Supreme Court Adjourns Hearing Of PIL Seeking EVM-VVPAT Tally, Says There Is No Urgency

While refusing to urgently hear the most recent plea, Justice Sanjiv Khanna said –

“Every year, a fresh petition is filed on this. Every year this is happening. This has been dealt with in a number of cases. How many times will this issue be raised? Every six months or eight months, this issue is freshly raised.”

A bench of Justices Sanjiv Khanna and SVN Bhatti was hearing a plea filed by a non-governmental organisation, Association for Democratic Reforms. Besides praying for verification of the EVM tally, the association has also asked for a declaration by the court that every voter has the fundamental right to verify that their vote has been ‘recorded as cast’ and ‘counted as recorded’.

On the last occasion as well, the court had voiced its reservations about the non-profit’s plea. Justice Khanna asked Advocate Prashant Bhushan whether the petitioner-association was being overly suspicious. Despite encountering scepticism from the bench, the counsel pressed for more extensive cross-verification of electronic voting machines (EVM) data against voter-verifiable paper audit trail (VVPAT) records, highlighting that only around two percent of EVMs were currently cross-verified. In response to this, Justice Khanna pointed out practical limitations faced by the election commission. Ultimately, the court declined to issue notice at that stage but instructed the counsel to serve a copy of the petition to the standing counsel of the Election Commission of India, before adjourning the hearing.

Today, the bench reiterated its earlier concern over the Association for Democratic Reforms being ‘overly suspicious’. The court also revealed that it was not convinced of the urgency of the matter, particularly in view of the counter-affidavit filed by the election commission. Justice Khanna said –

“They have filed a detailed counter-affidavit. After going through it, we do not think there is so much urgency. They have enough provisions. Mr Bhushan, how many times will this issue be raised? Every six months or eight months, this issue is freshly raised.”

Bhushan, however, strongly urged the judges to ‘hold their horses’ before arriving at a conclusion based on the counter-affidavit, pointing to alleged ‘human errors’ the commission admitted to having made in their response. The counsel also contended that many statements made by the ECI were either ‘incorrect’ or ‘misleading’, as he tried to persuade the bench that the matter deserved to be heard urgently.

Directing the hearing to be adjourned until November, Justice Khanna said, “Mr Bhushan, this is not a criminal matter…There is no urgency in this. Let it come up in due course. In the meantime, you file your rejoinder within a week.”

When Bhushan attempted to convince the bench to direct the matter to be relisted sooner, in light of the upcoming state assembly elections in Chhattisgarh, Madhya Pradesh, and Mizoram scheduled to be held in November, Justice Khanna replied, “Sorry, Mr Bhushan. There are other urgent matters. We will not make your plea infructuous. If it succeeds, the ruling will apply in the future.”

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 judgment 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 is 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 mala fide actions.”

The Association for Democratic Reforms, jointly with another non-profit 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. While this petition prayed for the EVM count to be tallied against the record of the register, the recent petition filed by the Association for Democratic Reforms sought a verification of EVM data against VVPAT records.

The court had issued notice in the 2019 petition 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.

Case Details

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