Supreme Court says no return to ballot papers, backs ‘secure, user-friendly’ EVMs

It said “data and figures” placed before it “do not indicate artifice and deceit”.

The bench gave candidates at No. 2 and No. 3 positions the option to get the burnt memory/microcontroller of 5 per cent of EVMs per Assembly segment “checked and verified by a team of engineers from EVM manufacturers post the announcement of results” on a written request for a cost to be notified by the Election Commission of India (ECI) with the provision for refund if it is found that the machine has been tampered with.

It also directed that “on completion of the symbol loading process in the VVPATs undertaken on or after 1.5.2024, the Symbol Loading Units (SLU) shall be sealed & secured in container… The sealed container containing the SLUs shall be kept in the strong room along with the EVMs at least for a period 45 days post the declaration of results. They shall be opened and examined and dealt with as in the case of EVMs”.

Justice Khanna said, “In our considered opinion, the EVMs are simple, secure and user-friendly. The voters, candidates and their representatives, and the officials of the ECI are aware of the nitty-gritty of the EVM system. They also check and ensure righteousness and integrity. Moreover, the incorporation of the VVPAT system fortifies the principle of vote verifiability, thereby enhancing the overall accountability of the electoral process.”

Justice Datta said, “It is of immediate relevance to note that in recent years, a trend has been fast developing of certain vested interest groups endeavouring to undermine the achievements and accomplishments of the nation, earned through the hard work and dedication of its sincere workforce. There seems to be a concerted effort to discredit, diminish, and weaken the progress of this great nation on every possible frontier. Any such effort, or rather attempt, has to be nipped in the bud. No Constitutional court, far less this Court, would allow such (an) attempt to succeed as long as it has a say in the matter.”

Rejecting the prayer for a return to ballot papers as “foible and unsound”, Justice Khanna said, “The weakness of the ballot paper system is well known and documented. 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.”

Justice Khanna pointed out that “EVMs offer significant advantages. 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 minimising errors,” he said.

The very request for a return to ballot papers, Justice Datta said, makes him doubt the bonafides of petitioner NGO Association for Democratic Reforms. “Irrespective of the fact that in the past efforts of the petitioning association in bringing about electoral reforms have borne fruit, the suggestion put forth appeared inexplicable. 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,” he said.

“While maintaining a balanced perspective is crucial in evaluating systems or institutions, blindly distrusting any aspect of the system can breed unwarranted scepticism and impede progress. Instead, a critical yet constructive approach, guided by evidence and reason, should be followed to make room for meaningful improvements and to ensure the system’s credibility and effectiveness,” he said.

“The Republic has prided itself in conducting free and fair elections for the past 70 years, the credit wherefor can largely be attributed to the ECI and the trust reposed in it by the public. While rational scepticism of the status quo is desirable in a healthy democracy, this Court cannot allow the entire process of the underway General Elections to be called into question and upended on mere apprehension and speculation of the petitioners. The petitioners have neither been able to demonstrate how the use of EVMs in elections violates the principle of free and fair elections; nor have they been able to establish a fundamental right to 100% VVPAT slips tallying with the votes cast,” he said.

The bench rejected the apprehension that the machines could be hacked or tampered with as “unfounded” and said “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”.

Citing data presented before it, the bench said that in the 2019 Lok Sabha elections, 20,687 VVPAT slips were physically counted, and except in one case, no discrepancy or mismatch was noticed. The discrepancy during mandatory verification of VVPAT slips happened in polling station No. 63, Mydukur Assembly Constituency, Andhra Pradesh due to failure of the presiding officer to delete the mock poll data.

The bench referred to Rule 49MA of the Conduct of Election Rules, which permits an elector to raise a complaint regarding the mismatch between the name and symbol of the candidate shown on the paper slip generated by the VVPAT and the vote cast in the ballot unit, and said in 26 such cases in which electors complained, “there is not even a single case in which any mismatch or defect was found”.

“EVMs have been subjected to test by technical experts committee from time to time. These committees have approved and did not find any fault with the EVMs,” it said.

Acknowledging the right of voters to question the working of EVMs, it said “it is also necessary to exercise care and caution when we raise aspersions on the integrity of the electoral process. Repeated and persistent doubts and despair, even without supporting evidence, can have the contrarian impact of creating distrust. This can reduce citizen participation and confidence in elections, essential for a healthy and robust democracy”.

Referring to claims that the firmware memory can be reprogrammed by what is called flashing, Justice Khanna said “even if we assume (it) is remotely possible, (it) is inhibited by the strict control and checks put in place… Imagination and suppositions should not lead us to hypothesise wrongdoing without any basis or facts. The credibility of the ECI and integrity of the electoral process earned over years cannot be chaffed and over-ridden by baroque contemplations and speculations”.

Turning down the prayer for 100 per cent counting of VVPAT slips, the bench said “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”.

It said “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”.

Explaining why it would not increase the number of EVMs which are randomly verified against VVPAT slips from the current 5 per assembly segment, Justice Khanna wrote, “First, it will increase the time for counting and delay declaration of results. The manpower required would have to be doubled. Manual counting is prone to human errors and may lead to deliberate mischief. Manual intervention in counting can also create multiple charges of manipulation of results. Further, the data and the results do not indicate any need to increase the number of VVPAT units subjected to manual counting”.

The bench, however, said the ECI could look into a suggestion made during the hearing for counting the VVPAT slips using a machine. “This suggestion, including the suggestion that barcoding of the symbols loaded in the VVPATs may be helpful in machine counting, may be examined by the ECI,” it said.

It also rejected the submission that any elector should be liberally permitted as a routine to ask for verification of vote, saying “an overly liberal approach could cause confusion and delay – hindering the election process and dissuading others from casting their votes”.

It said its “discussion aims to address the uncertainties and provide assurance regarding the integrity of the electoral process. A voting mechanism must uphold and adhere to the principles of security, accountability, and accuracy. An over complex voting system may engender doubt and uncertainty, thereby easing the chances of manipulation”.