The Supreme Court on Monday sought a response from the Election Commission on a plea seeking setting aside a rule which provides for prosecution of an elector if the complaint alleging malfunctioning of EVMs and VVPATs eventually turns out to be false.

A bench headed by Chief Justice Ranjan Gogoi took note of the plea, which alleged that Rule 49MA of ‘The Conduct of Elections Rules’ was unconstitutional as it criminalizes reporting of malfunctioning of Electronic Voting Machines and Voter Verified Paper Audit Trails.

The plea alleged that putting the onus on the elector in cases of arbitrary deviant behaviour of machines used in election process, infringes upon a citizen’s right to freedom of expression under the Constitution.

The bench, which comprised justices Deepak Gupta and Sanjiv Khanna, also issued a notice to the Centre on the plea filed by Sunil Ahya.

His plea has sought a direction to the EC to register a complaint of any deviant behaviour of equipment used in the election process.

The petition said that presently, the burden of proof, rests on the elector for reporting any deviant behaviour of EVMs and VVPATs, who will face criminal charges irrespective of whether the complaint was truthful and honest.

It said that 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.

“In the course of reporting the deviant behaviour of an electronic machine used in the election process, an elector has to cast two votes; first one in secrecy and the second a test vote in the presence of the candidates or polling agents. A test vote cast subsequently in the presence of others cannot become a conclusive evidence of the deviant behaviour or otherwise of the previous vote cast in absolute secrecy,” the plea said.