The court said that while it is the fundamental right of voters to know that their vote is accurately recorded and counted, it cannot be equated with the right to 100% counting of VVPAT slips or a right to physical access and dropping of VVPAT slips in the ballot box.

The court pointed out that it has introduced several measures to safeguard voters’ rights in previous orders, including the introduction of VVPATs and the direction to count VVPAT slips in five EVMs per assembly constituency at random. The court, however, said that giving voters physical access to VVPAT slips is “problematic and impractical” and that it would lead to “misuse, malpractices, and disputes”.

Justice Dipankar Datta noted that the right to freedom of speech and expression under Article 19(1) is “not absolute” and the State can place “reasonable restrictions” on it. “There can be no doubt that the electorate has a right to be informed if the votes as cast are accurately recorded,” he said, clarifying that the problem was the mode in which the information is sought, that is, physical access to the VVPAT slip.

Justice Datta ruled that the VVPAT slip visible for seven seconds after pressing the button on the EVM is a fulfilment of the voter’s right of being informed that their vote has been recorded as cast.

Regarding the contention of ADR about the right to verify if the vote is “counted as recorded”, Justice Datta said that the question “did this right not exist when the ‘paper ballot system’, which the petitioning association wishes to be reverted to, was in vogue?”

He then went into the specifics of how votes were cast in the paper ballot system and in EVMs currently. He observed that there is a “stringent system of checks and balances” to prevent any possibility of a mistake in counting of votes, and for the voter to know that their vote has been counted.

“While rational scepticism of the status quo is desirable in a healthy democracy, this Court cannot allow the entire process of the underway General Elections to be called into question and upended on mere apprehension and speculation of the petitioners. The petitioners have neither been able to demonstrate how the use of EVMs in elections violates the principle of free and fair elections; nor have they been able to establish a fundamental right to 100% VVPAT slips tallying with the votes cast,” he said.

Justice Datta came down heavily on the petitioners, calling their apprehensions “misplaced”. He said that their plea to go back to the paper ballot system, rejecting technological advancement and burdening the ECI with “the onerous task of 100% VVPAT slips tallying” would be a “folly”.

Counting 100% VVPAT slips

According to the court, VVPAT slips are made of 9.9 cm x 5.6 cm thermal paper coated with a chemical to ensure print retention for about five years. The material is soft and sticky, which makes the counting process tedious and slow. The court observed that it would cause delay in the declaration of results and there would be an increased need for human resource. Additionally, the court said that manual counting is prone to human errors and may lead to deliberate mischief.

“The data and the results do not indicate any need to increase the number of VVPAT units subjected to manual counting,” the bench said.

The bench also recalled that during the course of hearing the petitions, the petitioners suggested that instead of physically counting the VVPAT slips, they can be counted by a counting machine, or by barcoding of the symbols loaded in the VVPATs. The court said that this may be examined by the ECI.

Justice Datta pointed out that the tallying of five VVPAT machines per constituency with votes cast by the electors has not resulted in any mismatch so far. “So long, no mismatch is detected even after tallying 5% of VVPAT slips … it would defy the sense of logic and reason of a prudent man to issue a mandamus to the ECI to arrange for tallying 100% VVPAT slips on the specious ground of the petitioners’ apprehension that the EVMs could be manipulated,” he said.

Court questions petitioners’ intention

The bench rejected the petitioners’ suggestion to return to the paper ballot system, calling it “foible and unsound”. The court listed the problems faced with paper ballots and the challenges of implementing it, given the present population. It also pointed out that EVMs have eliminated booth capturing and invalid votes, reduced paper usage, and alleviated logistical challenges, along with expediting the counting process and minimising errors.

Justice Datta said that he accepted the ECI’s submission that the petitioner’s proposal to revert to the paper ballot system reveals that the real intention of the petitioning association [ADR] is to “discredit the system of voting through the EVMs and thereby derail the electoral process that is underway, by creating unnecessary doubts in the minds of the electorate”.

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