Verification of VVPAT slips: Top court says source code of EVMS cannot be disclosed

STATING THAT no candidate has yet pointed to a mismatch between the votes polled on Electronic Voting Machines ( EVMS) and the slips printed by the Voter Verifiable Paper Audit Trail ( VVPAT) machine, the Supreme Court Wednesday reserved its order on a bunch of petitions seeking 100 per cent verification of votes with the slips, saying it cannot issue directions on the basis of mere suspicion.

A two- judge bench of Justices Sanjiv Khanna and Dipankar Datta also said “we cannot control elections” and “we are not the controlling authority of another constitutional authority”.

The bench reiterated that the source code of the EVMS should not be disclosed as the Election Commission of India ( ECI) informed it that the micro- controllers installed in the machines are one- time programmable and cannot be changed. “It should not be disclosed. It will be misused. It should never be disclosed. It will become a problem,” Justice Khanna said.

This is the second time that the SC has opined against making the EVM source code public.

Refusing to entertain a plea which raised a similar prayer, Chief Justice of India D Y Chandrachud presiding over a three- judge bench had in September last year said that “it shouldn’t be in the public domain, because the moment you place it in the public domain, there is a danger that that will itself be subject to misuse”.

Answering the bench’s query on the microcontroller of the machines on Wednesday, an ECI official explained that all three units in an EVM — a Ballot Unit, Control Unit and VVPAT — have their own microcontrollers housed in secure unauthorised access- detection modules.

The official informed the court that the EVMS/ VVPATS are stored for a period of 45 days after polling as the limitation period for filing election petitions under The Representation of People Act, 1981. “Upon expiry of the period, the Chief Electoral Officer writes to High Courts to ascertain if there are any election petitions filed for any constituency… It ( concerned EVM) remains sealed and locked, nobody touches it” if any election petition is filed.

Regarding their storage, he said that the Control Unit is the most important and is sealed with a pink seal at the time of first- level checking. “At the time of commissioning of EVMS and after the polling is over, all three units are sealed. After second randomisation and commissioning, all three are stored together in the strong room as a unit. After polling, a green paper seal is applied”.

Advocate Prashant Bhushan appearing for petitioner NGO Association for Democratic Reforms raised doubts on the contention that the microcontroller has a one- time programmable memory and said they also have a re- programmable flash memory and a malicious programme can be introduced into it. Justice Khanna, however, pointed out that the ECI itself had said that the flash memory is loaded with only symbols and that the microcontroller in the Control Unit is agnostic.

“What they are saying is that flash memory is certainly re- programmable. The flash memory is very small. It can store 1,024 symbols. Those are symbols, not software. As far as the microcontroller in the Control Unit is concerned, it is agnostic and does not recognise party or candidate names. It only recognises the button which is pressed on the Ballot Unit... Programming of the three units is done at the manufacturing stage. Manufacturer at that time doesn't know which party is going to be allotted which button,” the judge observed.

Justice Datta said that a report which the petitioner NGO was relying on to raise doubts on the working of EVMS itself “says that till date there has been no incident of hacking identified. If there is some incident, law provides what is to be done”. He added that no candidate has shown any mismatch so far, and “we cannot control the election... we are not the controlling authority of another constitutional authority”.

To another argument about the likelihood of a malicious programme being used, Justice Datta asked, “can we issue mandamus on the basis of suspicion?”.

Justice Khanna added that the report relied upon by the petitioners itself “uses the word doubtful. Because they themselves are not 100 per cent sure. We called for the data. They gave us the data. The data is before you, each and every candidate or his representative, when he is present in the polling station... knows where, what is happening... Each and every political party have their own think tanks, they have their technical experts. Yes, if there is something we can improve, we will certainly improve, If there is nothing, we will put it to them also, if they can improve some…”

He pointed out that “courts have intervened twice. One when we said VVPAT should be made mandatory and second when it was increased from 1 to 5. Now the response sometimes we get is go back to the ballot system”.