The Supreme Court on Monday refused to direct that Punjab municipal elections scheduled for Tuesday, May 26, be held using EVMs even as it said the State Election Commission (SEC) should have considered the observations in its 2024 judgment that returning to ballot papers is a “regressive step”.

A three-judge bench presided by Chief Justice of India Surya Kant noted that only one day remained for the conduct of the elections. “There is no time left. What can be done,” asked the CJI.

The bench also comprising Justices Joymalya Bagchi and Vipul M Pancholi said conduct of municipal election rules permits both ballot paper and EVM voting and only if the former is deleted can the latter be held to be the only option.

The court was hearing an appeal challenging the May 22 order of the Punjab and Haryana High Court refusing to intervene in the matter on the ground that the petition was filed belatedly on May 18, and there was hardly any time left for the elections.

Appearing for petitioner Ruchita Garg, a social worker, Senior Advocate Nachiketa Joshi and Advocate Alabhya Dhamija said this was not correct. Joshi said the election notification was issued only on May 13 and the petition was filed without any delay on May 15, but the HC took it up for hearing only on May 19.

Joshi pointed out that June 1 is the last date by which the entire election process is to conclude and hence, there is still time to issue directions to hold the elections within that window.

The CJI said, “There was no need for you to wait for the formal notification of election schedule being issued. You knew the elections were due… It’s not the first round of litigation. You could have requested the HC to tell them to make all the necessary arrangements.”

Joshi said, “But unless the communication comes out, it was presumed they would be doing it through the EVM process. It is only in the circular which comes out on May 13 and 14 that (said) it will be ballot paper. And the very next day, on May 15, we filed it. There is not even a day’s delay in filing.”

Joshi said the SC had in its April 26, 2024 judgment in Association For Democratic Reforms (ADR) vs Election Commission taken into consideration how in India we had moved on from physical ballot papers to EVMs.

Justice Bagchi said, “We are also in agreement with you the Election Commission is required to take into consideration the observations in the ADR judgment that it is a regressive step to go back (to ballot papers). On the point of a regression or an unwise step, after an election process has commenced, it would be extremely ill advisable to injunct or to regulate that election process. We can make observations for future elections.”

Joshi said the Election Commission had filed affidavits saying EVMs “are available and we will immediately provide them”. “They indicated they are waiting on the border and whenever the state says, immediately it will be provided; even the training facility will be provided. So where was the question (of ballot papers)?”

Justice Bagchi said, “Until and unless The Representation of the People Act and the (conduct of municipal election) Rules are amended to delete ballot paper voting, the decision…to do a ballot paper voting will be within the jurisdictional domain of the SEC.”

Joshi said the decision has to be guided by some unavoidable reason. “Unless some exigencies are shown by the state.”

Justice Bagchi said, “We are not going to second guess that”.

The CJI said the question of ballot papers vs EVMs was not being raised for the first time. He said had the petitioners approached at the appropriate time, directions could have been issued. “You people never raised it…What do you expect the authorities to do in a couple of hours,” CJI Kant asked.

Justice Bagchi said, “The Election Commission does not conduct municipal elections. So, the person conducting the election, the State Election Commission, is not before us.” “We would have gone into that if you had pointed out a jurisdictional error. But in the absence of a jurisdictional error, an unwise choice is not something which will persuade us to destabilise an election,” he said.

The senior counsel pointed out that the Punjab Municipal Election Rules, 1994 had been amended to include the provision of EVMs.

Justice Bagchi said they are simultaneous and not exclusionary. “That only shows that if the Election Commission chooses to go for EVMs, it has the powers.”

Joshi referred to past instances of booth capturing when ballot papers were used for voting. The CJI said, “Booth capturing is failure of law and order. And if there is failure of law and order, one should take serious note of it.”

The CJI, however, told the state, “At least for future elections, adhere to your amended Rule.”

The court also rejected the prayer to appoint a poll observer. “Why are (you) going to presume an unfairness in an election?…If you are not (presuming) there is no need for an observer. An observer is a very serious intervention and we are the last person to do it in an election process,” said Justice Bagchi.