The Supreme Court on Tuesday came down heavily on petitioners seeking complete verification of Electronic Voting Machines (EVM) against the Voter-Verifiable Paper Audit Trail (VVPAT) records, stating that they should not try to bring down the system like this.
The Bench of Justice Sanjiv Khanna and Justice Dipankar Datta heard the matter for over two hours and then posted it for further hearing on April 18, a day before the commencement of the first phase of the Lok Sabha elections.
Advocate Prashant Bhushan, appearing for the Association for Democratic Reforms, contended that the matter was considered by the Apex Court in 2019, when it had directed to increase the count of VVPATs from one EVM to 5 EVMs per Assembly segment in a constituency.
He said the top court of the country passed the said order in view of the paucity of time ahead of the 2019 Lok Sabha elections and that the issue was still open for adjudication.
The lawyer submitted that he wasn’t saying the EVMs had been manipulated, but the EVMs, as well as VVPATs, can be manipulated. He said the EVMs and VVPATs have programmable chips and malicious programmes can be inserted into them.
The Apex Court asked Bhushan about the nature of reliefs sought, to which he made three suggestions:
(1) Go back to the paper ballot system, or
(2) Allow the voter to physically take the VVPAT slip, deposit it in the ballot box and count the slips.
(3) Make the glass transparent and count all the VVPAT slips.
Bhushan contended that presently, the glass was opaque and the voter was able to see it only when a light bulb turned on inside for about 7 seconds displaying the slip for the voter. However, the voter could not see the slip being cut and falling down.
If there was a mismatch between VVPAT and EVM, they only let VVPAT count should prevail in that polling station, he further suggested.
The lawyer said that most European countries that had opted for voting through EVMs had returned to the paper ballots.
To this, Justice Khanna responded that he was in his 60s. He remembered what all happened when there were ballot papers.
The Apex Court pointed out that they have a population of only about 5-6 crore, whereas India had around 98 crore eligible voters. It further referred to the incidents of booth capturing, which used to take place earlier during elections in India.
Bhushan said that the counting of all VVPAT slips would not take that much amount of time if it was done in parallel instead of sequentially.
However, the Bench rejected the argument stating that human intervention could create problems. It said questions regarding human weaknesses, including bias, may arise in such a situation.
Moreover, machine would normally, without any wrong human intervention, work properly, giving accurate results. In case of human intervention, the problem of making manipulations or unauthorised changes may arise, it noted.
The Apex Court further said that hand counting may result in different numbers. It further raised doubts over the feasibility of physical counting of votes given the large population of India.
Justice Datta gave the example of his home state West Bengal, stating that it has more population than Germany. He said it was important to repose some trust and faith on somebody, adding that the petitioner should not try to bring down the system like this.
Bhushan submitted that in case two consecutive votes were cast for the same party, the VVPAT could be manipulated so that one vote went to one party and another one went to the other party.
Since the source code of the EVMs was not disclosed to the public, there were doubts regarding their reliability. He also stated that some of the directors of the two PSUs that make EVMs – ECIL and BHEL, were BJP members.
Bhushan submitted that due to the opaque glass, even the VVPAT could be manipulated. He said when the voter took the slip and put it in the ballot box, the only way to be sure was to let the voter verify the slip. Being a small slip, the counting would be done in well less than a day. In the election, they were presently taking six weeks, one more day would make no difference, he added.
Representing another petitioner, Senior Advocate Gopal Sankaranarayanan contended that the attempt was not to attribute malice to the Election Commission of India (ECI), but to increase the confidence of the voter.
After hearing the petitioners, the bench asked Senior Advocate Maninder Singh, for the Election Commission of India, about the measures taken to ensure the security of EVMs. An officer from the ECI was also present in the Court to explain the security features of the machines.
The Apex Court was apprised that the machines were sealed in the presence of the representatives of the candidates and that they were kept in a tamper-proof condition.
Over the ECI punishment for tampering with EVMs, the counsel referred to Section 132 (misconduct in polling station) and 132A (penalty fo failing to observe procedure for polling) of the Representation of the Peoples Act.
The Apex Court then observed that there was no specific provision, adding that there must be some IPC offences. The counsel agreed to check and respond.
Referring to an article published in 2019 in ‘The Quint’ regarding discrepancies between votes polled and votes counted, Sankaranarayanan said that the Election Commission was ‘resolutely’ silent on this.
The Bench observed that if it was true, the candidate would have immediately challenged it. It further pointed out that the rules allowed a candidate to seek counting of the slips.
Sankaranarayanan replied that it was the ECI’s discretion to allow such counting.
Senior Advocates Santhosh Paul, Huzefa Ahmadi, Anand Grover and Sanjay Hegde also made their submissions. They said it was more important to ensure free and fair elections, noting that a few days delay involved in VVPAT verification was a smaller price to pay.
Paul sought at least 50 percent VVPAT verification, while Ahmadi said that just because it took time to verify, that should not be a reason to not call for it to be verified. If the VVPATs could be compared with actual numbers of votes polled, then it shall be in the interest of free and fair elections. The EC should welcome this, he added.