SC Seeks Election Commission's Reply In Petition For VVPAT Use In Upcoming Gujarat Polls [Read Petition]

In yet another plea involving the issue of electronic voting machine (EVM), the Supreme Court has sought response from the Election Commission on a PIL seeking to conduct the upcoming Gujarat assembly election through voter-verified paper audit trail (VVPT) machine.

The Chief Justice of India JS Khehar-led bench asked the Election Commission to file an affidavit as to how much VVPAT machines for EVMs it has purchased.

Appearing for petitioner Reshma Bithalbhai Patel, senior advocate Kapil Sibal submitted that to conduct the Gujarat assembly election through VVPAT, 71,000 machines were required.

The Election Commission has submitted before the court that at present, it had 81,000 VVPAT machines, but all were not in working condition.

The apex law panel said it would not be possible for them to conduct the upcoming Gujarat election completely through VVPAT, which is scheduled in December 2017.

Responding to Sibal, Attorney General KK Venugopal, appearing for the Centre, said it had already provided Rs. 3,500 crore to the Election Commission for procuring VVPAT machines.

The Petitioner has approached the Supreme Court challenging the Judgment of Gujarat High Court dismissing his PIL seeking to provide and set up the EVMs with VVPAT system/incorporating a system of “paper trail/paper receipt” in the Electronic Voting Machines (EVMs) as a convincing proof that the EVM has rightly registered the vote cast by a voter in favour of a particular candidate so as to ensure the accuracy of the voting system with an intent to fullest transparency in the system.

The Petitioner contended that the Supreme Court Judgment in Subramaniam Swamy Vs Election Commission of India has not been implemented by the Election Commission of India and the Election Commission of Gujarat despite the passage of almost four years and despite the Supreme Court having noted specifically that the VVPAT system ought to be implemented in a phased manner.

The Petitioner raised the following questions in the appeal;

1. Whether, the Hon’ble High Court has erred in not appreciating that the detailed judgment of this Hon’ble Court passed on 18.10.2013 has not been implemented by the Election Commission of India and the Election Commission of Gujarat despite the passage of almost four years and despite this Hon’ble Court having noted specifically that the VVPAT system ought to be implemented in a phased manner?


2. Whether, the impugned order is sustainable in law considering the fact that it is not a detailed judgment on the merits of the present case?


3. Whether, the High Court has erred in not appreciating that the paper trail mechanism used in the VVPAT system is an inexpensive mechanism used to ensure that a foolproof counting process is carried out since any mismatch between the paper trail and the EVM count may be used to prompt a recount wherever needed?


4. Whether, the High Court has erred in not appreciating the facts that the election should be conducted in transparent manner, while in current situation, the voter presses a button of EVM he cannot physically see his vote going to the candidate of his choice. The essence of a democratic election lies in its transparency and therefore, the VVPAT mechanism ought to be deployed to ensure that a voter may be informed vis-à-vis the paper trail that his vote has indeed been registered in favour of the party of his preference?


5. Whether, the High Court has erred in not appreciating that the use of the VVPAT mechanism would lay to rest the allegations made by several political parties recently that the EVM process was rigged and thus inspire absolute confidence in the electoral process?


6. Whether, the High Court has erred in not appreciating that the duties of the Election Commission as set out in Article 324 of the Constitution include ensuring that elections conducted by it are free and fair, and reflect the will of the voters?


7. Whether, the High Court has erred in not appreciating that for the free and fair Gujarat Assembly Election, the use of EVMs without the attachment of VVPAT are required to be banned or otherwise it would amount to compromising fundamental foundation of democracy?


8. Whether, the High Court has erred in not appreciating that since there are allegations that at the behest of ruling party, the names of voters were deleted from the voter list in the last six municipal corporations elections held in 2015, therefore this time, the directions were required to be issued to the respondents that no voter be deprived of his valuable right of casting votes due to the fault on the part of the respondents as it is violative of fundamental rights of the citizen and, therefore, respondents were ought to be directed that this time the ECI may take utmost care that no citizen is deprived of his rights of casting his vote, and in case despite precautionary steps if names of the voters are missing, then these voters may be allowed to cast their votes making certain necessary arrangements?


9. Whether, the High Court has erred in not appreciating that in addition to inherent probabilities of EVM, there is significant possibility of errors/mistakes/wrong results/ caused by calls/defects/malicious acts in the procedure and system adopting at the polling booth as well as by poor training of personnel at a booth?


10. Whether, the High Court has erred in not appreciating that the EVMs with VVPAT system are required to be tested, verified and audited by competent independent technical experts’/agency having expertise in such evaluation?


11. Whether, the High Court has erred in not appreciating that the examination of hackability / tamper proofing of the EVMs with VVPAT system is necessary in up-coming Gujarat Assembly Election, 2017 by competent independent technical experts/agency having expertise in such evaluation?