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SC allays concerns over EVMs

Robin R. David analyses the issue of possible tampering of votes.

SC allays concerns over EVMs
The first general elections were held in India in 1952, with the symbols of each candidate marked on separate boxes in each polling station. However, the system of maintaining separate ballot boxes for each of the contesting candidates soon gave way to the ballot paper system which presented multiple names of the contesting candidates along with their election symbol. Advancement in technology ensured the ballot was then replaced by the Electronic Voting Machines (EVMs).

The aspersions cast on the EVM today go a long way back to the very year in which it was first employed. It was the by-election of Parur Assembly constituency of Kerala in 1982, and the EVMs had been installed in 50 polling stations. Consternation rose the minute the result was announced. Of six candidates, Sivan Pillai of the Communist Party of India came out on top securing 123 votes more than A.C. Jose of the Congress (A) Party. The result was immediately challenged by Jose on the ground that the EVMs should not have been introduced without making due amendment in the Representation of People's Act, 1951. The Supreme Court in the challenge made by Jose struck down the election results of booths where the EVMs were employed. Subsequent to the pronouncement of the Supreme Court in A.C. Jose, Section 61A was inserted in the Representation of People Act, 1951 by the Parliament in December 1988 which empowered the Election Commission to use EVMs.

The EVM which has lately grabbed the spotlight, interestingly were first developed for a different purpose. Scientists of Bharat Electronics Limited (BEL) initially developed the machine for trade union elections. Grasping the utility and its relevance to the country's general elections, the Election Commission then approached BEL. for manufacturing an EVM suitable for the general elections. The scientists after careful experimentation and research designed such an EVM, manufactured in 1989-90; these were for the first time used in 16 Assembly Constituencies in Madhya Pradesh and Rajasthan. The machines also made their debut in Delhi at the General Elections to the respective Legislative Assemblies in November 1998.

Much water has flown since but the issue of possible tampering has reared its head time and again before the courts, though the courts have ruled it out. The Karnataka High Court in 2004 in Michael B. Fernandes vs. C.K. Jaffer Sharief held that EVMs were fully tamper-proof and further held that there was no possibility of manipulation or mischief at the instance of anyone. The issue of possible tampering was also negated by the Madras and Bombay High Courts.

The Supreme Court, while hearing the Public Interest Litigation filed by Dr Subramanium Swamy, issued additional directions to ally the fears surrounding this electronic voting machine. The Court issued directions for the introduction of VVPAT system (Voter Verifiable Paper Audit Trail) which involves a printing paper trail when the voter casts his vote in addition to the electronic record of the ballot for the purpose of verification of his choice of candidate and also for manual counting of votes in case of dispute. The Supreme Court in its judgment concluded that it was satisfied that the "paper trail" is an indispensable requirement for free and fair elections and that the confidence of voters in the EVMs can be achieved only with the introduction of the "paper trail". The Supreme Court directed that to ensure greater transparency in the system and to restore the confidence of the voters, and it was necessary to set up EVMs with VVPAT system.

The system was accordingly introduced by the Election Commission of India in 21 polling stations of the bye-election of Noksen Assembly Constituency in Nagaland during September 2013. Later, acting on a dispute over the election result, the Election Commission carried out a count of the paper slips of VVPAT in respect of all polling stations and found no discrepancy between the electronic and paper count. Despite the directions issued by the Supreme Court, the introduction of EVMs with VVPAT has not been implemented fully. The recent elections in UP and the claims by the Opposition of alleged tampering of EVMs has brought the issue again to the forefront. The non-availability of funds with the Election Commission to the tune of Rs. 3,000 crores, for the purchase of 16 lakh EVMs has been cited as one of the main reason for this failure. The need to dispel voter concerns over the increasing use of technology in elections and the lack of transparency thereof has been a matter of great debate not only in India but several other countries. In the 2017 United States Presidential election, nearly 70 per cent of the voters cast paper ballots by hand. Following their custom, the five states—Delaware, Georgia, Louisiana, South Carolina, and New Jersey—used the "direct recording electronic" (DRE) machines exclusively and more than half of the other states conducted post-election auditing, by checking vote totals against paper records. Such audits are designed to verify that the electronic voting systems (either DRE voting machines or optical scan voting systems) are accurately recording and counting the votes. In the randomly-selected precincts, a hand count of the voter-verified paper records is compared to the totals reported by the electronic voting system.

After a largely successful trial period spanning from 1998 to 2005, two citizens challenged the constitutionality of electronic voting before the German Constitutional Court. The case argued that the use of electronic voting machines was unconstitutional and that it was possible to hack the voting machines thus the results of the 2005 election could not be trusted.

The Court held that the public nature of elections is a fundamental precondition for democratic political will formation and creates a major pre-condition for the well-founded trust of the citizen in the correct operation of the elections. The use of electronic voting machines requires that the essential steps of the voting and the determination of the result can be examined by the citizen reliably and without any specialist knowledge of the subject. The Constitutional Court, however, explicitly left the door open for the use of electronic voting machines if the constitutionally required possibility of a reliable correctness check is ensured. The Constitutional Court held that voting machines are conceivable in which the votes are recorded elsewhere in addition to electronic storage. While the court's decision did not rule out the use of voting machines in principle, the decision by the German Constitutional Court, stressing the need for transparency in the electoral process without specialist technical knowledge, effectively ended use of electronic voting in the country and no further moves to adopt machines that meet the transparency requirements have been made either

In April 2009, the Irish government announced the scrapping of the controversial electronic voting system. The devices were originally put on trial in three constituencies in the 2002 General Election and were intended for nationwide use in the 2004 European and local elections. But many security and transparency issues were raised, undermining the public's trust. The nation has gone back to paper and pencil mode. Similarly, Netherlands were both an early adopter and early abolisher of electronic voting. It started using the EVM in the 1980s. In 2008, the use of electronic machines was abolished.

So what course does India chart? Does it follow the path adopted by countries like Germany and scrap electronic voting altogether? Do we get rid of EVMs from the poll booths? Much like the courts, the Election Commissioners have time and again shown a preference for the adoption of the VVPAT along with the EVMs instead of merely doing away with the system altogether. Former Chief Election Commissioners S Y Quraishi and H S Brahma recently called for a quick rollout of the VVPAT machines in all polling stations across the country. They explained their stance saying that it was the only way to silence doubts over the alleged tampering of EVMs. The Election Commission has sent more than ten reminders to the Centre since June 2014 for the release of funds to carry out phased implementation of the VVPATs.

As recently as 24 March 2017, the Supreme Court issued a notice to the Election Commission on a Public Interest Litigation pertaining to the introduction of a paper trail. The Supreme Court observed that the Election Commission had not complied with the directions issued by it in 2013. This again has provided fresh fodder for the debate over the veracity of the EVMs. While the courts have repeatedly held that the EVMs used in the Indian electoral process are tamper proof it has also provided directions for the introduction of the VVPAT system to rule out the remotest concerns. In lending support to the VVPAT, the Indian legislature has shown the way forward in this heated debate over EVMs. Its stern directions for the quick implementation of the VVPAT along with EVMs is proof of its commitment to assuage the voter and hence secure the democratic processes.

(The writer is an Advocate practicing in Supreme Court. Views expressed are strictly personal.)
Robin R. David

Robin R. David

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