EVMs Can't Be Tampered With, Return To Ballot Paper Will Undo Electoral Reforms: Supreme Court

Rejecting the petitions seeking 100% cross-verification of EVM data with VVPAT records, the Supreme Court has observed that the suspicions regarding EVM tampering are unfounded and reverting back to the ballot paper system, as prayed, would undo the reforms that have taken place over the years.

The bench of Justices Sanjiv Khanna and Dipankar Datta pronounced the verdict earlier today, rendering two separate, concurring judgments. Although the prayers of the petitioners were rejected, the bench passed two directions relating to storage of Symbol Loading Units and post-poll checking of 5% EVMs per assembly segment on request by runner-up candidates. More about these directions can be read here.

This article summarizes what the top Court has said on the possibility of EVM tampering, going back to the ballot paper system and giving of VVPAT slips to voters to drop in the ballot box.

Possibility of EVM manipulation

The petitioners' claims that EVMs can be manipulated/modified have been rejected for lack of foundation. On this aspect, Justice Khanna writes, "...the possibility to hack or tamper with the agnostic firmware in the burnt memory to tutor/favour results is unfounded. Accordingly, the suspicion that the EVMs can be configured/manipulated for repeated or wrong recording of vote(s) to favour a particular candidate should be rejected."

The judge underlines that there are ample checks in place to ensure integrity of the EVMs and voting process, by noting inter-alia:

(1) That every elector is permitted to vote in secrecy in the voting compartment of the polling station. No elector is permitted to enter the voting compartment when another voter is inside;

(2) That the elector is entitled to view through a transparent window the printed VVPAT paper slip showing the serial number, the name and the symbol of the candidate for whom he has voted;

(3) That even after entering details in Form 17A and having put signature or thumb impression thereon, if an elector does not vote, the presiding officer is required to make a remark in Form 17A and take the signature or thumb impression of the elector against such remark;

(4) That a presiding officer is periodically required to check the total number of votes cast as recorded in the control unit with the data as recorded in Form 17A;

(5) That at the close of the poll, the presiding officer is required to prepare an account of votes recorded in Form 17C;

(6) That counting is done in the presence of the polling agents/candidates by pressing the 'RESULT' button on the control unit;

(7) That the VVPAT slips of five polling stations per assembly constituency/assembly segment of the parliamentary constituency are randomly selected and counted. The results are then tallied with the electronic results of the control unit;

(8) That as per ECI guidelines, in case there is any mismatch between the total number of votes recorded in the control unit and Form 17C on account of non-clearance of mock poll data or VVPAT slips, the printed VVPAT slips of the respective polling stations are counted and considered if the winning margin is equal to or less than total votes polled in such polling stations;

(9) That the EVMs have been subjected to test by technical experts committee from time to time. These committees have approved and did not find any fault.

It is further observed that more than 4 crore VVPAT slips have been tallied till date with the electronic counts of their control units. But not a single case of mismatch (except one where discrepancy was owed to non-deletion of mock poll data) was found.

Return to ballot paper voting

Insofar as the petitioners' prayer to resort back to ballot paper voting, Justice Khanna records that the weaknesses of the ballot paper system are well-documented and reverting back to the old system would undo the electoral reforms:

"In the Indian context, keeping in view the vast size of the Indian electorate of nearly 97 crore, the number of candidates who contest the elections, the number of polling booths where voting is held, and the problems faced with ballot papers, we would be undoing the electoral reforms by directing reintroduction of the ballot papers."

The judge explains the superiority of EVMs over ballot paper system thus:

"They have effectively eliminated booth capturing by restricting the rate of vote casting to 4 votes per minute, thereby prolonging the time needed and thus check insertion of bogus votes. EVMs have eliminated invalid votes, which were a major issue with paper ballots and had often sparked disputes during the counting process. Furthermore, EVMs reduce paper usage and alleviate logistical challenges. Finally, they provide administrative convenience by expediting the counting process and minimizing errors."

Taking a stronger view of the petitioners' prayer, Justice Datta opines, "Question of reverting to the “paper ballot system”, on facts and in the circumstances, does not and cannot arise. It is only improvements in the EVMs or even a better system that people would look forward to in the ensuing years."

Datta J further questioned NGO-ADR's bonafides for making the suggestion, agreeing with the ECI that it showcases an intent to discredit the system of voting through EVMs and derail the undergoing voting process by creating doubt in the minds of the electorate.

Giving voters VVPAT slips to drop in ballot box

The petitioners' alternative prayer to allow voters to collect the VVPAT slips and drop them in the ballot box has also been rejected.

"While we acknowledge the fundamental right of voters to ensure their vote is accurately recorded and counted, the same cannot be equated with the right to 100% counting of VVPAT slips, or a right to physical access to the VVPAT slips, which the voter should be permitted to put in the drop box. These are two separate aspects – the former is the right itself and the latter is a plea to protect or how to secure the right", says Justice Khanna.

The Bench further comments that voters' rights can be safeguarded through other measures. In this context, example is given of the VVPATs (which were introduced after the judgment in Subramanian Swamy v. Election Commission of India case) and the counting of VVPAT slips of 5% EVMs per assembly constituency or assembly segment in a parliamentary constituency (which started pursuant to directions of the top Court in N. Chandrababu Naidu v. Union of India case).

Concerns regarding giving voters physical access to the VVPAT slips have been recorded by the bench as follows,

"Giving physical access to VVPAT slips to voters is problematic and impractical. It will lead to misuse, malpractices and disputes. This is not a case where fundamental right to franchise exists only as a parchment, rather, the entire electoral process protocol, and the checks as well as empirical data, ensure its meaningful exercise."

Other reports about the judgment can be read here.

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

Citation : 2024 LiveLaw (SC) 328

Click here to read the judgment