Supreme Court emphasizes ECI's authority over elections, questions on EVM-VVPAT efficacy based on suspicions not valid. Judgment reserved.

The Supreme Court on Wednesday emphasised that the Election Commission of India (ECI), a separate constitutional authority, is responsible for overseeing election management, adding it cannot issue orders that question the efficacy of Electronic Voting Machines (EVMs) and their integration with the Voter Verified Paper Audit Trails (VVPATs) based solely on suspicions or private reports.

A bench of a bench of justices Sanjiv Khanna and Dipankar Datta added that it cannot do much if the petitioners -- who demanded 100% cross-verification of votes cast on EVMs with VVPATs or going back to the ballot paper system -- were “already prejudiced”.

“We can’t control the elections. We are not the controlling authority of some other constitutional authority. If there are issues, there are laws to deal with them. The judgment of this court (in 2013) directed them to use VVPAT and they complied... Where is the direction of the court to match all slips? The court later said 5% (EVM-VVPAT matching in 2019) and they have followed our order. Let someone from those 5% say there have been mismatches. Can we issue a mandamus on the basis of suspicion?” the bench asked.

It pointed out that the top court had intervened on two occasions in the past. “At the first instance, this court asked them (ECI) to use VVPAT, and then the verification of EVMs with VVPAT was increased from 1 to 5 [in every assembly segment]. When we asked you (petitioners) for suggestions, we were told to go back to the ballot system...We will see what is needed to strengthen the current system,” the court said.

“If you are already determined about it, we can’t help it. We aren’t here to change your thought process... There has been no hacking detected till date. The report you are relying on says that there is no incident of hacking yet,” the bench told advocate Prashant Bhushan, who appeared for non-profit Association for Democratic Reforms (ADR).

According to Bhushan, the micro-controllers in EVMs contain a flash memory, and therefore are amenable to reprogramming or malicious malware.

Bhushan’s “doubts” over the security of EVMs came through after the court heard a senior ECI official who was called upon to address specific queries regarding the micro-controllers and other security features embedded in the voting machines.

On Wednesday morning, the bench had asked senior counsel Maninder Singh, representing ECI, to ensure the presence of an official at 2pm who could answer its queries on the functions of the micro-controller installed in EVMs, the security of EVMs and VVPATs, and the maximum period for which the machines are retained after polling.

The court had also clarified that the EVM source code cannot be disclosed owing to the fear of its misuse. “That should never be disclosed. It will become a problem. People will try and misuse it,” the bench remarked after senior counsel Santhosh Paul, appearing for one of the petitioners, made a mention EVM source codes.

Senior deputy election commissioner Nitesh Vyas, who on a previous date assisted the court about the technical specifications, testing processes and security measures associated with EVMs, appeared before the court at 2pm and provided detailed explanations regarding the functioning and security measures of EVMs.

The officer sought to address concerns raised by petitioners on the integrity of the electoral process and the susceptibility of EVMs to tampering, saying that the micro-controllers were programmable only once, at the time of manufacturing. According to Vyas, the control unit, ballot unit and VVPATs are sealed in the presence of the polling agents of candidates and kept secure for at least 45 days after counting, after which ECI officials enquire from the high court concerned over the pendency of election petitions before resetting them.

However, in spite of the officer’s detailed responses, some petitioners cited private reports casting doubts that micro-controllers used in EVMs could be programmed only once, and raising further questions about the reliability of the voting machines.

In response to these concerns, the court reiterated its stance that it cannot directly intervene in matters pertaining to the conduct of elections because this falls under the purview of ECI, and reserved its judgment.

While hearing the case on April 18, the court refrained from casting doubts on the efficacy of EVMs and their integration with VVPATs, saying “the system is working well” and that “over-suspicion” alone cannot lead to its condemnation. At the same time, the court emphasised the need for greater disclosure from ECI regarding the functioning of EVMs to allay the apprehensions of voters, pointing out that the sanctity of the electoral process ought to be retained.

The batch of petitions before the top court have generated political heat and public interest over ensuring the integrity of electronic voting via VVPATs. This system provides a paper slip confirmation, viewed by the voter through a transparent window, which goes into a sealed cover that is available for verification in case of disputes.

Currently, the verification process involves checking VVPAT slips from five randomly selected EVMs in each assembly segment. The petitions, filed by ADR and activist Arun Kumar Agarwal, sought a more comprehensive approach. Agarwal advocated for the counting of all VVPAT slips to ensure transparency, while ADR’s petition focussed on enabling voters to confirm that their votes are counted as they were cast. The petitions also sought that voters be permitted to physically deposit their VVPAT slips in ballot boxes.

The integration of VVPAT with EVMs first gained legal prominence following a petition by BJP leader Subramanian Swamy after the 2009 general elections. Swamy advocated for a paper trail to augment the reliability of electronic voting, arguing that it would ensure that each vote cast on an EVM is accurately recorded. Although initially dismissed by the Delhi high court, the plea found favour in the Supreme Court, which, in its landmark 2013 judgment, declared the VVPAT system an “indispensable requirement” for free and fair elections.

Initially, ECI conducted a mandatory verification of VVPAT paper slips for one randomly selected polling station per assembly segment in a constituency. In April 2019, the top court ordered that the number of EVMs subjected to VVPAT verification be increased from one EVM per assembly segment to five EVMs. The direction came following a petition filed jointly by 21 Opposition parties, seeking a review of at least 50% of VVPAT slips ensure the integrity of the elections. The parties went back to the Supreme Court in May 2019 asking for counting of at least 25% VVPATs instead of only five in every assembly segment, but the court turned down their plea.