‘Aren’t We Being Over Suspicious?’: Supreme Court Asks While Hearing PIL For EVM-VVPAT Tally; Seeks ECI's Response

Advocate Prashant Bhushan appeared for the NGO before a division bench of Justices Sanjiv Khanna and Bela M Trivedi. Right at the outset, Justice Khanna asked the counsel, “Mr Bhushan, aren’t we being over suspicious?”

Bhushan replied, “I agree with one part, that sometimes we are over suspicious. I myself have been saying that the view that EVMs can be hacked may not be correct. But there are three ways in which EVMs may not reflect correct count or voting.” He further pointed out that only the counts of the electronic voting machines (EVM) in five randomly selected polling stations in each assembly constituency were tallied with the voter-verifiable paper audit trail (VVPAT) record, even though there were thousands of instances of gross discrepancies between the EVM and VVPAT records. He explained:

“There are three separate records. The EVM, VVPAT, and a register in which people are supposed to sign. All three should match ideally. But, it has been found that there is gross mismatch between the register and EVM. Gross meaning tens of thousands.”

“I can explain that,” Justice Khanna interjected, before adding:

“Sometimes, a person signs the register but when they go inside, they don’t press the button after the beep. Now, there is a display board as well. If you have voted, the number goes up. What happens also is that there may be multiple polling booths. So, when there is a large crowd, a person may be busy filling up the booth. It can happen. I think we are being a little over suspicious.”

Justice Trivedi told the counsel that the Election Commission of India was taking steps to make the voting system more impervious to any attempt at tampering. “When I was a part of Justice Chandrachud’s bench, we were hearing a petition on the subject. This is what the Election Commission had told us then.”

“The records of only around two percent EVMs are cross-verified against VVPAT records. That is roughly 4000 VVPATs or 20 lakh votes,” Bhushan highlighted, contending that data from more EVMs needed to be tallied. However, in response to this, Justice Khanna pointed out that the Election Commission was limited by the manpower requirements and other factors.

The counsel also told the bench that the Association for Democratic Reforms, jointly with Common Cause, had moved the Supreme Court in 2019, seeking an investigation into alleged discrepancies in the 17^th Lok Sabha elections held in the same year. “Whereas in that petition, the prayer was for the EVM count to be tallied against the record of the register, we are now asking for it to be cross-verified with the VVPAT.” The top court had issued notice in this plea and directed it to be tagged with a similar petition filed by Trinamool Congress legislator Mahua Moitra seeking the publication of details relating to voter turnout and final vote counts in the 2019 elections.

“We are not issuing notice in this,” Justice Khanna ultimately said, at the end of the brief hearing today, “But, serve the standing counsel of the Election Commission of India with a copy of this petition.”

The bench pronounced:

“Let an advanced copy be served on the nominated/standing counsel for the Election Commission of India. Our attention is drawn to an order dated December 13, 2019, passed in Association of Democratic Reforms & Anr. v. Election Commission of India & Anr. wherein notice was issued and writ petition was directed to be tagged with Writ Petition (Civil) No. 1389 of 2019. Re-list after three weeks.”

Background

The present petition, filed through Advocate Prashant Bhushan, has not only sought a declaration that is the fundamental right of every voter to verify that their vote has been ‘recorded as cast’ and ‘counted as recorded’, but also directions to affect appropriate changes to enforce this right and give full effect to the purport and object of the 2013 judgement in Subramanian Swamy v. Election Commission of India, in which the Supreme Court held ‘paper trail’ to be an indispensable requirement of free and fair elections and directed the ECI to introduce the VVPAT mechanism.

In other words, the petition argues that each voter must be able to verify that their vote has been ‘recorded as cast’ and that their vote has been ‘counted as recorded’. It adds that the requirement of the voter verifying that their vote has been ‘recorded as cast’ is somewhat met when the VVPAT slip is displayed for about seven seconds after pressing of the button on the EVM through a transparent window for the voter to verify that her vote has been ‘recorded as cast’ on the internally printed VVPAT slip before the slip falls into a ‘ballot box’.

However, it adds, that there exists a ‘complete vacuum’ in law as the Election Commission has provided no procedure for the voter to verify that their vote has been ‘counted as recorded’ which is an indispensable part of voter verifiability. The petition contends that the prevalent procedure through which the ECI only counts the electronically recorded votes in all of the EVMs and cross-verifies the relevant EVMs with the VVPATs in only 5 randomly selected polling stations in each assembly constituency is deficient.

The petitioner further adds:

“The count stored in EVMs are inherently open to variance with the count reflected in VVPATs due to any number of reasons such as bona fide human errors in the complex seriatim of do’s and don’ts prescribed by the ECI involving a number of individuals to discharge their responsibilities with 100 percent accuracy each time over a long period of time; technical snags; and/or malafide actions.”

Case Details

Association of Democratic Reforms v. Election Commission of India & Anr. | Writ Petition (Civil) No. 434 of 2023

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