Supreme Court Reserves Judgment On Pleas For 100% EVM-VVPAT Verification

The Supreme Court on Thursday (April 18) reserved judgment on a batch of petitions seeking 100% verification of Electronic Voting Machine (EVM) data with Voter-Verifiable Paper Audit trail (VVPAT).

After a day-long hearing today, which was preceded by a half-day hearing on April 16, the Bench of Justices Sanjiv Khanna and Dipankar Datta reserved the verdict on the petitions filed by Association for Democratic Rights (ADR) and others.

Notably, during today's hearing, the bench extensively interacted with an official of the Election Commission of India (ECI) to understand the working and security features of the EVMs.

Petitioners' submissions

Advocate on Record Prashant Bhushan could be heard suggesting that at this advance stage, as the first phase of 2024 Lok Sabha elections begins tomorrow, the easiest thing for the ECI to do is to let the light in the VVPAT screen remain lit throughout the voting time (as opposed to the present practice of keeping the light lit for 7 seconds) so that the voter can see the slip cutting and falling.

Advocate Nizam Pasha, on the other hand, suggested that the voter be allowed to physically take the VVPAT slip and deposit in the ballot box. When Justice Khanna asked if it would not infringe the voter's secrecy, Pasha submitted that voters' privacy could not be used to defeat their own rights. "I hope you understand the practical results of what you are seeking," Justice Khanna commented.

Senior Advocate Sanjay Hegde emphasized that VVPAT is for 'audit'. It was his suggestion that after counting of the EVM votes, all VVPAT slips should also be counted for an 'audit'. "Counting is immediate. Audit can take time. There should be a separate audit which would then add greater credibility to counting process. Please consider what safeguards can be put in today," Hegde submitted. Requesting the Court to not consider the issue as concluded by the 2019 judgment (which directed the increase of VVPAT counts to 5 EVMs per assembly segment in a Parliamentary constituency), Hegde submitted that the issue should be seen as a "work in progress" and any measure to increase the voter's confidence in the system should be welcomed.

During the hearing, Bhushan also cited a report published by Manorama Online about complaints of EVMs recording extra votes for the BJP during mock polls conducted in the Kasargod constituency in Kerala. The bench asked the ECI to check this matter. At 2 PM, the official of the ECI told the Supreme Court that the news report cited was "totally false".

Bench interacts with the ECI official

Observing that all apprehensions regarding EVMs should be allayed, the bench chose to interact with an official of the ECI, who was present in the Court, to understand the technical aspects of security features.

"This is electoral process. There has to be sanctity. Let nobody have apprehension that something which is expected is not being done," Justice Datta observed.

After interaction with the official, Justice Khanna summed up, "So, 7 days before election, in the presence of candidates, you (ECI) are feeding in images in flash memory of VVPAT. Once uploaded, it can't be changed because it's not connected to any computer, laptop."

Pertinently, the official told the bench that about 17 lakh VVPAT machines are there. He explained that the manufacturer does not know which machine is going to which constituency and which button is allocated to which party.

Further, there is no software loading in the VVPAT machine and it is a mere printer, he said.

VVPAT slips not meant for counting: ECI

To the bench's query as to why it takes 5 hours to count VVPAT slips in an assembly segment in a constituency, the official said that the VVPAT slips are "not actually meant for counting". They are small, sticky papers (like those coming out of ATM machines). Hence manual counting is a cumbersome process, which takes time. To count the VVPAT of one EVM, it takes at least an hour. As such, it takes at least 5 hours to complete the process as per the 2019 SC direction, the official said.

There has never been a mismatch between VVPATs and EVMs : ECI

The ECI official told the bench that there has never been a mismatch between VVPAT slips and EVM votes ever. "If there has never been any mismatch, it speaks for itself," Justice Khanna commented in response.

At the same time, Senior Advocate Maninder Singh(for ECI) termed the petitioners' demand for a return to paper ballots a "retrograde step." Singh asserted that EVMs are tamper-proof and beyond manipulation. "Human error cannot be ruled out in manual counting. Human participation has been minimized under present system," he stated.

Everything can't be suspected, can't be critical of everything : Court to petitioners

During the petitioners' rejoinder arguments, the bench told Advocate on Record Prashant Bhushan to not be suspicious of everything, when he raised the argument regarding non-transparent VVPAT screens.

"Now you're going too far. Everything can't be suspected. You can't be critical of everything...please also appreciate if they have done something good. We heard you because we are also concerned," Justice Khanna said.

Bhushan reiterated that the voter should be able to see the VVPAT slip cutting off and falling down. He asserted that the counting of VVPATs was not a humungous task. In this regard, he quoted former Chief Election Commissioner Dr SY Quraishi who purportedly said in an interview that two days were enough to count the ballot papers.

Solicitor General of India Tushar Mehta, clarifying at the outset that he was appearing as an officer of the Court, said that such petitions were periodically filed on the eve of elections to cast aspersions on the election system. Pointing to "harm to democracy", the SG further called for imposition of costs on such petitioners.

"This happens periodically on the eve of elections. It has an impact on voter turnout, harms democracy. They are making choice of voter into a joke. I have told everyone on my side that be ready for some planted article/news article for tomorrow," SG submitted.

Senior Advocates Gopal Shankaranarayanan and Santhosh Paul also made submissions for the petitioners.

To recap, the petitioners, including NGO-Association for Democratic Reforms, pray that all VVPATs be verified, instead of the current practice of Election Commission to randomly verify 5 EVMs per assembly segment. The petitioners also seek measures to ensure that votes are "recorded as cast" and "counted as recorded".

The matter was heard extensively on April 16, when in response to petitioners' suggestion to resort to ballot paper voting and/or manual counting of VVPAT slips, Justice Sanjiv Khanna said that human intervention will create problems. The bench also raised doubts about the feasibility of physical counting of votes given the large population of India. A query regarding penalty for EVM tampering was also posed by the court, to answer which the ECI counsel referred to Section 132 (misconduct in polling station) and 132A (penalty for failing to observe procedure for polling) of the Representation of the People Act.

As Justice Khanna said that, "this is much more serious than procedure, there must be some IPC offences...", the ECI counsel sought time to check and respond.

For a detailed report on ADR's plea and submissions, click here. To understand the underlying controversy, ie the EVM-VVPAT issue, click here.

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