ORDER
Chettur Sankaran Nair, J.
1. Petitioner describing himself as “National Co-ordinator of Social Action Party” seeks directions restraining the Chief Election Commissioner from using Electronic Voting Machines in the elections to the Lok Sabha Scheduled in Nov. 1989. According to him, Electronic Voting Machines have not attained the degree of precision, or infallibility that is required in such matters. To support his contention he refers to the views of one Ronni Dugger and Mr. Wayne Nunn. Mr. Dugger holds the view that errors have resulted in counting votes in the United
States, with the aid of Electronic Machines. Mr. Wayne Nunn also appears to think that a “computer electronic services. — computer punch card voting system” could be manipulated at least in six ways. The source code could be manipulated, and a time device also could be incorporated to transfer votes, in his view. Petitioner also refers to the views of Mr. Arun Mehta to the effect that computer software could be manipulated to produce desired results.
2. An Electronic Voting Machine has two distinct parts, the control module (C.M.) and the voting module (V.M.). The control module is usually placed on the desk of the presiding officer, while the voting module is install in the booth. A voter exercise his preference by pressing a button against the name of the candidate. This increments the ‘counter’, for that candidate by one. Simultaneously, a buzer is sounded on the control module. What that, voting is disabled and more votes cannot be recorded. The presiding officer can press a button and “clear” the button on the control module, when another voter enters the booth. Registering of votes and tallying them are done by a program electionically integrated into the machine. Normally, it should be difficult to manipulate it since it is electronically integrated. But, the presiding officer can vitiate the process by not pressing or lightly pressing the “clear” button. The machine can also mal-function due to component failures. If improperly designed, voltage fluctuations also affect the functioning of the Machine. Likewise, by manipulating data input also, manipulation is possible. That appears to be the position generally as far as machine are concerned. I am only noticing views of some, and not expressing any views. To what extent the machine is reliable is a matter for the Election Commission, to decide. One should think that a high constitutional functionary charged with the responsibility of holding fair election, will certainly be aware of relevant aspects. There is the possibility of elections being challenged on grounds of accuracy of results.
3. The question is academic because, the maintainability of a petition for the reliefs
sought has to be considered in the first instance. Whether the jurisdiction under Article 226 can be invoked prior to conclusion of elections, has been considered by the Supreme Court in N. V. Ponnuswamy v. Returning Officer, AIR .1952 SC 64. Though the expression ‘election’ comprehends a composite process and not the results alone, it has been held that Article 329 is a bar to bring up the issue relating to the validity of an election at an intermediate stage. This is more so, when a special machinery is set up to consider the valid ity of an election, that machinery being. the High Court itself. In Mohinder Singh v. Chief Election Commr., AIR 1978 SC 851, the question of maintainability of a petition under Article 226 came up for consideration again. The Court held that Article 329(b) bars consideration of issues relating to ah election at an intermediate stage in a writ application under Article 226. That will be for the other authorities to consider, in the exercise of powers held by them in faithful trust. When the results of an election are challenged the High Court, as the election court, can consider validity of the election.
4. Referring to the decision in A.C. Jose v. Sivan Pillai, AIR 1984 SC 921 counsel I submitted that use of Electronic Machine vitiates the election. For one thing, that decision was rendered when the election was challenged after the results were announced. For another thing, at that time provisions, in the Representation of the Peoples Act did not enable use of Electronic Machines. Section 61 (a) of the Representation of the Peoples Act has since been enacted by Representation of Peoples (Amendment) Act I of 1989 enabling use of mechanical process. This received the assent of President and was published in the Kerala Gazette dated 8-8-1989. This was brought into force by notification dated 15-3-1989, submits counsel for Government of India. That apart, it is settled law that propriety of an election process cannot be called in question at an intermediate-stage. Besides, there is not even a recital in the writ petition that petitioner is a voter or a candidate.
Petition fails and is dismissed. I express appreciation of the assistance rendered by Sri
T. P. Kelu Nambiar, as amicus curiae.