Electronic Voting Machine is known as EVM. It’s a machine that counts and electronically records election votes. To distinguish it from EVMs used in other nations, the Indian Electronic Voting Machine (EVM) system is also known as ECI-EVM. This stands for an EVM that is specifically designed, manufactured, and used for elections in accordance with election procedure and rules framed by the Election Commission of India and documented in an EVM handbook. Ballot Unit (BU), Control Unit (CU), and the later-added Voter Verifiable Paper Audit Trail (VVPAT) comprise the ECI – EVM.
VVPAT, or “Voter Verifiable Paper Audit Trail,” is what the ECI defines as such. In the primary election laws, there is no explicit reference to the phrase “VVPAT” or its expansion.
HISTORY OF THE EVMs AND VVPATs:
In 1982, the Election Commission implemented electronic voting machines (EVMs) in fifty polling places for the Keralan elections. After a notice was published in the Kerala Gazette on May 13, 1982, the Commission issued a directive pursuant to Article 324 of the Constitution, and voting by electronic vote was carried out in accordance with that directive.
Remarkably, the Commission had requested approval from the Indian government before releasing the aforementioned notification, but it had been denied.
In the case of A.C. Jose v. Sivan Pillai,[1] the Hon’ble Supreme Court ultimately resolved a challenge to the use of electronic voting machines and the election of the returned candidate. This case was also known as the EVM Case as it was the first of the many cases relating to EVMs.
It was argued that the way votes were cast fell under the purview of Article 324, that Article 327 would be regarded as subordinate to Article 324’s authority, and that in the event that a conflict arose between a law passed by Parliament and the Commission’s authority over how to oversee the conduct of Parliamentary elections, that law would have to give way to Article 324 in order to preserve the very purpose of Article 324.
According to the court, Article 324 gives the Commission the authority to supervise, direct, and control the creation of electoral rolls and the holding of elections for both the State and Parliamentary legislatures. However, the Article must be interpreted in a way that is consistent with Articles 325 to 329 and the powers granted to the Legislatures by entry No. 37 of the State List and entry No. 72 in the Union List of the Seventh Schedule to the Constitution.
The Honourable Supreme Court distinguished the ruling, noting that the employment of EVMs was attempted through an executive order in the A.C. Jose case[2], which was illegal because it went against the rules. It was decided that the use of EVMs cannot be contested on the grounds of the aforementioned verdict now that Section 61A of the Act has been introduced.
In N.P. Ponnuswami v. Returning Officer[3], the court also cited a ruling by a six-judge bench that held that prior to the functioning of election machines, There are three requirements that must be fulfilled, specifically-
- there should be a set of laws and regulations that address everything related to or associated with elections, and it should be decided how these laws and regulations are to be made;
- there ought to be an executive branch tasked with ensuring that elections are conducted fairly; and
- A court tribunal ought to be established to handle disagreements resulting from or related to elections.
LEGISLATIVE AMENDMENT TO ENABLE THE USAGE OF EVMs:
The Commission suggested that the Government of India introduce a legislative change to give legal approval for the use of EVMs following the Hon’ble Supreme Court’s ruling in A.C. Jose v. Sivan Pillai, 1984 SCR (3) 74.
For this reason, the Representation of the People Act, 1951 was amended in 1989 to include Section 61A.
Section 61A. Voting machines at elections — The Election Commission may adopt the voting machine method, if it is deemed appropriate, in a constituency or constituencies of its choosing, taking into account the specific circumstances of each case. This is in addition to any other provisions of this Act and the rules formulated thereunder.
LEGAL PROVISIONS RELATING TO EVMs:
In order to facilitate the seamless use of VVPAT with EVMs, The following are pertinent statutory clauses included in the Representation of the People Act of 1951:
- Section 58. Fresh poll in the case of destruction, etc., of ballot boxes. When a mistake or irregularity in process occurs at a polling place or polling station during an election that could potentially taint the results, the returning officer is required to promptly report the situation to the Election Commission.
- Section 135A. Offence of booth capturing — Anyone found guilty of booth capturing will be punished with a minimum sentence of one year, a maximum sentence of three years, and a fine. If the offender is an employee of the government, their sentence will be increased to a minimum of five years, a fine, and a minimum sentence of three years.
- Rule 49A. Design of Electronic Voting Machines — All electronic voting machines, which will be referred to as the voting machine from now on, must have a control unit and a balloting unit. The Election Commission may authorise certain designs for the machines.
- Rule 95. Power of the Election Commission to issue directions — The Election Commission may provide whatever instructions it deems necessary to enable the appropriate use and functioning of the voting machines, subject to the other provisions of these rules.
A TIMELINE OF CASES:
- People’s Union for Civil Liberties v. Union of India[4]-
This case was dated September 27,2013. This Writ Petition was filed under Article 32 of the Indian Constitution, contesting the validity of Rules 41(2), (3), and 49-O of the Conduct of Elections Rules, 1961, to the extent that these provisions breach the voting confidentiality, which is essential to free and fair elections and must be upheld in accordance with Section 128 of the Representation of the People Act, 1951, as well as Rules 39 and 49-M of the Rules. The petitioner had requested that the appropriate provisions for secrecy and the preservation of the right not to vote be included in both the ballot papers and the electronic voting machines.
–Court’s Ruling:
The Honourable Supreme Court noted the arguments made by the Commission and noted that, aside from designating the final panel in the EVM for the NOTA button, there won’t be much work involved in implementing the button.
In addition, the Commission was instructed to include a NOTA button in EVMs so that voters who visit the polls and choose not to support any of the contenders can exercise their right to abstain while preserving their right to privacy. It was noted that, with the help of the Indian government, the Commission might carry out the implementation gradually or one step at a time. The Commission was also instructed to launch public education campaigns. Additionally, the Indian government was instructed to give the assistance required to carry out the aforementioned directives.
- Subramanian Swamy v. Election Commission of India[5]
The Hon’ble High Court of Delhi dismissed the petition for a writ of mandamus ordering the Election Commission of India to install a “paper trail/paper receipt” system in the electronic voting machines as a convincing demonstration that the EVM has correctly recorded a voter’s vote cast in favour of a specific candidate. This decision was challenged in a civil appeal. The decision was made on January 17, 2012.
–Court’s Ruling:
The court observed that EVMs with VVPAT systems ensure the accuracy of the voting process. The Hon. Supreme Court held that in order to have the highest level of transparency in the system and to rebuild the confidence of the voters, it is necessary to set up EVMs with VVPAT systems because voting is nothing more than an act of expression that is extremely important in a democratic system. The Court declared that the establishment of a “paper trail” is an essential requirement for free and fair elections. It was instructed to the Indian government to supply the necessary funding for the purchase of VVPAT units.
- N. Chandrababu Naidu v. Union of India[6]
The Election Commission proposed that the verification of the VVPAT paper trail of 479 (randomly selected) EVMs would produce an accuracy of above 99% in the election results, according to the Indian Statistical Institute [ISI], an authoritative body. Additionally, in accordance with Guideline No. 16.6, VVPAT paper trails must be verified for 4125 EVMs rather than 479 EVMs, which is eight times higher than what the ISI has stated.
The Election Commission further highlighted that there were infrastructure challenges—such as a shortage of personnel—when it came to augmenting the quantity of electronic voting machines for validation at that particular moment. The argument put forth was that a group of three officers, working directly under the direction of the constituency’s Election Observer and Returning Officer, verify the sample of one EVM’s VVPAT paper trail.
-Court’s Ruling:
The Honourable Court stated that as far as fairness and honesty are concerned, neither the ECI’s satisfaction nor the current system are under question by the Court. The number of EVMs that would now be subject to verification in terms of the VVPAT paper trail, however, would be five per Assembly Constituency or Assembly Segments in a Parliamentary Constituency instead of what is provided by Guideline No. 16.6, namely, one machine per Assembly Constituency or Assembly Segment in a Parliamentary Constituency. This decision was made in light of the need to generate the greatest degree of satisfaction overall with regard to the full accuracy of the election results.
Additionally, it was decided that, in accordance with the current criteria, a random selection procedure would be used to determine which machines would be subjected to the VVPAT paper trail verification process.
- Madhya Pradesh Jan Vikash Party v. Election Commission of India[7]
This SLP arose out of the decision dated December 14, 2021, passed by the Hon’ble High Court of Madhya Pradesh, Principal Bench at Jabalpur in Writ Petition 26671/2021. The Writ Petition was filed seeking directions for ruling out discrepancies in the Electronic Voting Machines (EVM). Before the Hon’ble High Court, the petitioner sought to Directing the replies to reveal the authorised hardware configuration of the electronic voting devices, along with the approved dimensions, form, colour, and quantity of parts, in front of the political party representatives.
-Court’s Ruling:
The Honourable Court noted that although electronic voting machines have been used in the nation for decades, concerns are occasionally brought up. In theory, this is one such project. It seems that the party, which may not have received much support from voters, is now attempting to gain recognition through petitions! The court believes that parties that may not have had much support from the public try to gain recognition by submitting these pointless lawsuits. Consequently, the SLP was dismissed with a Rs. 50,000 fee.
BACK TO SPOTLIGHT:
A technological marvel called the Electronic Voting Machine (EVM) is at the centre of India’s voting process. The fate of the biggest democracy in the world has been shaped by these modest devices for decades as they have quietly logged millions of votes. Their honesty and transparency have been called into question, and they have recently found themselves at the centre of a legal tempest.
The integrity and openness of India’s electoral process were the primary issues at the centre of the EVM-VVPAT argument, which is where the entire controversy surrounding this dispute began.
This was highlighted in the very recent case of ASSOCIATION FOR DEMOCRATIC REFORMS v. ELECTION COMMISSION OF INDIA AND ANOTHER[8]
The whole issue started when the susceptibility of EVMs to manipulation, cyberattacks, or malfunctions was a point of contention for critics. This was the turning point in the case, and the courts had to resolve the entire legal mess surrounding it.
Coming to the issue relating to VVPATs- The main function of VVPATs is to give voters a paper trail so they can confirm their electronic vote. VVPAT proponents said that they increase trust and transparency. The scope of VVPAT verification was a matter that the court had to consider.
-Court’s Ruling:
A bench of justices Sanjiv Khanna and Dipankar Datta, giving a distinct but unanimous ruling, expressed faith in the electoral processes as they currently exist. In denying petitions calling for a 100% cross-verification of votes cast on electronic voting machines (EVMs) with voter-verifiable paper audit trails (VVPATs) or a return to the ballot paper system, the Supreme Court on Friday upheld the legitimacy of EVMs and their integration with VVPATs.
Two orders were issued by the court to bolster the current system and ease the concerns of the contenders. According to the instructions, the symbol loading unit containers must be sealed while the candidates or their polling agents are present. They must also be kept locked for 45 days, during which time the control unit, ballot unit, and VVPAT candidates are retained to allow the candidates to file election petitions contesting the poll results.
The bench rendered the decision one day after noting that the Election Commission of India (ECI), an independent constitutional body, is in charge of monitoring election administration and that the court is not permitted to make decisions that cast doubt on the effectiveness of electronic voting machines (EVMs) and their integration with VVPATs based only on hearsay or unconfirmed reports. The court was faced with a number of petitions that raised political ire and public concern about maintaining the integrity of electronic voting with VVPATs. With this technology, voters receive a paper slip confirmation that they can examine through a transparent window.
It was advised to use bar codes on VVPAT slips. Secure and sealed were the Symbol Loading Units (SLUs). Microcontroller EVMs with burned memory would be examined after the results.
The value of EVMs and their combination with VVPATs was upheld by the most recent ruling. Petitioners requesting a 100% VVPAT slip vote verification were denied. When scrutinising the electoral process, the court advised exercising prudence.
CONCLUSION:
As the sun sets on the legal battleground, where circuits hummed and paper trails whispered, we find ourselves at a crossroads—a juncture where technology meets tradition, and democracy stands unwavering.
Repercussions are felt across the country following the Supreme Court’s resounding endorsement of EVMs and their harmonious partnership with VVPATs. It is an acknowledgement of the technologists who painstakingly construct these devices, the poll workers who watch over them, and the voters who place their trust in the digital void.
It’s a reminder, though, that caution and trust have to coexist. Our expectation is transparency, even though we have faith in the algorithms, microcontrollers, and cryptographic seals. We want to know that our decisions have an impact that extends beyond silicon—the real, palpable whispers in paper.
EVMs and VVPATs are more than just devices. They serve as messengers for the voice of the whole. With each beat echoing, “We are here,” they hum with the heartbeat of a billion people. We are important.
FUTURE OF EVMs IN THE INDIAN SOCIETY:
The future of Electronic Voting Machines (EVMs) and Voter Verifiable Paper Audit Trail (VVPAT) in India holds several possibilities.
- Continued Use and Refinement- Since the early 2000s, electronic voting machines (EVMs) have been a crucial component of India’s election system. Elections have run well in part because of their dependability and effectiveness. With continuous attempts to improve the security and functionality of EVMs, the Election Commission is likely to keep using them. Introduced to give voters a paper trail, VVPATs will continue to be an essential element.
- Technological Advancements- Future developments in technology may bring new functionalities to EVMs. Say for example: Integrating blockchain technology to guarantee safe voting and tamper-proof records Strengthening voter identity using biometric authentication Safeguarding data transfer using end-to-end encryption In order to shape the future of EVMs, research and development will be crucial.
- Legal Reforms- It may be necessary to propose legislative reforms to solve issues with EVMs and VVPATs. The Representation of the People Act might be amended by Parliament to include criteria for its application and validation.
- Public Confidence and Trust- It is still crucial to preserve public confidence in the democratic process. In order to preserve its credibility, the Election Commission will keep interacting with interested parties, professionals, and civil society.
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Written by Riddhi S Bhora
CITATIONS:
[1] A.C. Jose v. Sivan Pillai, 1984 SCR (3) 74
[2] A.C. Jose case (supra)
[3] N.P. Ponnuswami v. Returning Officer, 1952 SCR 218
[4] People’s Union for Civil Liberties v. Union of India, (2013) 10 SCC 1
[5] Subramanian Swamy v. Election Commission of India, (2013) 10 SCC 500
[6] N. Chandrababu Naidu v. Union of India, (2019) 15 SCC 377
[7] Madhya Pradesh Jan Vikash Party v. Election Commission of India, Special Leave Petition (Civil) 16870/ 2022
[8] Association For Democratic Reforms v. Election Commission of India [WP (CIVIL) NO. 434 OF 2023]
