Supreme Court Says Enhancing EVM-VVPAT Tally Would Increase Election Commission's Work Without Any Big Advantage

Awstika Das

3 Nov 2023 6:32 PM IST

  • Supreme Court Says Enhancing EVM-VVPAT Tally Would Increase Election Commissions Work Without Any Big Advantage

    Ahead of the 2024 general elections, the Supreme Court on Friday (November 3) orally observed that enhancing scale of electronic voting machine (EVM) data cross-checking against voter-verifiable paper audit trail (VVPAT) records would increase the election commission's work without any 'big advantage'.A bench of Justices Sanjiv Khanna and SVN Bhatti was hearing a public interest litigation...

    Ahead of the 2024 general elections, the Supreme Court on Friday (November 3) orally observed that enhancing scale of electronic voting machine (EVM) data cross-checking against voter-verifiable paper audit trail (VVPAT) records would increase the election commission's work without any 'big advantage'.

    A bench of Justices Sanjiv Khanna and SVN Bhatti was hearing a public interest litigation (PIL) petition by non-profit Association for Democratic Reforms (ADR) for more extensive verification of electronic voting machine data against voter-verifiable paper audit trail records. Besides praying for a more robust system of cross-verification between EVM and VVPAT tallies, the petitioner 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’, praying for directions to affect appropriate changes to enforce this ‘fundamental right’.

    In July, the Justice Khanna-led bench 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 (ECI), before adjourning the hearing.

    Again in September, the court 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, while adjourning the matter until November. In its affidavit, the Election Commission staunchly defended electronic voting machines as ‘non-tamperable’, both owing to technological measures and strict administrative and security procedures designed by the commission. Opposing the plea seeking complete verification of EVM data against voter-verifiable paper audit trail records, the commission said that the PIL was yet another attempt to cast doubt over the functioning of EVMs and VVPATs on ‘vague and baseless’ grounds, besides arguing that counting all VVPAT paper slips manually, as suggested, would not only be labour and time-intensive, but also be prone to ‘human error’ and ‘mischief’. This would essentially be a retrogression to the paper ballot system, the commission claimed. It has also clarified that voters had no fundamental right to verify that their vote has been ‘recorded as cast’ and ‘counted as recorded’.

    Although the hearing today was adjourned until December, the bench once again conveyed its scepticism during the brief exchange in court. When Bhushan pointed out former chief election commissioner SY Quraishi's opinion about VVPAT cross-verification, Justice Khanna said, "That's an opinion. There will be a counter-opinion."

    The judge also said that there were several downsides to such extensive verification -

    "One, it increases work without any big advantage. Two, there is already a provision allowing a candidate to make a request for counting. Three, normally when counting is done manually, it may be erroneous. There will be errors and lots of cases where there are mismatches. As a lawyer, when I did my own accounts, sometimes I could never tally. Computerised accounting was a big boon. Otherwise, even for one rupee sometimes I would struggle for days to find out where the error happened."

    Referring to a 2019 ruling given by the Supreme Court in response to a plea filed by 21 opposition leaders including former Andhra Pradesh chief minister N Chandrababu Naidu, in which the number of random polling stations in each assembly constituency or each assembly segment of a parliamentary constituency subject to mandated verification of paper audit trail (PAT) slips was enhanced from 1 to 5, Justice Khanna asked, "Today, we have gone up to 5. The candidate can ask for a count. Why should we direct this verification in every case and increase the work?"

    In support of ADR's demand, Bhushan disputed the election commission's claim that the present system of random verification of five VVPATs per assembly constituency or segment achieved a state of 'near-certainty'. He said, "They are saying counting of five per constituency, which amounts to two per cent, gives us 99.999 per cent confidence that EVMs are fine...Now, I've been a student of Mathematics. If only two per cent of the VVPATs are counted...let's take only one constituency, even assuming that in ten per cent of EVMs there is a problem, the chance of one being picked up out of the five randomly selected is only 40 per cent..."

    "What I'll request Your Lordships," Bhushan added, "Is to have this on a non-miscellaneous day since I need to show a decision of the German constitutional court. A judgment of the highest court of Germany in exactly the same circumstances."

    While agreeing to adjourn today's hearing, Justice Khanna said, "We have our own judgments. I just read the order by which number was increased from one to five. What's the population of Germany versus the population of Uttar Pradesh, for example? How can we compare? They have enough hands over there. In fact, counting by hand also needs to progress. It's a big problem."

    "We're becoming over-suspicious," the judge said once again, at the conclusion of the hearing.  

    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 reasons, 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 17th 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

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