Source: 
Live Law
https://www.livelaw.in/top-stories/supreme-court-explainer-evm-vvpat-paper-slip-cross-verification-adr-pil-254438
Author: 
Debby Jain
Date: 
06.04.2024
City: 

On mentioning of the pleas seeking extensive cross-verification of electronic voting machines (EVM) data against voter-verifiable paper audit trail (VVPAT) records, the Supreme Court clarified on April 3 that the matter will be heard after 2 weeks.

The Bench, led by Justice Sanjiv Khanna, initially said that the matter would come up next Tuesday or Wednesday. However, later, the likelihood of it being struck down from the list was highlighted, saying that under the present roster, it will probably go to the week after next week.

For a detailed report on the exchange, click here.

In this article, we will see what exactly is the EVM-VVPAT verification issue, how it came about and what the Supreme Court has been doing about it.

The VVPAT System

In the VVPAT system, a paper slip bearing serial number, name and symbol of candidate is generated, along with recording of vote in the Control Unit, so that in case of any dispute, paper slip can be counted to verify the result being shown on the EVM. A printer is attached to the Balloting Unit and kept in the voting compartment.

A voter, after pressing the button on Balloting Unit, can view the printed slip on VVPAT through the viewing window and, thus, verify that the vote is recorded for the candidate of his/her choice. The paper slip remains visible on VVPAT for seven seconds through a transparent window. Thereafter, it automatically gets cut and falls in sealed drop box of the VVPAT.

By amending the Conduct of Elections Rules, 1961, the introduction of VVPATs was facilitated in 2013.

Genesis of the dispute

In 2009, Dr Subramanian Swamy approached the Delhi High Court praying for a writ of mandamus, directing the ECI to incorporate a system of “paper trail/paper receipt” in the EVMs as a convincing proof that the EVMs rightly registered the vote cast by a voter in favor of a particular candidate.

However, a Division Bench of the High Court disallowed his prayer in January 2012 and disposed of the petition. Against the High Court decision, Dr Swamy approached the Supreme Court.

Around the same time, one Rajendra Satyanarayan Gilda also filed a writ petition under Article 32 of the Constitution of India seeking similar reliefs. His petition was tagged with Dr Swamy's and both the matters heard together.

Essentially, Dr Swamy's case was that the system of EVMs prevalent at the time did not meet all international standards and though the ECI maintained that EVMs could not be tampered with, the same were open to hacking like any other electronic equipment. During the course of hearing, he highlighted that ECI had refused to incorporate a safeguard in the EVMs called “paper backup”, “paper receipt” or “paper trail” which would easily and cheaply meet the requirement of proof that the EVM rightly registered vote cast by a voter.

ECI, on the other hand, urged that tampering apprehensions were baseless. Even so, it informed the Court that it was exploring the introduction of a viable VVPAT mechanism in EVMs to ensure transparency.

After hearing the parties, the Court gave its judgment in 2013 (Case Title: Subramanian Swamy v. Election Commission of India), holding 'paper trail' to be an indispensable requirement of free and fair elections, and directed the ECI to introduce the VVPAT mechanism. A relevant excerpt from the judgment is extracted below -

"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 democratic system."

Subsequently, the ECI framed and issued a Manual on Electronic Voting Machine and VVPAT, Guideline No.16.6 of which stipulated that only 1 randomly selected polling station in each Assembly Segment/Constituency shall undergo verification of VVPAT slips.

Petition filed by 21 Opposition leaders in 2019 (N Chandrababu Naidu v. Union of India)

In 2019, pleas were filed before the Supreme Court by 21 opposition leaders, including former Andhra Pradesh chief minister N Chandrababu Naidu, seeking quashing of Guideline No.16.6 of the ECI's Manual. The petitioners in these cases further prayed for a direction to ECI to carry out minimum 50% randomized VVPAT paper slip verification of EVM "in every General and Bye Election in each Assembly Segment of a Parliamentary Constituency, in case of Election to the House of the People; and in each Assembly Constituency, in case of an election to a State Legislative Assembly."

The ECI, in response, pleaded infrastructure difficulties, including manpower availability, at that point of time. It argued that sample verification of VVPAT paper trail of one EVM was done by a team of three officers under the direct supervision of the Returning Officer and the Election Observer of the constituency. The process took about an hour, so what the petitioner asked for could delay the declaration of result of 2019 elections by 5-6 days.

ECI relied on a report by the Indian Statistical Institute (ISI) to say that verification of VVPAT paper trail of 479 randomly selected EVMs would generate over 99% accuracy in the election results. It further contended that verification in terms of Guideline 16.6 necessitated verification of VVPAT paper trail of 4125 EVMs instead of 479 EVMs, which was 8 times more than reported by ISI.

After hearing the parties, having regard to a need to generate "greatest degree of satisfaction in all with regard to the full accuracy of the election results", the Supreme Court enhanced from 1 to 5 the number of random polling stations in each assembly constituency or each assembly segment of a parliamentary constituency subject to mandated verification of paper audit trail slips.

"...the number of EVMs that would now be subjected to verification so far as VVPAT paper trail is concerned would be 5 per Assembly Constituency or Assembly Segments in a Parliamentary Constituency instead of what is provided by Guideline No. 16.6, namely, one machine per Assembly Constituency or Assembly Segment in a Parliamentary Constituency."

Pertinently, the court directed for EVMs to continue to be chosen at random, the objective being to ensure a higher degree of accuracy to enhance the satisfaction in free and fair elections of not just the political parties but of the people of the country. Although, it was clarified that the efficacy of the system as it existed or the credibility of the EVMs was not doubted.

"The additional manpower that would be required would not be difficult for the ECI to provide nor would the declaration of the result be substantially delayed", the Court said.

Petitions filed by Mahua Moitra, ADR & Common Cause in 2019

After the 2019 Lok Sabha elections were held (which were the first Parliamentary elections to be held after introduction of VVPATs), a plea was filed before the Court by TMC MP Mahua Moitra seeking directions to the poll body to publish details of voter turnout and final vote counts in the elections on their website.

The same year (ie 2019), alleging serious discrepancies between the number of voters in different constituencies (i.e. the voter turnout data collated and provided by the ECI) and the number of votes counted, Association for Democratic Reforms and Common Cause also jointly moved the Supreme Court. The two organizations stressed that ECI has a statutory duty to collate and publish accurate data relating to the elections held by it.

Besides a direction to ECI to formulate a robust procedure for all future elections for the investigation of discrepancies in election data, these organizations prayed that the poll body provide in public domain statutory forms 17C, Form 20, Form 21C, Form 21D & Form 21 E for all elections.

Notices were issued in both the petitions. They were last listed in February, 2020.

Petition filed by ADR in 2023 (ADR v. ECI)

In 2023, ADR filed another petition before the top Court contending that the prevalent procedure, through which the ECI only counts the electronically recorded votes in all of the EVMs and cross-verifies the relevant EVMs with the VVPATs in only 5 randomly selected polling stations in each assembly constituency, is deficient.

The petition, filed through AoR Prashant Bhushan, seeks a declaration that every voter has a fundamental right to verify that their vote has been 'recorded as cast' and 'counted as recorded'.

In support of the prayer, the petitioner-organization claims that the requirement of the voter verifying that their vote has been 'recorded as cast' is somewhat met when the VVPAT slip is displayed for about seven seconds after pressing of the button on the EVM.

The petition not only seeks enforcement of the above right, but also prays that the purport and object of the 2013 judgment in Subramanian Swamy's case be given effect to. It is asserted that there exists a 'complete vacuum' in law as ECI has provided no procedure for a voter to verify that their vote has been 'counted as recorded' which is an indispensable part of voter verifiability.

It may be noted that while ADR's 2019 petition sought a tally between the data of the EVMs and the register that voters sign in, the 2023 petition seeks tally between the data of EVMs and VVPATs.

What ECI has said on the issue

In an affidavit filed before the top Court in September, 2023, the ECI opposed ADR's plea for extensive verification of EVM-VVPAT data, saying that it was another attempt to cast doubt over the functioning of EVMs and VVPATs on 'vague and baseless' grounds. In addition, it was argued that counting all VVPAT paper slips manually, as suggested, would not only be labor and time-intensive, but also be prone to 'human error' and 'mischief'.

The commission staunchly defended EVMs as 'non-tamperable', both owing to technological measures and strict administrative and security procedures designed by it. To quote ECI's affidavit, "...these are protected from any tampering or manipulation whether before the polls, or during the polls, or after the polls, in storage or transportation from manufacturer to the state or district or vice versa, or when transported from one state to another."

On the aspect of manual counting, the affidavit further stated, “Manual counting of this scale will also be prone to human error and mischief, leaving aside the drudgery of days of counting small slips of paper potent with possibilities of mischievous false narratives on social media, round after round of counting across the country…The petition is essentially suggesting going back to paper ballot system.”

Insofar as ADR's claim of the above-mentioned fundamental right, ECI categorically maintains that such a right does not exist in favor of voters.

Supreme Court observations on ADR's plea so far

In July, 2023, while hearing ADR's plea, a Justice Khanna-led bench voiced its reservations about being overly suspicious. In response, Bhushan alleged that only around 2 percent EVMs were being cross-verified even though there were gross discrepancies. He claimed that ideally, all three separate records ie the EVM, VVPAT, and a register in which people are supposed to sign should match, but there have been discrepancies to the extent of tens of thousands.

Justice Khanna, however, was of the view that the same could be explained: “Sometimes, a person signs the register but when they go inside, they don't press the button after the beep. Now, there is a display board as well. If you have voted, the number goes up. What happens also is that there may be multiple polling booths. So, when there is a large crowd, a person may be busy filling up the booth. It can happen. I think we are being a little over suspicious.”

Declining to issue notice at that stage, Khanna, J further pointed out practical limitations faced by ECI (such as manpower requirements). Be that as it may, Bhushan was instructed to serve a copy of the petition to the standing counsel for ECI.

About two months later, in September, the Bench reiterated the earlier concerns and opined that it was not convinced of the urgency of the matter, particularly in view of the counter-affidavit filed by the commission.

“They have filed a detailed counter-affidavit. After going through it, we do not think there is so much urgency. They have enough provisions. Mr Bhushan, how many times will this issue be raised? Every six months or eight months, this issue is freshly raised", Justice Khanna said.

Although Bhushan attempted to convince the court that certain ECI statements were incorrect/misleading, the matter was listed for November. As the counsel implored the bench to have the matter relisted sooner, in light of the state assembly elections of Chhattisgarh, Madhya Pradesh, and Mizoram scheduled for November, Justice Khanna replied, “Sorry, Mr Bhushan. There are other urgent matters. We will not make your plea infructuous. If it succeeds, the ruling will apply in the future.”

When the matter came up in November, the Bench of Justices Sanjiv Khanna and SVN Bhatti remarked that enhancing scale of EVM data cross-checking against VVPAT records would increase the ECI's work without any 'big advantage'. Justice Khanna explicated the downsides of extensive verification as follows -

"One, it increases work without any big advantage. Two, there is already a provision allowing a candidate to make a request for counting. Three, normally when counting is done manually, it may be erroneous. There will be errors and lots of cases where there are mismatches. As a lawyer, when I did my own accounts, sometimes I could never tally. Computerised accounting was a big boon. Otherwise, even for one rupee sometimes I would struggle for days to find out where the error happened."

Referring to the decision in Chandrababu Naidu's case, the judge further asked as to why work should be increased in every case when the candidate can ask for a count. The matter was then adjourned to December. When it ultimately came up in February this year, the Bench listed it for final hearing/disposal in week commencing March 18.

Ever since, the case is pending final disposal.

Other rounds of litigation on the EVM issue

Besides the aforementioned, a petition has been filed before the top Court by activist and lawyer Arun Kumar Agrawal seeking inter-alia counting of all VVPAT paper slips in elections, instead of verification of only 5 randomly selected EVMs in each assembly segment of a parliamentary constituency. A Bench of Justices BR Gavai and Sandeep Mehta has issued notice therein and tagged the petition with ADR's plea. More specifically, Agrawal's plea challenges ECI Manual's Guideline No. 14.7(h) which mandates that VVPAT verification shall be done sequentially.

The Dravida Munnetra Kazhagam party has approached the Madras High Court questioning the design of the third generation M3 EVMs. Its plea says that the present model, in which the VVPAT is placed between the Balloting Unit and the Control Unit, can pave way for discrepancies and corrupt practices in the Lok Sabha elections. The party also claims that no procedure has been laid down by ECI for approval of EVMs and this absence of procedure renders existing process of approval of EVMs arbitrary and non-transparent.

Last year, a public interest litigation was filed before the Supreme Court seeking independent audit of source codes of EVMs, but the same was dismissed by a Bench of CJI DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra. The prayer was declined with an observation that the matter concerned sensitive policy issues. The petitioner in this case had averred that people were voting in EVMs, despite the machines' brain (source codes) not being audited. The CJI however remarked that there existed requisite security audits for protection and certain things could not be put in public domain, as they could be misused by unscrupulous elements.

Ballot voting the rule, EVMs an exception: Lawyer seeks to intervene

In the latest development, Advocate Mahmood Pracha has approached the Supreme Court with an intervention application in Arun Kumar Agrawal's matter, suggesting that voting in the upcoming Lok Sabha elections should take place using ballot papers. He has claimed that conducting elections by ballot paper is the rule and ECI can consider using EVMs only on a case to case basis in exceptional circumstances which are to be recorded in an order.

Case Title: Association for Democratic Reforms v. Election Commission of India & Anr. | Writ Petition (Civil) No. 434 of 2023 (and connected matters)

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