VVPAT Case | ECI Answers Supreme Court's Queries, Says EVM Microcontrollers Are One-Time Programmable & Can't Be Changed

In pleas seeking 100% cross-checking of Electronic Voting Machine (EVM) data against voter-verifiable paper audit trail (VVPAT) records, the Election Commission of India (ECI) informed the Supreme Court today that micro-controllers installed in the machines are one-time programmable and cannot be changed.

The matter was before a bench of Justices Sanjiv Khanna and Dipankar Datta, which had fixed the matter for hearing at 2 PM, after posing certain queries to the ECI earlier in the day.

The ECI official appeared before the court in the post-lunch session and answered the court questions thus:

Q1. Is the micro-controller installed in the Control Unit or in the VVPAT?

Ans. All the three units, Control Unit, Ballot Unit, VVPAT, have their own microcontrollers and their own one-time programmes are burnt into the memory of the microcontrollers. These microcontrollers are housed in secure, unauthorized access-detection module. The controllers therefore cannot be accessed physically. 

Q2. Is the micro-controller which is installed one-time programmable?

Ans. All micro-controllers are one-time programmable. The programmes in them are burnt at the time of manufacturing. It cannot be changed or physically accessed.

Q3. How many Symbol Loading Units are available?

Ans. There are two manufacturers of EVMs - Electronic Corporation of India Limited (ECIL) and Bharat Electronics Limited (BHEL). ECIL has 1904 Symbol Loading Units, BHEL has about 3154.

Q4. What is the time period for which EVMs are stored after elections? Should it not be more than 45 days as limitation period for filing election petition itself is 45 days?

Ans. After counting, statutory period for filing election petition is 45 days. So, all the machines are stored for 45 days. On the 46th day, Chief Electoral Officer writes to Registrars of concerned High Courts to ascertain if any election petition has been filed for any constituency. After receiving reply in writing from the Registrars, he informs the concerned District Election Officer to open the strong room wherever there is no Election Petition filed. If any Election Petition is filed, "it (EVM) remains sealed and locked, nobody touches it".

Q5. On securing of EVMs, do both control unit and VVPAT bear seals? Is VVPAT also stored with BU and CU?

Ans. Control Unit is most important, so that is sealed (with pink seal) at the time of First-Level Checking (FLC) of EVMs. At the time of commissioning (of EVMs) and after the polling is over, all three - Ballot Unit, Control Unit and VVPAT - are sealed. After second randomization and commissioning, all three are stored together in the strong room as a unit. After polling, green paper seal is applied.

On the aspect of SLUs, Justice Khanna asked the ECI official, "Can you get more SLUs?" The official replied in the affirmative, adding that the timeline for the same would have to be checked with the manufacturers, but roughly 1 month would be taken.

Insofar as the claim of processor chips/microcontrollers in EVMs being one-time programmable, Advocate Prashant Bhushan (for NGO-Association for Democratic Reforms) raised a doubt. "They (manufacturer of EVMs) in their RTI reply admitted that this particular chip/micro-controller is used in the EVMs. The manufacturer is one AnnexP company. We have downloaded the characteristics of this microcontroller from the manufacturer's website and it says it has 3 kinds of memories", the counsel said.

He asserted that the microcontrollers also have a flash memory, which is always re-programmable, "so to say that microcontroller is not reprogrammable is not correct". In support of his claim, Bhushan cited the Citizens' Commission Report on Elections: "that's exactly what the Citizens' Commission also said after examining 20 of the world's leading computer experts from best universities in the world. They said that in fact the latest chip which is being used in these EVMs is reprogrammable".

Justice Khanna however was satisfied with the explanation offered by the ECI official. Bhushan's claim of flash memory being re-programmable was shot down with an observation that reliance has to be placed on the ECI on  "technical data". It was further emphasized that the report cited by the counsel uses the word "doubtful", and thus its finding does not come with 100% surety.

Be that as it may, Khanna J did briefly ask the ECI official, "when you burn it, thereafter can the flash memory be used?". The official replied, "if the programme is burned, you have to physically remove and throw the micro-controller out if you want to [change] the programme". Bhushan questioned at this point, "then how is Symbol Loading done?", but this time Khanna J was quick to point out himself that symbol loading is done in the flash memory of the VVPAT.

Next, Bhushan mentioned the issue of VVPAT flash memory being re-programmed. As admittedly, signal flows from the Ballot Unit to the VVPAT and from VVPAT to the Control Unit, he voiced concern regarding the possibility of a malicious programme being installed in the flash memory of the VVPAT. Unconvinced, Justice Khanna said that flash memory is not loaded with any software but with symbols only.

"What they (ECI) are saying is flash memory is certainly re-programmable. The flash memory is very small. It can store 1024 symbols. Those are symbols not software. As far as microcontroller in the CU is concerned, it is agnostic, it doesn't recognize party name or candidate name. What it recognizes is the button which is pressed on the Ballot Unit. The Ballot Unit buttons are interchangeable. Programming of the three units is done at manufacturing stage. Manufacturer at that time doesn't know which party is going to be allotted which button", Khanna J observed.

Justice Datta, on the other hand, emphasized that the court could not "control" elections, especially when there was no mismatch shown between EVM-VVPAT data. "Your report that you are relying on says that till date there has been no incident of hacking identified. If there is some incident, law provides what is to be done. We cannot control the election Mr. Bhushan, we are not the controlling authority of another constitutional authority", the judge said. Datta J further remarked that any candidate could show if there was any mismatch in the 5% VVPATs counted.

When Senior Advocate Santhosh Paul drew attention to the possibility of the introduction of softwares developed in the country to detect if EVMs have been rigged, the Bench opined that a mandamus could not be issued over suspicion. Justice Khanna further assured that consequences exist if somebody does something wrong, and if something can be improved, the same would be put to ECI.

During the hearing, Senior Advocate Sanjay Hegde also made a suggestion to have a unique bar code for each candidate. "Bar Code is just one more image, if it is put, it will greatly help the process", he said. The Senior Counsel underscored that instead of paper ballot system, he was requesting for paper confirmation of audit. The Bench however did not find merit in the plea.

After the hearing, Justice Khanna passed an order recording that answers to the queries had been given and counsels for petitioners had also been heard on the same. The judgement in the matter is already reserved.

Case Title: Association of Democratic Reforms v. Election Commission of India & Anr. | Writ Petition (Civil) No. 434 of 2023 (and connected matters)