In this edition of Court Judgements, we look at the apex court’s judgement on 100% cross-verification of EVM data with VVPATs, issues with regularization of employees, Karnataka High Court on disclosures in candidate’s affidavits, Madhya Pradesh High Court, and Delhi High Court’s judgment on cruelty in marital relationship.
Supreme Court: Suspicions of EVM tampering are unsubstantiated, reverting to ballot system will undo the progress so far.
In Association of Democratic Reforms vs. Election Commission of India & Anr., the apex court held that returning to the ballot system could undo the reforms over the years, and mere suspicions of mismatch in votes cast through EVMs cannot be considered.
The two-judge bench comprising Justice Sanjiv Khanna and Justice Dipankar Datta was hearing a petition to consider:
The court referred to previous judgements on the efficacy and use of EVMs in the elections in this country. In Subramanian Swamy vs. Election Commission of India, the apex court held that the paper trail was an indispensable requirement of free and fair elections. Accordingly, EVMs were to be set up with VVPATs. In N. Chandrababu Naidu and Others vs. Union of India and Another, the apex court held that five EVMs per assembly constituency or assembly segment in a parliamentary constituency would be subject to VVPAT verification. In Sunil Ahya vs. Election Commission of India, the apex court dismissed a petition seeking an independent audit of the source code of EVMs.
The court also briefly looked at the functioning of EVMs. Upon looking at the process flow starting from the EVM dispatch from the warehouse and the conclusion of the election, it held that EVMs are standalone machines which cannot be connected to the internet. The EVMs do not have any ports to enable a person to have access to the burnt memory. The notion of hacking or tampering with the neutral firmware in the read-only memory to influence results is baseless. Therefore, any suspicion that electronic voting machines (EVMs) can be programmed or manipulated to record votes repeatedly or inaccurately in favour of a specific candidate should be dismissed.
Further, the performance of EVMs was also discussed. Since introducing Electronic Voting Machines (EVMs), over 1.18 billion voters have exercised their franchise. The Election Commission of India (ECI) has conducted random verification of Voter Verifiable Paper Audit Trail (VVPAT) in 5 polling booths per assembly segment/constituency for 41,629 EVMs-VVPATs. Additionally, more than 40 million VVPAT slips have been cross-checked with the electronic counts of their corresponding control units. Not a single instance of discrepancy or incorrect vote recording has been identified. EVMs have undergone scrutiny by technical expert committees on multiple occasions, all of which have approved them and found no faults.
The apex court acknowledged the fundamental right of voters to ensure their vote is accurately recorded and counted, however, the same cannot be equated with the right to 100% counting of VVPAT slips, or a right to physical access to the VVPAT slip.
The apex court held that EVMs are simple, secure, and user-friendly, and the VVPAT system fortifies the principle of vote verifiability, thereby enhancing the overall accountability of the electoral process.
Further, to strengthen the integrity of electoral processes, the court issued several directions.
Accordingly, the petitions are disposed of.
Supreme Court: Employee appointed through valid process cannot be denied regularization due to procedural formalities, if served for considerable time in that position.
In Vinod Kumar & Ors. etc vs. Union of India & Ors., the apex court held that procedural formalities cannot be used to deny substantive rights to the employee perpetually. Further, the essence of employment and rights thereof cannot be merely determined by initial terms of appointment when the employment has evolved over time.
The apex court was hearing an appeal filed against the judgement of Allahabad High Court, which dismissed the petitions challenging the order of the Central Administrative Tribunal that rejected the appellant’s plea for regularization and absorption into the post of ‘Accounts clerk’.
The brief facts of the case are as follows: As per a notification dated 21 February 1991, the appellants were initially selected for ex-cadre positions as ‘Accounts Clerks’ through a process involving written tests and interviews. Despite their representation for regularization being rejected by the Divisional Railway Manager in 1999, the appellants pursued their case by filing Original Applications with the Central Administrative Tribunal. However, the Tribunal, in its order dated 21 November 2001, dismissed their applications, asserting that their appointments were temporary and tied to a specific scheme, thereby precluding them from being regularized or absorbed into permanent positions. Subsequently, the appellants appealed to the High Court, which upheld the Tribunal’s decision and dismissed their Writ Petitions. The High Court reasoned that employment under a temporary scheme did not afford the appellants the same rights as permanent employees, citing the Supreme Court’s ruling in Secretary, State of Karnataka vs. Umadevi, which held that temporary or casual employees do not have a fundamental right to be absorbed into service.
The counsel for the appellants argued that the High Court erred in the judgement and incorrectly applied the principles from the case of Umadevi to their situation. Having heard both sides, the apex court held that when the actual course of employment has evolved over time, the essence of employment and rights thereof cannot be merely determined by initial terms of appointment.
The apex court also differentiated between the case at hand and the Umadevi. While the Umadevi case was on the back door entry, the case at hand is that of a valid appointment process. Furthermore, the Umadevi case also distinguishes ‘irregular’ and ‘illegal’ appointments, clearly stating that even if certain appointments were not made in accordance with rules and procedures, they cannot be said to be illegally done if they had followed procedures of regular appointment such as written exams and interviews.
Accordingly, the judgment of the High Court is set aside, and the appellants are entitled to regularization. The respondents are directed to complete the process of regularization within 3 months from the date of service of the judgment.
Karnataka HC: Not every criminal case launched against a candidate has to be disclosed, when charges are not framed, or cognizance of offence has not been taken.
In B G Uday vs. H G Prashanth, the Karnataka High Court held that not all criminal cases against a candidate participating in elections need to be disclosed, particularly if the charges are not yet framed or cognizance of the offence has not been taken.
The single-judge bench comprising Justice Krishna S Dixit was hearing an appeal calling into question the judgement of the sessions judge that dismissed the appeal against the conviction and imprisonment of the candidate under Section 125A of the Representation of Peoples Act for filing false affidavit, passed by XLII Addl. Chief Metropolitan Magistrate, Bengaluru.
The counsel for the petitioner argued that the penal provision outlined in Section 125A should be interpreted strictly, suggesting that no offence could be attributed under such scrutiny. It was argued that the provision to disclose the pendency of a criminal case arises only when it has reached a certain stage, and not before. The counsel for the respondent asserted that the petitioner had failed to disclose the ongoing criminal cases against him, irrespective of the stage of the complaint.
The court looked at the format of the Affidavit format as prescribed in Rule 4A of the 1961 Rules read with section 33A of the 1951 Act, and affirmed that what is required to be disclosed is the pendency of a criminal case in which charges have been framed or cognizance of the offence alleged is taken.
Further, the High Court pointed out the shortcomings of the conviction and held that taking the literal content of Form 26, without adverting to the substantive provisions of section 33A of the parent Act culminated in the conviction & sentence, which are nothing but an abuse of the process of the court.
Accordingly, the impugned orders of the courts below are set aside.
Madhya Pradesh HC: Objection by husband to wife, who is always free to financially support her parents amounts to cruelty.
In Pawan Kumar vs. Dr. Babita Jain, the Madhya Pradesh High Court held that the wife is always free to financially support her parents and if there is any objection from the husband, the same amounts to cruelty.
The two-judge bench comprising Justice Rohit Arya and Justice Sanjeev S Kalgaonkar was hearing an appeal against the judgement of the Family Court that granted the decree of divorce to the couple. The brief facts of the case are as follows: The appellant (husband) and respondent (wife) entered into the marriage in April 2002 following Hindu customs, where the husband claimed to be a Chartered Accountant, when in fact he did not have any such degree. They have been living separately without cohabitation since February 2009, a span of 15 years. Eight years after their marriage, the wife, a doctor, filed a petition under section 13 of the HM Act before the Family Court, alleging that her husband lacked any source of income and married her with the sole aim of living off her earnings luxuriously.
The wife claimed that after their marriage, her husband took her to his residence in Sagar and insisted that she sever ties with her parents. He controlled her finances and prohibited her from seeking employment outside the home. Allegedly, he also interfered with her professional activities, lodging complaints with her employers about her employment without his consent.
The husband contended that he was always open to reconciliation with his wife, but she refused due to her obstinacy. He attributed her unwillingness to reconcile to interference from her mother and brother. He also asserted that the wife’s parents were motivated by greed for her earnings, which hindered any amicable resolution of the matter.
Upon considering the facts of the case, and cross-examination, the Trial Court found that the wife was subjected to cruelty by her husband. The High Court also looked at the findings of the Trial Court during the cross-examination. It further relied on the apex court judgement in A. Jayachandra vs. Aneel Kaur, whereby it was held that Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or mere silence, violent or non-violent. In cases where there is no direct evidence of cruelty, the courts are required to probe into the mental process and mental effects of incidents that are brought out in evidence.
Further, since the couple had been living separately for a long period, it is well settled that such long periods of continuous separation conclude that the marital relationship is beyond repair. The trial court committed no error in granting the decree of divorce. The impugned judgement merits no interference. Accordingly, the appeal is dismissed.
Delhi HC: Unsubstantiated aspersions of perfidiousness attributed to the spouse would amount to worst form of insult and cruelty.
In X vs. Y, the Delhi High Court held that levelling disgusting allegations of unchastity and allegations of extramarital relationship constitute grave assault and would amount to the worst form of insult and cruelty.
The division bench comprising Justice Suresh Kumar Kait and Justice Neena Bansal Krishna was hearing an appeal against the order of the Family Court that dismissed the petition for divorce on grounds of cruelty. The brief facts of the case are as follows. The appellant, divorced and working on deputation in the Central Reserve Police Force in 2004, was contacted by the respondent. They began conversing over the phone and met in September 2004 at ISBT, Delhi, spending about 3-4 hours together. A week later, the respondent expressed affection for the petitioner. He visited her at her residence in Bhiwani, Haryana. The petitioner claimed that, while intoxicated, the respondent initiated a physical relationship with him. Later in November 2004, she informed him of her pregnancy and pressured him into marriage. They wed on 1 January 2005, at Arya Samaj Mandir, Najafgarh, following Hindu customs. However, she confessed afterwards that she was not pregnant, having deceived him to coerce marriage.
The petitioner alleged that the respondent, employed in a government department initially stationed in Bhiwani, was transferred to Delhi in 2006 and urged him to resign from government service, start a business in Delhi, and claim his share of parental properties. He resigned but faced refusal from his parents due to their disapproval of the marriage. The petitioner claimed that the respondent married him to seize his property, mistreated him, threatened suicide, and falsely accused him and his family of dowry-related offences. It is alleged that he was subjected to cruelty, dowry harassment, and also allegations of illicit relationship. Accordingly, he filed a petition seeking divorce on the ground of cruelty under Section 13 (1)(ia) of the Hindu Marriage Act, 1955.
The Family Court looked at the evidence of both parties and concluded that the allegations of cruelty by the respondent were vague, non-specific, and general in nature. Accordingly, the divorce petition was dismissed. When appealed in the High Court, the division bench also looked at the evidence and facts of the case. It held that the appellant has continuously and firmly expressed suspicions regarding the respondent’s character, making baseless and condemnable accusations against her integrity. It is asserted that she was engaged in an extramarital affair, without providing any evidence to support these claims. The High Court relied on the judgement of the apex court in Vijay Kumar Ramchandra Bhate vs. Neela Vijaykumar Bhate, where it was held that such allegations, which constitute a grave assault on the character, honour, and reputation and health of the accused, amount to the worst form of cruelty.
The High Court further held that the appellant hadn’t substantiated any of the accusations made against the respondent. Their claims regarding threats of suicide and involvement in criminal cases are vague and lack specificity. Further, it’s the respondent who has endured cruelty, not the appellant.
Accordingly, the High Court dismissed the appeal petition.
