Is the Election Commission of India (EC) compelling voters to cast their vote only through Electronic Vote Machine (EVM)? Shouldn’t Election Commission allow voters to choose between the Electronic Voting Machine (EVM) and the Ballot Paper?
Neither the Constitution of India nor the Representation of People Act, that lays down India's election rules, says that a voter has to cast her/his vote through EVM and VVPAT, or that EC must conduct elections via electronic voting.
So, why are voters not given the option to vote using via ballot papers?
I conducted a Twitter survey, asking people to choose between EVMs and ballot paper voting. Close to 60,000 people responded over a period of 24 hours. 59.5% of the respondents preferred ballot papers, while 40.5% chose EVMs. The poll revealed a growing distrust towards electronic voting.
In recent years experts have repeatedly raised concerns about the vulnerabilities of electronic voting using EVM and VVPAT (Voter Verified Paper Audit Trail) machines. But India's Election Commission, instead of addressing these concerns, have largely ignored them or offered incomplete and unsatisfactory responses.
If there is a growing distrust among voters towards electronic voting, then shouldn’t Election Commission either address these concerns? Shouldn’t Election Commission also give citizens other voting options?
Maharashtra Mulls Ballot Paper Option
Recently, the debate on giving a choice to voters was triggered by a petition submitted by activist, Pradeep Mahadevrao Uke, to the former Maharashtra Assembly speaker, Nana Patole. Based on this petition, Patole has moved the idea of drafting a bill to reintroduce voting via ballot paper in elections held in Maharashtra.
If the Maharashtra government clears such a bill, it would be applicable in the State Assembly elections and other local level elections within the state.
“Every citizen has the Fundamental Right to choose a government every 5 years. Multiple times petitioners have moved court raising doubts about EVMs. Our Constitution permits voters cast their vote by any method. Voters doubt EVMs as many are not sure whether their vote has been rightly registered or not. This is a big blow to our democracy.”Nana Patole, former speaker, Maharashtra Assembly
But Can States Frame Election Laws?
Key Question. Does our Constitution give powers to the states to make amendments in the mode of elections?
Yes, it does.
Article 328 of the Constitution of India gives this power to the States.
Article 328. Power of Legislature of a State to make provisions with respect to elections to such a Legislature:- Subject to the provisions of this Constitution and in so far as provisions in that behalf are not made by Parliament, the Legislature of a State may from time to time, by law, make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State. This includes the preparation of electoral rolls and all other matters necessary for securing the constitution of such House or Houses of Legislature.
Clearly, Article 328 gives power to state legislatures to make laws/rules on the conduct of elections to state assemblies.
However, Article 328 comes with a condition: “so far as provision in that behalf is not made by Parliament”. In simple terms, this means that if Parliament has made a law to deal with state elections, then a state legislature cannot make up its own rules that contradict or change the law passed by Parliament.
However, legal experts clarify that while Parliament’s Representation of the People Act 1951 does deal with state elections, states do have some wiggle room to make rules on how these elections may be conducted.
Here's how. When the RP Act was amended to allow for elections using EVMs in 1989, the amendment did not exclude ‘ballot paper’ as a mode of voting. Section 61A of the Act, which was added via this amendment, does not say that only EVMs can be used by Election Commission to conduct elections.
So technically, States do have the power to make amendments to reintroduce ballot papers as an option for voting in elections, and give voters a choice to cast their vote via EVM or ballot paper.
The State List of the Seventh Schedule of the Constitution describes sharing of powers between the Centre and States. Under it there are three lists – Union List, State List and Concurrent List. The State government can make laws on the subject given in the State List.
Entry 37 of List II – State List of Seventh Schedule of the Constitution says,
37. (Power to enact laws on...) Elections to the State Legislature, subject to the provisions of any law made by Parliament.
Let’s not forget that both, ballot papers and EVMs, are still used by the EC to register the votes of government employees and security forces personnel. They are allowed to cast their votes via ballot paper, while rest of us vote via EVMs.
Nana Patole argues that voters should in fact be given both the options to cast their vote and not just one of them.
“State governments should give both options to voters - EVM and ballot papers. Let voters decide how to cast their vote. If the State government has the power to make such a law, then we should make it. Even when electronic voting was introduced, there was no law saying that was the only method. In the bill we will give options to voters on how to cast their vote.”Nana Patole, former speaker, Maharashtra Assembly
Patole added that the growing distrust of EVMs is not a good sign for Indian democracy. It is worth noting that several developed countries who tried electronic voting via EVMs, have gone back to ballot papers. The list includes France, UK, Ireland, Netherlands and Germany.
Ballot Papers Mean More Resources
Of course, introducing ballot paper voting along with EVMs in the election process, does mean enhancing resources. It will also require EC to plan out its smooth implementation.
The petitioner, Pradeep Uke, has suggested that the voters' choice can be noted by booth level officers when they visit voters' homes to distribute voters slips. This process starts at least a week or ten days before the elections.
“Giving a choice to voters is possible logistically, but a State government that plans to introduce this should first run it as a pilot project in a local body election.”SY Quraishi, Former Chief Election Commissioner
Introducing ballot papers in the election process will also mean a delay in declaring results because counting ballot votes will take more time.
But many believe the delay will be worth it, especially in helping voters regain their faith in the democratic process.
The Quint has reported a series of articles on the vulnerabilities of the EVM-VVPAT machines. We also sought responses from EC on these articles, but our questions were either ignored or not satisfactorily addressed.
On 30 January 2021, the Citizens’ Commission on Elections (CCE), a group of experts that included retired judges, bureaucrats and professors, submitted a report to EC highlighting serious concerns related to EVM-VVPAT machines. This report also featured articles published by The Quint. It also made recommendations to EC on how to overcome these concerns.
The Maharashtra government move to give voting options to citizens is a step towards addressing the growing concerns about EVMs.
The questions are –
- Will the Maharastra government's move serve as an example for other State governments to introduce similar laws?
- Will EC, that has the job of ‘Superintendence, direction and control of elections’ as per our Constitution, wake up to the growing demand from citizens for ballot paper voting as an option?
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