Enhancing Electoral Transparency: Analyzing the Supreme Court’s Recent Ruling on credibility of  EVMs and VVPATs.

On April 26 2024, the Supreme Court of India delivered a judgment in the case of Association for Democratic Reforms versus Elecction Commission of India, regarding the use of Electronic Voting Machines and its integrity. The petitioners seek to instil confidence in voters by addressing concerns about the manipulation of EVMs and ensuring the accuracy of recorded votes.

Keywords.

Credibility of EVMs and VVPATs, Election Commission of India, Electronic Voting Machine (EVM), Voter Verified Paper Audit Trail (VVPAT), Article 324 of the Constitution of India, Representation of the People Act, 1951, Section 177 of the Indian Penal Code, 1860, Rule 49MA of the Conduct of Election Rules, 1961.

Case Name & C.No- Association for Democratic Reform Versus Election Commission of India & Ors in WRIT PETITION (CIVIL) NO. 434 OF 2023.

Judge Name- Hon’ble Justice. Sanjiv Khanna & Justice. Dipankar Datta.

Insights to be gained from this judgment.

This judgment holds value for both the General Public and Professionals. The General Public can gain insights into the procedures followed by the Election Commission and be informed about the credibility of EVMs and VVPAT. Professionals, on the other hand, can understand how the Apex Court views a case in terms of the lack of evidence and how it analyzes cases of public importance.

Brief Summary

This writ petition has been filed by the petitioner (Association for Democratic Reform) raising concerns over the possibility of hacking and tampering of Electronic Voting Machines (EVMs). The petitioner sought any of the following reliefs: 1) return to the erstwhile Paper Ballot system for conducting elections, 2) cross verification of 100% of the Voter Verified Paper Audit Trails (VVPAT) slips with the Control Unit, or 3) provide VVPAT slips to the voters and put the same in a separate ballot for counting.

In summary, the Honorable Supreme Court, with a concurring opinion, dismissed all the prayers. The judgment was extensively delivered by Honorable Justice Sanjiv Khanna, followed by Justice Dipankar Datta agreeing with the view of his fellow member. Furthermore, Justice Dipankar Datta had some additional observations in support of this case.

This judgment can be seen as twofold. The first part presents the Apex Court’s reasoning for the dismissal of the writ petition. The second part is crucial for the general public to bear in mind. Here, the Supreme Court extensively discusses and elaborates on the chronicle of procedures followed by the Election Commission while conducting an election. This is an attempt by the Supreme Court to enlighten the general public on the free and fair election process followed by the Election Commission of India. In this post, our readers will be enlightened with a summary of procedures followed by the Election Commission in various stages of an election.

Dismissal of Petition:

After analyzing all the procedures and processes of conducting an election by the Election Commission, the above-mentioned prayers were rejected by the Honorable Supreme Court for the following reasons:

• There has been no case found to date with proper evidence attributing to affecting the integrity of EVMs.
• The case appears to be a res judicata issue settled by various precedents of the Honorable Supreme Court.
• The Election Commission holds a strong reputation as an impartial body, conducting elections in a fair and transparent manner.
• There are clear foolproof procedures laid down by the Election Commission ensuring fairness and transparency in the election process without any bias.
• The ballot system cannot be restored due to various shortcomings such as manipulations, booth capturing, etc.
• Verifying 100% of VVPAT slips with the EVMs is unnecessary as the current procedure of verifying 5% of VVPAT slips with EVMs suffices, and any prayer relating to 100% verification would complicate the counting process.

All the above observations constitute one part of this judgment. Furthermore, the Apex Court did not merely dismiss the petition but also elucidated all pertinent events and key procedures followed by the Election Commission during elections.

The Supreme Court also elaborated on certain rights of citizens and contestants under the Representation of Peoples Act, 1951.

For the sake of simplicity, we have summarized most of the procedures enumerated by the Supreme Court concisely.

Core functions of EVMs:

Electronic Voting Machines (EVMs) consist of the ballot unit, the control unit, and the VVPAT.

All these devices are standalone and non-networkable, unconnected with external devices.

Procedure Followed by Election Commission before conducting elections:

Step 1: First Level Check

Before 6 months of State or Union Election, First Level Checks are conducted district-wise by the engineers of manufacturers in the presence of party representatives. At this time, all machines undergo a thorough check by casting votes in each of the 16 buttons on the ballot unit six times. Additionally, 5% of the machines are chosen randomly by representatives of recognized political parties for a more extensive mock poll. Out of this 5%, 1200 votes are cast in 1% of the selected EVMs, 1000 votes in 2%, and 500 votes in the remaining 2%. The voting results displayed in the control unit are cross-referenced with the count of VVPAT slips. Post-check process, all the units are sealed.

Step 2: Randomisation of Machines

This stage is subdivided into two parts. First, machines are randomly allotted for particular state or constituency. The randomisation process is done by EVM Management Software Application. At this stage, the memory of EVM tends to be empty making it agnostic to any political party.

The second sub-stage is symbol loading process which is conducted 15 days prior to the election. At this stage, the VVPAT is loaded with details of political party. This is done on the basis of alphabetical order of candidates. Note only VVPAT is loaded with political party details and the control unit tends to be agnostic in all cases.

Stage 3: Mock Poll

After the loading process, all EVMs undergo a vote check for each candidate, including NOTA. Additionally, 5% are chosen for an extended mock poll, casting 1000 votes, with results matched against VVPATs. Candidates or their representatives can also conduct mock polls in selected EVMs.

Procedure Followed by Election Commission while conducting elections:

Step 1: On polling day, a mock poll of 50 votes is conducted by the presiding officer/polling officer on all EVMs, including VVPATs, 1.5 hours before polling starts.

Stage 2: Before voting, the presiding officer ensures no votes are recorded, EVM units bear required labels, and the VVPAT printer drop box is empty.

Stage 3: Before allowing any voter to cast their vote, the polling officer records details like electoral roll number, signature/thumb impression, voter’s name, and proof of identification on Form 17A, which must be signed by the presiding officer.

Stage 4: At the close of polling, the presiding officer should press TOTAL button before all the representatives. The presiding officer periodically cross-checks the total votes recorded in the control unit with data in Form 17A. The total votes displayed on the control unit are compared with Form 17C. C while completing the poll.

Stage 5: After Polling – After this, each EVM unit is sealed again with a differently colored paper seal, signed by candidates or their representatives. Paper seals used at different stages have unique serial numbers and security features to prevent replication. Various colors are used for seals at different stages for easy identification.

It is important to note that more than 50% of the polling booths have been installed with the CCTV camera for effective surveillance.

Procedure Followed by Election Commission after elections:

Storage of EVMs – Following the poll, polled EVM units are sealed and signed by representatives of political party with polling officer, and stored in a strong room under the supervision of candidates or their representatives. Seals are affixed to the strong room lock, guarded by armed security and CCTV surveillance. The party representatives are allowed to monitor the sealed rooms.

At the Stage of Counting: –

At the time of counting, a button “RESULT” is pressed by the officer in front of the representatives where the total number of times each button is pressed is displayed.

Further, 5% of VVPATs are randomly selected for each constituency for cross verifying the same with results declared by ballot machines. This has been made mandatory by the Apex Court’s ruling in the case of N. Chandrababu Naidu v. Union of India, (2019) 15 SCC 377.

It is also important to note that all the countings are monitored with the CCTV camera surveillance.

Directions issued by the Supreme Court in Addition to the above safeguards:

Even after dismissing the petitions, our Hon’ble Supreme Court had issued certain directions so as to create certain additional safeguards which enable the representatives to trust on the integrity of the process. The directions are:-

The symbol loading units which used to load political party details in VVPAT has to be sealed and kept along with the EVMs and they should be examined at the time of EVM’s being counted.

A request can be made by the representatives to verify Burnt Memory. Upon such request Burnt memory of 5% EVMs (per assembly) has to be examined and verified ensuring nil tampering by the engineers within 7 days of post declaration. The representatives of political party should be allowed on the day of such verification.

Rights available to the candidates:

At the time of counting: the candidate or through his agent may apply to the returning officer to count the printed paper slips in the drop box. The returning officer may either accept the request or reject the same subject to guidelines issued. (Rule 56D of the 1961 Rules)

Further, the candidates have the right to challenge the poll result by filing an election petition in High Court within 45 days from the date of election of the returned candidate. If challenge is made, the EVMs are retained in the strong room along with the seals etc. for a longer period.

Slips generated in VVPAT tend to last for approximately more than 5 years.

Precedents cited by the Hon’ble Supreme Court:

Our Hon’ble Supreme Court has cited multiple precedents. These precedents, which have been cited by our Supreme Court, tend to help our readers understand the events of cases where the Supreme Court tested the integrity of the Election Commission and EVMs. The gist of the cases is as follows for your convenient reading:

• Subramanian Swamy v. Election Commission of India, held that a paper trail was an indispensable requirement of free and fair elections. This is the case that mandated the use of VVPAT in elections.
• N. Chandrababu Naidu and Others v. Union of India and Another. This is the case that mandated verification of 5% of VVPAT slips with the EVMs per constituency.
• Nyaya Bhoomi and Another v. Election Commission of India. This is the case that dismissed the plea seeking the return of the Paper Ballot System.
• Tech for All v. Election Commission of India & Prakash Joshi v. Election Commission of India. These are cases in which the prayer of verifying 100% of VVPAT slips with EVMs was rejected.
• Sunil Ahya v. Election Commission of India, seeking an independent audit of the source code of EVMs. In this case, the Hon’ble Supreme Court rejected the plea.
• Kamal Nath v. Election Commission of India and Others. The challenge to the EVMs and the prayer for conducting VVPAT verification on a random basis for 10% of the votes were rejected.

Our Conclusion:

In our opinion, we find that this case underscored the significance of upholding the integrity of the electoral system and promoting transparency in democratic practices. It emphasized the role of all stakeholders, including citizens, the judiciary, elected representatives, and electoral machinery, in fostering trust and collaboration to strengthen democracy.

Most intriguingly, we find the Supreme Court’s enlightenment on procedural safeguards followed by the election commission. The Supreme Court had emphasized this aspect only for the purpose to ensure that the general public knows about the integrity and fair process adopted by the Election Commission while conducting the Elections.

It is necessary to understand that the Election Commission had adopted procedures which consist of multiple checks on EVMs. All these checks are made before representatives of political party. Further, the political party is provided with multiple levels of grievance redressal mechanism so as to address their issues. We also find that the EVMs used for elections are agnostic and not party known with a quality of foolproof. We further find something interesting that the Supreme Court has noted that there is not even a single case which establishes the allegations against the EVMs.

It is also necessary to appreciate the attempt of our Hon’ble Supreme Court in providing additional guidelines which we had emphasized above. This attempt had been made to ensure excess safeguards in the present mechanism and provide additional integrity towards the system.

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