The Supreme Court on Tuesday asked the Union government to state its position on introducing a “totalizer” system for counting votes recorded through EVMs, a proposal aimed at preventing candidates from determining the voting pattern of individual polling booths.

The Court specifically sought to know if there are any impediments to introducing such a mechanism and if there would be any negative impact because of it. The Election Commission of India has also been asked to submit its proposal to the Union.

The Court sought to know if a provision akin to Rule 59A of the Conduct of Elections Rules 1961 - which allows use of a totalizer in ballot paper counting in certain circumstances - can be incorporated, as proposed by the Law Commission in its 255th Report. The Court sought the Union's views since it has the power to amend the Conduct of Election Rules.

For context, a Totalizer is a device that would allow votes recorded in a cluster of Electronic Voting Machines (EVMs) to be counted together instead of booth-wise.

A Bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V Mohana was hearing three petitions which sought, among other things, that election results be declared for an entire parliamentary constituency rather than revealing the booth-wise vote count from individual EVMs.

During the hearing, the Election Commission of India said it had pointed out both the advantages and practical difficulties associated with the totalizer system. Senior Advocate Dama Seshadri Naidu, appearing for the ECI, said the Commission had earlier approached the government on the issue and that an Expert Committee appointed by the government had examined the proposal but did not support it. A Group of Ministers had also opposed the proposal, he said. Also, most political parties objected to the move.

Advocate Ashwini Kumar Upadhyay, one of the petitioners, appearing in person, argued that the Commission's present position was contrary to its earlier stand. He referred to the Supreme Court's January 12, 2018 order and submitted that the ECI had supported the introduction of a totalizer for several years.

The totalizer would aggregate votes from multiple EVMs before the results are disclosed, thereby preventing a candidate or political party from knowing precisely how much support it received at a particular polling booth, Upadhyay submitted. This would prevent post-poll violence, as political parties would not know which all booths specifically voted against them.

'How does it benefit democracy?'

The CJI questioned the necessity of directing the introduction of the system, pointing to the transparency involved in the existing booth-wise counting process.

The Chief Justice observed that under the present system, votes are counted openly and it is possible to scrutinise the counting process and identify any discrepancy or tampering. The Bench questioned what specific democratic benefit would result from replacing that system with a totalizer, particularly when the latter would reduce the transparency of booth-level results.

Upadhyay countered that the principal purpose of the system was voter privacy and prevention of post-poll victimisation and violence.

He submitted that if votes from multiple EVMs were clubbed together, even a contesting candidate would not be able to determine how much support he or she received from a particular booth. He argued that the measure would protect voters because political parties would not be able to identify the voting pattern of a particular locality or polling station.

“This is not adversarial,” Upadhyay submitted, arguing that the proposal was intended to protect voters and would not require substantial expenditure. He said a totalizer could, for instance, club 14 EVMs together for counting.

'Totaliser a good measure in principle'

Justice Bagchi noted that totalization was, in principle, a tool for anonymising voter choice, but wondered if the Court can pass any directions to implement it when there is no statutory backing.

"On principle, totalizer is a good tool to ensure anonymization of voter choice. But the difficulty is - let's say we pass an order. They will have to have statutory backing. You (ECI) have not said you don't approve totalizer. You have pointed out roadblocks in totalization," Justice Bagchi said.

Justice Bagchi also referred to Rule 59A of the Conduct of Election Rules, which provides for totalization in certain circumstances in relation to paper-ballot counting.

Senior Advocate Gopal Sankaranarayanan, appearing in the connected matter, argued that a similar mechanism could be made applicable to EVM counting. He referred to the Law Commission's recommendations and submitted that the existing legal framework could be strengthened to provide a similar safeguard for EVMs. He argued that courts have previously stepped in to nudge institutional and legal changes in areas such as NOTA and disclosure of criminal antecedents of candidates.

Justice Bagchi observed that totalization is an exception to the general rule of counting votes polling-station-wise, and questioned why a similar provision could not be made for EVMs if such a mechanism already exists for ballot papers.

What are the objections raised by the ECI in its counter-affidavit?

The Election Commission of India (ECI) filed a counter affidavit in the matter yesterday stating that a Totalizer ought not to be introduced at present, citing lack of statutory framework and the risk of diluting the transparency safeguards presently available to candidates.

The ECI's affidavit traces the history of the proposal, beginning with a demonstration of the Totalizer by Bharat Electronics Limited (BEL) and Electronics Corporation of India Limited (ECIL) in 2007, followed by a formal recommendation from the ECI to the Ministry of Law and Justice in 2008, seeking an amendment to the Conduct of Election Rules, 1961 to permit its use.

This proposal was subsequently endorsed by the Law Commission of India in its 255th Report, which recommended inserting a new sub-rule empowering the ECI to notify constituencies where a Totalizer could be used, “where the Election Commission apprehends intimidation and victimisation of electors.”

However, the affidavit also notes that when the matter was placed before all recognised political parties in 2016, “0% i.e. 3 out of 6 National Parties and 62% i.e. 18 out of 29 State Parties opposed the idea of Totalizer.” Subsequently, a Team of Ministers, constituted in 2016, also disagreed with the ECI's proposal, taking the view that revelation of booth-wise voting patterns had a “beneficial effect” for parties seeking to improve their performance.

The ECI's primary objection is that there exists no enabling provision in the Constitution, or the Representation of the People Act, 1950 and 1951, or the Conduct of Election Rules, 1961 for the use of a Totalizer.

The affidavit places reliance on Director of Settlements, AP & Ors v MR Apparao & Anr, to submit that a writ of mandamus can only issue where there is a corresponding legal right and a duty to perform, neither of which exists in the present case. It also drew a parallel with the introduction of EVMs in 1982 without statutory backing, which was struck down by the Supreme Court in AC Jose v Sivan Pillai, leading to the setting aside of an election conducted using EVMs “without the sanction of law.”

It also explains how the introduction of a Totalizer would affect the existing audit mechanism built around Form 17C, which deals with the statutory record of votes polled, and is maintained in two parts under the Conduct of Election Rules.

Part I of Form 17C is prepared booth-wise by the Presiding Officer at the close of polling and handed to the polling agent. Part II is filled at the counting centre once the Result button on EVM's Control Unit is pressed, and must tally with Part I for that particular booth. The ECI describes this booth-wise correspondence as the “backbone” of the self-verifying character of the present counting process. It submits that, “it is this one-to-one, booth-wise and EVM-wise correspondence between Part I and Part II of Form 17C which constitutes the backbone of the self-verifying and transparent character of the present counting process.”

The affidavit further contends that a Totalizer, by aggregating votes from a group of EVMs “at a single point” before any individual result is displayed, would make it impossible for candidates or their counting agents to record a distinct, booth-wise figure, leaving only a single combined figure for the entire batch. Any discrepancy in one of the clubbed EVMs “would stand concealed within the aggregate figure”, the ECI submits.

The ECI also flagged a potential conflict with the Supreme Court's own directions in N Chandrababu Naidu v Union of India mandating VVPAT verification of five randomly selected EVMs per Assembly segment, and in Association for Democratic Reforms v Election Commission of India mandating post-result verification of burnt memory/microcontrollers of 5% of EVMs per Assembly segment.

The ECI submitted that both the directions presuppose the availability of votes on a “distinct, booth-wise and machine-wise basis,” which a Totalizer would not preserve. It stated that introducing the Totalizer “would prevent the Election Commission of India from effectively complying” with these mandatory directions.

Case: Yogesh Gupta v. The Election Commission of India WP(c) 422/201, Ashwini Kumar Upadhyay v Union of India & Anr W.P.(C) No. 927/2017 and Imran Khan v Union of India W.P.(C) No. 585/2014