Context: The Election Commission may “revisit” the rule for prosecution of a voter for making a false complaint of malfunction of an electronic voting machine or a voter verifiable paper audit trail machine- Rule 49MA.

Background:

The Supreme Court, in April 2019, sought a response from the Election Commission on a plea seeking abolition of a provision in election rules that provides for prosecution of an elector if a complaint alleging malfunctioning of EVMs and VVPATs turns out to be false.

What is rule 49MA?

Rule 49MA is mentioned under ‘The Conduct of Elections Rules’ .

• Under the rule, 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.
• The rules outline that if after investigation, the allegation of EVM malfunctioning is found to be false or incorrect, then the complainant can be prosecuted under Section 177 of the Indian Penal Code for “furnishing false information”.
• In such a case, a jail term of six months or a fine of Rs 1,000 or both is guaranteed.

Arguments against Rule 49MA:

• It is unconstitutional as it criminalises reporting of malfunctioning of Electronic Voting Machines and Voter Verified Paper Audit Trails. 
• The obligation of proving an allegation cannot be on the voter when machines used for voting showed ‘arbitrary deviant behaviour’. 
  Putting the responsibility on the elector in cases of arbitrary deviant behaviour of machines used in the election process, infringes upon a citizen’s right to freedom of expression under the Constitution.
• When an elector is asked to cast test vote as prescribed under Rule 49MA, he may not be able to reproduce the same result which he was complaining about, one more time in a sequence, because of the pre-programmed deviant behaviour of the electronic machines.
• Therefore,  holding an elector accountable for deviant behaviours of EVMs and VVPATs could deter them from coming forth and making any complaint, which is essential for improving the process.
• Since only an elector could be a witness to the secrecy of his vote cast, it would violate Article 20(3) of the Constitution which says that no person accused of an offence shall be compelled to be a witness against himself.