A three-judge Bench refused to entertain the plea, saying that the judiciary cannot question the discretion of the EC

An “11th hour” plea by Secretary, Gujarat Pradesh Congress, to direct the Election Commission of India to count and cross-verify at least 25% of Voter Verified Paper Audit Trail (VVPAT) paper trail with the Electronic Voting Machines (EVM) votes polled in the State Assembly elections fell flat in the Supreme Court on Friday.

A three-judge Bench of Chief Justice Dipak Misra, Justices A.M. Khanwilkar and D.Y. Chandrachud refused to entertain the plea, saying that the judiciary cannot question the discretion of the Election Commission (EC) to restrict the exercise to just one random booth per constituency.

“How can the court substitute the discretion of the Election Commission? And why have you put the margin at 25%? Why not 5% or 10% or even 30%? We cannot encroach into the Election Commission’s authority,” Justice Chandrachud orally observed.

Justice Chandrachud observed that the plea seemed to suggest that the Election Commission’s exercise to conduct a random match of VVPAT-EVM votes in one booth per constituency was “malafide”.

“Do you have any cogent material to show us that the EC’s decision was taken arbitrarily? We can only exercise our judicial powers after positively concluding that EC has exercise its powers arbitrarily. We have to be slow in a case when the EC has already taken a decision. How can we discredit a process?” Justice Chandrachud said.

Chief Justice Misra said the election has already concluded in Gujarat.

Senior advocate Abhishek Manu Singhvi, for the petitioner, argued that the EC itself is open for random checks to verify whether the VVPAT paper trail and EVM vote count match. Expanding the checks from just one booth in a constituency to 25% of the votes polled would only further the cause of a clean election.

“Progressively all countries have stopped the use of EVMs. Only India and South Africa use them. Others have declared it unconstitutional… there has already been complaints about EVMs in the first phase of the Gujarat elections,” Mr. Singhvi submitted.

The plea does not in any way “thwart or obstruct” the objective of a clean election, it only furthers the cause, Mr. Singhvi argued. He later scaled down the demand for cross-verification of votes to 20%, and then to at least 10%.

But the court did not relent. Justice Chandrachud said that the cause of clean elections is anyway covered when a candidate reserves the right to demand a re-count of votes polled from the Returning Officer concerned. This safeguard is provided notwithstanding the the “one-booth formula” directed by the EC, Justice Chandrachud pointed out.

The plea was finally allowed to be withdrawn by the court, which suggested that the petitioner could, in the future file a writ petition under Article 32 of the Constitution, suggesting ways to further reform the VVPAT laws.