A ghost in the machine? On EVMs, democracy deficit and its constitutionality

There is a misconception that Electronic Voting Machines have received an unqualified thumbs-up from the Supreme Court. Many serious problems persist and continue to cast a long shadow on India's electoral democracy.

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THIS is the first time in the 75-year history of independent India that the fairness of the vital election process itself is under question from multiple quarters and by most political parties.

Two substantial constitutional challenges and two verdicts of the Supreme Court later, the cloud of suspicion has not lifted. Why has this mistrust grown so much that the legitimacy of the process itself is now suspect?

Why have many advanced countries such as France, Germany, Ireland, Italy, Japan, Netherlands and the United Kingdom, and even less developed countries such as Bangladesh rejected the use of Electronic Voting Machines (EVMs) in their elections?

Fundamental flaw no.1: The Black box technology

The primary objection to EVMs is that the technology deployed is the 'black box technology'. In science, computing and engineering, a 'black box' means a device or system that functions without revealing any information about its internal workings.

It is this inaccessible circuitry of the EVM that has prevented it from gaining legitimacy in democracies of the developed Western world or, for that matter, almost every country high on the Electoral Democracy Index.

The German case

The Federal Voting Machine Ordinance introduced computer-based electronic voting machines (EVMs) for the elections to the 16th German Bundestag. This was challenged as unconstitutional. The judgment of the German Constitutional Court in 2009 is a 17,500 worded meticulous forensic examination of the integrity of the EVMs which is vital to its constitutionality.

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According to the court, it is necessary for elections in democratic Germany to be public in nature. The possibility of public scrutiny of elections should be enhanced and not diminished. The logic of the German constitutional court is central not just to Germany but to every democracy:

"Each citizen must be able to comprehend and verify the central steps in the elections reliably and without any special prior technical knowledge. The principle of the public nature of elections requires that all essential steps in elections are subject to public examinability."

Further, the court elaborated:

"The principle of the public nature of elections requires that all essential steps in the elections are subject to public examinability unless other constitutional interests justify an exception. Particular significance attaches here to the monitoring of the election act and to the ascertainment of the election result."

The German court struck down the use of EVMs as unconstitutional simply because no accessible public or judicial scrutiny of EVMs was possible without the intervention of technical experts.

This meant that the people of the country and their judicial authorities could neither access nor assess the integrity of the EVM, its software or the computer chip that controlled the voting machines.

Thus, for all effective purposes, the court ended the deployment of EVMs in Germany. Germany is 6th on the Electoral Democracy Index among 167 countries.

Japan, like Germany, is one of the most technologically advanced countries in the world. Yet, they have eliminated EVMs even from their municipal elections.

Fundamental flaw no. 2: Technical scrutiny of EVMs impossible

One Hari Prasad, a much-feted technocrat and a former technical advisor to the Andhra Pradesh government, sought to prove that EVMs could be manipulated.

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This was in response to a public challenge by the Election Commission of India (ECI) to prove that EVMs could not be hacked. He demonstrated, firstly, that the display unit itself, which showed for whom the votes were cast, could be easily manipulated.

Secondly, he demonstrated that the memory chip could also be manipulated to change the number of votes that each party polled per machine.

Hari was promptly arrested for having stolen the machine. Thus, instead of legitimising EVMs by debate, dialectics and improvements, the ECI made it end up like the Scopes trial. John Scopes, if you recollect, was punished for teaching evolution in a Tennessee school despite the great Clarence Darrow defending him.

Fundamental flaw no. 3: VVPAT precedes the recorder

It is necessary to understand how EVMs function. There are three components to the EVM: (1) The ballot unit, (2) The Voter Verified Paper Audit Trail (VVPAT) and (3) The control unit.

The votes cast are stored on the control unit and then are counted electronically at the end of the election. Between the ballot unit and the control unit lies the VVPAT.

The VVPAT prints for whom the voter voted. Here lies the fundamental flaw. The VVPAT is placed before the vote recording unit. Thus, the most elementary of safeguards, that the control unit should first record and then the VVPAT should print, has for some strange reason stubbornly been refused by the ECI for over a decade.

Constitutional challenges to EVMs in India

In India, the demand for constitutional scrutiny emerged from political parties, civil society and most importantly, the legal fraternity, which has an inextricable link with India's independence movement and the framing of our Constitution.

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The Supreme Court was made aware of the serious issues of transparency and possible manipulation surrounding the EVM regime in the case of Subramanian Swamy versus Election Commission of India (2013).

The necessity of a paper trail became the fulcrum of the discourse. The Supreme Court, after lengthy deliberations, was "satisfied that the paper trail is an indispensable requirement of free and fair elections".

It went on to hold that "the confidence of the voters in the EVM can be achieved only with the introduction of the paper trail".

The court allowed the ECI to introduce VVPAT in "gradual stages". However, several serious technical integrity issues were neither considered nor redressed.

Flaw no. 4: A near-zero paper trail

Supreme Court's wishes ignored by the ECI

Despite the decision of the Supreme Court in 2013 for the introduction of VVPATs into every EVM, the progress was shockingly tardy. Besides, the ECI's conduct itself has not inspired confidence.

For instance, the requests to put the VVPAT machine at the end of the chain, so that the VVPAT slip is obtained after the control unit has recorded the vote, has met with an unexplained obstinate resistance.

The transparent and intelligent scrutiny of votes cast and counted, fundamental to a legitimate democracy, is bizarrely missing in the Indian system. Thus, ironically India, the world's largest democracy, has a near-zero VVPAT verification.

The second challenge and the dilution of VVPAT scrutiny

Six years later, the Supreme Court had the occasion to deal with the EVM issue once again. Twenty-one major political parties demanded enhanced scrutiny of the EVMs in N. Chandrababu Naidu v. Union of India (2019).

These parties were demanding an increase in the percentage of verification of VVPAT paper trails to at least 50 percent of the EVMs. During the hearing, the ECI reported to the Supreme Court that it had posed a query to the Indian Statistical Institute (ISI) to ascertain the reasonable sample size for VVPAT verification.

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The ECI, employing bizarre logic, revealed: "Verification of VVPAT paper trail of 479 (randomly selected) EVMs would generate 99 percent accuracy in election results."

This statement of the ECI is statistically incredulous. This is because, in the general election of 2019, 2.23 million ballot units and 1.73 million VVPATs were deployed. The sample size proposed by ECI for scrutiny was merely 0.000214 percent.

The Supreme Court, in turn, directed that scrutiny of VVPAT slips be increased by eight times to 4,125 EVMs. The logic for this suggested number, still a minuscule proportion of the total EVM size, is missing.

It translated to scrutinising 0.00184 percent of EVMs, a sample size that is statistically insignificant and meaningless. The court directed that physical scrutiny of VVPATs be increased from one to five per constituency.

Therefore, in the 2019 general election, only 20,625 EVMs were scrutinised. This scrutiny is farcical because it translates into only 0.00184 percent of the total number of EVMs that were deployed.

Supreme Court judgment misread as carte blanche by the ECI

The court went on to observe, "Neither the satisfaction of the ECI nor the system in vogue today, as stated above, is being touted by the court in so far as fairness and integrity are concerned."

The court further endorsed that "it is possible and we are certain that the system ensures accurate electoral results".

These passages of the judgment are now being read by the ECI as a carte blanche for refusal to scrutinise any EVM related issue.

The observations were obiter dicta. This is manifest from the judgment itself, which stated, "We express our reluctance to go into the issues regarding the integrity of the EVMs which have been raised at a belated stage."

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The judgment was unfortunately only five pages-long. The judgment was delivered on April 8, 2019, just three days before the 2019 general election.

These random observations have led to some very far-reaching deleterious consequences. For instance, the complaints to the ECI regarding the November 2020 Bihar Election were met with a stereotyped response: "It has been clarified time and again that EVM is absolutely robust and tamperproof. Even the Supreme Court has upheld their integrity more than once."

The judgment is conveniently misquoted and used as a lifetime inoculation against all future complaints.

What does our Constitution require for the constitutional legitimacy of EVMs

It would be apt to remember the wording of Article 324(1) of the Constitution. In order to maintain the integrity of elections, "the superintendence, direction and control of the preparation of the electoral rolls for and the conduct of all elections" vests solely in the ECI. 

One of the important concerns is that the manufacture and control of the EVMs is not with the ECI, but with two public sector undertakings, namely, Bharat Electronics and Electronics Corporation of India. These entities are under the direct control of the Union government headed by a minister from the ruling party.

EVMs should like Caesar's wife be above suspicion

The election and the electoral process, like Caesar's wife, have to be above suspicion. The aim and object should be to ensure that EVMs are in tune with the precision and certainty of a ballot paper.

India's constitutional history has an important bearing on this issue. On June 16, 1949, the Constituent Assembly of India began deliberations on how to secure democratic governance in India forever.

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Nothing can encapsulate the paramount object than the striking clarity of the words of K.M. Munshi, which could only come from his consummate and forensic skills as an eminent lawyer and his deep wish for democracy to prevail forever for his country: "If there is going to be democracy, the sovereign power of the people must be in a position to elect their own representatives in a manner which is above suspicion, above partiality."

Vote integrity should not only be done but also seen to be done. As Abraham Lincoln said, "Elections belong to the people. It is their decision."

In the forthcoming 2024 general elections, the faith in the system must not be in doubt. As Munshi said, the process should be "above suspicion".

For seven long decades, India has resolutely remained an accountable constitutional democracy with institutions that are more or less intact.

These decades saw most colonial democracies degenerate into dysfunctional States. The general elections in India in 2024 are bearing the weight of the faith of 1.405 billion Indians. The stakes have never been higher.