On 26 April, a two-judge bench of the Supreme Court, comprising Justices Sanjiv Khanna and Dipankar Datta, disposed of a civil suit filed by Association for Democratic Reforms against the Election Commission, by rejecting the former’s demand for return to paper ballot, 100 per cent manual or mechanical counting with VVPAT slips (to tally them against EVM results) and voters being given physical access to VVPAT slips before these are collected. The apex court considered all these demands impractical, problematic and prone to mischief.

The court observed that VVPAT slips made of 9.9 cm x 5.6 cm thermal paper coated with chemical to ensure print retention for five years, are very soft and sticky, which makes the counting slow and tedious. VVPAT slips of five EVMs per Assembly constituency or Assembly segment of a parliamentary constituency are any way physically tallied against the EVM results. Moreover, manual counting is prone to human errors and might lead to deliberate mischief. Also, giving voters physical access to VVPAT slips is problematic and impractical. It could lead to misuse, malpractices and disputes.

Justice Dipankar Datta in his concurring judgment invoked an important principle of law—res judicata. It means that parties would be barred from re-litigating issues that have been conclusively settled. While this principle might not be as rigidly upheld in cases of substantial public interest, the principle should apply if re-litigation is pursued without substantial evidence to validate the irreversible harm or detriment of public good.

It might be recalled that the integrity of the EVMs were upheld in a string of judgements. Madras High Court (2001), Delhi High Court (2004), Karnataka High Court (2004), Kerala High Court (2002), Bombay High Court’s Nagpur Bench (2004)—each went into all aspects of technological soundness and administrative measures—ruled that EVMs were credible, reliable and completely tamper-proof. The Karnataka High Court (2004) had regarded the EVMs as a great achievement in electronic and computer technology and a national pride. These judgements were delivered in the pre-VVPAT era.

During the VVPAT era, three-member Supreme Court bench in its order dated April 8, 2019, settled the matter in N Chandrababu Naidu & Ors v. Union of India & Anr when it decreed that VVPAT paper trail of five EVMs per Assembly Constituency or per Assembly segments in a parliamentary constituency should be mandatory tallied with results on EVMs. The Election Commission has been following the same.

It might be remembered that EVMs publicly came under fire from several political parties shortly after the 15th Lok Sabha Elections, 2009. The issue reached Madras High Court, Bombay High Court and Madhya Pradesh High Court. The Supreme Court while disposing a petition filed by V.V. Rao and Ors observed that the petitioners could approach the Election Commission in this matter. The Election Commission had invited political parties, petitioners, and individuals to visit its headquarters in Nirvachan Sadan in New Delhi between August 3 and August 8, 2009, to demonstrate their allegations on specimen EVMs. One hundred specimen EVMs, obtained on a random basis from warehouses across ten Indian states, were kept on display before those visitors to prove their charges. The critics failed to establish any of their claims.

The VVPAT itself was developed in pursuit of a suggestion that the Election Commission received from political parties in October 2010. The prototype was developed by Bharat Electronics Limited (BEL), the PSU that had previously developed EVM, within a short span of 2010-11. The field trials were held in five locations of the country—Ladakh, Thiruvananthapuram, Cherrapunjee, East Delhi and Jaisalmer in July 2011 in cooperation with the political parties. Even before the verdict two judge Bench in civil suit Dr. Subramanian Swamy v Election Commission of India came on October 8, 2013, regarding introduction of the VVPAT came, the Election Commission had put VVPAT into action on September 4, 2013, in by-election in Noksen (ST) Constituency in Nagaland.

Elections/by-elections to the Lok Sabha and State Legislative Assemblies have been held by the Election Commission exclusively on EVM since 2004. The variety of results obtained, often to the detriment of the party in power, militates against any conspiracy theory about manipulation. However, despite introduction of the VVPAT, doubts continued to be raised, apparently out of partisan reasons. After the results of the elections to five states viz. Goa, Manipur, Punjab, Uttar Pradesh and Uttarakhand were declared on March 11, 2017, in which the BJP performed rather strongly, there was a renewed attack on the credibility of the EVMs. The Uttarakhand High Court had to issue a gag order on political parties, NGOs, and individuals from speaking irresponsibly about the EVMs when the Election Commission was dealing with the matter.

The Election Commission put up a strong defence, by placing all technical facts on the table, referring to the judicial pronouncements and comparison of Indian EVMs with voting machines used in a few other countries. One of the interesting facts provided was that the new M3 version of EVMs, produced after 2013, has a new feature called Tamper Detection and Self Diagnostics.

The tamper detection feature makes an EVM inoperative any moment anyone tries to open the machine. The Self diagnostic feature checks the EVM fully after it is switched on. Any change in its hardware and software would be detected. On May 12, 2017, the Election Commission held a meeting with all national and State level political parties to explain to them the inviolability of the EVMs.

On 20 May, 2017 Election Commission of India announced an EVM Challenge, in which three delegates from a willing political party could participate, to demonstrate whether any hacking of the EVM was possible. By the end of the seven-day deadline only two political parties viz. NCP and CPI(M) had applied. Since none of them had specified their choices of EVMs from the five poll-gone states, the Commission brought 14 EVMs randomly in sealed condition kept in the strong rooms from 12 constituencies of Punjab, Uttarakhand and Uttar Pradesh for the EVM Challenge scheduled on 3 June. On the appointed day the representatives of both the interested parties turned up at Nirvachan Sadan. The representatives of CPI(M) clarified that they did not wish to enter the EVM Challenge but merely cleared doubts by the technical team. The NCP delegation also expressed unwillingness to enter the challenge, and merely wanted the memory and battery numbers, which could be provided to them only after EVMs that were in sealed conditions were unpacked. Their doubts apparently stemmed from the local body elections in Maharashtra, which in fact were not conducted by the Election Commission at all, but the State Election Commission, set up under a different provision of the Constitution.

June 3, 2017, was not going to end EVM-scepticism. It was occasionally revived at the time of elections. In January, 2019 a person called Syed Shuja, who was never heard about before or afterwards again, organised a press conference in London where he promised to show how an EVM could be hacked. Shuja never came to London, but addressed the journalists over video conferencing. The event came to a cropper as he made no attempt to live up to his claim. Kapil Sibal, Congress leader and former Law and Justice Minister, who had taken a flight to London to attend the publicised event evidently made a fool of himself.

(This is Part 1 of a two-part series)

The writer is author of the book ‘The Microphone Men: How Orators Created a Modern India’ (2019) and an independent researcher based in New Delhi. The views expressed herein are his personal.

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