Manas Dasgupta
NEW DELHI, Apr 16: Even though the hearing in the case is still incomplete, the Supreme Court on Tuesday gave a clear indication that it was not well disposed towards going back to the ballot paper system to replace the Electronic Voting Machines (EVMs) for polling during the elections and asked the petitioners “not to run down the system.”
Hearing petitions seeking 100 per cent verification of the votes cast on EVMs with paper slips generated through the Voter Verifiable Paper Audit Trail (VVPAT) system, a bench of Justices Sanjiv Khanna and Dipankar Datta pointed to problems with the secret ballot voting method.
“We are in our 60s. We all know what happened when there were ballot papers, you may have, but we have not forgotten,” Justice Sanjiv Khanna told Prashant Bhushan, counsel for one of the petitioners, Association for Democratic Reforms. Mr Bhushan was arguing how most European countries that had opted for voting through EVMs have returned to the paper ballots.
“We can go back to paper ballots. Another option is to give VVPAT slip to the voters in hand. Otherwise, the slips fall into the machine and the slip can be then given to the voter and it can be put into the ballot box. Then the VVPAT design was changed, it had to be transparent glass, but it was changed to dark opaque mirror glass where it is only visible when the light is on for second seconds,” he said. The arguments will continue on April 18.
The Supreme Court also questioned arguments over the sanctity of voting through EVMs and told petitioners, who sought to rely on poll data to claim that the majority of voters don’t trust the devices, that private figures cannot be the basis to distrust EVMs.
The bench asked Advocate Prashant Bhushan, who made the submission, about the source of the data. When Bhushan replied that it was a poll conducted by the Centre for the Study of Developing Societies (CSDS), Justice Datta said, “Poll! Let’s not believe in these private polls.”
Justice Khanna said, “This type of argument may not be acceptable because there is no data about that. A private poll will not be able to. It’s possible somebody else will take out a poll to the contrary. Let’s not go into all that.”
To a query about alternate solutions he was suggesting, Bhushan said one of the ways was to go back to the ballot paper. “Earlier there used to be ballot papers. There can be ballot papers. Most European countries have gone back to back to ballot papers.”
When Mr Bhushan cited Germany’s example, Justice Dipankar Datta asked what’s Germany’s population. Mr Bhushan replied that it is around 6 crore, while India has 50-60 crore voters.
“Ninety-seven crore is the total number of registered voters. We all know what happened when there were ballot papers,” Justice Khanna said. When Senior Advocate Sanjay Hegde, counsel for one of the petitioners, said votes cast on EVMs should be tallied with VVPAT slips, Justice Khanna replied, “Yes, 60 crore VVPAT slips should be counted. Right?”
The judge said human interventions “lead to problems and human weakness can be there, which includes biases as well.” “Machine normally without human intervention will give you accurate results. Yes, the problem arises when there is human intervention or (a human) makes unauthorised changes when they are around the software or machine, if you have any suggestion to avert this, then you can give us that,” he said.
Mr Bhushan then read out a research paper on the possibility of EVMs being tampered. “They are only counting 5 VVPAT machines per assembly when there are 200 such machines, this is five per cent only and there can be no justification in this. The seven-second light can also lead to manipulation. The voter can be allowed to take the VVPAT slip and put it into the ballot box,” he said.
Senior Advocate Gopal Sankaranarayan, appearing for one of the petitioners, said, “I adopt everything that Mr Bhushan says. We are not saying that there is any malice. Only issue is that of the confidence of the voter in the vote he has cast.”
The court then asked the Election Commission of India about the process of voting, the storage of EVMs and counting of votes. Justice Khanna noted that there is no provision for strict punishment for tampering with EVMs. “This is serious. There should be fear of punishment,” he said.
Mr Sankaranarayan said voters need physical interface and verification. “Allow me to pick up the slip and put it in the box,” he said. The court responded that even if 10 per cent of voters raise objections, the whole process will stop. “Is this rational?” it asked. Mr Sankaranarayan replied, “Yes it must, I am entitled to ask. I am a voter, what do I gain by deliberately stopping the process?”
Justice Dipankar Datta asked the petitioners’ counsel not to compare the Indian election with voting in foreign countries. “My home state West Bengal’s population is more than that of Germany. We need to trust someone. Don’t try to bring down the system like this. Don’t cite such examples. European examples don’t work here,” he said. When a counsel for the petitioners said public sector companies were making EVMs, the court asked if he will be happy if the private sector does it.
The petitions have been filed by the Association for Democratic Reforms (ADR) and activist Arun Kumar Agarwal. Mr Agarwal has sought the counting of all VVPAT slips. The ADR’s petition seeks the court’s direction to the Election Commission and the Centre to ensure that voters are able to verify through VVPATs that their vote has been “counted as recorded.” The petition says that the requirement of voters verifying that their votes have been “recorded as cast” is somewhat met when the VVPAT slip is displayed for about seven seconds after pressing the button on the EVM through a transparent window.
“However, there is a complete vacuum in law as the ECI has provided no procedure for the voter to verify that her vote has been ‘counted as recorded’ which is an indispensable part of voter verifiability. The failure of the ECI to provide for the same is in the teeth of purport and object of the directions issued by this Court in… Subramanian Swamy versus Election Commission of India (2013 verdict),” the plea said.
Justice Khanna referred to what had been happening before the EVMs were introduced. Bhushan wondered if it was booth capturing that the judge was referring to. To this, Justice Khanna said, “Forget about booth capturing. What happens when ballot papers are…anyway. Let’s not enter into a debate.”
The bench also told an intervenor who said the EVMs are manufactured by a Public Sector Undertaking and the technical person employed by the PSU is not accountable. “If it is done by the private sector, will you be happy? You will be happy with the private sector manufacturing the machines… If the private sector was manufacturing, you would have come here and said it should not be manufactured by the private sector.”
The court said “As far as when we have to examine whether the EVMs are functioning properly, we will have to go by the data. With regard to what is the total number of votes polled in a particular year on year together and whether they have tallied it with the total number of votes counted later on, in how many cases discrepancies were there? How many cases in which the candidates’ request for counting of the paper slips were ultimately done? How many discrepancies were found in that? That will give us the true picture of whether the EVMs are being manipulated or the chances of manipulation or not. That data they will provide. We will ask them for that data.”
