Judgement Reserved on Total Verification of VVPAT Slips, but SC Satisfied on ECI Clarifications

Manas Dasgupta

NEW DELHI, Apr 24: The Supreme Court on Wednesday reserved its judgement on the petitions seeking thorough cross-verification of votes cast on Electronic Voting Machines (EVM) with paper slips generated through the Voter Verifiable Paper Audit Trail (VVPAT) system, but appeared relatively satisfied with Election Commission of India’s assertion that the EVMs “cannot be manipulated at any stage.”

The Supreme Court called the microcontrollers separately programmed by manufacturers in EVMs and VVPATs “agnostic” for they do not recognise political parties or candidates but only the buttons pressed by the voters.

The bench of Justice Sanjiv Khanna and Justice Dipankar Datta questioned if it can act on mere suspicion and said it was not the controlling authority for elections and cannot dictate the functioning of Election Commission, a constitutional authority.

Responding to concerns raised by Advocate Prashant Bhushan, appearing for petitioner Association for Democratic Reforms (ADR), the court said, “If you are predisposed about a thought-process, then we cannot help you… we are not here to change your thought process.”

Amid the Opposition’s apprehensions regarding the EVM voting system, the petitions seek a direction to cross-verify every vote cast on EVMs with the paper slips generated by the VVPAT system. Currently, this cross-verification is done for five randomly selected EVMs in every Assembly constituency. The court recorded the submission made by the Election Commission of India (ECI) that symbols, and not software, were stored in the flash memories of the units.

“Microcontrollers in the control units [of EVMs] are agnostic. They do not recognise party or candidate names. What they recognise is the buttons pressed on the ballot units,” Justice Sanjiv Khanna said, referring to the ECI’s submissions. Justice Khanna said the buttons on the ballot units were interchangeable.

“A party which got button 1 in a constituency would get button 6 in another constituency. The programming of the units are done at the manufacturer stage. Manufacturer would not know which party would get what button,” Justice Khanna surmised.

The case dealt with petitions claiming that the EVM system was opaque and prone to rigging. The Bench of Justices Khanna and Dipankar Datta had reserved the case for judgment on April 18, but convened again on Wednesday, in an unusual move, with more questions for the top poll body even as the second phase of elections are going to be held on Friday.

The morning session saw the Bench read out in open court the specific queries it had for the ECI concerning the security and functional aspects of EVMs and VVPATs. Post-lunch break, Deputy Election Commissioner Nitesh Kumar Vyas appeared in person to respond to the court’s questions, which were exactly five in number.

Mr Vyas, on the first query as to where exactly the microcontrollers were situated, said all three units comprising an EVM — ballot units, control units, and VVPATs — had their own microprocessors.

To the second question about whether the microcontrollers were reprogrammable, the ECI official said they were “one-time programmable” at the time of manufacturing. The microprocessors could neither be changed nor physically accessed, he said.

However, advocates Prashant Bhushan, Cheryl D’Souza and Neha Rathi, for the petitioner Association for Democratic Reforms, said the ECI’s claim that the microprocessors were not reprogrammable was “in doubt.” The “flash memory” of these processors could be reprogrammed, Mr Bhushan argued.

He said malicious software could be uploaded along with symbols. “When a vote is cast, the signal travels from the ballot unit to the VVPAT to the control unit. If the VVPAT has malicious software…” he pointed out.

Justice Datta intervened to note that there had not been a single instance to back this claim. “Even if there is, the law provides for that. We cannot be the controlling authority of another constitutional authority (the ECI),” Justice Datta said.

Senior advocate Santosh Paul, on the petitioner’s side, urged the court to direct the ECI to try out some anti-rigging software available in India. “Can we issue a mandamus on suspicion?” Justice Datta reacted.

Mr Vyas, responding to the court’s third query about Symbol Loading Units, said the Electronics Corporation of India Limited and Bharat Electronics Limited had manufactured 1,904 and 3,154 units so far, respectively. More could be produced roughly in a month.

On a query regarding the storage of EVM-VVPATs, he said the machines were sealed and kept in strong rooms for a statutory period of 45 days after the counting of votes. The strong rooms were opened after 45 days on receiving a written confirmation from the High Courts concerned that there were no election petitions contesting the results.

The last question from the court was whether VVPATs, ballot units, and control units were stored together. Mr Vyas said the units remained separate until they were commissioned to constituencies. Pairing was done after the commissioning, he explained. After polling, the Presiding Officer sealed the units and stored the EVM-VVPATs together in a strong room after getting the signatures of all the witnesses to the procedure, the senior official explained.

In the earlier hearings, the petitioners raised the issue of public trust and drew comparisons with European countries that have gone back to the ballot voting system. The court shot down such comparisons, observing that the challenges here are different. The Election Commission, on its part, stressed that the current system was foolproof.

An EVM has a control unit and a balloting unit. These are connected by a cable. These are also connected with a VVPAT machine which enables a voter to see if the vote was cast properly and went to the candidate he/she voted for.

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The court said it has to trust the poll body’s technical report. “They are saying quantum of flash memory is very low. They can store 1024 symbols, not software. They say that as far as microcontrollers in the CU (control unit) is concerned, it is agnostic. It does not recognise the party or symbol, it knows the buttons,” Justice Khanna said.