Paras Nath Singh

| @parasnsingh95 | March 25,2019

FREE and fair elections are sine qua non for any democratic set-up. The Supreme Court in Indira Nehru Gandhi Vs. Raj Narain held that free and fair elections were part of the basic structure of the Constitution of India, a point reiterated by the court in  PUCL v. Union of India and Lok Prahari v. Union of India, where the Supreme Court asserted the absolute necessity of the right to vote and contest elections for any society to qualify as a fully functioning democracy.

It is, therefore, well settled that free and fair elections and the purity of the election process are non-negotiable in a democracy set-up like ours.  More so, when free and fair elections are held to be part of the basic structure of the Constitution. It is in this context, the role of the Election Commission of India (ECI) and the doubts about the reliability of Electronic Voting Machines (EVMs) need to be addressed.

 

Mandate of the Election Commission   

 

Under Article 324 of the Constitution of India, the ECI is vested with the powers of superintendence, direction and control of elections.  The Article reads as follows-

324. Superintendence, direction and control of elections to be vested in an Election Commission

  • The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission)”

 

 

In order to ensure the purity of the election process it was thought by our Constitution-makers that the responsibility to hold free and fair elections in the country should be entrusted to an independent body which would be insulated from political and/or executive interference. It is this body which has been referred to in Article 324(2) of the Constitution, which reads as follows:

324(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.

The Constitution confers wide powers on the ECI to ensure fair and free elections and to maintain the purity of the election process. In a catena of cases, the Apex Court too has recognised that the ECI has the duty and the mandate to conduct free and fair elections.

 

 

In Election Commission of India vs. Ashok Kumar, the Supreme Court held “…The words superintendence, direction and control have a wide connotation so as to include therein such powers which though not specifically provided but are necessary to be exercised for effectively accomplishing the task of holding the elections to their completion….”

Of late, however, the entire election process has been surrounded by allegations of tampering of the EVMs. From political parties except the ruling the Bharatiya Janata Party (BJP) and its alliance, to civil society, concerns and doubts about the infallibility of the EVMs have only grown louder.

Unfortunately, the ECI has done little to win the confidence of political parties and civil society on credibility of the EVMs, compelling them to approach to the courts of law with their grievances.

 

What is an Electronic Voting machine (EVM)?

 

The Electronic Voting Machine (EVM) is an electronic device for recording votes. An Electronic Voting Machine consists of two Units – a Control Unit and a Balloting Unit – joined by a five-metre cable. The Control Unit is placed with the Presiding Officer or a Polling Officer and the Balloting Unit is placed inside the voting compartment. Instead of issuing a ballot paper, the Polling Officer in-charge of the Control Unit will release a ballot by pressing the Ballot Button on the Control Unit. This will enable the voter to cast his vote by pressing the blue button on the Balloting Unit against the candidate and symbol of their choice. EVMs were first used in 70-Parur Assembly Constituency in Kerala in 1982.

 

Also Read: Supreme Court seeks reply from Election Commission on plea questioning why unauthorised persons are handling EVMs

 

The EVMs have been devised and designed by the Technical Experts Committee (TEC) of the Election Commission in collaboration with two Public Sector undertakings viz., Bharat Electronics Ltd., Bangalore and Electronic Corporation of India Ltd., Hyderabad. The EVMs are manufactured by the above two undertakings.

 

What is Voter Verifiable Paper Audit Trail (VVPAT)?

 

Voter Verifiable Paper Audit Trail (VVPAT) is an independent system attached with the Electronic Voting Machines that allows voters to verify that their votes are cast as intended. When a vote is cast, a slip is printed containing the serial number, name and symbol of the candidate and remains exposed through a transparent window for seven seconds. Thereafter, this printed slip automatically gets cut and falls in the sealed drop box of the VVPAT.

Subramanian Swamy v. Election Commission of India

For the first time in 2013, BJP leader Dr. Subramanian Swamy approached the Supreme Court with a request to direct the ECI to incorporate a system of “paper trail/paper receipt” in the electronic voting machines (EVMs) as convincing proof that the EVM has rightly registered the vote cast by a voter in favour of a particular candidate.

 

 

A two-judge bench comprising the then Chief Justice of India (CJI) P Sathasivam and the current CJI Ranjan Gogoi had held  “…. 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 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 vote is nothing but an act of expression which has immense importance in a democratic system”.

In a nutshell, the Supreme Court in the Subramanian Swamy case said:

  • VVPAT is an indispensable requirement of free and fair elections.
  • EVMs with VVPAT system ensure the accuracy of the voting system.
  • To ensure transparency and to restore confidence of voters, EVMs and VVPAT system is must.
  • Voting is nothing but an act of expression which has immense importance in a democratic system.

 

PIL questioning unauthorised persons handing EVMs

 

On September 4, 2018, a two-judge bench of the Supreme Court comprising Justices A K Sikri (since retired) and Ashok Bhushan issued notice on a petition filed by journalist Ashish Goyal highlighting certain vital security breaches in the recent elections. These related to the manual handling of Electronic Voting Machines (EVMs) by unauthorised persons in contravention of the ECI’s Manual on Electronic Voting Machine and VVPAT.

 

 

In his petition, Goyal had contended that under Chapter 5.4 of the Manual on Electronic Voting Machine and VVPAT, the first level checking of EVMs could be carried out only by authorised engineers of the ECI and Bharat Electronics Limited. Further, the ECI through its letter dated May 27, 2017 had itself also stated that EVMs would not be accessible to any unauthorised person at any stage — before, during or after the polls.

This petition is still pending before the Supreme Court with no effective order passed in the matter.

 

A series of PILs in the Supreme Court on VVPAT counting

 

  1. On January 7, 2019, a two-judge bench of the Supreme Court comprising Chief Justice of India (CJI) Ranjan Gogoi and Justice Sanjay Kishan Kaul issued notice on a petition requiring the ECI to count and cross-verify the Voter Verifiable Paper Audit Trails (“VVPATs”) in at least 30% (randomly chosen) of all polling stations within each Assembly Segment/Constituency.

The Petition, jointly filed by M G Devasahayam, former Secretary Haryana Government, KP Fabian, former ambassador to Italy and Thomas Franco, former General Secretary, All India Bank Officers Confederation, and argued by  advocate Prasanna S, contended that such cross-verification and counting of VVPAT slips was essential in the interests of “democracy principles” that elections should adhere to the following requirements:

(i)      Transparency of the process – i.e.  in a manner that the general public can be satisfied that their vote is correctly recorded and counted;

(ii)     All essential steps in the elections ought to be subject to public scrutiny/examinability;

(iii)    Ordinary citizens ought to be able to check the essential steps in the election process without special expert knowledge; and

(iv)    There ought to be verifiability in the counting of votes and ascertainment of the results reliably without any special technical knowledge.

The petitioners had also contended that the ECI’s decision to confine such a cross-verification exercise to a statistically insignificant number of only one polling station in each constituency, regardless of the number of polling stations in such a constituency, was manifestly arbitrary, irrational, unreasonable and in violation of Article 14 of the Constitution of India.

 

Also Read: [Read petition] Supreme Court seeks reply from Election Commission of India on plea seeking cross-verification of VVPATs in at least 30% of randomly chosen polling booths in each constituency.

 

The Petitioners further submitted that in order to detect and deter any mischief or bias in the EVM process, at least 30% of all polling stations in a constituency must be chosen randomly for the EVM counts to be cross-verified with VVPAT counts.

This petition is also pending before the Apex Court.

  1. On February 2, 2019, the Supreme Court while hearing two more PILs filed by one Sunil Ahya and Ramesh Bellamkonda respectively, asked the ECI to take a considered view in the matter. Sunil Ahya in his PIL has asked for an independent review of the software used in Electronic Voting Machines (EVMs), Voter Verifiable Paper Audit Trail (VVPAT) and EVM Tracking Software (ETS).

Petitioner Ramesh Bellamkonda had sought a direction to the ECI to mandatorily count/scrutinise at random the Voter Verifiable Paper Audit Trails of  50% of all Electronic Voting Machines used in each assembly constituency with an additional percentage to be cross checked if the victory margin is low as detailed; and to mandatorily count/scrutinise at random, the VVPATs of 50% of all EVMs used in each parliamentary constituency where the randomisation is done at the parliamentary constituency level as opposed to being randomised at the level of each assembly segment of a parliamentary constituency in every election conducted using Electronic Voting Machines by the ECI henceforth starting from the General Elections of 2019.

  1. The recent PIL in the Supreme Court doubting the reliability of the EVMs has been filed jointly by the leaders of various political parties. In their petition, they have sought direction to the ECI for random verification of at least 50% Electronic Voting Machines using the VVPAT per Assembly Segment/ Assembly Constituency.

They have also sought quashing of the guideline of the Election Commission which provides that Voter Verified Paper Audit Trail will be conducted only for VVPAT paper slips of one randomly selected polling station of (a) Assembly Constituency in case of elections to a State Legislative Assembly and (b) each Assembly Segment in case of elections to the Lok Sabha.

The Supreme Court, while issuing the notice on the petition fixed the next date of hearing on March 25, 2019 and asked ECI to depute its senior official in the matter to assist the court.

 

Indian Statistical Institute (ISI) submits its Report on Sample Size of VVPAT Counting

 

On March 22, 2019, the Indian Statistical Institute (ISI) submitted its report on the sample size of Voter Verifiable Paper Audit Trail (VVPAT) slip counting to the ECI.  The ECI had engaged the Indian Statistical Institute to systematically analyse and scientifically examine the issue of VVPAT Slip verification with the electronic count of the Electronic Voting Machines (EVMs).

The report submitted by the Expert Committee will now be examined by the Commission and necessary action initiated. However, the report has not been made public by the ECI.

 

 

That multiple PILs have been filed in the Apex Court by various persons, including leaders from political parties, indicates a lack of faith in the EVM system both by the political parties and voters. Since the ECI has done a little to win the confidence of the voters and the candidates, it is for the Supreme Court to step in to restore faith in the EVM system of voting by making it mandatory to match EVMs with voter-verified paper trails through statistically rigorous tests.

 

The Supreme Court must step in

 

With the little time left for the first phase of Lok Sabha elections scheduled on April 11, 2019, this is the least the Apex Court can do as an interim measure to ensure elections are conducted freely and fairly, and there is no rigging or even a doubt that the machines have been manipulated.

 

 

In addition, for the satisfaction of the voters, Apex Court may consider increasing the time of seven seconds to ten seconds for the VVPAT machine to allow voters to see printed slips to verify and confirm that their vote has gone to the candidate of their choice. Since a huge chunk of voters comes from rural areas who are not familiar with the VVPAT, it is necessary for the ECI to conduct large scale training programmes so that voters can effectively verify their vote after pressing the button on the EVM.

 

Also Read: Opposition leaders seek 50% VVPATs to be tallied with voting machines.

 

The current petitioners are not asking for anything new from the Supreme Court except the effective and meaningful implementation of the Supreme Court’s own decision in Dr. Swamy case where it had held that the VVPAT is an indispensable requirement of free and fair elections. The Mere installation of VVPAT with the EVMs serves no purpose.

The purpose for which VVPAT and EVM system were held to be necessary for free and fair polls, can only be achieved by making it mandatory that the results obtained through EVMs and VVPATs trails are matched through statistically rigorous tests.

 

Read Petition filed by leaders of opposition parties:

 

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