The Association for Democratic Reforms, in its writ petition pending in the Supreme Court, has pleaded that the print-out of the voter Verifiable Paper Audit Trail (VVPAT) slips must be handed over to the voter who, in turn, must be able to deposit them in the VVPAT Box. It further adds that these slips must be counted and cross-verified by the electronic count in the EVMs, in accordance with the directions of the top court in Subramanian Swamy v. Election Commission of India (2013). 

This plea is also in accordance with Rule 56(D)(4)(b) of Conduct of Election Rules, 1961, which provides that the count of VVPATs shall prevail over the count reflected in EVMs: “If there is discrepancy between the votes displayed on the control unit and the counting of the paper slips, amend the result sheet in Form 20 as per the paper slips count.” 

This rule is a statutory admission of the fact that it is finally the VVPAT slips which accurately captures the will of the voter and that errors in the results captured in the EVMs cannot be ruled out for any given reason. 

In its counter-affidavit, the Election Commission of India (ECI) said, “100% verification of VVPAT is a regressive step and takes the country back to manual counting of ballots.” According to the Commission, the purpose of VVPATs is only to ensure that voters can verify that their vote has been cast as intended. This means that VVPATs were mere ‘bioscopes’ and not a device to verify and audit the casting, recording and counting of votes as intended by the Supreme Court.

The ECI also stated that any increase in the number of VVPATs to be cross-verified will pose an administrative challenge, implying that the comfort of election officials was more important than electoral democracy. It also lied that the ballot counting system used to take up to six days and it will take more time if VVPATs are counted and recounted. 

The Commission also said that Indian voters do not have a ‘fundamental’ right to get their vote verified through VVPATs.

The ECI has been deliberately promoting the notion that paper slips and ballot papers are primitive and counting them will take India back to the stone age.

In a democracy, paper ballot is the gold standard for elections

In their autocratic arrogance, the Commission refuses to realise that in any genuine democracy, paper ballot is the gold standard for elections.

According to the National Election Defense Coalition of USA, “While using paper may sound antiquated, the consensus among election security experts is that nothing else provides the needed reliability, security, and transparency. Durable, voter marked paper ballots are appropriate technology for public elections. Hand Counted Paper Ballots are considered the “Gold Standard” of democratic elections. Only paper ballots provide physical proof of the voter’s intent. Paper ballots can be safely recounted in case of a contested result. Counting paper ballots in public provides 100% oversight and transparency…. Unlike computer voting systems:  -paper ballots cannot break down or malfunction; – paper ballots are not programmed secretly by unaccountable private corporations; – paper ballots cannot be hacked or rigged.” 

Also read: The Case for Bringing Paper Ballots Back

Also, contrary to the myth that using EVMs is the only way to conduct elections, the Representation of People’s Act, 1951 (RPA) and Conduct of Election Rules, 1961, clearly provide for voting and counting through ballot paper.

“[The] manner of voting at elections. At every election where a poll is taken, votes shall be given by ballot in such a manner as may be prescribed and, save as expressly provided by this Act, no votes shall be received by proxy,” Section 59 of the RP Act says.

Section 61A provides for voting machines at elections. “Notwithstanding anything contained in this Act or the rules made thereunder, the giving and recording of votes by voting machines in such manner as may be prescribed, may be adopted in such [a] constituency or constituencies as the Election Commission may, having regard to the circumstances of each case, specify.” 

The Conduct of Election Rules, 1961 (CER) has a full part and chapter (Part IV and Chapter I) on “Voting by Ballots”. Rule 38 is specific: “Issue of ballot papers to electors. (1) Every ballot paper before it is issued to an elector, and the counterfoil attached thereto shall be stamped on the back with such distinguishing mark as the Election Commission may direct, and every ballot paper, before it is issued, shall be signed in full on its back by the presiding officer. (2) At the time of issuing a ballot paper to an elector, the polling officer shall—(a) record on its counterfoil the electoral roll number of the elector as entered in the marked copy of the electoral roll; [(b) obtain the signature or thumb impression of that elector on the said counterfoil; and (c) mark the name of the elector in the marked copy of the electoral roll to indicate that a ballot paper has been issued to him, without however recording therein the serial number of the ballot paper issued to that elector.” 

There is a separate Chapter (Chapter II) for “Voting by Electronic Voting Machine” laying down the process and procedure.

Therefore, as per the law, the use of ballot paper is the norm and use of EVM is an option. There is more. Section 135 of RPA provides for consequences for unauthorised removal of a ballot paper (BP) from the polling station. 

Section 136 of the RP Act provides for consequences for: (i) Defacing or destroying a BP (ii) Supplying a BP without authority to any person and (iii) Fraudulently putting anything into a Ballot Box other than a BP. 

Rule 30 of the CER provides for a counterfoil to be attached to the ballot paper to ensure security of voting. Rule 33 of CER provides for securing and sealing a ballot box to ensure that no tampering can take place. The said rule also provides that each ballot box shall have labels, both inside and outside, which will be shown to the polling agents to confirm that the box is empty and bears the required labels. Rule 38 of CER provides that before a ballot paper is issued to an elector, the counterfoil attached to it shall be stamped on the back with a distinguishing mark and signed by the presiding officer. 

It appears that law and rules, as they stand today, are primarily for ballot papers and ballot boxes not EVMs. Hence, the argument that reverting to them would be time-consuming and require an amendment to the RP Act is only a myth to hood-wink the gullible citizens of the country.

It seems that because of its “technology obsession”, ECI has feverishly adopted the EVM in violation of Section 61A of the RP Act without any justifiable circumstances or cogent reasons. In fact, the law permits the ECI to use EVMs for elections only on a case-to-case basis, only for justifiable reasons, and not entirely as they claim. 

Why the ECI should return to voting through ballot papers

Another claim that needs to be debunked is the ECI saying that since the elections are likely to be announced soon, only EVMs can be used as they are ready. This is a complete falsehood as no EVM can be prepared for any constituency till the nomination and scrutiny of candidates is completed and the last date for withdrawal of candidature has passed. The final list of candidates for each constituency is prepared and loaded into the machine only after this has been done. Ballot papers can also only be printed after this stage.

All that is needed is to shortlist printing presses and have them cleared for security. The logistics of procuring ballot boxes and other material could be done easily as they are already in use for panchayat and local body elections.

It is imperative, therefore, that India returns to ballot paper.

The ECI and those who support the usage of EVMs claim that it will encourage booth capturing and ballot-stuffing. To prove their point, they have gone to the extent of quoting the presiding officer of Chandigarh mayoral elections deliberately invalidating eight valid paper votes. What they are not revealing is that while tampering with paper votes can be caught red-handed, manipulation of thousands of votes in the EVMs cannot be detected.

In any case, booth capturing and ballot-stuffing used to take place when the supervision, security, transportation and communication systems were primitive. That is no longer the case. Now senior election officials, ECI observers, police and flying squads can observe what is happening in the polling booths through CCTV cameras and can intervene instantly in the event of any mischief. Sensitive booths are guarded by armed police with orders to shoot in case of any booth capturing and ballot stuffing. 

So, the ECI should heed the demand of the people and return to voting through ballot papers as envisaged in the law.

M.G. Devasahayam is a former Army and IAS Officer. He is Coordinator of Citizens Commission on Elections and editor of the book Electoral Democracy—An Inquiry into the Fairness and Integrity of Elections in India.

Mehmood Pracha is a Supreme Court advocate.