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An intervention application has been preferred by the Election Commission of India (ECI) before the Supreme Court seeking directions for fixing a timeline for filing of Election Petitions in the States/ Union Territories of Assam, Kerala, NCT of Delhi, Puducherry, Tamil Nadu and West Bengal. The application states that in the absence of such directions, all Electronic Voting Machines (EVMs) used in these States/Union Territories will remain stuck or unable to be used/ deployed for upcoming/ future elections.

It has been pointed out in the application that in April this year the court had restored an order passed by it in March for extension of timelines in filing of petitions/ applications/ suits/ appeals/ all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State). 

The extension was granted by the court in light of the situation arising faced by the country on account of the spread of the Covid-19 virus and resultant difficulties that could be faced by the litigants across the country. In the March order, the court had held that in light of the pandemic situation, the "period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings".

This March order was restored by the court in April on various interlocutory applications filed by the Supreme Court Advocates on Record Association (SCAORA) pointing out the surge in Covid-19 cases. 

The April order read, "We also take judicial notice of the fact that the steep rise in COVID-19 Virus cases is not limited to Delhi alone but it has engulfed the entire nation. The extraordinary situation caused 4 by the sudden and second outburst of COVID-19 Virus, thus, requires extraordinary measures to minimize the hardship of litigant–public in all the states. We, therefore, restore the order dated 23rd March, 2020 and in continuation of the order dated 8th March, 2021 direct that the period(s) of limitation, as prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings, whether condonable or not, shall stand extended till further orders."

In this backdrop, the petition stated that due to April order, the statutory period for filing Election Petitions as prescribed under the Representation of the People Act, 1951 had also been relaxed, as a result of which "all the Electronic Voting Machines (EVMs) and Voter Verified Paper Audit Trail machines (VVPATs) belonging to the ECI that were used in 5 recently held Assembly Elections are blocked and cannot be used in future/upcoming elections."

Section 81 of the Representation of People Act, 1951, Rules 92 (1-A), 93 (1-A),  94 (aa) as well as instructions dated Jul 15, 2016, issued by the ECI to the Chief Electoral Officers (CEOs) of all States and Union Territories regarding the period of retention of EVMs used in elections, were brought on record by the ECI to show that due to these provisions and the April order, the ECI is unable to use a large number of EVMs.