Delhi HC dismisses plea to amend election rules on using same pen to cast vote

NEW DELHI: The Delhi High Court today dismissed a plea challenging the election rules under which only an instrument given by the Election Commission is to be used for marking ballots to cast vote.

A bench of Chief Justice Rajendra Menon and Justice V K Rao said it seemed that the provision was reasonable and does not need to be amended.

"What is unreasonable or unconstitutional in the provision," the court said.

The court was hearing a petition filed by advocate Amit Sahni claiming that the Election Commission (EC) provides a common instrument or article, i.e. pen, to voters for marking ballot paper which could be easily replaced.

The plea, which contended that these provisions could be misused and should be amended, said weightage is required to be given to the intention of the person casting vote and not on the instrument viz ink of a pen, which could be replaced at the behest of any candidate.

Citing an instance of "misuse" of such provisions of Conduct of Elections Rule 1961, he alleged that in the 2016 elections to Rajya Sabha in Haryana for two seats, the pen given by the EC was changed leading to change of the verdict.

In the 2016 polls, a row had erupted after votes of 12 MLAs of Congress and allies were declared invalid for marking their preferences with a pen other than the one officially supplied, prompting the Congress to allege foul play.

This led to the defeat of R K Anand, who was backed by Congress, and victory of Independent candidate Subhash Chandra.

During the hearing, the EC's counsel said just because it happened in one case, the rule does not need to be changed and it was important to maintain secrecy of the person casting vote.

The plea said, "The Rules 39(2) (b), Rule 70 and Rule 73 (2)(e) of the Conduct of Elections Rule 1961 are vulnerable.

"They can be misused by any candidate contesting election as is evident from the incident of Haryana Elections held in June 2016, where the ECI itself considered to be a case, which required criminal investigation and directed FIR to be lodged against several persons apart from disciplinary enquiry against R K Nandal, Secretary of Haryana Assembly, who was also returning officer for Rajya Sabha election, for lack of supervisory control and negligence.

" The plea had sought directions to the Centre and EC to make amendments in the rules concerned.

The petitioner said he had made a representation to the EC to take appropriate steps to ensure that similar kind of situation, as occurred in Haryana, do not arise in the future.