Can give VVPAT slip to voters or go back to paper ballots: What petitioners told SC

The Association for Democratic Reforms (ADR), on Tuesday, April 16, argued before the Supreme Court that the Electronic Voting Machines (EVM) and Voter-Verifiable Paper Audit Trails (VVPAT) have programmable chips and that malicious programs can be inserted into them. Advocate Prashant Bhushan, appearing for ADR, also proposed three suggestions to rectify the situation. 

A bench of justices Sanjiv Khanna and Dipankar Datta was hearing a petition filed by ADR seeking to verify EVM data against VVPAT data more extensively. 

What is the petition?

The ADR, in July 2023, moved the Supreme Court contending that it was a fundamental right of voters to verify that their vote has been “recorded as cast” and “counted as recorded”. The non-profit organisation stated that when the VVPAT slip is displayed for seven seconds for the voter to verify, the aspect of vote “recorded as cast” is met. They, however, argued that there is no mechanism to fulfil the “counted as recorded” criteria. Presently, the Election Commission of India (ECI) picks five EVMs at random in each assembly segment and cross-verify the votes with the VVPATs.

ADR also pointed out that the Supreme Court, in 2013, directed the ECI to introduce the VVPAT mechanism observing that paper trail is an indispensable requirement of free and fair elections and contended that directions must be issued to enforce this right.

The case first came for hearing in July 2023, when a bench of Justices Sanjiv Khanna and Bela M Trivedi orally expressed their apprehension if “we are being over suspicious”. It again came up before Justices Sanjiv Khanna and SVN Bhatti, who said that multiple fresh petitions are being filed despite earlier judgements on the matter, and adjourned the case to November 2023 saying there is no urgency in the matter. In November 2023, the same bench of SC orally observed that cross-checking EVM and VVPAT data would “increase the ECI’s workload without a big advantage”.

In April 2024, activist-lawyer Arun Kumar Agrawal filed a petition challenging the ECI’s sequential counting (one after another) for verifying EVM-VVPAT, saying that it would cause delay. He contended that if more officers are involved and VVPATs counted simultaneously, the verification would be completed within 5-6 hours. He also sought the court to direct the ECI to make the glass of the VVPAT machine more transparent and increase the duration of the light flashing so that the voter can see the vote case. He also wanted the voter to be given the VVPAT slip that can then be dropped manually in a ballot box. The court tagged this along with the ADR petition.

What did ADR ask for?

When the case came up for hearing on April 16, Advocate Bhushan argued that as both EVMs and VVPATs have programmable chips, malicious programs can be inserted into them. "We aren't saying EVMs are manipulated or have been. We are saying they can be manipulated as both EVM and VVPAT have two kinds of chips," he said.

When the counsel pointed out that European countries like Germany were using ballot papers, the bench interrupted him and said that their population is around 6 crores while India has about 98 crores. Justice Datta said, "My home state West Bengal has more population than Germany. We need to repose some trust and faith in somebody. Do not try to bring down the system like this." Bhushan argued that if the VVPAT slips are counted parallely, the time consumption would be lesser.

When the court asked Bhushan about the reliefs sought, Bhushan proposed these options:

> Go back to the paper ballot system, or allow the voter to physically take the VVPAT slip and deposit it in the ballot box, which shall then be counted. In case there was a discrepancy in the numbers, he suggested that the VVPAT count should prevail in the voting station.

> Make the glass on the display box transparent and count all the VVPAT slips.

Currently, the glass is semi-transparent and the slip is visible only for about seven seconds when a light bulb turns on inside the display box. Bhushan pointed out that the voter could not see if the VVPAT slip was falling into the VVPAT box. "Due to the opaque glass, even the VVPAT can be manipulated. Let the voter take the slip and put it in the ballot box. Only way to be sure is to let the voter verify the slip. Being a small slip the counting will be done in well less than a day. In the election they are taking 6 weeks, one more day makes no difference," he argued.

What the court said

Justice Khanna pointed out that human intervention might create problems and there were questions pertaining to human weaknesses, including bias. “Machines, normally, without any wrong human intervention, will work properly, and will give accurate results. Yes, problems arise when there is human intervention to make manipulations or unauthorised changes. That premise, if you want to argue on that, do," the judge said, LiveLaw reported.

The court also asked senior advocate Maninder Singh, who appeared on behalf of the ECI, about the measures taken to ensure the security of EVMs. An ECI officer present at the court had explained about the mechanisms, that both the EVMs and VVPATs are sealed in the presence of representatives of the candidates and maintained in a strong room.

The court also asked several questions, including how and where the candidates get to interact with the machines and what sort of paper and ink is used in the VVPATs. “Can we get the entire stages from 0-z for the methodology and procedure adopted?”, the bench asked ECI.

The bench also asked advocate Singh about the punishment in case the machines are manipulated. While Singh said that there are sections 132A (penalty for failure to observe procedure for voting) and 134 (breaches of official duty in connection with elections) of the Representatives of People Act for procedure, the bench said, “This is much more serious than procedure. We are not on the procedure. So there is no specific provision with regard to manipulation done if at all. There should be a fear that if something wrong is done then there will be punishment.”

Senior Advocates Anand Grover, Huzefa Ahmadi, Santhosh Paul, and Sanjay Hegde also made their submissions in the case. The case will be next heard on April 18, Thursday, a day before the first phase of Lok Sabha elections is to commence.