Plea For 100% EVM-VVPAT Verification : Human Intervention Creates Problems, Says Supreme Court During Hearing

The  Supreme Court on Tuesday (April 16) heard petitions seeking complete verification of Electronic Voting Machine (EVM) against Voter-Verifiable Paper Audit Trail (VVPAT) records.

After hearing the matter for over two hours, the bench comprising Justices Sanjiv Khanna and Dipankar Datta posted the matter on April 18 for further hearing. Notably, the first phase of the Lok Sabha elections commence the next day, April 19.

EVMs can be manipulated, say petitioners

At the outset of the hearing, the bench told Advocate Prashant Bhushan (appearing for the Association for Democratic Reforms) that the matter was considered by the Court in 2019, when it had directed to increase the count of VVPATs from one EVM to 5 EVMs per assembly segment in a constituency. In response, Bhushan said that the Court passed the said order in view of the paucity of the time ahead of the 2019 Lok Sabha elections and that the issue was still open for adjudication.

"We aren't saying they(EVMs) are manipulated or have been. We are saying they can be manipulated as both EVM and VVPAT," Bhushan submitted. He said that EVMs and VVPATs have programmable chips and malicious programs can be inserted into them.

When the bench asked Bhushan about the nature of reliefs sought, he made three suggestions :

(1) Go back to the paper ballot system, or 

(2) Allow the voter to physically take the VVPAT slip, deposit it in the ballot box and count the slips.

(3) Make the glass transparent and count all the VVPAT slips. Bhushan said that presently, the glass is opaque and the voter can see it only when a light bulb turns on inside for about 7 seconds displaying the slip for the voter. However, the voter can't see the slip being cut and falling down, he said.

If there is a mismatch between VVPAT and EVM, they only let VVPAT count prevail in that polling station, Bhushan suggested.

When Bhushan said that European countries like Germany are still using ballot papers, the bench pointed out that they have a population of only about 5-6 crores, whereas in India there are about 98 crore eligible voters. Justice Khanna also referred to the incidents of "booth capturing" which used to take place earlier.

Bhushan said that counting of all VVPAT slips won't take that much amount of time if it is done in parallel instead of sequentially.

Human intervention can cause problems, bench says

Addressing the petitioners, Justice Khanna said : "Normally, human intervention is going to create problems. Then questions regarding human weaknesses, including bias, will arise. Machine normally, without any wrong human intervention, will work properly, will give accurate results. Yes, problem arises when there is human intervention to make manipulations or unauthorised changes. That premise, if you want to argue on that, do".

At another juncture during the hearing, Justice Khanna said, "When you do hand counting, there will be different numbers counting".

The bench also raised doubts about the feasibility of the physical counting of votes given the large population of India.

"My home state West Bengal has more population than Germany. We need to repose some trust and faith on somebody. Do not try to bring down the system like this," Justice Datta said.

Petitioners raise doubts  about EVM

Bhushan submitted that in case two consecutive votes are cast for the same party, the VVPAT can be manipulated so that one vote goes to one party and another goes to the other party.

Since the source code of the EVMs are not disclosed to the public, there are doubts regarding their reliability. He also stated that some of the directors of the two PSUs which make EVMs, ECIL and BHEL, are BJP members.

At present, the ECI is counting only VVPATs from 5 EVMs per assembly segment in a Parliamentary constituency, which is less than 2% of the VVPATs.

"Due to the opaque glass, even the VVPAT can be manipulated. Let the voter take the slip and put it in the ballot box. Only way to be sure is to let the voter verify the slip. Being a small slip the counting will be done in well less than a day. In the election they are taking 6 weeks, one more day makes no difference," he submitted.

Senior Advocate Gopal Sankaranarayanan, for another petitioner, broadly adopting Bhushan's arguments, stated that the attempt was not to attribute malice to the ECI but to increase the confidence of the voter.

Bench poses questions to the ECI

After hearing the petitioners, the bench posed questions to Senior Advocate Maninder Singh, for the Election Commission of India, to ascertain the measures taken to ensure the security of the EVMs. An officer from the ECI was also present in the Court to explain the security features of the machines.

The bench was told that the machines are sealed in the presence of the representatives of the candidates and that they are kept in a tamper-proof condition.

The Court also asked the ECI about the punishment for tampering with EVMs. The ECI counsel referred to Section 132 (misconduct in polling station) and 132A(penalty fo failing to observe procedure for polling) of the Representation of the Peoples Act.

"This is much more serious than procedure. So there is no specific provision...there must be some IPC offences," Justice Khanna said. The ECI counsel agreed to check and respond.

Sankaranarayanan referred to an article published in 2019 in 'The Quint' regarding discrepancies between votes polled and votes counted and said that the Election Commission is "resolutely silent" on this.

"If this is true, the candidate would have immediately challenged it. If you have the number of the machine, you know where it was and what number of votes were cast. Why will the candidate not object?," Justice Khanna observed.

When Justice Khanna pointed out that the rules allow a candidate to seek for a counting of the slips, Sankaranarayanan replied that allowing such counting was the Election Commission's discretion.

Senior Advocates Santhosh Paul, Huzefa Ahmadi, Anand Grover and Sanjay Hegde also made submissions. They urged that it was more important to ensure free and fair elections and a few days delay involved in VVPAT verification is a smaller price to pay.  Santhosh Paul urged that there should be atleast 50% VVPAT verification.

"Just because it takes time to verify, that should not be a reason to not call for it to be verified. If the VVPATs can be compared with actual numbers of votes polled then it shall be in the interest of free and fair elections. The EC should welcome this," submitted Ahmadi.