The petitioner argued in the Bombay HC that the mobile phone ban violates an Information Technology Act rule that said documents in DigiLocker should be treated on par with original ones.

The Bombay High Court on Monday dismissed a PIL petition seeking a direction to the Election Commission of India (ECI) to let voters carry mobile phones into polling booths and rely on their identity proofs through DigiLocker, a cloud-based platform for storing, sharing, and verifying certificates and documents.

The court stated there was no illegality or irregularity in the ECI circular from June last year that prohibited anyone other than authorised election officials or observers from carrying or using mobile phones within a 100-metre perimeter of a polling centre.

A bench of Chief Justice Devendra Kumar Upadhyaya and Justice Amit Borkar was hearing the petition filed by Ujala Shyambihari Yadav, who claimed that the ECI’s decision caused difficulties for elderly voters and hindered the democratic process of free and fair elections.

“As it is, do you understand how cumbersome the process of conducting elections is? We call it the biggest in the world. There is potential for misuse (if voters are permitted to use mobile phones inside polling booths). If you compare the violence this country used to see prior to the empowerment of the Election Commission, can anyone guess what can happen now?” Chief Justice Upadhyaya remarked.

Yadav argued that the ECI’s measure contradicted Rule 9A of the Information Technology (Preservation and Retention of Information by Intermediaries Providing DigiLocker Facilities) Rules 2016 and should be struck down.

She contended that the rule provided that documents stored in DigiLocker should be treated on par with original ones and have statutory force, binding all authorities, including the ECI.

However, senior advocate Ashutosh Kumbhakoni, representing the ECI, argued that the prohibition was implemented to ensure that elections are conducted not only in a free and fair manner but also in a fearless and smooth manner, free from violence.

Kumbhakoni said the technology available in mobile phones raised serious concerns regarding misuse, such as photographing the ballot to show whom a voter supported.

The ECI’s decision aimed to prevent any untoward incidents, he added

The ECI stated that the notification was issued under its plenary powers as per Article 324 of the Constitution for the superintendence and control of elections, which does not contravene the legal rights of any voter.

IT Act rule ‘doesn’t vest any right on any voter’

The court held that Rule 9A does not create or vest any right for anyone to carry a mobile phone for using documents stored in DigiLocker to establish their identity as voters during the election process.

It added that a January, 2018 circular from the Ministry of Electronics and Information Technology, which the petitioner relied on, was issued in furtherance of the rule to recognise citizens’ ability to produce documents through DigiLocker but “does not vest any statutory right on any voter to contravene measures taken by the ECI.”

The court referred to the Supreme Court judgment in Union of India v Association of Democratic Reforms, which observed that the ECI’s plenary powers have limitations only when the legislature enacts a law concerning elections.

If the law is silent, no instrument can override measures taken by the ECI under Article 324 for elections to the legislature.

The court further stated it was not convinced by the petitioner’s argument that penal action could be taken against the misuse of mobile phones under Section 130 of the Representation of the People Act.

“For the purpose of ruling out any such possibility, if certain measures are taken by ECI as per 324, we do not find any irregularity or illegality in such a measure. The PIL is dismissed,” it held.