A Bench of Justices Sanjiv Khanna and Dipankar Datta was hearing petitions seeking directions to tally Voter Verifiable Paper Audit Trail (VVPAT) slips with votes cast through EVMs during elections.

The Supreme Court on Wednesday asked whether it can issue directions regarding Electronic Voting Machines (EVMs) merely based on suspicion of hacking and manipulating though there is no concrete proof.

A Bench of Justices Sanjiv Khanna and Dipankar Datta was hearing petitions seeking directions to tally Voter Verifiable Paper Audit Trail (VVPAT) slips with votes cast through Electronic Voting Machines (EVMs) during elections.

The petitions also raised doubts about whether EVMs are hackproof.

However, the Court on Wednesday got clarity from the Election Commission of India (ECI) that the flash memory of the Microcontrollers in EVMs cannot be reprogrammed.

"Can we issue a mandamus on the basis of a suspicion? The report you are relying on says that there is no incident of hacking yet. We are not the controlling authority of another constitutional authority. We cannot control the elections. The judgment of Supreme Court did say (use) VVPAT and it was followed. But where did it say match all slips, it says 5 percent. Now let us see if any candidate apart from this 5 percent say that there are instances of misuse," the Court told the petitioners.

Pertinently, the Court also said that it would consider passing directions to strengthen the EVMs system since going back to ballot paper was out of question.

"The only option would be to go back to ballot papers then you see. Let us see what can be done if any safeguards needed we will see what is needed to strengthen the current system (EVMs)," it said.

One of the petitioners has prayed that each and every EVM vote be tallied against VVPAT slips.

Another plea filed by the Association for Democratic Reforms (ADR) said that VVPAT slips must be tallied with votes cast through EVMs so that citizens can confirm that their vote has been ‘counted as recorded’ and ‘recorded as cast.'

The Supreme Court had on April 18 reserved its judgment in the matter.

The Bench had at the time remarked that everything cannot be viewed with a suspicious lens and the petitioners don't have to be critical about each and every aspect of EVM.

The matter was then listed today for certain clarifications.

During the hearing today, the Court sought to know the following from the ECI:

- "Is the microcontroller is installed in the controlling unit or the VVPAT? Please confirm that the microcontroller is one time programmable or not."

- "Then you refer to symbol loading units. How many are available?"

- "Then limitation for election petition is 30 days that is why storage is 45 days. But the limitation is 45 days as per Section 81 of Representation of People act... so the period of retaining EVMS have to be increased."

On the first question, the ECI counsel said:

"All three units, ballot units, vvpat and the chip.. all have their own micro controllers and these micro controllers are housed in secured unauthorised access detection module and it cannot be accessed. All the micro controllers are one time programmable. It is burned when inserted so can never be changed. For symbol loading we have two manufacturers, one is ECI and Bharat Electronics."

"Can you get more SLUs.. more manufacturers," the Court asked.

"Availability of components it will not take much time. But to make these machines, it will take one month," the ECI counsel said.

Regarding the query on storage of EVMs, the ECI said,

"All machines are stored in strong room for 45 days and then it is written to the registrar elections as to whether in election petition is filed and if not strong room is opened and if it is filed then that room is kept locked and sealed...he control unit stores the polling data so it is sealed.. during commissioning all three units are also sealed with pink seal. VVPAT is also sealed and signature is taken from all polling agents."

However, advocate Prashant Bhushan appearing for one of the petitioners said that the flash memory of Micro Control Units can be reprogrammed.

"We downloaded the what the micro control units contain. It has flash memory which is re-programmable and I also downloaded from wikipedia what is firmware. Firmware is a stored non volatile memory. We also went to the site of NXP. And this is what it says about the micro controllers. This micro controller has a flash memory also and to say that it is not re-programmable is incorrect. And that is what citizen commission also said after examining such machines all across the world," he contended.

The Court then specifically asked the ECI about the same.

"Can it be re-programmed," the Bench asked.

The ECI counsel made it clear that it cannot be.

"Not at all," he said.

"Ok, so this is absolute," the Court responded.

"If the VVPAT has a malicious program fed into, then," Bhushan asked.

"That argument we understood. The flash memory which is there is not loaded with any software but symbols that is the standard. Now do not pronounce the judgment on that. We have to examine that," the Court replied.

The Court also explained that the stance of the ECI was that the flash memory is very low and it can only store symbols and not software.

"They are not saying flash memory cannot be programmed. If you are predisposed about a thought process then we cannot help you.. we are not here to change your thought process. They are saying quantum of flash memory is very low. It can store 1024 symbols. Not the software. They say that as far as micro controllers in the CU is concerned it is agnostic. It does not recognise the party or symbol. It knows the buttons," the bench said before reserving its verdict.

Tallying of VVPAT slips with EVMs has always been a subject of contention.

Before the 2019 Lok Sabha polls, leaders of around 21 opposition political parties had moved the apex court seeking VVPAT verification of at least 50 percent of all EVMs.

Back then, ECI used to tally only one random EVM per assembly segment with VVPAT.

On April 8, 2019, the apex court raised this number from 1 to 5 and disposed of the plea. In May 2019, the Court dismissed a plea filed by some technocrats seeking VVPAT verification of all EVMs.