EVM Paper Trail Judgment- A Judgment or an office order?

Dr Subramanian Swamy Vs Election Commission of India full judgment text

I have just gone through this judgment. In this case Hon'ble Supreme Court of India observed that paper trail/ paper receipt is necessary in the election in India and held in para 29 

"From the materials placed by both the sides, we are satisfied that the “paper trail” is an indispensable requirement of free and fair elections. The confidence of the voters in the EVMs can be achieved only with the introduction of the paper trail”

Government of India was also directed to provide required financial “assistance for procurement of units of VVPAT” for implementation of such a system (VVPAT) in a phased manner. 

With due respect to everybody after reading this judgment and being a toddler in field of law I failed to understand whether it is a judgment or office order by a senior executive or a review of work of some junior officer. My understanding about a judgment was that it decides an issue between two parties or establish rule of law and save the constitution.  But this judgment failed to touch any legal issue except the word herein above in inverted commas. 

Judgment goes in a direction to discuss implementation of Paper trail and its' cost. This is perhaps under the duty and power of other wing and not to judiciary. Moreover judgment nowhere discuss whether other wing failed to do his duty or not but gave direction to provided fund of Rs 1690 crore for these machine. 

This amount is not huge keeping in mind the budget of State but I am more concerned with the paper. In my opinion it will waste a huge number of paper resulting in loss of trees and environment.

Keeping a paper trail or giving a receipt to voter may be harmful in any country specifically in India. This may becomes a method for powerful and bad elements of society to ensure that a fearful voter had cast vote in his favour and voter may be forced to handover the said paper to those person outside the both. 

EVM was introduced in the elections many years back and now days there is not a very big disrespect or hate against them. Moreover Court is there to protect and ensure free and fair election and not to create or "achieved the confidence of voter". Same is the duty, field or specifically dream of the Parliament. 

Sec 174A IPC - no complaint is necessary

Maneesh Goomer Vs State Hon'ble High Court of Delhi on 04.01.12 observed that 174A of IPC is a cognizable offence and other offence of this line are non-cognizable thus it can not be said that a complaint by court is necessary for all section including sec 174A IPC. Under this section police may registered FIR and file charge sheet without formal complaint by court. Main offence of sec 138 IPC is already compounded but same is not ground to quash present case u/s 174A and this is a distinctive offence. 

meager sentences.. counter productive in the long run

Ahmed Hussein Vali Mohammed Saiyed and Anr Vs State of Gujarat, (2009) 7 SCC 254, Hon'ble Supreme Court of India observed as 

“99.….The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence, which reflects the conscience of the society and the sentencing process has to be stern where it should be.

Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is “not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong”

Just punishment is the collective cry of the society

Gopal Singh Vs State of Uttarakhand JT 2013 (3) SC 444 Hon'ble Supreme Court of India observed as 

“18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence”

Injunction is a form of specific relief

Arbitration Act - sec 11(6) - limitation of 30 days is not applicable to this section and a party may appoint arbitrator even after 30 days of notice. - specific relief act - Injunction defined Injunction is a form of specific relief. It is an order of a court requiring a party either to do a specific act or acts or to refrain from doing a specific act or acts either for a limited period or without limit of time. In relation to a breach of contract, the proper remedy against a defendant who acts in breach of his obligations under a contract, is either damages or specific relief. The two principal varieties of specific relief are, decree of specific performance and the injunction (See David Bean on Injunctions). The Specific Relief Act, 1963 was intended to be "An Act to define and amend the law relating to certain kinds of specific reliefs." Specific Relief is relief in specie. It is a remedy which aims at the exact fulfilment of an obligation. According to Dr. Banerjee in his Tagor Law Lectures on Specific Relief, the remedy for the non performance of a duty are (1) compensatory, (2) specific. In the former, the court awards damages for breach of the obligation. In the latter, it directs the party in default to do or forbear from doing the very thing, which he is bound to do or forbear from doing. The law of specific relief is said to be, in its essence, a part of the law of procedure, for specific relief is a form of judicial redress. Thus, the Specific Relief Act, 1963 purports to define and amend the law relating to certain kinds of specific reliefs obtainable in civil courts. It does not deal with the remedies connected with compensatory reliefs except as incidental and to a limited extent. The right to relief of injunctions is contained in part-III of the Specific Relief Act. Section 36 provides that preventive relief may be granted at the discretion of the court by injunction temporary or perpetual. Section 38 indicates when perpetual injunctions are granted and Section 39 indicates when mandatory injunctions are granted. Section 40 provides that damages may be awarded either in lieu of or in addition to injunctions. Section 41 provides for contingencies when an injunction cannot be granted. Section 42 enables, notwithstanding anything contained in Section 41, particularly clause (e) providing that no injunction can be granted to prevent the breach of a contract the performance of which would not be specifically enforced, the granting of an injunction to perform a negative covenant. Thus, the power to grant injunctions by way of specific relief is covered by the Specific Relief Act, 1963.”

Adhunik Steels Ltd vs Orissa Manganese And Minerals Hon'ble Supreme Court of India  on 10 July, 2007

A team whose goal is justice

Ram Chander Vs State Of Haryana AIR 1991 SC 1036 

Evidence Act- sec 165- power of court to ask question- role of court in evidence

"“If a Criminal Court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. The Court has wide powers and must actively participate in the trial to elicit the truth and to protect the weak and the innocent. It is the duty of a judge to discover the truth and for that purpose he may "ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant". But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten, coerce, confuse, intimidate or bully witnesses. He must take the prosecution and the defence with him. The Court. the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The judge, like the conductor of a choir, must, by force of personality personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young, flatter and old”

sentence should reflect the crime

Hazara Singh vs Raj Kumar Hon'ble Supreme Court of India observed on 18.04.13 as

“The cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence.”

“If acquittal of some co-accused casts a cloud of doubt over the entire prosecution case, the whole case may be rejected. But we fail to understand how acquittal of some of the accused can have any relevance to the question of sentence awarded to those who are convicted.”

“Mr Jain said that the High Court has enhanced the fine and compensated the injured and, therefore, we should not enhance the sentence. Accepting such a submission would mean that if your pockets can afford, commit serious crime, offer to pay heavy fine and escape entacles of law. Power of wealth need not extend to overawe court processes.”

In Sondur Gopal Vs Sondur Rajini Hon'ble Supreme Court of India observed as on 15.07.13

“State cannot have operation in another State. A law which has extra territorial operation cannot directly be enforced in another State but such a law is not invalid and saved by Article 245 (2) of the Constitution of India. Article 245(2) provides that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. But this does not mean that law having extra-territorial operation can be enacted which has no nexus at all with India”

“Therefore, in our opinion, the decision of the Calcutta High Court taking a view that the provisions of the Act would apply to a Hindu whether domiciled in the territory of India or not does not lay down the law correctly”

“To say that it applies to Hindus irrespective of their domicile extends the extra-territorial operation of the Act all over the world without any nexus which interpretation if approved, would make such provision invalid.”

“the Act will apply to Hindu outside the territory of India only if such a Hindu is domiciled in the territory of India.”

“The right to change the domicile of birth is available to any person not legally dependant and such a person can acquire domicile of choice. It is done by residing in the country of choice with intention of continuing to reside there indefinitely. Unless proved, there is presumption against the change of domicile”
Read on Indiankanoon

Hindu under HMA

In Sondur Gopal Vs Sondur Rajini Hon'ble Supreme Court of India observed as on 15.07.13

“State cannot have operation in another State. A law which has extra territorial operation cannot directly be enforced in another State but such a law is not invalid and saved by Article 245 (2) of the Constitution of India. Article 245(2) provides that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. But this does not mean that law having extra-territorial operation can be enacted which has no nexus at all with India”

“Therefore, in our opinion, the decision of the Calcutta High Court taking a view that the provisions of the Act would apply to a Hindu whether domiciled in the territory of India or not does not lay down the law correctly”

“To say that it applies to Hindus irrespective of their domicile extends the extra-territorial operation of the Act all over the world without any nexus which interpretation if approved, would make such provision invalid.”

“the Act will apply to Hindu outside the territory of India only if such a Hindu is domiciled in the territory of India.”

“The right to change the domicile of birth is available to any person not legally dependant and such a person can acquire domicile of choice. It is done by residing in the country of choice with intention of continuing to reside there indefinitely. Unless proved, there is presumption against the change of domicile”

Unlawful Assembly

Baladin and others Vs State of Uttar Pradesh AIR 1956 SC 181 “It is well settled that mere presence in an assembly does not make such a person a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under section 142, Indian Penal Code”