Supreme Court Notes Challenges of Human Intervention in Hearing on 100% EVM-VVPAT Verification Plea

The Precedent -

The Supreme Court convened on Tuesday (April 16) to deliberate on petitions advocating for the comprehensive verification of Electronic Voting Machines (EVMs) against Voter-Verifiable Paper Audit Trail (VVPAT) records.

After a prolonged session spanning over two hours, the bench, comprising Justices Sanjiv Khanna and Dipankar Datta, deferred further proceedings to April 18. It is notable that the first phase of the Lok Sabha elections is slated to commence the following day, April 19.

At the outset of the hearing, the bench engaged Advocate Prashant Bhushan, representing the Association for Democratic Reforms, highlighting the previous consideration of the matter in 2019. During that time, the Court had directed an increase in the count of VVPATs from one EVM to 5 EVMs per assembly segment in a constituency. Bhushan contended that this directive was issued due to time constraints preceding the 2019 Lok Sabha elections, emphasizing that the matter remained open for adjudication.

"We aren't saying they (EVMs) are manipulated or have been. We are saying they can be manipulated as both EVM and VVPAT," Bhushan asserted. He underscored the presence of programmable chips in both EVMs and VVPATs, suggesting the potential insertion of malicious programs into them.

In response to the bench's query regarding the nature of reliefs sought, Bhushan proposed three options:

  1. Reverting to the paper ballot system.
  2. Allowing voters to physically deposit VVPAT slips into the ballot box for counting.
  3. Implementing transparent glass for VVPATs and counting all slips.

Bhushan emphasized the opacity of the current glass, restricting voter visibility to a brief display of the slip, followed by its cutting and descent, which remains unseen.

Proposing that in cases of a VVPAT-EVM mismatch, the VVPAT count should prevail, Bhushan argued for enhanced transparency and integrity in the electoral process.

Justice Khanna expressed skepticism regarding human intervention, asserting that it often leads to problems and questions of bias. He stressed the reliability of machines in the absence of unauthorized human interference.

During the hearing, Justice Khanna further remarked on the potential discrepancies in hand counting, citing concerns over feasibility given India's large population.

Justice Datta echoed the sentiment, urging trust in the system and cautioning against undermining it.

Bhushan raised concerns regarding potential manipulation of VVPATs, particularly in cases of consecutive votes for the same party. He highlighted doubts regarding the reliability of EVMs, citing the non-disclosure of their source code and alleged affiliations of certain EVM-manufacturing PSU directors with a political party.

Currently, the Election Commission of India (ECI) only verifies VVPATs from 5 EVMs per assembly segment in a Parliamentary constituency, which Bhushan deemed insufficient.

Senior Advocate Gopal Sankaranarayanan echoed Bhushan's arguments, emphasizing the need to bolster voter confidence in the electoral process.

After hearing the petitioners, the bench directed queries to Senior Advocate Maninder Singh, representing the Election Commission of India, regarding measures taken to ensure EVM security. The ECI outlined sealing procedures in the presence of candidates' representatives and emphasized tamper-proof storage.

The bench also inquired about penalties for EVM tampering, with Justice Khanna noting the absence of specific provisions beyond procedural violations.

Petitioners urged for increased VVPAT verification, advocating for measures to ensure free and fair elections, even if it entails slight delays. They proposed a minimum of 50% VVPAT verification to enhance transparency.

The petition, filed by the Association for Democratic Reforms, seeks extensive verification of EVM data against VVPAT records, emphasizing voters' fundamental right to verify and ensure the accuracy of their votes. The bench, led by Justice Khanna, has previously expressed reservations about the petition's intent.

In opposition, the ECI has argued against the petition, citing concerns over casting doubt on EVMs and VVPATs without substantive evidence. The ECI emphasized the challenges of manual VVPAT verification, citing labor intensiveness and susceptibility to human error.