Supreme Court Reserves Judgment on Petitions Regarding EVM-VVPAT Tallying

The Supreme Court reserves judgment on requests to match paper records with electronic votes in elections. During the hearing today, the judges said that not everything should be doubted and petitioners don't need to criticize every aspect of EVMs.

"If an explanation is given, you must appreciate it. Mr. Bhushan, there need not be any explanation... If some improvement is brought then why should they explain you till it is lawful! Whether to have a bulb or not or the brightness etc is for them to decide," the Court told Advocate Prashant Bhushan, who represented one of the petitioners.

The Court said, "We are not disputing it is fundamental right but over-suspicion is not working out here," when a lawyer pointed to the system in foreign countries like Bangladesh.

Solicitor General (SG) Tushar Mehta argued against the petitioners, saying that repeated petitions related to EVMs were making a joke of voters' democratic choice.

"We could not decide the petition due to work pressure but this is not filed in the anvil of elections," Justice Datta said.

"People have the freedom to post their opinions on social media and they can do it," the Court responded to allegations of planted stories related to cases.

Senior Advocate Gopal Sankaranarayanan later submitted that they were not making allegations against the Election Commission of India (ECI) but were only highlighting doubts about the system.

The Court was hearing a batch of petitions seeking a thorough count of Voter Verifiable Paper Audit Trail (VVPAT) slips in elections.

During the last hearing, the Court had asked the ECI whether there was any law to punish officials and authorities for manipulating EVMs, while orally turning down the option of going back to paper ballots.

Senior Advocates Sanjay Hegde and Gopal Sankaranarayanan and advocates Nizam Pasha and Prashant Bhushan were among the counsel who made submissions for various petitioners today.

Advocate Pasha asserted that voter secrecy would not be compromised by acceding to the petitioners' request for enhanced VVPAT verification.

Responding to the Court's queries regarding whether the petitioners have borne in mind the practical implications of their prayers, Pasha replied, "Fundamental right to know for whom vote is cast, right to free and fair elections, etc. ... these are all rights of voters and it does not affect somebody else."

"All fundamental rights can be curtailed on the basis of certain exceptions," the Court responded.

Senior Advocate Hegde suggested that the Court lay down some safeguards for the upcoming Lok Sabha polls, and deal with the remaining larger issues later on.

Advocate Bhushan drew the Court's attention to a news article that allegedly reported on the malfunction of an EVM during a mock drill.

"There was a mock poll in Kasaragod, Kerala. Four EVMs and VVPATs were recording one extra vote for BJP. Manorama carried this report," Bhushan told the Court.

The Court immediately asked the ECI, represented by Senior Advocate Maninder Singh, to cross-check the allegation.

In the post-lunch session of the hearing, Senior Advocate Maninder Singh told the Court that reports on the EVM malfunction in Kerala were inaccurate.

"The Kasaragod incident cited is not correct. It was a fault in a 2019 app as we cited and the data was not being updated synchronously. It has been worked on now and there are no errors," Singh said.

During the hearing, Senior Advocate Sankaranarayanan registered an objection to a claim by an ECI official that no mismatches have been noticed so far between data stored in ballot units and the VVPAT slips.

"Their own document shows that there is a mismatch ... There is at least one instance of mismatch. Let's not say there is no mismatch," Sankaranarayanan said.

Senior Advocate Singh stood by the ECI's stance that there has been no instance of mismatch in poll data.

"100 instances were cited, but there was no mismatch," Singh argued.

Singh also maintained that the petitions before the Court were baseless.

"The allegations are based on the result of a machine which does not belong to the Election Commission of India at all. This uncertainty is not a nuisance to the democratic process itself. This indulgence being sought repeatedly... (it) has no basis."

During the hearing, the Court requested the ECI for an explanation on the working of VVPATs and other measures taken to ensure the integrity of votes cast during elections.

"This is an electoral process and there needs to be sanctity to it and let there be no doubt about it," Justice Datta observed.

Among other aspects, the Court voiced concern over whether there are sufficient measures to ensure that Symbol Loading Units (SLUs) in EVMs are not tampered with.

"The SLUs are not stored to ensure that there is no tampering, etc.? Of course, very difficult ... SLU is done from the computers ... laptop, etc. is used by returning officer.. The software by ECI has a lock-in mechanism," the Court observed.

"Yes, it is a secured software," the ECI assured, in response.

"When you do loading, are candidates allowed to do a test check?" the Court proceeded to ask.

"Yes, a mock poll is conducted before machines are put in the strong room.. Candidates are allowed to pick up random machines and poll to check," the ECI replied.

The ECI official further disclosed the following aspects of the polling and checking process, in response to the Court's queries:

1. It takes about fifteen seconds to cast one vote, meaning that about four votes at most can be polled every minute. However, due to human intervention, less than four votes are usually cast per minute. The ECI has not come across any irregular case where more than four votes have been cast per minute.
2. It is not possible for one person to cast a vote twice.
3. There are inbuilt corrections to ensure that there are no mismatches between votes registered (Form 17A) and votes recorded (Form 17C).
4. It is not possible to have bar codes for counting votes for the present round of polls (Lok Sabha polls 2024). No proposal for the introduction of such bar codes is being examined at present.
5. There is no question of "hanging slip" in VVPAT machines. Unless the VVPAT slips and falls, the vote does not get registered. There is a sensor to ensure that VVPAT slip falls. A beep noise follows after the slip falls and the vote gets registered only upon this happening.
6. Each and every vote that is registered is time-stamped.

Notably, the Court asked data on votes registered under Form 17A could be tallied with votes polled at the election booths, and not just at the stage of recording information under Form 17C.

"What if we say, 17A register should be matched with the votes polled in a booth, to ensure that 17A entries with respect to non-polling after one is made a registered voter is not made an academic exercise?" the Court remarked.

The ECI counsel pointed out that it may violate voter secrecy if the 17A register is shared with election candidates at the time of polling.

"On the next day of polling, there is a process of scrutiny of 17A and it can be done in presence of everybody and it has at times led to re-poll," the ECI official added.

As the Court took stock of all the security measures referred to by the ECI to ensure the integrity of the poll process, the Bench mused that all of these aspects do not seem to be well-known in the public domain.

"There seems to be some disconnect between what you are telling us and what is there in the public domain," the Court remarked.

"There is nothing to hide," the ECI official assured.

"We also did not know and the safeguards put in place and the integrity of the machine put in place.. but there is a gap in what is in the public domain and what is not in the public domain," the Court reiterated.

The Court also asked about the penalty for possible misuse of the EVMs.

"As far as misconduct of polling officer is concerned then there must be some punishment.. it is a serious thing. Any officer not complying with the mandate will be a very serious thing," the Court said.

The ECI counsel in this regard cited a provision under the RP Act. "Yes that is a fine of Rs 500...," the Court then remarked.

The Court during the hearing recalled that petitioners had suggested that each candidate be given a barcode along with the symbol so that when the VVPAT slips are counted, the machine itself does the counting with the barcode.

However, the Court remarked it would be a humongous task even if the petitioners say the use of barcodes would remove the human element.

The Court at this stage also said that paper ballots have huge drawbacks "and we do not want to event think about it."

The ECI also told the Court that only 25 complaints had been made regarding the malfunction of the EVMs.

"Till date ballot papers of 38,000 was randomly selected and no single case of transfer of vote from candidate a to candidate b has been detected. the only error which may have happened is when the data of mock poll has not been deleted," the ECI counsel told the Court further.

The three pleas before the top court concern the use of EVMs alongside VVPAT slips in elections.

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.'

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.