Calling for bridging the gap between public perception and ECI information on EVMs and VVPATs, SC reserves judgment

A detailed analysis of the demand for 100 percent cross-verification of votes cast on EVMs and VVPATs in which the Supreme Court has reserved judgment.

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ON the eve of the first phase of the Lok Sabha elections, the Supreme Court has reserved judgment on a batch of petitions demanding 100 percent cross-verification of votes cast on Electronic Voting Machines (EVM) with Voter Verified Paper Audit Trails (VVPATs) or revert to the ballot paper system.

The Association for Democratic Reforms (ADR), an apolitical and non-partisan non-profit organisation, had filed a petition on March 14, 2023, but the matter could be heard only three–four days before the first phase of the Lok Sabha polls.

When the Solicitor General of India Tushar Mehta sought to raise doubts about the timing of the petitions, saying they had been filed on the eve of polls, the Bench comprising Justices Sanjiv Khanna and Dipankar Datta was quick to respond that the petition had been filed fairly much earlier.

"Some responsibility lies on us also. We could not hear it earlier due to workload," remarked Justice Datta.

Advocate Prashant Bhushan, appearing for the ADR, clarified at the outset that the petitioner does not say that EVMs "have been" manipulated but that they "can be" manipulated through hacking and manipulation through a programme. Bhushan submitted that EVMs and VVPATs both have programmable chips.

When Bhushan sought to submit that many Western countries have done away with EVMs, it invited a sharp reaction from the Bench which said we could not compare ourselves with Western countries given that there is a "sea difference" between the population there and in India.

The Bench also noted that ballot papers have their problems as well. Without implicitly referring to booth capturing, the Bench hinted at it.

Introduction of EVMs

A document available on the website of the Election Commission of India (ECI) states that the EVM was first conceived in 1977. The Electronics Corporation of India Limited (ECIL), Hyderabad was assigned the task of designing and developing a prototype EVM.

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The Bharat Electronic Limited (BEL), Bangalore, another public-sector undertaking, was co-opted with ECIL to manufacture EVMs.

In 1982, EVMs were used for the first time in India during the elections to the Kerala legislative assembly. Since there was no legislative backing for the use of EVMs, the Supreme Court struck down that election in A.C. Jose versus Sivan Pillai (1984) 2 SCC 656.

Subsequently, in 1989, the Parliament amended the Representation of the People Act, 1951 to create a provision for the use of EVMs in elections (Section 61A).

A consensus on the introduction of EVMs could be reached only in 1998 and they were used in 25 legislative assembly constituencies spread across three states— Delhi, Madhya Pradesh and Rajasthan.

The use of EVMs was expanded in 1999 to 45 parliamentary constituencies and later, in February 2000, to 45 assembly constituencies during the Haryana assembly elections.

In May 2001, elections were held to the legislative assemblies of Kerala, Puducherry, Tamil Nadu and West Bengal and EVMs were used in all constituencies.

In the 2004 general elections, more than a million EVMs were used in all 543 parliamentary constituencies in the country.

The ECI states that an EVM consists of two units, control unit and balloting Unit, with a five metre-long cable connecting the two units. A balloting unit caters to up to 16 candidates.

EVMs come in many different variants. They have evolved over time and become more robust. In the case of pre-2006 model (M1) and the post-2006 model (M2) of EVMs, four balloting units can be cascaded together to accommodate up to a maximum of 64 candidates (including the option of none-of-the-above or NOTA) and used as a single unit.

Introduction of VVPATs

Bharatiya Janata Party (BJP) leader Dr Subramanian Swamy had approached the Delhi High Court in 2012 seeking direction to the ECI to incorporate a system of "paper trail or paper receipt" in the EVMs as a convincing proof that the EVM has rightly registered the vote cast by a voter in favour of a particular candidate.

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The Delhi High Court had disallowed his petition. Swamy approached the Supreme Court against the high court's Order.

On October 8, 2013, the Supreme Court observed that the paper trail was an indispensable requirement of free and fair elections. It observed: "We are satisfied that the 'paper trail' is an indispensable requirement of free and fair elections.

"The confidence of the voters in the EVMs can be achieved only with the introduction of the 'paper trail'. EVMs with the VVPAT system ensure the accuracy of the voting system.

"With an intent to have fullest transparency in the system and to restore the confidence of the voters, it is necessary to set up EVMs with VVPAT system because a vote is nothing but an act of expression which has immense importance in the democratic system."

It is the unreliability of the EVMs that formed the core of the arguments by the petitioners before the Supreme Court who demanded 100 percent cross-verification of votes cast on EVMs with VVPATs.

In N. Chandrababu Naidu versus Union of India, the Supreme Court directed the ECI to count VVPATs in five polling stations per assembly constituency as opposed to the prayer in the petition for counting of 50 percent VVPATs across the country.

At that time, the Supreme Court observed that "the proximity to the election schedule announced by the ECI must be kept in mind".

Demanding 100 percent cross-verification of votes cast on EVMs with VVPATs, Bhushan referred to some incidents of mismatch of EVM and VVPAT during random verification.

He cited a copy of the form verified by the returning officer showing a variance of 14 votes (6 percent of the total votes in EVMs) in polling station no. 63 of the Mydukur Assembly Constituency, Andhra Pradesh in the 2019 general elections.

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As per the manual of the ECI on EVM and VVPAT, the counting of votes cast in EVM with that of VVPAT is done as follows:

(i) All the polling stations where EVM and VVPAT have been kept aside will not be taken up for counting in any assembly segment of the parliamentary constituency till completion of counting of votes in all assembly segments of that parliamentary constituency.

 (ii) If the winning margin is more than the total votes polled in all such polling stations of all the assembly segments, these polling stations will not be taken up for counting and the result will be declared without these polling stations. 

(iii) If the winning margin is equal to or less than the total votes polled in these polling stations of the assembly segments, in such case only counting of the respective VVPAT paper slips will be done in the respective assembly segment and the control units shall be discarded for counting purpose, i.e., the control units shall not be used for counting of votes. 

(iv) Even in cases where VVPAT paper slips pertaining to mock polls have not been taken out from the drop box of the VVPAT, the VVPAT slips shall be counted and the candidate-wise votes from the mock poll certificate shall be deducted to arrive at the correct count of candidate-wise votes polled.

(v) The VVPAT slip count result of all these polling stations shall be added to the candidate-wise tally and the final result compiled.

Bhushan argued that though the Rules prescribe the installation of transparent glass on VVPATs, in 2017, the design of the VVPAT was changed and a dark, opaque glass was installed with a bulb inside that lights for seven seconds when the voter sees his slip, not it being cut and dropped.

Bhushan contended that there is a possibility of the installation of a malicious programme. He also submitted that the ECI does not show the source code or architecture of EVMs.

Two government companies, namely Electronics Corporation of India and Bharat Electronics, with many BJP directors, assemble the EVMs, Bhushan contended.

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Bhushan submitted that VVPAT slips must be given to voters in their hands. Bhushan also referred to a The Hindu–CSDS–Lokniti survey according to which a majority of people in India do not trust EVMs.

The Bench did not find this submission impressive and retorted that after every election in India, the percentage of voting has gone up, which is indicative of the faith that voters have in the system.

Senior advocate Gopal Sankarnarayan, who appeared for one Arun Kumar Agarwal, contended that the ECI has incurred huge expenses of approximately ₹5,000 crore of public money on the purchase of 24 lakh VVPAT machines at a cost of ₹19,500 each.

"There is no plausible reason for not counting all the paper slips of the VVPAT when the same can be done within hours on the day of the counting. The only reason given by the ECI while opposing 50 percent of the physical count in N. Chandrababu Naidu versus Union of India was that it was time-consuming and would take six–eight days to count 50 percent of the votes, which in the respectful submission of the petitioner herein is not true.

"Earlier, when the EVMs were not there, the paper ballot votes were counted manually and simultaneously and the results were declared on the same day. It is respectfully submitted that EC can easily deploy 150 officers in teams of three to count paper slips from 50 VVPATs simultaneously and complete the counting in five hours as opposed to sequential (one by one) counting of each VVPAT which, as per ECI's own submissions, would take 250 hours, i.e., almost 11–12 days," the petition filed by Agarwal avers.

Senior advocate Santosh Paul, appearing for some applicants, demanded at least 50 percent cross-verification of votes cast on EVMs with VVPATs.

Senior advocate Huzefa Ahmadi submitted that the residuary doubts in the minds of voters must be removed in practical ways. He argued that the process must not only be fair but seen to be fair.

Senior advocate Anand Grover argued that a technical expert committee was formed to remove doubts or misapprehensions in the minds of the public. However, the technical experts are the same who are listed as inventors of the VVPAT. This, Grover argued, is a conflict of interest.

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Grover was appearing for Lt Col Antony A.K. (Retd). In his application, Lt Col Antony argues that in order to meet the purpose and object of the directions passed by the Supreme Court in Subramanian Swamy, it is necessary that voters should be able to deposit VVPAT slips generated out of the VVPAT printer and deposit their slips in the VVPAT ballot box which must be then cross-verified with the electronic count in the EVMs.

He argues that the voter must be able to satisfy himself or herself without any doubt that the paper so generated by the VVPAT has faithfully recorded the vote and that the vote has been counted.

Lt. Col. Antony's application also states that as per Rule 49A of the Conduct of Election Rules, 1961, every EVM shall have a balloting unit on which voters press the button to cast their vote and a control unit (CU) that records the vote.

Through the 2013 amendments made to the Conduct of Election Rules, 1961, a proviso was added to Rule 49A which provided for merely "attaching" a printer with a dropbox of such design as may be approved by the EC.

In his application, Antony states that as per the Rules, the balloting unit and the control unit have to be in direct connection. However, the ECI manual on EVMs displays a configuration of setting up an EVM that violates Rule 49T of Conduct of Election Rules, 1961.

The configuration displayed in the manual states that the balloting unit shall be in direct connection with the VVPAT printer, which is further connected to the control unit.

Senior advocate Sanjay Hegde submitted that there should be a separate audit to add credibility to the counting process.

Questions galore

During the hearing, the Bench posed multiple questions to the officer from the ECI. The following questions were asked and replied to by the commission.

Bench: Whether all three units— balloting unit, control unit and VVPAT— which are used together to conduct the poll, are stored together?

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ECI: Yes. The balloting unit, control unit and VVPAT together constitute the EVM and all three units are stored in the 'strong rooms' after the election which are sealed in the presence of the candidates or their agents.

EVMs are stored for at least 45 days in the strong rooms', i.e., the period for the filing of election petitions as per Section 81 of the Representation of the People Act, 1951.

Bench: Whether any software is inserted in the VVPAT at the time of symbol loading?

ECI: 

• The VVPAT is only a printer. No software is involved in the loading of symbols in VVPAT by the symbol loading unit. No software is uploaded or can be uploaded in the VVPAT through the symbol loading unit.
• During the symbol loading process, there is no scope for inserting any programme or application onto VVPATs as VVPATs can accept only image files of specified format (.bmp) containing serial numbers, candidate details and their symbols.
• Any file in any other format will not get loaded onto VVPATS.
• Upon symbol loading a test printout is signed and certified by the returning officer or assistant returning officer.
• The entire process is conducted in the presence of contesting candidates or their agents or representatives and it is also shown on a big monitor or TV screen.

Bench: What is the participation of political parties and candidates in the process of deployment of EVMs and VVPATs?

ECI: The entire process from procurement of machines from BEL/ECIL to their storage after counting is represented in chart form below:

Detailed procedures are provided in the Manual on Electronic Voting Machine, 8th Edition.

Bench: Whether polling officers have the opportunity to see the result of the polling station during the poll day?

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ECI: 

• No. Polling officers cannot see the result as the 'result' button is sealed. Polling officers do not have access to the results on the poll day as before the start of actual polls the 'result' section of the control unit is sealed in the presence of the polling agents with their signatures affixed on the seals.
• Unless the seal is opened or broken (done at the stage of counting) the results cannot be seen.
• However, the presiding officer can check the number of votes polled in the control unit so as to cross-check the same with Form 17.

 Bench: Whether, after polling, there is a possibility of tampering with EVMs?

 ECI:

• No tampering is possible in EVMs at any stage.
• After completion of a poll, the presiding officer presses the close button. Thereafter, the EVM does not accept any vote. The poll 'start time' and 'end time' are recorded in the machine as well as by the presiding officer. After the close of poll, the control unit is switched off and, thereafter, the ballot unit is disconnected from the control unit and kept separately in their respective carrying cases and sealed with paper slips on which polling agents also sign.
• Further, the presiding officer has to hand over to each polling agent a copy of the account of total votes recorded in Form 17-C, Part I.
• At the time of counting of votes, the total votes recorded in a particular control unit are tallied with the account of votes in Form 17-C and if there is any discrepancy, counting agents of candidates can request for counting VVPAT paper slips under Rule 56(D).

Bench: What are the penal provisions applicable to attempts at manipulation with the electoral process or EVMs?

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ECI:

• Section 131 of the Representation of the People Act, 1951 (Penalty for disorderly conduct in or near polling stations): The presiding officer can direct a police officer to immediately arrest such person. Punishment: Imprisonment for three months or fine or both.
• Section 132 of the 1951 Act (Penalty for misconduct at the polling station): The presiding officer can direct the removal of such a person from the polling station. Imprisonment for three months or fine or both.
• Section 134 of the 1951 Act (Breaches of official duty in connection with elections): Any act or omission on part of officers tasked with election duty is punishable with a fine which may extend to ₹500.
• Section 136 of the 1951 Act (Other offences and penalties thereof): Fraudulently defacing ballot paper, fraudulently or without authority destroying, opening or otherwise interfering with ballot boxes is punishable with imprisonment of up to two years or fine or both for election officers; and for six months or fine or both for any other person.
• Section 177 of the Indian Penal Code, 1860 (Furnishing false information): Whoever, being legally bound to furnish information to any public servant furnishes information which he knows or has reason to believe to be false is punishable with imprisonment of up to two years months or fine or both.

Bench: Whether clock data (showing the date and time when a vote is cast) is shown to the candidates during counting?

ECI:

• On average, 1,000 VVPAT slips are required to be counted per polling station.
• The slips counting process involves verification of the unique ID of VVPAT, opening the VVPAT dropbox, taking out the paper slips, counting the total number of slips, matching the number of slips with the total votes polled as per Form 17C, segregation of candidate-wise VVPAT slips, making candidate-wise bundles of 25 slips and counting of bundles and leftover slips.

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• Due to the small size and special nature of the paper that makes it sticky, the manual counting of VVPAT slips is cumbersome at every step outlined above. The process cannot be expedited or hurried.
• There are instances of recount and re-verification of slips till the candidate-wise tallying is done. This again consumes more time.
• It may be noted that the overall environment in a counting centre is charged up and the counting personnel are under tremendous mental pressure. This is also a factor that affects the speed of counting VVPAT slips.

Bench: Why can there be no mismatch between votes polled and votes counted?

ECI:

• There cannot be any mismatch between votes polled and votes counted as the votes are registered in the control unit only after receiving the confirmation from VVPAT about the print and fall [dropping down] of VVPAT paper slips.
• There is a 'fall sensor' provided in the VVPAT which senses the cut and fall of paper slip into the ballot box. Only after the slip has fallen, the VVPAT acknowledges to the control unit that command has been executed and then the control unit records the vote and sounds a loud beep.
• In case there is no cut and fall of the paper slip, VVPAT shows 'fall error' and no vote is recorded in the control unit, ensuring that there is no possibility for mismatch in the votes polled. No beep sound would indicate that the vote is not recorded and polling officials will change the entire setting of the balloting unit, control unit and VVPAT.

Bench: What about the issue of a slight tint in the glass of VVPAT?

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ECI:

• Complaints of voters under Rule 49MA: Total Instances: 26 | Mismatch: 0
• Re-counting request under Rule 56(D): Total Instances: 100 | Mismatch: 0
• Random verification of five polling booth per assembly segment: Total Instances: 41,62 | Mismatch: 0
• Number of VVPAT paper slips matched: Total instances: More than 4 crore | Mismatch: 0

Bench: What is the growth in the number of electors and machines from 2019 to 2024?

ECI:

• Polling stations: 2019: 10.35 lakh; 2024: 10.48 lakh
• Votes polled: 2019: About 61.4 crore; 2024: About 97 crore registered voters
• Ballot units: 23.3 lakh. | 2024: 21.6 lakh
• Control units: 16.35 lakh | 2024: 16.8 lakh
• VVPAT: 17.4 lakh | 2024:17.7 lakh

Bench: What about the technical experts committee?

ECI:

• In order to continuously strengthen the credibility and integrity of elections, as a constitutional authority entrusted with the task of conducting the elections, the ECI has taken all necessary steps including the participation of independent technical experts whose committee is called the technical experts committee. The experts who form part of this committee are not employees of the ECI and are not paid any remuneration.
• The first technical experts committee was formed in January 1990. It comprised Prof. S. Sampath, chairman, technical advisory committee, Defence Research and Development Organisation (DRDO); Prof. P.V. Indiresan, Indian Institute of Technology (IIT), Delhi; and Dr Rao C. Kasarabada, director, Electronic Research and Development Center (ERDC), Trivandrum.

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• The second technical experts committee was formed in 2005. It comprised of Prof. P. V. Indiresan, ex-director, IIT Madras; Prof. D.T. Shahani, IIT Delhi; and Prof. A. K. Agarwala, IIT Delhi.
• The third technical committee was formed in 2010 and comprised of Prof. D.T. Shahani, prof. emeritus, IIT Delhi; Prof. Rajat Moona, IIT Bhilai, former director general, Centre for Development of Advanced Computing (CDAC); Prof. A.K. Aggarwala, IIT Delhi; and Prof. Dinesh K. Sharma, IIT Bombay.
• The ECIL and BEL have designed EVMs and VVPATs and the designs were vetted by the technical expert committees.

Bench: What about the discrepancy in data mentioned in a news report of The Quint?

ECI:

• The Quint has not alleged that the discrepancy is with respect to live voter turnout data uploaded on the ECI website during the 2019 general elections. The discrepancy in voter turnout data has nothing to do with the EVM. During the 2019 general elections, a mechanism was adopted to give a real-time approximation of voter turnout. Voter turnout data was published on the ECI website on a real-time basis by taking inputs from the presiding officers of polling stations
• There was no mismatch between the data of votes polled as per EVMs which is recorded in Form 17C and the data of results which is declared as per Form 20.

During the hearing, petitioners also brought to the notice of the court a recent news report on EVM registering extra votes in favour of the BJP during a mock poll in Kerala's Kasaragod.

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The ECI termed the report false. In his report to the Chief Electoral Officer of Kerala, the returning officer, Kasaragod stated that in the VVPAT machines with the serial numbers VVTED41294, VVTEF82139, VVTEJ14797 and VVTED49299, after switching on the control unit at the commissioning table, at the time of self checking, in addition to normal slips printed, one more slip was coming out with the following information: "Not to be counted, standardisation done, VVPAT serial no…" along with this first candidate's symbol printed on it. This slip is a little longer than the normal mock poll slip.

During the hearing, the Bench also asked the ECI whether it was possible for a voter to get a slip after voting. The commission said it would compromise the secrecy of the vote and may be misused outside the booth.

When the Bench asked why it takes more time to count VVPAT paper slips and if machines can be used for this, the commission said the paper is thin and sticky and is not actually meant for counting.

During the hearing, the Bench also flagged the trust deficit between the voters and the commission.

"There seems to be some disconnect between what you are telling us and what is available in the public domain. That needs to be bridged," the Bench observed.

The Bench also underscored the need for stringent punishment for a polling officer's misconduct. It, however, clarified it was not the remit of the proceedings before it.