Dr. P. V. Vijayaraghavan & Ors. v. M/S Nityam Software Solution Pvt. Ltd. & Ors.

16. The allegations by the plaintiff that the past record of Nityam was not verified, quotations not invited from vendors, cost before awarding contract was not negotiated or MoU not entered between the vendor are all denied by the Dr.Ramesh Kumar Sen. It is contended that as per the Constitution of IOA, Dr.Ramesh Kumar Sen being the Vice President and the future President is the Election Officer and for conducting the election it is not required to take any approval either from the present President or the Honorary Secretary. As per the Blue Book Guidelines and Protocols of Association it is clear that the Vice President shall be responsible for scrutiny of nominations, finalization of names of contestants, printing, distribution, collection of ballot papers and counting of votes. The dispute raised by the plaintiffs on the entire process of elections due to the difference in the votes being unprecedented is wholly unwarranted and the same cannot be the basis for quashing/setting aside the process of election. Reliance is placed on the decision in (2011) 13 SCC 774 Supreme Court Bar Association & Ors. vs. B.D.Kaushik.

17. Learned counsel for the defendant No.4 objects to the maintainability of the present suit on the ground that the candidates having taken part in the process of election, they cannot now be permitted to challenge the same or raise any doubt as to the election process.

18. Thus on the arguments advanced, the allegations of the plaintiffs qua Nityam and EVote are firstly, no MoU was signed between Nityam and IOA; secondly, EVote was incorporated on 10th September, 2020 when election process of IOA had already started and thus without any previous experience, EVote could not have been assigned the job of performing the elections; thirdly, Nityam has a past tainted record and a civil and criminal case is pending against Nityam; fourthly, despite it having been resolved in the EC meeting dated 19th July, 2020 that a government approved vendor would be engaged to conduct the elections, Nityam was engaged which is not a government approved vendor; and fifthly, the raw data was not sent on time and when sent it was deliberately masked and concealed indicating tampering.

19. For the facts as stated on behalf of Nityam that the elections of the IOA were conducted by Nityam and not EVote, the contention of learned counsel for the plaintiffs that EVote was incorporated subsequent to the election process having started merits no consideration. According to learned counsel for Nityam one of the products of the Nityam is EVote which is an online web based election system that is SaaS (Software as a service) platform. The website of Nityam for the said product is www.evote.co.in and the registered trademark ‘eVote’, which is owned by Nityam.

20. As regards the allegations of the plaintiffs qua Nityam's tainted past record, it is stated that the first instance relates to the elections of the Association of Surgeons of India (in short ‘ASI’) in 2017 where a candidate filed a suit prior to the commencement of the e-voting process. However, the Madras High Court directed that the elections be held for which ASI availed the services of Nityam and was duly satisfied by Nityam’s services. As regards the second incident it is stated that an unsuccessful candidate of the elections held for Indian Academy of Paediatrics in 2017 filed a complaint with the Cyber Cell, Mumbai Police and Nityam satisfactorily supplied all the information to the Cyber Cell and thus no further steps were taken in the said complaint. Therefore, qua the alleged tainted past of Nityam, neither there is any finding by a Court nor has any charge-sheet been filed against Nityam to prima facie show that the credentials of Nityam warrant it to be unfit for conducting a fair and transparent election. On the basis of the two complaints filed, it cannot be held that the system of Nityam is not secure or transparent and that it did not give accurate voting results.

21. According to the Nityam, the step-by-step process involved in conducting the elections is as under:

(i) The photos and profiles of the candidates were provided by the Election Officers of the said election i.e. Defendant No. 3, Prof. Santaraman Shetty and Prof. Anil Jain (“Election Officers”) to Defendant No. 1 who prepared the digital ballot papers.

(ii) After the digital ballot papers were reviewed and confirmed by the Election Officers, the same were tested by way of a mock election by the Election Officers.

(iii) Thereafter, all the Election Officers by their emails dated

(iv) To initiate the election, all Election Officers logged into the election officer panel and entered their respective usernames and passwords. After authentication, each Election Officer generated their own respective unique Election Start Key which Key was used to start the election and to encrypt the entire election data.

(v) After the Start Key was generated and applied by the

(vi) Once the members of Defendant No. 7 had correctly entered their respective membership numbers and the captcha, the members were given an option to choose whether they wanted the OTP to be delivered via email or SMS. After the valid OTP was applied, the digital ballot paper was opened for the voting process

(vii) Upon casting of the vote, an email/SMS confirming the successful voting was sent to the voter and also a confirmation message was shown on their screen which contained the public IP and the time stamp of their voting.

(viii) On 22.11.2020, during the virtual/online meeting, all the

Election Officers logged into their election officer panel and after authentication, generated their respective Result Key and applied the same to initiate the automated process of decoding the encrypted election data. Upon completion of the decoding, the result was immediately generated and was displayed on the screen showing the votes received by each candidate.

22. Nityam has also stated about its past experience of providing the services of online elections, since the year 2014 and that it has held elections for number of associations such as Association of Medial Consultants, Karnataka State Obstetrics and Gynaecology Association, Indian Society of Assisted Reproduction, Indian Association of Paediatrics Surgeons, Urology Society of India, Association of Surgeons of India, Indian Academy of Paediatrics.

23. According to Nityam, in order to avoid mass voting from the same internet connection, Nityam is configured to validate only one public IP address which means that only one Public IP address can be used for casting vote throughout election process. According to Nityam raw data of the election is the encoded/encrypted and unprocessed data which cannot be understood by any human. The election data also consists of the Candidate Audit Trail and the Voter Audit Trail. The Audit Trail contains the time stamp of each vote in favour of the candidate however, the said data is not given to anybody and everybody to protect voter identity and privacy. Therefore, after masking only few characters of the IP address and the time stamp, the data is provided to the client when requested for.

24. Plaintiffs also challenged the authenticity of the data by Nityam on the ground that the IP numbers of the voters as well as time were fully masked instead of masking few characters of the IP address and the time. Nityam has already explained that this masking was done to protect the identity of the voters and has submitted that the unmasked data can be provided to the Court. Whether the data was required to be fully masked or partially masked and/or due to masking the data completely whether there was manipulation can be gone into only during the course of trial. At this prima facie stage, this Court is of the opinion that if complete masking has been done to maintain the privacy of the voters, it cannot be held that the election process was marred in-dispute or that there was manipulation in the data.

25. One of main objection of the plaintiffs to the selection of Nityam as the vendor to conduct the IOA Election 2020-2021 is that in the meeting of the Executive Committee dated 19th July, 2020, it was decided that the elections would be conducted through a Government of India approved vendor and Nityam not being a Government of India approved vendor, the same is in violation of the decision dated 19th July, 2020 and the same casts a serious doubt on the election process. The plaintiffs and Dr.Ramesh Kumar Sen have placed on record the Minutes of the meeting dated 19th July, 2020, from which, it is evident that it was the suggestion of Dr.Ramesh Kumar Sen, that the election should be held by a Government of India approved vendor which was duly accepted. It is for this reason, in the first meeting between the election observers and Dr.Ramesh Sen, it was agreed that Right2Vote which was a Government of India approved vendor be selected for conducting the elections. It was Dr.Ramesh Sen himself who volunteered to get elections conducted through government approved vendor and that he will have Elections Observers. Three independent Election Observers were appointed out of which one recused due to the bereavement in the family however, the two Election Observers were duly consulted at each step and action taken thereafter. The two reasons why the Dr.Ramesh Kumar Sen as an election officer and with the consent and approval of the two election observers discarded Right2Vote was that the Right2Vote was demanding 100% advance payment and when Dr.Ramesh Sen checked up from the office of the defendant No.7, it was informed that 100% payment could not be made in advance. Further, the cost of conducting elections by Right2Vote was more than that of Nityam. Hence Nityam was selected.

26. During the course of arguments, learned counsel for Dr.Ramesh Kumar Sen stated that the averment regarding Nityam not being a Government approved vendor is neither in the plaint nor in the application and hence no reply on this count has been given however, to clarify the facts Nityam has a ‘Safe to Host’ certificate by Indusface Pvt. Ltd. which is one of the auditors appointed by the Indian Computer Emerging Response Team (CERT-IN). Further Nityam also possesses a quality management system certificate. Thus Indusface Pvt. Ltd. has duly certified Nityam safe to carry out elections. It is thus evident that though not a Government of India approved vendor, Nityam has a certificate from the agency authorized to give certificates that the system of the Nityam is secure and thus, on this count, this Court cannot hold that the decision of Dr.Ramesh Kumar Sen was violative of the Constitution of IOA or that the decision to choose Nityam as the vendor for elections, was not in conformity with the decision of the Executive Committee of IOA dated 19th July, 2020. Though learned counsel for the plaintiffs has addressed arguments that no payment has been made from the IOA’s office and the payment to the vendor i.e. Nityam has been made by Dr.Ramesh Kumar Sen from his own account, which clearly shows manipulations, however, this Court, without finding any further material on this count, cannot return a finding that because Dr.Ramesh Kumar Sen has paid money to Nityam from his account and not from the Association’s account, the election be set aside.

27. Relevant provisions of Blue Book which provide that the Vice Presidence shall be the Election Officer besides the protocol to be followed are reproduced hereinafter and there is no averment in the plaint that Dr.Ramesh Kumar Sen has violated any of these provisions while conducting the elections:

28. Thus prima facie this Court is of the opinion that merely because two elections conducted by Nityam were challenged before the Court/ investigating agency, one prior to the commencement of elections and the other by an unsuccessful candidate, it cannot be held that Nityam has a tainted past so as to be excluded for being capable of conducting the elections. Further there is no requirement as per the Blue Book that elections of IOA are required to be conducted by a Government approved vendor. Further the decision of the Executive Committee based on the proposal of Dr.Ramesh Kumar Sen in the meeting dated 19th July, 2020 that the elections should be conducted by a Government approved vendor is satisfied as Nityam has a 'Safe to host' certificate from Indusface Pvt. Ltd., one of the auditors appointed by CERT-IN. Thus, considering the past experience of Nityam accompanied by a ‘Safe to Host’ certificate even if Nityam is not a Government approved vendor, it cannot be held that Nityam was disqualified from hosting the elections of the defendant No.7 Association. Further due to the two elections observers having stated that they were part of decision making in the entire election process, it is evident that it was not Dr.Ramesh Kumar Sen who singularly took the decisions. The fact that no written MoU between IOA and Nityam has been placed on record, would not invalidate the election process. Considering the process of voting explained on behalf of Nityam, prima facie this Court finds that there is no material to come to the conclusion at this stage that Nityam has been instrumental in any illegal online election process which would warrant tampering and this issue will be required to be gone into in detail after the parties have led their evidence.

29. Further grievance raised by the plaintiffs is that the correspondence between Nityam and Dr.Ramesh Kumar Sen were from the personal email IDs of Dr.Ramesh Kumar Sen and not from the official email ID of Dr.Ramesh Kumar Sen. Even if Dr.Ramesh Kumar Sen has contacted Nityam from his personal ID being the election officer of the election, the same would not taint the process as vitiated. Grievance of the plaintiffs is also that no presentation was made by the selected vendors before finalization, however, the said fact is belied from the emails between Dr.Ramesh Kumar Sen and the two election observers, which shows, that three vendors were zeroed down and thereafter, demonstrations were taken.

30. Undoubtedly, all the contestants have given their certificates expressing their satisfaction to the manner in which the election is conducted and that all prerequisites were followed. According to learned counsel for the plaintiffs when the certificates were given contestants were under the bonafide belief that the election has been conducted as per the ECM dated 19th July, 2020 and all prerequisites were followed. It is further contended that these certificates do not give Dr.Ramesh Kumar Sen a right to hold the elections in an arbitrary, irregular and illegal manner. Indubitably, Dr.Ramesh Kumar Sen as Election Officer was duty bound to ensure that the elections are held in a free, fair and transparent manner, however, the issues raised by the plaintiffs only create a suspicion and from the explanations rendered by Dr.Ramesh Kumar Sen and Nityam, prima facie no inference can be raised that the elections were not conducted in a free and fair manner.

31. The Division Bench of this Court in the decision reported as ILR (2013) V Delhi 3539 The Yatching Association of India vs. Boardsailing Association of India & Ors. categorically laid down that once the election process has commenced it must be concluded expeditiously as per its schedule and any legal challenge to the election must await the conclusion of the election. The Courts would normally pass orders only to assist completion of the elections and not to interdict the same. It was held:

20. The only question before us is whether the election process ought to have been interdicted once it has commenced. It is not necessary for us to examine the merits of the dispute between the parties. It is also not essential for us consider whether the Government Sports Code is mandatory or whether the elections being conducted conform to the sports code or not since those issues are pending consideration before the learned Single Judge.

21. The law in regard to interference by Courts with an election process is now well settled. Once an election process has commenced it must be concluded expeditiously as per its schedule and any legal challenge to the election must await the conclusion of the election. The courts would normally pass orders only to assist completion of the elections and not to interdict the same. In the case of Election Commission of India through Secretary v. Ashok Kumar: (2000) 8 SCC 216, the Supreme Court, inter-alia, held as under:—

22. In the case of N.P. Punnuswami v. Returning Officer. Namakkal Constituency. Namakkal. Salem Dist.: AIR 1952 SC 64, the Supreme Court, inter-alia, considered the meaning of the word „election‟ as used in Article 329(b) of the Constitution of India which provided that no election to the Parliament would be called in question except by a election petition. The Supreme Court observed that the word „election‟ had acquired a wide and a narrow meaning. While in the narrow sense it could mean the election of a candidate. In the wider sense, the word „election‟ could encompass the entire electoral process culminating, in declaring the election of a candidate. The Court summed up its conclusions as under:—

23. The principles of law relating to election of candidates under the Representation of People Act, 1951 have been extended to elections in general also. In the case of Shri Sant Sadguru (supra), the Supreme Court while considering a case of elections to the Managing Committee of a society registered under the Maharashtra Cooperative Societies Act, 1960 reiterated the settled law as under:—

32. It is thus evident that not only elections to the positions as contemplated under the Constitution of India but even to the Societies, Associations etc. should not be normally interdicted once the election process is started. According to learned counsel for the petitioner since election result has been declared, the election process is complete and there is now no bar in granting injunction. However, as noted above, though the number of votes received by each candidate have been declared, however the result has not been formally declared as was to be done in the meeting dated 11th December, 2020 which has been stayed by this Court.

33. In view of the discussion above, this Court finds no prima facie case in favour of the plaintiffs to grant an interim injunction at this stage. Application is according dismissed.

JUDGE FEBRUARY 16, 2021 ‘vn’