EVM judgment misses the crux: The democracy principle

Court judgments are informed by a wide variety of factors, and when the factors change, the judgments change too. Here, Prof. Arun Kumar hopes that the recent EVM judgment will change sooner rather than later.

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IN the midst of elections, crucial to maintaining democracy, events suggest all is not well.

The Supreme Court judgment ruling out any major changes in the way elections are conducted using Electronic Voting Machines (EVMs) and Voter Verifiable Paper Audit Trail (VVPATs) was expected. But, the tone and tenor of the judgment is worrisome.

Even more disturbing is the fact that the judgment ignores the 'democracy principle' and bases itself on some practical aspects of election malpractices. Far from lauding the petitioners as champions of democracy for their voluntary work to enhance the fairness of elections in India, which would be befitting, the judges took them to task for coming in the way of the nation's progress. They were almost labeled as anti-national!

Key arguments of the petitioner that were rejected were:

a) The need for cross-verification of the vote cast by the voter

b) The possibility of discrepancy between the count of the EVM and VVPAT

c) Switch to the use of paper ballot

d) Possibility of tampering with the EVMs

e) Clear display of VVPAT slips or, even better, handing over slips to the voters to verify their vote.

However, even if all the arguments were found to be invalid, the 'democracy principle' as enunciated by the German courts was not satisfied by the EVMs, and correctives were required.

Nothing is final

The Supreme Court pronouncements become the law of the land. It has to be accepted till such time that the judgment is overturned or modified. Nothing is absolute or the last word.

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Most recently, in hearings in the Supreme Court on Article 39(b), commenting on Justice Krishna Iyer's formulation, the Chief Justice of India said, "Constitutional provisions have an evolution. We are now interpreting them not in the context of the India of the 1950s."

He further added, "Therefore, adopt an interpretation which is in keeping with the changing nature of the times."

A recent example of a drastic change is the relief provided to the Delhi Metro Rail Corporation via a curative petition. Different Benches of the court can have different perceptions about a given situation and fresh verdicts can come.

In another instance, Aam Aadmi Party (AAP) leader Sanjay Singh has obtained bail after six months of jail but Umar Khalid has not been able to get bail after years of incarceration.

It apparently depends on how the court evaluates the evidence regarding the charges. The lawyer in the latter case even withdrew the bail application in the Supreme Court.

Changes in social situations impact the dominant view in society, resulting in changes in the interpretation or enactment of new laws. The perceptions of courts are also impacted by changed social situations and that affects their interpretation.

So, post 1991, with the ushering in of the New Economic Policies (NEP), as policies swung in favour of capital, courts' views about protests and labour rights have changed compared to what they were in the 1980s.

The McDowell judgment in 1985, which defined tax avoidance as a 'colourable device' to reduce tax liability was revisited in 2003 in the Azadi Bachao Andolan case regarding double taxation avoidance agreement (DTAA) and foreign direct investment (FDI) through Mauritius.

The context had changed. In 1985, foreign investment was less important than tax evasion and black income generation while in 2003 India was trying to attract foreign investment. So the interpretation of law changed as the prevailing situation evolved.

Establishment's view

Often, the establishment's view is a key consideration for the courts, possibly to facilitate the system's functioning.

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Civil society groups challenging the establishment then lose out and may even get a dressing down from the courts. Is that justified or an objective assessment?

What was the main issue in the EVM's case? Did the court need to defend the establishment as it did and were its comments on those who brought the case before the court necessary?

The issue was that many in the country— political parties, civil society groups and citizens— feel that voting via EVMs is non-transparent and needs to be changed.

Experts have pointed to that. Can expressing doubts be anti-national? How is it against the progress of the nation? A much more technologically advanced country than India has given up using voting machines and reverted to paper ballots— are they regressing?

The top court in Germany said that voting via a machine does not fulfil the 'democracy principle'. That was good enough to give up on machine voting. This formulation is irrespective of the issue of malpractice in elections.

When people use a machine to vote, they do not know if the vote has been recorded by the central processor as it was intended to be cast by the voter. They have to trust the machine and the software loaded on it.

For this, they have to trust the Election Commission, the manufacturers of the EVMs and VVPATs and the design engineers. For instance, how can the voter be sure that what they see in the VVPAT for seven seconds is what is recorded in the Central Processing Unit as their vote?

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The 'democracy principle' says the voters should know, independent of any authority or expert, that their vote has been recorded as they intended it to be.

The current ruling party also mistrusted the machines when it was in the opposition. The 'democracy principle' is immutable, whether a party is ruling or in the opposition. It has nothing to do with technical progress. It is independent of earlier malpractices such as booth capturing or stuffing of ballots.

There is no guarantee that new means of fouling up the elections cannot be devised when elections are held with machines.

Presently, booth capturing is possible by buying out the opposition's election agents and the election officials at the booths. Corruption is widespread in the country and most seem to have a price.

Money is being used to buy votes and voter's cards. These malpractices are common to both paper ballots and EVMs. So the point is not booth capturing or stuffing the ballot boxes or other malpractices but the 'democracy principle'.

Trust in elections and processes?

Trust in the systems is low because of the corruption prevailing in Indian society. The ruling party indulges in it in a big way— there are no exceptions.

Recent revelations about the electoral bonds point to that. Since elections are about gaining political power one way or the other, there is a lot of malpractice and corruption around it.

Getting to power has seldom been for reasons of serving the people but for serving vested interests. That requires big money to capture parties, push their favoured candidates and win elections. These funds cannot be legal and require malpractices and manipulations. Representation is undermined and becomes formalistic.

No wonder, the ruling party is always suspect. Not that the opposition is not. But, the ruling party has the maximum amount of money and State power to manipulate elections and voters. So, they typically subvert elections the most.

The Election Commission's functioning is crucial for ensuring fair play and establishing public trust. So, appointing people of integrity to the Election Commission is crucial.

But, there has been manipulation in this regard, denting public trust. Recently, one election commissioner resigned days before the announcement of the general elections and two new ones were appointed in quick time.

This smacked of manipulation. More so since the law for the appointment of election commissioners had been changed by the ruling party so that it could have a majority in the committee to appoint the commissioners.

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The Election Commission's work has been challenged by political parties. Most recently, it has not acted on complaints against the Prime Minister for violation of the Model Code of Conduct. But, it has acted promptly against lesser leaders, especially from the opposition.

In fact, it has used diversionary tactics. For the first time, a notice has been served on the party president for violations by the 'star campaigner' instead of the star campaigner himself, in this case Prime Minister Narendra Modi.

The commission has been silent on the blatant manipulation of the election process in Surat. Its silence has encouraged similar things to be repeated in Indore and it could happen elsewhere. At least, in the case of manipulation in the mayor's election in Chandigarh, the Supreme Court had intervened.

So, the opposition complains of a lack of a level playing ground. It has also been hamstrung by blatant misuse of power when agencies have selectively targeted their leaders.

All this has created an atmosphere of mistrust in wide sections of the public. That is why large swathes of the public do not trust the system. They want more safeguards and one of them is the fulfillment of the 'democracy principle' which the use of EVMs does not live up to.

Conclusion

Elections are a crucial aspect of democracy that enable people to choose their representatives so that there could be governance 'by the people, of the people and for the people'.

If elections are unfair, and many believe that to be the case, this core is subverted. The EVM case was less about the manipulation of the machines and the ending of the earlier malpractices in Indian elections and more about assuring concerned citizens about the functioning of the 'democracy principle'.

Malpractices will persist till democracy is strengthened but a key doubt in the mind of the public could have been settled. Court judgments keep changing and perhaps this one will also change.