Supreme Court Says Enhancing EVM-VVPAT Tally Would Increase Election Commission's Work Without Any Big Advantage

Again in September, the court reiterated its earlier concern over the Association for Democratic Reforms being ‘overly suspicious’. The court also revealed that it was not convinced of the urgency of the matter, particularly in view of the counter-affidavit filed by the election commission, while adjourning the matter until November. In its affidavit, the Election Commission staunchly defended electronic voting machines as ‘non-tamperable’, both owing to technological measures and strict administrative and security procedures designed by the commission. Opposing the plea seeking complete verification of EVM data against voter-verifiable paper audit trail records, the commission said that the PIL was yet another attempt to cast doubt over the functioning of EVMs and VVPATs on ‘vague and baseless’ grounds, besides arguing that counting all VVPAT paper slips manually, as suggested, would not only be labour and time-intensive, but also be prone to ‘human error’ and ‘mischief’. This would essentially be a retrogression to the paper ballot system, the commission claimed. It has also clarified that voters had no fundamental right to verify that their vote has been ‘recorded as cast’ and ‘counted as recorded’.

Although the hearing today was adjourned until December, the bench once again conveyed its scepticism during the brief exchange in court. When Bhushan pointed out former chief election commissioner SY Quraishi's opinion about VVPAT cross-verification, Justice Khanna said, "That's an opinion. There will be a counter-opinion."

The judge also said that there were several downsides to such extensive verification -

"One, it increases work without any big advantage. Two, there is already a provision allowing a candidate to make a request for counting. Three, normally when counting is done manually, it may be erroneous. There will be errors and lots of cases where there are mismatches. As a lawyer, when I did my own accounts, sometimes I could never tally. Computerised accounting was a big boon. Otherwise, even for one rupee sometimes I would struggle for days to find out where the error happened."

Referring to a 2019 ruling given by the Supreme Court in response to a plea filed by 21 opposition leaders including former Andhra Pradesh chief minister N Chandrababu Naidu, in which the number of random polling stations in each assembly constituency or each assembly segment of a parliamentary constituency subject to mandated verification of paper audit trail (PAT) slips was enhanced from 1 to 5, Justice Khanna asked, "Today, we have gone up to 5. The candidate can ask for a count. Why should we direct this verification in every case and increase the work?"

In support of ADR's demand, Bhushan disputed the election commission's claim that the present system of random verification of five VVPATs per assembly constituency or segment achieved a state of 'near-certainty'. He said, "They are saying counting of five per constituency, which amounts to two per cent, gives us 99.999 per cent confidence that EVMs are fine...Now, I've been a student of Mathematics. If only two per cent of the VVPATs are counted...let's take only one constituency, even assuming that in ten per cent of EVMs there is a problem, the chance of one being picked up out of the five randomly selected is only 40 per cent..."

"What I'll request Your Lordships," Bhushan added, "Is to have this on a non-miscellaneous day since I need to show a decision of the German constitutional court. A judgment of the highest court of Germany in exactly the same circumstances."

While agreeing to adjourn today's hearing, Justice Khanna said, "We have our own judgments. I just read the order by which number was increased from one to five. What's the population of Germany versus the population of Uttar Pradesh, for example? How can we compare? They have enough hands over there. In fact, counting by hand also needs to progress. It's a big problem."

"We're becoming over-suspicious," the judge said once again, at the conclusion of the hearing.  

Background

The present petition, filed through Advocate Prashant Bhushan, has not only sought a declaration that is the fundamental right of every voter to verify that their vote has been ‘recorded as cast’ and ‘counted as recorded’, but also directions to affect appropriate changes to enforce this right and give full effect to the purport and object of the 2013 judgment in Subramanian Swamy v. Election Commission of India, in which the Supreme Court held ‘paper trail’ to be an indispensable requirement of free and fair elections and directed the ECI to introduce the VVPAT mechanism.

Case Details

Association of Democratic Reforms v. Election Commission of India & Anr. | Writ Petition (Civil) No. 434 of 2023