WHY STOP SYSTEM THAT IS WORKING WELL: SUPREME COURT ON EVMS

The Supreme Court on Thursday refrained from casting doubts on the efficacy of Electronic Voting Machines (EVMs) and its integration with the Voter Verified Paper Audit Trails (VVPATs), saying “the system is working well” and that “over-suspicion” alone cannot lead to its condemnation.

At the same time, the court emphasised the need for greater disclosure from the Election Commission of India (ECI) regarding the functioning of EVMs to allay the apprehensions of voters, pointing out that the sanctity of the electoral process ought to be retained.

A bench of justices Sanjiv Khanna and Dipankar Datta reserved its judgment on Thursday after a careful consideration of explanations provided by ECI in response to a bundle of petitions demanding 100% cross-verification of votes cast on EVMs with VVPATs, just one day before the first phase of the 2024 Lok Sabha elections.

During the hearing of the case, the bench also found it improper to compare EVMs with any other system prevailing in a foreign country, as some of the petitioners cited Bangladesh and Germany resorting to a different method of voting.

“Don’t say other countries have better systems than ours. We have our own system. It’s working well. It’s doing well...why should we disband it? Earlier, we saw the problems with the ballot system. Every year the percentage of voting has gone up...from 60-66% is indicative of the faith that voters has in the system,” the court remarked.

The bench heard senior counsel Maninder Singh, who represented ECI, and Nitesh Vyas, a senior deputy election commissioner, about the technical specifications, testing processes and security measures associated with EVMs, in response to the petitioners’ apprehensions of tampering and hacking of the system.

The court also sought to know about the factual authenticity of some media reports that four electronic voting devices mistakenly recorded votes for the Bharatiya Janata Party (BJP) during mock elections in Kerala earlier this week.

Terming the media reports about the Kerala mock polls “false” and “inaccurate”, ECI shot down all apprehensions regarding possible tampering of EVMs and underlined that these machines, consisting of three separate and inviolable units, are tested at several stages before they are commissioned.

It said that a mismatch between the votes cast and VVPATs happened only at a single instance when the data of a mock run was not removed, claiming that there was no other instance of mismatch reported by a candidate or agent in any election so far.

Vyas outlined the safeguards and protocols implemented at every stage of the electoral process, from manufacturing and testing to deployment and tallying. Highlighting the robustness of EVMs against tampering or manipulation, the officer provided assurance that the machines undergo rigorous testing and adhere to stringent security standards before and during elections.

His presentation also addressed specific concerns raised by the court regarding potential discrepancies or mismatches in voter data. Vyas underscored the fail-safe mechanisms built into EVMs and VVPATs, ensuring accurate recording and tallying of votes cast by citizens.

While the bench lauded Vyas’s presentation, it also told him that several pieces of information about EVMs and the process were perhaps being made known for the first time.

“There seems to be some disconnect between what you have told us and what is there in the public domain. That gap needs to be bridged. I or my brother didn’t know how you maintain the integrity of the system and voters’ trust is kept intact,” it told the officer, who agreed that ECI can improve upon the FAQ available on its website to disseminate more information.

The petitions, which have generated political and public interest, call for a stronger system to guarantee the integrity of electronic voting via the VVPAT system. This system provides a paper slip confirmation, viewed by the voter through a transparent window, which then goes into a sealed cover, available for verification in case of disputes.

Currently, the verification process involves checking VVPAT slips from five randomly selected EVMs in each assembly constituency or segment. However, the petitions, filed by the Association for Democratic Reforms (ADR) and activist Arun Kumar Agarwal, sought a more comprehensive approach. Agarwal advocated for the counting of all VVPAT slips to ensure transparency, while the ADR’s petition focussed on enabling voters to confirm that their votes are counted as they were cast.

The petitions further challenged the August 2023 ECI guidelines, which only allow for sequential verification of VVPAT slips and purportedly cause an excessive delay in the counting of all VVPAT slips, besides permitting voters to physically deposit their VVPAT slip in a ballot box and by making the machine’s glass transparent.

Defending the polling body, Singh sought dismissal of the petitions with penalty, arguing that similar pleas were not only turned down by the Supreme Court in previous proceedings but also because the petitions have put forth misplaced apprehensions without any basis in their bid to dent the credibility of the electoral process.

The bench responded: “What we want you to do is to allay the apprehensions of everyone, those who are in the court and also those who are outside. It’s an electoral process and there has to be some sanctity. Let nobody have apprehension that something which is expected is not being done.”

Agreeing with the bench, Singh addressed issues of possible inconsistencies or mismatches in voter data that the petitioners had brought up, stressing that the court must support ECI by reposing its confidence in the voting process. “It (EVMs) appears to be full proof...”, observed the bench.

The bench appreciated the efforts of ECI in proactively addressing concerns surrounding EVMs while adding that by making such information available to the public, the polling body could alleviate concerns and bolster confidence in the electoral process. “There should have been better communication...information should have been made available,” it added.

At one point of the hearing, solicitor general Tushar Mehta came in, lamenting that the challenge to EVMs happen periodically and particularly on the eve of the elections. “It has an impact on the voting numbers. People may wonder why go and vote if something could be wrong with the machines. They are turning the choice of a voter into a joke. I told my office to keep a watch for planted articles in the media too,” said the law officer, raising doubts over the bonafide of the petitions.

To this, the court said that some of the petitions were filed as early as last year. “Some responsibility lies with us also because we could not hear it before. It’s not that all petitions were filed on the eve of the polls,” it told the S-G.

Advocate Prashant Bhushan and senior counsel Gopal Sankaranarayanan, appearing for ADR and Agarwal respectively, raised threats of hacking the EVMs and added that VVPATs must be tallied with EVM votes to boost the voter’s confidence in the system.

But the bench replied: “Everything cannot be suspected. You cannot be over-suspicious...Every time you can’t be critical of everything. If they have done something, you should also appreciate it. As long as they are doing it within the four corners of law, they are right in doing that...After all, voters have to be satisfied with the explanation given by the ECI. The evidence act also says that official acts are normally presumed to be done validly.”

Senior counsel Sanjay Hegde, appearing for one of the petitioners, submitted that ECI should not consider the Supreme Court’s April 2019 order that the number of EVMs subjected to VVPAT verification be increased from one EVM per assembly segment to five EVMs as the final word in the matter. He contended that ECI should continue to improve the system and make it full proof.

The integration of VVPAT with EVMs gained legal prominence following a petition by BJP leader Subramanian Swamy after the 2009 general elections. Swamy advocated for a paper trail to augment the reliability of electronic voting, arguing that it would ensure that each vote cast on an EVM is accurately recorded. Although initially dismissed by the Delhi high court, the plea found favour in the Supreme Court, which, in its landmark 2013 judgment, declared the VVPAT system an “indispensable requirement” for free and fair elections.

The top court’s assertion stemmed from a fundamental view of voting not only as a right but as a profound act of expression within a democratic framework. It underscored that the confidence of voters in the EVM system could only be achieved by introducing a transparent method that allows voters to verify that their votes were cast as intended.

Following this, ECI was directed to implement VVPAT systems across electoral processes to complement EVMs. This system enables the generation of a paper slip for each vote cast, which is displayed to the voter behind a transparent window for seven seconds before being securely stored. This mechanism allows for a physical audit trail of votes cast electronically, serving as a safeguard against potential discrepancies in the electronic tally.

Initially, ECI conducted a mandatory verification of VVPAT paper slips for one randomly selected polling station per assembly segment in a constituency. In April 2019, the top court ordered that the number of EVMs subjected to VVPAT verification be increased from one EVM per assembly segment to five EVMs. The direction came following a petition filed jointly by 21 Opposition parties, seeking a review of at least 50% of VVPAT slips with the EVMs to ensure the integrity of the elections. The parties went back to the Supreme Court in May 2019 asking for counting of at least 25% per cent EVM paper trail machines instead of only five in every assembly segment but the court turned down their plea.

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2024-04-18T20:36:02Z dg43tfdfdgfd