New Delhi: Voters have a fundamental right to know their votes have been accurately recorded and counted, but that is not equatable with the right to 100 percent counting of Voter Verifiable Paper Audit Trail (VVPAT) slips or physical access to these slips, the Supreme Court said Friday.
With these observations, the apex court rejected a batch of petitions, including one by non-profit Association for Democratic Rights (ADR), seeking to direct physical counting of VVPAT slips, over and above the counting of votes cast through electronic voting machines (EVMs). The petitioners had raised suspicions of possible EVM manipulation.
A bench of justices Sanjiv Khanna and Dipankar Datta, however, said that while “simple, secure and user-friendly” EVMs check and ensure “righteousness and integrity” of elections, the “VVPAT system fortifies the principle of vote verifiability, thereby enhancing the overall accountability of the electoral process”.
The bench also allowed candidates placed second or third in the election results to get five percent of the EVMs cross-checked by a team of engineers from the company manufacturing the machines by filing a written request and paying an amount to be notified by the Election Commission (EC). There will be a refund if the team finds tampering or manipulation of the EVM.
“All the candidates and their representatives shall have an option to remain present at the time of verification. Such a request should be made within a period of seven days from the date of declaration of the result,” the court said.
The bench also declined the petitioners’ request to print and give voters the VVPAT slips for physical cross-checking of their votes or count ballot papers. Moreover, the bench refused to allow any voter to liberally, as a routine, seek verification of the franchise exercised.
Under the existing rules, voters can complain if they doubt the VVPAT slip did not depict the correct candidate or political party they voted for. The voting process stops whenever a voter raises such a challenge. But if it becomes a routine, it would hinder the election process and dissuade others from casting their votes, the bench held.
According to the court, the idea behind the plea for 100 percent counting of VVPAT slips was to secure the right to confirm the correct recording of the franchise exercised by voters, which, it said, could be done by adopting several other measures.
After conducting an in-detail review of the administrative and technical safeguards of the EVM, the bench concluded that giving voters physical access to VVPAT slips is “problematic and impractical” and will “lead to misuse, malpractices and disputes”.
The bench also rejected as “foible” and “unsound” the petitioners’ submission to return to what it called a “weak” ballot paper system. “..we would be undoing the electoral reforms by directing reintroduction of ballot papers,” it said.
Given that EVMs have restricted the vote-casting rate to four votes per minute, digitisation of the electoral process has not just eliminated booth capturing but invalid votes, the bench said.
Even though the bench did not “doubt” the role of EVMs, it issued guidelines to further “strengthen the integrity of the election process” in this election cycle, giving directions that require the symbol loading units in the VVPATs to be sealed and secured in a container immediately after the symbol loading process is complete. The candidates or their representatives have to sign the seal.
“The sealed containers containing the symbol loading units shall be kept in the strong room, along with the EVMs, at least for a period of 45 days, post the declaration of results. They shall be opened, examined and dealt with, as in the case of EVMs,” the court said.
The burnt memory or microcontroller in five percent of the EVMs shall be checked for tampering or modification by the engineers from the side of the manufacturers if losing candidates make such a request, identifying the EVMs either by the polling station or serial number.
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Challenges against EVM ‘unfounded’
The court arrived at its judgment based on the legislative and judicial history that led to the introduction of EVMs and VVPATs. It considered previous Supreme Court verdicts, which have rejected similar demands by individual petitioners in the past.
“Repeated and persistent doubts and despair even without supporting evidence can have the contrarian impact of creating distrust” and “reduce citizen participation and confidence in elections, essential for a healthy and robust democracy”, the court said, terming the challenges raised against EVMs as “unfounded”.
While acknowledging voters’ right to question the working of EVMs, the court cautioned against “raising aspersions” on the integrity of the electoral process, emphasising that one should exercise care while disputing the EVMs’ functioning.
The EVMs, the bench said, have been subjected to tests by technical experts committees from time to time. These committees have approved and did not find any fault with the EVMs.
The current designs of EVMs have been designed by the engineers of Bharat Heavy Electricals Limited (BHEL) and Electronics Corporation of India Limited (ECIL) and vetted by a committee of technical experts.
As for the VVPATs, the court said, they were introduced to guarantee “utmost transparency and integrity” in the electoral system and to “safeguard the right of the voters to know that the vote has been recorded in the EVM”.
The court noted that the voters could see the VVPAT slip through the glass window. The VVPAT glass window also illuminates and displays the name, serial number, and symbol of the candidate who received the vote for seven seconds, the court further noted.
Unauthorised interaction of EVMs ruled out
SC’s 56-page judgment captured the elaborate process that puts the EVMs into operation. It also looked at the technical aspects of the machine, which, the court opined, was not connected to any other third-party machine or input source.
In case of any unauthorised attempt to access the microcontroller or memory of the EVM, the Unauthorised Access Detection Mechanism (UADM) disables it permanently, the court said. It added that the advanced encryption techniques and mutual authentication or reception capability of EVMs ruled out unauthorised interaction.
The court also noted the mock test on EVMs days before their sealing for polling day. Representatives of recognised political parties are present during this mock poll.
All the verified EVMs, the court said, undergo a two-stage randomisation process later by the EVM management system software application, without any human intervention. Through this, EVMs get allocated state-wise and to assembly constituencies, and even the manufacturers remain unaware of this process, carried out in the presence of political parties’ representatives and central observers deputed by the EC.
However, till this stage, details of candidates are not entered into the flash memory of the EVM. Those details are only loaded 10 to 15 days before the polling date by using the symbol loading unit, once again in the presence of candidates or their representatives. The installation of the monitor to display the symbol loading process follows. Then, there is the allocation of a specific button or key on the ballot unit to each candidate, done alphabetically.
The court enlisted eight benefits of the EVM-VVPAT mechanism and observed that the EVMs do not have any ports, so a person cannot access the burnt memory of the digital device.
“Other checks and protocols ensure and ascertain the legitimacy and integrity of the EVMs and the election process,” the court said.
5 EVMs in every constituency get physically verified
The court further looked into the practice of picking out five EVMs per assembly segment in a parliamentary constituency to carry out physical verification of the votes recorded in these machines. A team of three officers undertakes this work under CCTV coverage and the direct supervision of their supervising officer, the EC observer in the constituency, candidates, and their representatives.
Ascertaining this physical exercise is a time-consuming process, the court said it was not inclined to direct the EC to increase the number of VVPAT slips cross-checked. Such a direction would increase the time for counting and delay the declaration of results, apart from warranting more manpower.
Moreover, the court said, “manual counting is prone to human errors and may lead to deliberate mischief”.
“Manual intervention in counting can also create multiple charges of manipulation of results. Further, the data and the results do not indicate any need to increase the number of VVPAT units subjected to manual counting,” the court held.
The court recounted the “weaknesses” of the ballot paper system as documented and well-known and added that there had been only 26 cases involving EVMs, with mismatches or defects found in none.
“To us, it is apparent that a number of safeguards and protocols with stringent checks have been put in place. Data and figures do not indicate artifice and deceit. Reprogramming by flashing (one of the allegations made by the petitioner), even if we assume is remotely possible, is inhibited by the strict control and checks put in place and noticed above,” the court said.
The credibility of the EC and the integrity of the electoral process cannot be chaffed and overridden by “baroque contemplations and speculations” and “imaginations”, added the court.
During the hearing, the petitioners suggested employing a counting machine instead of physically counting the VVPAT slips. The court asked the ECI to look into this suggestion and another on barcoding the symbols loaded in the VVPATs, which could be helpful in machine counting. “These are technical aspects, which will require evaluation and study, and hence, we would refrain from making any comment either way,” the court said.
(Edited by Madhurita Goswami)
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