Full cross-checking, mismatches, return to paper: five arguments SC rejected

IN REJECTING the petitions seeking 100% cross-verification of votes counted through Electronic Voting Machines (EVMS) with the accompanying Voter Verifiable Paper Audit Trail (VVPAT), the Supreme Court on Friday underlined the need to “exercise care and caution” when raising questions about the integrity of the electoral process.

In separate but concurring opinions given on the day of the second phase of polling in the Lok Sabha election, the Supreme Court Bench of Justices Sanjiv Khanna and Dipankar Datta reiterated the court’s confidence in EVMS and the protocols to ensure they cannot be manipulated.

What concerns did the petitioners raise, and why did the court reject them?

Full cross-verification

The Association for Democratic Reforms (ADR) argued that every voter should be able to verify that their vote has been counted properly after receiving confirmation that it has been cast. Currently, VVPAT slips are counted and matched with the EVM tally only in five randomly selected polling booths per constituency.

Justice Khanna acknowledged the voter’s right to know that their vote has been recorded and counted accurately, but said “the same cannot be equated with the right to 100% counting of VVPAT slips, or a right to physical access to the VVPAT slips”.

The voter’s rights are protected in other ways, including the seven-second display of the VVPAT slip through the glass window, which enables her to know and verify the serial number, the candidate and the symbol for whom she has voted, the court said. After seven seconds, the slip gets cut from the roll and falls into the box/ compartment attached to the VVPAT.

Justice Datta held that voters could approach the Presiding Officer in case there is a mismatch as per the Conduct of Elections Rules, 1961, which “suitably satisfies the voter’s right…to know that his/ her vote has been counted as recorded”.

Tampering with EVMS

Relying on a report by the Citizens' Commission on Elections (chaired by the former Supreme Court judge Justice Madan B Lokur), ADR argued there is a possibility of EVMS being tampered with or hacked.

Justice Khanna said this was “unfounded” — the “microcontroller” used in the EVM has a one-time programmable memory that is unalterable once “burned”. However, “to only further strengthen the integrity of the election process”, he directed that the microcontroller should be checked for tampering upon the request of the second or third highest polling candidate in an Assembly constituency.

Such a request must come within seven days of the results being declared.

Justice Khanna also directed that the Symbol Loading Units (SLUS) that are used to load candidate names and symbols to the VVPAT unit should be sealed and kept in a strong room with the EVMS for 45 days after the results are declared. Also, they are to be opened, examined, and dealt with in the same manner as EVMS.

EVM-VVPAT discrepancy

ADR submitted that the Election Commission of India had acknowledged instances of variance in the results captured by the EVM and VVPAT. It used the example of a polling station in the Mydukur Assembly seat in Andhra Pradesh during elections in 2019, where the EVM counted 14 more votes than what was recorded by the VVPAT — which the Returning Officer subsequently clarified was because a mock poll conducted earlier had not been cleared.

Justice Khanna provided data on the performance of EVMS and held that aside from that one case in Mydukur, there was not a single case of mismatch or defect in the recording of votes in any EVM that was checked. The same was true in the 26 cases of voter complaints about mismatches, he said.

Giving VVPAT slip to voter

The petitioners said that since the voter can only see the VVPAT slip for seven seconds, there is scope for manipulation of results by maliciously programming the machine to not cut the slip — thus preventing it from being counted. Instead, they said, the slip should be given to the voter who would put it in the ballot box.

Justice Khanna said that the tinted glass above the VVPAT slip is meant to maintain secrecy, and that the voter does have a clear view of the slip for seven seconds. The glass window prevents damage and attempts to deface the VVPAT slip, even as it allows the voter to see essential information about the vote she has cast.

The court also held that giving voters physical access to the slips would lead to misuse, malpractices, and disputes.

Return to paper ballots

During the hearings, ADR suggested (and later withdrew the suggestion) that India should return to a paper ballot system, citing the example of countries like Germany which had moved back to paper. It also suggested putting barcodes on VVPAT slips so that counting machines can be used, and delays in counting can be minimised.

Justice Khanna said turning the clock back to paper ballots would undo the advantages that EVMS offer, such as eliminating booth capturing and invalid votes, providing administrative convenience, and reducing paper usage.

He did not comment on barcodes, holding that they were a technical aspect for the ECI to examine.

JUSTICE SANJIV KHANNA

The credibility of the ECI and integrity of the electoral process earned over years cannot be chaffed and over-ridden by baroque contemplations and speculations. DIPANKAR DATTA

EVMS have stood the test of time and the increased voting percentage is sufficient reason for us to hold that the voters have reposed faith in the current system.