EVMs-VVPATs Case | 5 Key Reasons Why the Ball is in the SC’s Court

While SC went to great lengths questioning the ECI, it seemed reluctant to do so on issues raised by petitioners.

Election EVM vs Ballot Paper Voting: A Twitter poll with a sample size of close to 60,000 participants shows 59.5% in favour of voting through ballot paper while only 40.5% trust EVM-VVPAT machines

(Image: Kamran Akhter/The Quint)

The hearings of the EVM-VVPAT case in the Supreme Court on 16 and 18 April 2024 were quite revealing.

The bench showed considerable interest in the details of how the entire system of EVM-VVPAT works, including displaying a clear understanding that it was not only the issue of the so-called 'standalone’ EVM (Electronic Voting Machine) but a combination of three machines:

• The EVM (which the Election Commission of India (ECI), now calls the Balloting Unit, BU)

• The VVPAT (Voter Verifiable Paper Audit Trail), and

• The Control Unit (CU)

The bench, however, also showed some impatience and at times, interrupted and did not allow the counsel to complete or explain their submissions.

1. On Ballot Papers 

The first such issue was that of paper ballots. One of the counsels was specifically asked by the bench what alternative he had in mind to the EVMs. The counsel started by saying that there were several options, the first one being ballot papers. 

Before the counsel could go any further, the bench interjected, saying since the judges were in their sixties, they had seen what happened with ballot papers in the past. When the counsel wondered if the bench was referring to booth capturing, the response was not to get into a debate about ballot papers.

The counsel then referred to the German constitutional court deciding against the use of EVMs and going back to ballot papers. The response from the bench was that Germany had a very small population and the conduct of the Indian election was a "humongous task” which no European country could do. This was followed by a significant observation, "We have to repose some trust and confidence in somebody. Of course, they are accountable… But don’t try to bring down the system like this."

This exchange revealed that the bench seems to have missed the possibility that a poll using ballot papers does not have to be what it was 30-40 years ago with ballot papers going up to the size of newspaper broadsheet pages.

A modern version of the dreaded ballot paper could be the slip printed out, not by the VVPAT, but by a simple printer attached to the current EVM or BU. This slip, if accessible to the voter physically, to see and put in a ballot box would serve the exact same function that the ballot paper did 30-40 years ago, while removing the VVPAT and the CU from the configuration.

In addition, it would serve to satisfy some of the critical requirements of a free and fair election which the EVM-VVPAT-CU combination does not.

2. On Voting Transparency and Trustworthiness

These critical requirements of a free and fair election are that three conditions must be met transparently and to the satisfaction of the voter. The three conditions are that the vote:

• must be cast as intended

• registered as cast

• counted as registered

This 'modified’ ballot paper, if one may call it, will have the advantage of satisfying two of the three conditions, without the disadvantages that the Hon’ble Justices seemed apprehensive of.

The other important issues emerging from this exchange that require comment are:

(a) reposing “some trust and confidence in somebody”, and

(b) trying “to bring down the system like this”.

It has to be said that issues such as 'trust and confidence’ are subjective, and for anyone to have trust and confidence in someone else or an institution is a matter of what might be called 'lived experience'. I would not like to elaborate it further but leave it by repeating two well-known old adages that, “Trust has to be commanded, not demanded” or “Trust has to be earned”.

The issue of “trying to bring down a system” is really a matter of opinion about the motive behind any action. It reflects two sides of the same coin. What is an effort to “bring down a system” for one, may well be an attempt to improve the system for another.

Trying to improve the voting system by making it more transparent and responsive to voters’ expectations can be looked at in different ways and each of them may well be valid in someone’s view.

3. On Opinion Polls

The second major issue was opinion polls. The question at hand was, do a majority of voters trust EVMS?

When an opinion poll from the Center for the Study of Developing Societies (CSDS)-Lokniti was cited, the bench is reported to have said, “Poll! …Let’s not believe in these private polls,…This type of argument may not be acceptable because there is no data with regard to that. A private poll will not be able to… It’s possible somebody else will take out a poll to the contrary. Let’s not go into all that."

While these observations do have significant validity, brushing off all opinion polls in the same stead can also be doubtful.

CSDS has been in existence since 1963 as a leading intellectual think-tank and has been supported since 1969 by the Indian Council of Social Science Research (ICSSR) which functions under the Ministry of Education, Government of India). Summarily dismissing an opinion poll by an organisation that is supported, at least indirectly by the Government of India, appears to be debatable.

4. On PSUs As EVM-Manufacturing Units

An almost classic case of what might be called "peremptory dismissal" was when an intervenor started his submission by saying that the EVMs and VVPATs were manufactured by Public Sector Undertakings (PSUs) and before he could go further, the bench interjected asking if the intervenor would be happier if the machines had been manufactured by the private sector, thus, dismissing the submission.

There was much more to be said on this issue though I am not sure the intervenor had that in mind. The main issue here is that several active members of the ruling party at the Centre serve as independent directors on these PSUs, and that gives rise to a conflict of interest.

The other issue is that these PSUs hire a large number of engineers on short-term contracts through a private sector placement agency and these engineers are tasked with performing critical operations on VVPATs. This violates one of the arguments that the ECI gives about the security of handling these machines when it says that the machines are never handled by non-government personnel.

5. On Polling Data and the Role of ECI as a Provider

The last, and perhaps the most significant issue, pertained to data. Here is the bench’s observation as reported in the media which needs to be reproduced in full:

“As far as when we have to examine whether the EVMs are functioning properly, we will have to go by the data. With regard to what is the total number of votes polled in a particular year-on-year together, and whether they have tallied it with the total number of votes counted later on, how many cases there were discrepancies. How many cases ultimately the candidates request for counting of the paper slips were done, and how many discrepancies were found in that? That will give us the true picture of whether the EVMs are being manipulated or the chances of manipulation or not. That data they will provide. We will ask them for that data."

The confidence in data is absolutely justified and cannot be questioned but what is assumed in this is the authenticity and integrity of the data.

A critical sentence in the above is "That data they will provide”. The "they” here is the ECI.

Given that the ECI has been claiming that there is no way anything wrong can happen in the existing system, the expectation that they will provide data which will prove them wrong seems somewhat far-fetched. In any case, asking the same institution to provide data which is responsible for the creation of that data is a kind of circular argument.

Real Reason Behind the ECI Opposing Voter Slips

A significant part of the hearing on 18 April was spent on an official of the ECI describing the working and functioning of the system of EVM-VVPAT-CU to the court. The court did raise several questions and seemed generally satisfied with the responses. Subsequently, the counsel representing the ECI made his submissions.

The proceedings on that day possibly revealed the real reason that might be behind ECI’s consistent refusal to count all 100% of the voter slips.

On being asked why it takes more time to count VVPAT paper slips and if machines can be used for this, the election body said the "paper is thin and sticky and is not actually meant for counting”. There was, however, no discussion on why the quality of paper cannot be changed or what would take to change it.

While the court seemed to go to great lengths while questioning the ECI official, it seemed reluctant to go into detail on issues raised by the petitioners.

When one of the counsels representing one of the petitioners said the glass on the viewing window in the VVPAT was dark and the slip is visible only when the bulb lights up for seven seconds and requested that the glass should be made transparent like earlier and it be kept lit all the time, the bench responded, “whether it is transparent, translucent glass on the VVPAT machine or bulb, you are taking it too far. The bulb helps you see it, that is all. … Now, everything cannot be suspected. You cannot be critical of everything. If an explanation is given, you must appreciate it... Whether to have a bulb or not or the brightness, etc. is for them to decide. We are not disputing it is a fundamental right, but oversuspicion is not working out here."

When the counsel said that no aspersion was being cast on the ECI but the possibility for improvement existed, the bench responded, "Agree. But if they have improved things within the four corners of the law, then it is fine. Bulb or no bulb, how does it matter? If an explanation is given, then you must appreciate it. Oversuspicion of everything is a problem. A voter has to satisfy himself, that's all. They gave an explanation for the improvement; you heard them and everyone heard them."

When a reported instance of an EVM polling an extra vote during a mock poll in Kerala's Kasargod was brought to the notice of the bench, the bench seemed satisfied by a statement of the ECI official that, "These news reports are false. We have verified the allegation from the district collector and it appears that they are false. We will submit a detailed report to the court" No further questions were asked.

SC’s Persistence Towards EVM Use Despite Gaps

On being pointed out that many developed countries have left the EVM voting system, the SC said, "Don't think that foreign countries are more advanced than India."

The Solicitor General intervened to question the motives of the petitioners for filing such petitions on the eve of the Lok Sabha election, saying that "The democratic choice of the voter is being made into a joke”, the bench asked the Solicitor General to leave it at that and clarified that the ADR petition was filed last year and that it was the court's fault that the matter could not be heard. "Yes, some new petitions have come now, but the one (the lead petition) was filed long back."

That the bench seemed to have faith in the existing process seemed clear from the remark that, "This is [an] electoral process. There has to be sanctity. Let nobody have apprehension that something which is expected is not being done."

However, despite all the faith, the bench did say, “There seems to be some gap between what is available in the public domain and what should be available in the public domain. That needs to be bridged."

The proceedings in the court were complex, and revealing, as said earlier, but they were also intriguing. The case has very serious implications for the fabric of democracy in the country and one hopes for an outcome that is best for the country. 

(Jagdeep S Chhokar is a concerned citizen and a founder-member of the Association for Democratic Reforms, one of the petitioners in the case. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)