SC questions intent of petitioners while refusing 100% verification of VVPAT slips

Even though the SC acknowledged the right of voters to question the working of EVMs, it said that it was necessary to exercise care and caution when raising aspersions on the integrity of the electoral process.
File Photo for representation
File Photo for representation
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While rejecting the petitions seeking 100% verification of the data in Electronic Voting Machines (EVMs) with Voter Verifiable Paper Audit Trail (VVPAT) slips, the Supreme Court came down heavily on the petitioners, saying that their “apprehensions are misplaced”. ON Friday, April 26, bench of Justices Sanjiv Khanna and Dipankar Datta, while passing two separate, concurring judgements, stated that they conducted a detailed review of the administrative and technical safeguards of EVMs. They ruled that the EVMs are “simple, secure, and user-friendly”, and that the VVPAT system “fortifies the principle of vote verifiability”.

Acknowledging the right of voters to question the working of EVMs, the court stated that it was necessary to exercise care and caution when raising aspersions on the integrity of the electoral process. “Repeated and persistent doubts and despair, even without supporting evidence … can reduce citizen participation and confidence in elections, essential for a healthy and robust democracy,” the court said.

The court passed two directions in the judgement:

  1. After completing the symbol loading process in the VVPAT, the Symbol Loading Units (SLU) should be sealed in the presence of candidates/representatives and stored in containers in strong rooms for at least 45 days after the results are declared. SLUs are used to upload the symbols and names of candidates onto the VVPAT machine. 

  2. After results are declared, if the second or third place candidates give a written request within seven days, the burnt memory in the EVM’s micro controller shall be verified by a team of engineers from the manufacturers of the EVM. The cost for this verification shall be borne by the candidates. However, if the EVMs are found to be tampered, it will be reimbursed by the ECI.

Association for Democratic Reforms (ADR), one of the petitioners in the case, is a non-profit organisation established in 1999, working for electoral and political reforms. Many have expressed surprise at the court’s take on ADR, as the organisation has been working to strengthen democracy for decades. ADR regularly publishes reports elected representatives and ministers, including their criminal and financial backgrounds. They have also been doing Election Watches for over two decades now. They were also one of the petitioners in the Electoral Bonds case, which helped to bring to light the details of the purchasers and parties that were involved in it.

The court also asked the Election Commission of India (ECI) to consider bringing in an electronic machine to count VVPAT slips and have a barcode along with their symbols for each party. Here is what the court said on the various points raised by the petitioners:

Right of voters to verify if votes are ‘recorded as cast’ and ‘counted as recorded’

The contention of the Association for Democratic Reforms (ADR), one of the petitioners in the case, is that it is 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. They proposed three options to fulfil this:

  • return to the paper ballot system

  • VVPAT slips be given to the voter to verify and put in the ballot box for counting

  • 100% counting of VVPAT slips, along with electronic counting by the control unit.

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

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”.

File Photo for representation
SC reserves judgement in the EVM-VVPAT case

“It is of immediate relevance to note that in recent years, a trend has been fast developing of certain vested interest groups endeavouring to undermine the achievements and accomplishments of the nation, earned through the hard work and dedication of its sincere workforce. There seems to be a concerted effort to discredit, diminish, and weaken the progress of this great nation on every possible frontier. Any such effort, or rather attempt, has to be nipped in the bud. No Constitutional court, far less this court, would allow such an attempt to succeed as long as it has a say in the matter,” he said.

Justice Datta further went on to say, “I have serious doubts as regards the bona fides of the petitioning association when it seeks a reversion to the old order. Irrespective of the fact that in the past, efforts of the petitioning association in bringing about electoral reforms have borne fruit, the suggestion put forth appeared inexplicable. Question of reverting to the paper ballot system, on facts and in the circumstances, does not and cannot arise. It is only improvements in the EVMs or even a better system that people would look forward to in the ensuing years.”

He also said that no petition under Article 32 and 226 of the Constitution should be filed based on mere “suspicions and conjectures”, unless there is credible/trustworthy material on record to suggest that adverse action affecting a right is reasonably imminent or there is a real threat to the rule of law being abrogated.

The judge also said that the issue of doubting the efficacy of the EVMs has been

concluded definitively. “Going forward, unless substantial evidence is presented against the EVMs, the current system will have to persist with enhancements. Regressive measures to revert to paper ballots or any alternative to the EVMs that does not adequately safeguard the interests of Indian citizens have to be eschewed,” he said.

The court observed that the petitions could have been dismissed based on past decisions of the court, which are “clear and lucid”. “However, we would like to put on record the procedure and safeguards adopted by the ECI to ensure free and fair elections and the integrity of the electoral process,” the court said.

File Photo for representation
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