Manas Dasgupta
NEW DELHI, Apr 26: The present voting system on Friday received a big thumbs up from the Supreme Court which upheld the Electronic Voting Machine (EVM) system of polling and refused a plea to revive paper ballots, saying “blind distrust” of an institution or a system breeds unwarranted scepticism and impedes progress.
A Bench of Justices Sanjiv Khanna and Dipankar Datta in a significant judgment which coincided with the second phase of the general elections to the Lok Sabha, also refused petitioners’ suggestion to hand over paper slips from Voter Verifiable Paper Audit Trail (VVPAT) units to electors to take a leisurely look before inserting them into the ballot boxes.
“We have discussed, elaborately, all protocols and technical aspects (and) we reject all pleas. Blindly distrusting a system can lead to unwarranted suspicions,” the Bench said while also rejecting a plea to return to paper ballots. The two-judge bench of Justices Khanna and Datta delivered concurrent but separate judgments.
“There are three pleas taken — that we should return to the paper ballot system, that the printed slips on the VVPAT machine should be given to voters to verify and put in the ballot box for counting, and there should be 100% counting of VVPAT slips in addition to electronic counting…We have rejected all of them after referring to the protocol in place, technical aspects and data which is on record,” the Bench said.
EVMs were first used in 1982 in the Assembly constituency of Paravur in Kerala in 50 out of 123 booths.
The court refused to intervene against Section 49 MA of the Conduct of Election Rules, which penalises a voter whose complaint of mismatch (of votes cast and votes counted) would attract penal proceedings initiated by poll officials under Section 177 of the Indian Penal Code for submitting false information.
The Bench further declined petitioners’, NGO Association for Democratic Reforms and Arun Kumar Agarwal, argument to direct the cross-verification of 100% EVMs and VVPATs across the country. Currently, only five percent of EVM-VVPAT counts are randomly verified in any given Assembly constituency. Earlier it had been one percent, until the top court had intervened.
The apex court, however, did order certain specific changes to be made. For the voter, the SC judgment has brought in absolutely no change. Voting will continue to take place using EVMs, with 100% of the machines attached to a VVPAT unit.
Moreover, as per the existing provisions, VVPAT slips of five randomly selected Assembly constituencies or segments would be counted to verify with the count of the EVMs. The petitioner, the Association for Democratic Reforms, had sought 100% counting of VVPAT slips.
While not much has changed for the Election Commission (EC) in terms of how it organises polling, the apex court directed the EC to adopt some new procedures post-polls.
In a first, the court gave directions to the EC to seal and store the symbol loading units (SLUs) for 45 days after declaration of results. SLUs are memory units that are first connected to a computer to load election symbols onto it, and then used to enter symbols of the candidates on the VVPAT machines.
Specifically, the court said “on completion of symbol loading process in EVM, undertaken on or after June 1 (the final phase of polling), the SLU should be sealed and secured…” The SLU storage containers must be sealed and the seal is to be signed by candidates.
“The sealed containers containing the SLUs shall be kept in storerooms, with the EVMs, (for) at least for 45 days post declaration of results,” the court explained.
The Court also said the burnt memory in the EVM microcontroller EVM must be checked by a team of engineers – after results are declared – if candidates make such a request. This request – which can be made by candidates placing second and third in the election – must be made within seven days of declaration of results, the court said.
The expenses for this verification will have to be borne by the candidate, the court also said. The cost will, however, be refunded if the EVM is found to have been tampered with. The Supreme Court also suggested the Election Commission explore the possibility of using a machine to count VVPAT slips instead of by humans. Currently, VVPAT slips of five randomly selected EVMs in every Assembly segment are verified.
According to EC sources, one to two SLUs are used to load symbols onto VVPATs per Assembly constituency. These will now be stored for 45 days in case there are any election petitions regarding them, sources said.
According to the judgment, candidates or representatives can identify EVMs by the polling station or serial number. The request for verification has to be made within seven days of the declaration of results, and candidates will have to bear the expenses, which would be refunded in case the EVM is found to be tampered with, the court said.
VVPAT slips could have a barcode printed on them, making it easier for machine counting, it was suggested during the hearing. The court said since this was a technical aspect that would require evaluation, it had refrained from commenting either way.
During the hearings, the poll panel explained that there is a 4MB flash memory in each VVPAT machine which stores the party symbols. This unit, or the SLU, will be kept in locked storerooms with the EVMs, the court said.
An EVM has two units – the control unit and the voting unit. These are linked by a cable. The control unit is with the polling officer while the voting unit is kept where people cast their votes and is usually covered on all sides for privacy.
Each major component of the EVM has its own microchip. Each microchip is a one-time programmable, or masked, chip, which cannot be overwritten, meaning the preloaded software cannot be reprogrammed in a particular manner.
Also, all EVMs are stand-alone machines that are not remotely via any network, and are not connected to any external devices. There is also no operating system, or OS, and, therefore, “absolutely no chance of programming EVMs to select a particular candidate or party.”
The bunch of petitions before the court had sought a direction to cross-verify every vote cast on EVMs with paper slips generated by the VVPAT system. The court earlier said it was not the controlling authority for elections and could not dictate the functioning of the poll body, a constitutional authority. It had also wondered if it can act on mere suspicion.
Responding to concerns raised by Advocate Prashant Bhushan, appearing for petitioner Association for Democratic Reforms, the court said in the last hearing, “If you are predisposed about a thought-process, then we cannot help you… we are not here to change your thought process.
“While balanced perspective is important, blindly doubting a system can breed scepticism and thus, meaningful criticism is needed, be it judiciary, legislature etc. Democracy is all about maintaining harmony and trust among all the pillars. By nurturing a culture of trust and collaboration, we can strengthen the voice of our democracy,” Justice Datta said in the judgment. He added that the court’s approach in this matter has been guided by evidence.
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 in India were different. The Election Commission, on its part, stressed that the current system was foolproof.
