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

[dropcap]A[/dropcap] bench composed of Justices A K Sikri and Ashok Bhushan has today, September 4, 2018, issued notice on a petition filed by journalist Ashish Goyal highlighting certain vital security breaches in the recent elections relating to the manual handling of Electronic Voting Machines (EVMs) by unauthorised persons and in contravention of the Manual on Electronic Voting Machine and VVPAT of the Election Commission of India (ECI). In his petition, Goyal has contended that under Chapter 5.4 of the Manual on Electronic Voting Machine and VVPAT, the first level checking of EVMs can be carried out only by authorised engineers of ECI and Bharat Electronics Limited. Further, ECI through its letter dated May 27, 2017 itself has also stated that EVMs are not accessible to any unauthorised person at any stage — before, during or after the polls.

However, it has been brought to fore through the replies furnished under the Right to Information Act that in the Uttarakhand State Elections held in February 2017, not only the Election Commission officials and employees of Electronics Corporation Of India Limited(ECIL) were allowed access to the EVMs, but also several persons belonging to a private firm M/s T&M Services Consulting Private Limited engaged by the ECIL were allowed to access the EVMs — thereby raising serious concerns and apprehensions about the possibility of a security breach.  The Petitioner has, therefore, apprehended that some of these persons may have been active workers belonging to political parties. Therefore, an independent investigation is essential in to the credentials of these persons who were permitted the handling of EVMs, says petitioner.

It is further contended by the Petitioner that no security or background checks were conducted of the private personnel who were allowed physical access to the EVMs. And in the absence of any security or background checks of such private entities, Goyal has raised serious concerns about the integrity of the EVMs. Moreover, there are no tests and/or parameters and security clearances laid down by the ECI for the purposes of engaging consultants or deputing a person for this propose at any stage, highlights the petition.

Pertinently, the petition has also mentioned that Election Commission has itself confirmed that EVMs could be tampered if there is unauthorised physical access to EVMs. The petitioner has cited the Report of the Expert Committee for the Technical Evaluation of EVMs September 2006 (Expert Committee) of the ECI, wherein in Chapter 3.4 it is observed that it is possible to tamper EVMs by physically replacing the Control Unit (CU) card with a tainted microchip containing a tampered Trojan horse program. The report further adds that this could be possible only through "complicity of an enormous number of people at Manufacturer, Election Commission and State machinery". The Expert Committee has also reported that it is possible that EVMs could be tampered by attaching a device to the inter-connecting cable between the Control Unit and Ballot Unit or between the cable and the connector situated inside the polling unit.

The Petitioner has also drawn the attention of the Court towards non-implementation of the recommendations of the Report of the Expert Committee for the Technical Evaluation of EVMs dated September, 2006 relating to design change and pre-poll, during-poll and post-poll precautions prescribes the precautions and the measures to be undertaken to ensure the integrity of the EVMs at pre-poll and post-poll stage.

Furthermore, the Petitioner has highlighted another security concern that is the mismatch between the actual number of EVMs produced in the country. He has stated that ECI in its RTI reply dated May 29, 2017 stated that as far as ECIL is concerned, they had manufactured 10,05,662 Ballot Units and 9,28,049 Control Units. However, ECIL in its RTI reply dated August 14, 2017 stated that there were 11,27,399 Control Units and 13,66,391 Ballot Units manufactured by them. Hence, there is a net difference of 3,51,747 Ballot Units and 1,93,368 Control Units that have been manufactured.

Further, Bharat Electronics Limited in response to an RTI query vide a reply dated July 19, 2017stated that 8,58,749 Control Units and 9,46,832 Ballot Units had been supplied by it to the various states across the country. However, the figures quoted by Respondent No 1 in its reply dated May 29, 2017 state that as far as Respondent No 3 was concerned 9,46,832 Ballot Units and 8,58,749 Control Units had been manufactured by them. Thus, there is a net difference of 69,300 Ballot Units and 58,830 Control Units that have been manufactured.

Yet another crucial aspect that has been mentioned by the Petitioner is the export of EVMs carried out without the consent of the Election Commission of India or the Government of India. Relying upon the responses petitioner received under the RTI Act, 2005, he has stated that that up to the year 2016 a total of 12970 EVMs manufactured by them had been exported to different countries across the globe. He has, therefore, submitted that the export of EVMs raises a serious security concern inasmuch as these countries are not within the security protocols or under the administrative control of ECI. There is no guarantee that the exported EVMs will not fall in the hands of unscrupulous individuals having vested interests in disturbing the democratic fabric of India. Further, there is complete confusion as to whether or not these exports were carried out under the express consent and control of the ECI and after taking necessary permissions from the Government of India.

The Petitioner has, therefore, inter alia prayed to the Court to direct the ECI to ensure that physical access to the EVMs is limited only to authorised engineers of the ECIL and Bharat Electronics Limited (BEL) and only after obtaining security clearances in respect of such personnel. He has also sought direction to ECI that the list of such authorised engineers provided with permission to physically access the EVMs to be made available to the contesting political parties as well as uploaded on the website of the ECI well before the scheduled dates for the first level checking of the EVMs.

Finally, the Petitioner Ashish Goyal, has also requested that a high-powered committee headed by a retired judge of the Supreme Court should enquire and report whether during the Assembly elections held from 2014 till date, private personnel had been permitted access to EVMs in breach of the Manual on Electronic Voting Machine and VVPAT 2017 of ECI. The Petitioner has, in particular, prayed that a formal enquiry into the antecedents of the additional private personnel who were granted physical access to the EVMs during the Uttarakhand General Assembly Elections, 2017, be conducted in a free and fair manner.

Read the Petition on EVMs security.

[pdfviewer]https://cdn.theleaflet.in/wp-content/uploads/2018/09/EVM-Final-PIL.pdf[/pdfviewer]