ASSOCIATION FOR DEMOCRATIC REFORMS V/S ELECTION COMMISSION OF INDIA & ANOTHER
WP (CIVIL) NO. 434/2023
Bench: Hon’ble Justice Sanjiv Khanna and Hon’ble Justice Dipankar Datta
Date of Judgement: 26th April 2024
Legal provision: Article 32 of The Constitution of India, 1950 and Rule 49MA of Conduct of Election Rules, 1961
FACTS OF THE CASE
Association for Democratic Reforms is a non-profit organization in India, which has been working to bring political and electoral reforms for 26 years. They invoked the writ jurisdiction of the Hon’ble Supreme Court under article 32[1], challenging the integrity of Electronic Voting Machines (EVM) and Voter Verifiable Paper Audit Trail (VVPAT). The petitioners argued that EVMs can be manipulated which infringes the principle of free and fair elections. They also raised concerns about rule 49MA[2] in the Conduct of Election Rules, 1961, which violated Article 19(1)(a)[3] of the Constitution of India. The hon’ble Supreme Court has dismissed some similar petitions before in cases like, Kamal Nath vs Election Commission of India[4], acknowledging that ECI has earned a reputation as fair and impartial authority, which has maintained the integrity of elections for so long. However, the Hon’ble Court decided to discuss the working of EVMs and VVPAT in detail in this case, so they can dismiss this issue of unreliability once and for all.
ISSUES RAISED
- Are EVMs reliable or susceptible to manipulation?
- Is Rule 49MA of Conduct of Election Rules, 1961 violative of article 19 of the Indian Constitution?
ARGUMENTS
- Petitioner:
The petitioners first clarified that they aren’t accusing the ECI or saying that the EVMs were hacked or tampered with.
- They made their first argument by highlighting how it’s a fundamental right of the voters to know whether their vote was cast and counted correctly. Thus, if the EVMs can be manipulated then it infringes their right.
- Secondly, they highlighted the discrepancies in the 2019 Lok Sabha Election, where they mentioned how the ECI didn’t answer the Parliamentary Committee when questioned.
- They expressed their request for 100% counting of VVPAT slips along with electronic counting through the control unit, the voter should see the VVPAT slip and then drop it in the ballot box or return to the paper ballot system.
- They also cited Wikipedia as a source to explain the term “flashing”. Flashing is a way which can tamper with firmware used to control the hardware. Thus, EVMs are not completely safe from being manipulated, since they are manufactured with firmware.
- Respondent:
- They argued that there is a proper process in place which is practiced before the EVMs are used in the general elections. They’re thoroughly checked, even in the presence of representatives of political parties and properly sealed in strong houses. The representatives of political parties even sign the seal.
- Secondly, they expressed their concern about how it’s not practical to manually count 100% VVPAT slips. There is a good chance that the poll results will be delayed.
- Lastly, the respondents stated that Rule 49MA is there to prevent malicious or fraudulent complaints. And as of now 26 complaints have surfaced and none of them proved or indicated any mismatch of votes.
RATIONALE & DECISION OF THE COURT
Addressing both the issues, the Hon’ble Court understands the voter’s right to question the reliability of EVMs. They started by understanding how EVMs work. The ECI elucidated that, an EVM has three parts. The ballot unit (depicts the symbol and name of the candidates alongside the buttons), control unit (with the polling officer, it helps record the number of times a button is being pressed) and the VVPAT (it print a slip which is shown to the voter for 7 seconds so he/she can verify their vote). Before the EVMs are brought to use in elections. They go through “First Level Check” also called FLC. During FLC all the machines are checked by pressing all the buttons 6 times to ensure its working properly and additionally, 5% of these machines are randomly chosen by the representatives from the political parties and go through a stricter mock poll. These machines are then sealed by pink paper, with signatures of the representatives of parties and locked away. With absolutely no access to any component of it. The VVPAT flash memory till this stage is nothing but empty. Any machine used for training and awareness purposes is not kept at the same place as the sealed machines.
Machines are allotted randomly first on the basis of assembly areas and then individually to he polling stations, which makes it very difficult to track which station got which machine. It is also important to highlight that these machines are built with “one-time programmable microcontroller chip”. This chip has burnt memory thus, once the EVMs are manufactured they cannot be altered, changed, or tampered with. ECI clarified that if the EVMs have to be altered they have to be manufactured again. Considering there was no conclusive evidence from the petitioners the Hon’ble Court didn’t declare EVMs unreliable. They also stressed upon ECI’s explanation about 2019 Lok Sabha elections. The ECI had revealed how the mismatch was due to a human error and not because the EVMs were hacked. And to reassure the voters further the court in the case of N. Chandrababu Naidu vs Union of India, that the number of counting VVPAT slips per constituency is increased to 5 from 1.[5]
Rule 49M(a) talks about how a voter can immediately complain if he/she think their vote is wrongly casted. But they have to sign a declaration first and if their claim is false then they can be penalised for it. The petitioners believed that this infringed the voters right to freedom of speech and expression. Because the penalisation made them scared to come forward. The court listening to the contentions of ECI as well, said that the Rule couldn’t violate the Fundamental Right because it helped in preventing fraudulent complaints which can disrupt the elections process. The ECI also mentioned about only receiving 26 complaints and none of them proved any mismatch or discrepancy. The court in the light of this argument also used an example of ballot paper, stating that many years back people trusted blindly on the counting process after they casted their vote in the ballot box. No violation of fundamental right was seen then but in EVMs the voter gets to see on the screen of VVPAT to whom he casted the vote for 7 whole seconds before it goes in the box. The EVMs have only made the process of voting a lot simpler and faster, while ensuring free and fair elections. Thus, the rule wasn’t unconstitutional.
DEFECTS OF LAW
The judgement very rightly resolved both the issues. The case briefly mentioned about article 19 being violated but we can see how the court emphasized on the differences between the ballot box system and EVMs and highlighted which system actually protects the fundamental right under article 19(a). EVMs and VVPAT system was also rightly declared reliable and requires change only in the form of improvement.
A slight change which can be brought is removing the clause of imprisonment in Rule 49MA. The fine can be raised a little to balance out the punishment. This can ensure that voters aren’t afraid to come forward if they feel their vote wasn’t correctly casted. A raised fine can also ensure that fraudulent complaints are avoided.
INFERENCE
This case revolved around the credibility of the EVMs. The Hon’ble Supreme Court desired to put it on record that how the EVMs were reliable. The judges discussed in detail as to how they work and what safety measures are followed before they are used in elections. The possible ways it can be tampered with were highlighted and the court reassured the voters in every way that no such thing has ever happened and can never happen. They upheld the integrity of the EVMs along with VVPAT system and asserted that there has been no violation of the fundamental right. In the end the court mentioned the principle of res judicata as well. Clarifying how writ petitions also fall under this principle and unless there is any substantial evidence no proceedings for the same issue can be started again in any court.
Ravleen Kaur
3rd year law student [B.com LLB (Hons)]
University Institute of Legal Studies
Panjab University
Chandigarh
[1] The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed and the Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
[2] Rule 49MA (1),states that, where printer for paper trail is used, if an elector after having recorded his vote under rule 49M alleges that the paper slip generated by the printer has shown the name or symbol of a candidate other than the one he voted for, the presiding officer shall obtain a written declaration from the elector as to the allegation, after warning the elector about the consequence of making a false declaration.
[3] All citizens shall have the right to freedom of speech and expression
[4] AIR 2019 SCC 336
[5] WP (C) NO. 273/2019