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While refusing a revival of paper ballots, the Supreme Court on April 26 upheld the electronic voting machine (EVM) polling system and underscored the need to “exercise care and caution” when raising questions about the integrity of the electoral process.
It also declined the petitioners’ demand to direct the 100% cross-verification of votes cast on EVMs with the accompanying Voter Verifiable Paper Audit Trail (VVPAT) paper slips. Only 5% of EVM-VVPAT counts are currently randomly verified in any Assembly constituency.
In separate but concurring opinions pronounced on day of the second phase of polling for the Lok Sabha elections, a Bench of Justices Sanjiv Khanna and Dipankar Datta reiterated the faith the judiciary has so far reposed in the integrity of the electoral process. The Court however issued a series of directions to the Election Commission of India (ECI) to strengthen the existing electoral system.
Here are the key takeaways from the verdict.
Judicial precedents
Referring to a host of past judicial precedents, the Court underscored that there is “no cogent material and data” to doubt the current polling system, especially after the introduction of the VVPATs. In its 2013 ruling in the case of Subramanian Swamy v. Election Commission of India, the Court held that “a paper trail is an indispensable requirement of free and fair elections.” Later, in 2019, while dealing with a plea seeking 50% cross-verification of EVM votes with VVPAT slips in each Assembly constituency, the Court favoured the increase in the number of polling stations in which VVPAT verification would be done from one per Assembly constituency or segment to five.
Emphasising that this batch of petitions has been utilised to review the safeguards in the polling system, the division Bench said, “We could have dismissed the present writ petitions by merely relying upon the past precedents and decisions of this Court which, in our opinion, are clear and lucid, and as repeated challenges based on suspicion and doubt, without any cogent material and data, are execrable and undesirable. However, we would like to put on record the procedure and safeguards adopted by the ECI to ensure free and fair elections and the integrity of the electoral process.”
What the Supreme Court said about EVM-VVPAT cross-verification
‘Unfounded’ claims of EVM tampering
Justice Khanna noted that the microcontrollers separately programmed by manufacturers in EVMs are “agnostic,” for they do not recognise political parties or candidates but only the buttons pressed by voters. He further pointed out that in case of any unauthorised attempt to access the microcontroller or memory of the EVM, the Unauthorised Access Detection Mechanism (UADM) disables it permanently.
“The programme loaded in the EVM18 is key hashed and burnt into a One Time Programmable microcontroller chip at the time of manufacturing, thus dispelling any possibility of tampering. It is pertinent to note that all the three units of the EVM – ballot unit, control unit and VVPAT, have microcontrollers in which the respective firmware is burnt. The burnt programme/code is unalterable and cannot be modified after the EVM is delivered/supplied by the manufacturer to ECI,” the judge highlighted.
Notably, during the proceedings, senior advocate Prashant Bhushan, appearing for the petitioner Association for Democratic Reforms (ADR), said that the ECI’s claim that the microprocessors were not reprogrammable was “in doubt” and that the “flash memory” of these processors could be reprogrammed.
Dismissing such a contention, the judges concluded that the “possibility to hack or tamper with the agnostic firmware in the burnt memory” of the EVMs is “unfounded” and that any suspicion that EVMs can be manipulated to favour any particular candidate should be rejected. They further took into consideration that more than 4 crore VVPAT slips have been tallied with the electronic counts of their control units and that not even a single case of mismatch has been recorded so far.
Also Read:EVM, VVPATs’ ‘deviant behaviour’: respond to plea, SC tells ECI
Rule 49 MA of the Conduct of Election Rules, 1961, permits an elector to raise a complaint regarding the mismatch between the name and symbol of the candidate shown on the VVPAT paper slip and the vote cast on the EVM. It was pointed out that in 26 complaints so far registered by the ECI, not even a single case of mismatch or defect was found.
100% cross- verification will delay poll results
While acknowledging that voters have the fundamental right to ensure that their votes are accurately recorded, the Court asserted that such a right cannot be equated with the right to 100% cross-verification of EVM votes with VVPAT slips or the right to physically access the VVPAT slips.
“The mere suspicion that there may be a mismatch in votes cast through EVMs, thereby giving rise to a demand for a 100% VVPAT slips verification, is not a sufficient ground for the present set of writ petitions to be considered maintainable. To maintain these writ petitions, it ought to have been shown that there exists a tangible threat of infringement; however, that has also not been substantiated,” Justice Datta reasoned.
As per the existing system, a VVPAT slip is visible for seven seconds for the voter to verify if their vote was cast correctly before it falls into a compartment kept underneath. They are later used by the polling officials to verify votes cast in five randomly selected polling booths. This according to the Court “assures the voter that his vote as cast has been recorded and will be counted.”
The judges further underscored that giving voters physical access to VVPAT slips is impractical and will lead to misuse. Highlighting the various logistical problems associated with implementing 100% cross-verification of EVM-VVPAT counts, Justice Khanna said, “First, it will increase the time for counting and delay declaration of results. The manpower required would have to be doubled. Manual counting is prone to human errors and may lead to deliberate mischief. Manual intervention in counting can also create multiple charges of manipulation of results.”
‘Well documented’ limitations of paper ballots
During the hearings, ADR suggested (and later withdrew the suggestion) that India should return to the paper ballot system, citing the example of countries like Germany. It also recommended putting barcodes on VVPAT slips so that counting machines can be used, and delays in counting can be minimised.
However, the Court asserted that such a “foible and unsound” submission should be rejected since the weakness of the ballot paper system is well documented.
“In the Indian context, keeping in view the vast size of the Indian electorate of nearly 97 crore, the number of candidates who contest the elections, the number of polling booths where voting is held, and the problems faced with ballot papers, we would be undoing the electoral reforms by directing reintroduction of the ballot papers. EVMs offer significant advantages. They have effectively eliminated booth capturing by restricting the rate of vote casting to 4 votes per minute, thereby prolonging the time needed, and thus check insertion of bogus votes. EVMs have eliminated invalid votes, which were a major issue with paper ballots and had often sparked disputes during the counting process. Furthermore, EVMs reduce paper usage and alleviate logistical challenges. Finally, they provide administrative convenience by expediting the counting process and minimizing errors,” Justice Khanna emphasised.
Discrepancies during the 2019 Lok Sabha polls
During the proceedings, the petitioners relied upon a report by The Quint alleging that there were ECI-acknowledged instances of variance in the results captured in the EVMs and VVPATs during the 2019 Lok Sabha elections. Addressing this contention, Justice Khanna noted that “except in one case” no other discrepancies were noticed while physically counting 20,687 VVPAT slips.
“The discrepancy during mandatory verification of VVPAT slips happened in polling station No. 63, Mydukur Assembly Constituency, Andhra Pradesh during the 2019 Lok Sabha Elections. On verification, it was found that the discrepancy had arisen on account of failure of the presiding officer to delete the mock poll data. While it is not possible to rule out human errors, paragraph 14.5 of Chapter 14 of the Manual on EVM and VVPATs deals with such situations and lays down the protocol which is to be followed,” he clarified.
Aspersions should be cast with caution
While acknowledging that the voters have the right to question the functioning of EVMS\, which have a significant bearing on free and fair elections, Justice Khanna asserted that it is “necessary to exercise care and caution when we raise aspersions on the integrity of the electoral process.” He further said that “repeated and persistent doubts” without any supporting evidence can lead to distrust which in turn can reduce citizens’ participation in elections — an essential facet of a robust democracy.
“Imagination and suppositions should not lead us to hypothesize a wrong doing without any basis or facts. The credibility of the ECI and integrity of the electoral process earned over years cannot be chaffed and over-ridden by baroque contemplations and speculations,” the judge cautioned.
ADR’s lack of bonfafides ‘completely exposed’
Justice Dipankar Datta in his concurring opinion observed that the petitioner ADR has attempted to discredit EVMs and cast a shadow on the electoral process. ADR, a civil society established in 1999, has been at the forefront of several judicial interventions that have led to crucial reforms in electoral laws. It was one of the lead petitioners to challenge the electoral bonds scheme that was struck down by the Supreme Court in February this year.
Also Read: ADR says it will oppose SBI plea on electoral bonds
“I have no hesitation to accept the submission of senior counsel for the ECI that reverting to the ‘paper ballot system’ of the bygone era, as suggested, reveals the real intention of the petitioning association to discredit the system of voting through the EVMs and thereby derail the electoral process that is underway, by creating unnecessary doubts in the minds of the electorate,” he wrote.
The judge further underscored that irrespective of ADR’s past efforts in bringing about electoral reforms, he has “serious doubts as regards the bona fides of the petitioning association” owing to its demand for a reversion to the paper ballot system.
“It is of immediate relevance to note that in recent years, a trend has been fast developing of certain vested interest groups endeavouring to undermine the achievements and accomplishments of the nation, earned through the hard work and dedication of its sincere workforce. There seems to be a concerted effort to discredit, diminish, and weaken the progress of this great nation on every possible frontier. Any such effort, or rather attempt, has to be nipped in the bud. No Constitutional court, far less this Court, would allow such an attempt to succeed as long as it (the court) has a say in the matter,” Justice Datta added.
Directions issued
While no changes have been recommended in the manner in which the ECI conducts polling, a couple of directions have been issued to adopt new procedures post-polls.
In a first, the Court has ordered that on completion of the symbol loading process in the VVPATs undertaken on or after May 1, the symbol loading units (SLUs) should be sealed and stored in the strong room along with the EVMs for 45 days post the declaration of results. SLUs, introduced around the same time as the VVPATs, are used to load the symbols of the candidates onto the VVPAT. This is done under the supervision of a district election officer.
Currently, only the three components of the EVM — the ballot unit, control unit, and VVPAT — are stored for 45 days after the results. Now, these SLUs are to be opened, examined and dealt with in the same way as the EVMs.
Further, the Court has permitted candidates coming second or third to seek verification of the burnt memory semicontrollers in 5% of the EVMs per Assembly segment of each Parliamentary constituency. This exercise will be carried out by a team of engineers belonging to the manufacturers following a written request by the candidate within 7 days from the date of declaration of the results. Expenses for the verification process have to be borne by the candidates which would be refunded in case the EVM is found to be tampered with, the Court said.
“Such candidates or their representatives shall identify the EVMs by the polling station or serial number. All the candidates and their representatives shall have an option to remain present at the time of verification....The District Election Officer, in consultation with the team of engineers, shall certify the authenticity/intactness of the burnt memory/ microcontroller after the verification process is conducted,” the verdict elucidates.
Apart from these two directions, the judges noted that during the proceedings it was suggested that instead of physically counting the VVPAT slips, they can be counted by a counting machine. Accordingly, they said that the ECI “may examine” this apart from the suggestion that barcoding of the symbols loaded in the VVPATs may be helpful in machine counting. The Court said since this was a technical aspect that would require evaluation, it had refrained from commenting either way.
