be incorrect.”

This is the part which makes it problematic as this could have the impact of terrifying a voter into not complaining and thus impacting negatively on a free and fair election process. The Format for declaration under Rule 49MA may be viewed here.

The matter was first raised by Philipose Koshy who has written to the Election Commission highlighting this issue. Koshy also intimated CJP about the same. Koshy’s letter to the EC may be read here:

Taking cognisance of Koshy’s letter, CJP has now written to the Chief Election Commissioner. In our letter we have said, “The free and fair election process, which is the bedrock of Indian democracy, will be under serious threat if voters fail to report the false VVPAT display for fear of criminal prosecution in case the complaint “found” as false by the ECI officials.” We have also suggested the a few methods to resolve voters’ VVPAT complaint.

CJP’s entire letter may be read here:

Given how rule 49 MA appears to be an antithesis to everything democracy stands for, we request both the removal of the penal provisions of rule 49 MA with immediate effect, and also the adoption of a method that objectively determines the veracity of VVPAT complaints.