FACTS: –
EVMs came into use in elections in India in the 1980s. The first EVMs were used in a by-election in Kerala in the year 1982. Bundles of discussion and debate later, EVMs were accepted and were inducted into service in elections. In the 1980s and early 1990s, EVMs were debated among politicians and experts. They were tested and adopted later. Due to a litigation, Parliament amended the Representation of the People Act, 1951 (by Act 1 of 1989) to permit the use of EVMs. They were introduced for the first time in the 2004 General Elections and continued in all the General and other elections since then.
According to the Election Commission of India’s view, EVMs have emerged unequivocally successful in the conduct of free, fair, and transparent elections. They reduce human error, prevent electoral fraud, and eliminate mistakes that usually occur at the time of counting paper ballots.
A generic EVM consists of three units: a ballot unit, control unit, and VVPAT, or Voter-Verified Paper Audit Trail. The ballot unit resembles something akin to a keyboard with buttons. VVPAT prints a paper slip bearing the choice of the voter. The control unit records the votes that are cast and displays the results.
Before any election, EVMs are taken out from storage for checking by the engineers and representatives of political parties. Then, randomization of EVMs is done for removing any bias, after which their allocation takes place with no human involvement. Randomization is done in front of political party representatives and Central Observers.
himself does a mock poll on the day of actual polling on the EVMs. Electronic counting of votes may be taken out thereafter, and VVPAT paper slips will be counted and matched with the electronic votes. The EVMs are again sealed, and the paper seals are signed by candidates or their representatives.
The VVPAT printer drop box records the fall of the paper slip. The control unit records the button pressed on the ballot unit. The control unit displays total number of votes recorded but not break-up of votes for each candidate. On Counting day, the ‘RESULT’ key is pressed and the Control unit displays result.
Since EVMs are stand-alone machines, they cannot be connected to the internet, nor do they have any ports to access memory. According to ECI, EVMs could successfully indulge in the integrity of electoral processes.
ISSUES: –
Can EVMs guarantee the integrity and credibility of the electoral process?
CONTENTION: –
PETITIONER: –
Petitioners began their arguments stating that they do not have malice against Election Commissioner of India and, or for that matter contended that Election Voting Machines are tutored, configured, favour or disfavoured a political candidate. However, there is a possibility that EVMs can be manipulated and this court shall instill confidence among voters and the people as they right to know that the franchises exercised by them has been correctly recorded or not.
They also put forward their argument that the EVMs have a burnt memory which cannot be accessed by anybody and as they are checked before 10 to 15 days of polling where symbols of the parties are being added it can easily be manipulated by ECI or representatives.
The petitioner, Association for Democratic Reforms, argued that the Court should direct:
a) a return to the paper ballot system; b) giving voters printed slips from the VVPAT machine to verify and put in the ballot box for counting; and/or c) 100% counting of VVPAT slips in addition to electronic counting.
Other arguments raised include the alleged modification of VVPAT in 2017, where the glass window of machines was replaced by translucent or tinted glass which makes it hard for the voters to know that their votes are being duly registered or not.
They also contended that Rule 49MA of the Conduct of Election Rules, 1961, is deemed draconian, arbitrary, and unlawful due to its reference to Section 177 of the Indian Penal Code, 1860, in the written declaration. Furthermore, the voters’ fundamental right to verify that their vote is accurately recorded is paramount and indelible. Therefore, any administrative objections raised by the ECI against 100% counting of the VVPAT paper trail should be dismissed.
Based on the previous discussion, the allegation that the agnostic firmware in the burnt memory of EVMs can be hacked or manipulated to influence election results is baseless. Therefore, any suspicion that EVMs can be programmed to record votes incorrectly or repeatedly to favour a specific candidate should be dismissed. And thee election should now be conducted through ballot paper.
RESPONDENT SIDE: –
The units of EVMs used for polling are sealed and kept in a strong room in the presence of candidates or their authorised representatives. The candidates or their representatives are also permitted to affix their own seals on the lock of the strong room. The strong-room shall be guarded by a minimum of one platoon of armed security personnel, and it shall be provided with CCTV surveillance. Further, the candidates or their agents may be permitted to stay and watch the strong room, and in cases where the entrance to the strong room is not visible, it is provided with a CCTV display facility for their benefit.
The reverting to ballot paper system proposal was also turned down, citing clearly recognized weaknesses. In case of huge electorate and large number of polling booths in India, the reversal to ballot papers will take away electoral reforms. EVMs offer huge advantages: eradication of booth capturing, invalid votes, administrative convenience, and logistic hassles.
The ECI clarified that the VVPAT glass window has not been changed and its tinted glass maintains secrecy while allowing voters a clear view of their slips. The rule makes sure that a voter would see the slip indicating serial number, name of the candidate and the symbol.
they also disapprove the plea to permit electors to routinely check their votes, as it will lead to confusion and delay the electoral process. The ECI clarified that only 26 such requests were received, and the allegations levelled against all of them were found to be incorrect.
This review objective offers a high level of assurance over the EVM mechanism’s administrative and technical safeguards and attempts to provide explanation for any uncertainty concerning the integrity of the electoral process.
RATIONLE: –
Dipankar Datta, J., observe that the use of EVMs in Indian elections is accompanied by reasonable checks and balances. Measures such as tallying VVPAT paper trails in 5 EVMs per assembly constituency or assembly segment in a parliamentary constituency with votes polled, as introduced after the N. Chandrababu Naidu v. Union of India decision, ensure transparency. Notably, this exercise has not resulted in any mismatch to date, and the ECI’s assertion has not been disproven by the petitioners.
The grounds for the reliefs sought are rooted in apprehension and suspicion rather than concrete evidence. The petitioners have failed to demonstrate how the use of EVMs in elections violates the principle of free and fair elections or establish a fundamental right to 100% VVPAT slips tallying with the votes cast. Their apprehensions are misplaced.
Reverting to the paper ballot system and burdening the ECI with the onerous task of 100% VVPAT slips tallying would be an unwise decision.
As held by Sanjiv Khanna, J. (for himself and Dipankar Datta, J.), the test for unenumerated rights is to trace them back to specific provisions of Part III of the Constitution or its core values. The petitioners completely failed to demonstrate how EVMs violate the principle of free and fair elections or establish a fundamental right to have 100% VVPAT slips tallying with votes cast.
While accepting the principle relating to the fundamental right of the voter to ensure that his vote is properly recorded and counted, it does not necessarily translate into a right to 100% counting of VVPAT slips or physical access to such slips. The right of the voter is safeguarded by taking such steps as the direction issued in Subramanian Swamy v. Election Commission of India for gradual introduction of VVPATs.
The voter can see the VVPAT slip through the glass window to reassure himself/herself that the vote has been recorded and accounted for. Further, ECI clarified that the glass window has not changed one bit, the tinted glass will ensure secrecy while allowing the voters a clear visibility of the slip.
Judges also stated that mere suspicion of mismatch in the EVM vote is not sufficient to hold the writ petitions maintainable; some tangible threats should be shown. In the absence of proof of malice or arbitrariness or invasion of rights, the petitions could have been dismissed. But as serious concerns have been expressed by the court and twin directions have been issued in public interest.
One has to adopt a balanced perspective in viewing systems or institutions. Either blind trust or blind distrust of its several aspects is likely to lead to unwarranted scepticism that defeats the purpose and progression entirely. A critical but constructive approach with openness to evidence and reasoning should be adopted toward affecting meaningful improvements in the system while sustaining its credibility and effectiveness.
DEFECTS OF LAW: –
- Conduct of Election Rule, 1961, r49M which states that there should be transparent windows in EVMs so that voters are able to verify that their votes are duly registered and because of modification of 2017, of using tinted glass makes it difficult for the voters to see. It further infringes their right of 19(a)(1) because of lack of transparency voters are being denied the right to know and participate in democratic process.
- Section 177 of Indian Penal Code, which consider furnishing false information as an offence, is also committed by ECI because during 10 to 15 days before poll when the symbols of the parties are being registered there is a chance of manipulation and as the burnt memory of EVMs are inaccessible votes can be tampered by the representatives.
INFERENCES: –
This single-judge decision of the Supreme Court in “Association for Democratic Reforms vs Election Commission of India” on April 26, 2024, is one such judgment that was really going to have huge implications vis-à-vis elections in times to come. The Court has maintained a fine balance between the transparency expected of the election process and practical feasibility in having reiterated the present system of random verification of VVPATs. To that extent, this judgment was much in accord with the courts’ role in interpreting constitutional rights cases within the framework of administrative efficiency.
A significant source for such a ruling is linked to the commitment of the apex court to electoral transparency, entrenched in Articles 14 and 324 of the Indian Constitution. Article 14 secures the right to equality properly inviolate, while Article 324 vests the superintendence, direction, and control of elections in the ECI. The petitioner, Association for Democratic Reforms, hereinafter called ADR, has contended that the present verification exercise is inadequate to ensure that the votes are “recorded as cast” and “counted as recorded,” thereby violating these constitutional rights.
By choosing to retain the present system of VVPAT slips verification from five randomly selected polling stations in each Assembly segment, has the Court taken on board the practical difficulties involved with any more extensive verification of EVMs/ VVPATs. The argument put forth by ECI was that logistical difficulties and human error cannot be ruled out in 100% VVPAT verification. This was supported by the inference drawn by the Indian Statistical Institute that the present level of verification is statistically significant and reliable.
The judgment places a heavy reliance on precedents and expert recommendations. In the case of Subramanian Swamy v. Union of India in 2013, the Supreme Court itself accepted that the paper trail was an essential requirement for the free and fair elections process. On the contrary, judgments in previous cases, Tech for All v. Election Commission of India (2019) and Madhya Pradesh Jan Vikash Party v. Election Commission of India (2022), established the infallibility of EVM-VVPAT from guarantee-seeking assaults for aggregate confirmation.
By referring to these judgments, the Supreme Court tried to convey a consistency in approach to the issues of electoral transparency subject to administrative feasibility. Relying on expert recommendations from the Goswami Committee in 1990 and the Second Administrative Reforms Commission in 2007 lent additional strength to the judgment of the Court. Both these committees wanted effective checks and balances but they cautioned that there has to be a balance between effective verification and feasibility in practice.
The judgment thus carves out an affirmation of faith by the judiciary in the ECI’s capability to conduct free and fair elections. Confirming the existing verification system of VVPATs has thrown trust on the processes put in place by the ECI along with safeguards. This would be key in the maintenance of public confidence in the electoral process and for the smooth carrying out of elections.
The judgment also sets a trend for future litigations against the electoral process. It lays emphasis on the need for statistically sound verification methods not to disrupt the electoral machinery. More than anything else, the judgment has brought out the requirement of practical feasibility in the administration of the election, since extensive manual verification of votes will introduce inbuilt errors and inefficiencies.
The judgment exemplifies acumen at the apex court for its deep understanding of electoral integrity and administrative practicality. By supporting the present VVPAT verification system, the Court ensured that the process of elections in India would not lack transparency and efficiency, hence improving democratic ideals as enshrined in the Constitution. This judgment is highly jurisprudential in setting a precedent for future electoral challenges, underlining a balanced rationale between electoral transparency and practical feasibility.
NAME – Shagun Kothari
COLLEGE – Maharashtra National Law University, Nagpur.