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TRACING THE JOURNEY OF ELECTRONIC VOTING MACHINES IN INDIA THROUGH JUDICIAL PRONOUNCEMENTS BY – ATUL RAJ
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TRACING THE JOURNEY OF ELECTRONIC VOTING MACHINES IN INDIA THROUGH
JUDICIAL PRONOUNCEMENTS
AUTHORED BY
– ATUL RAJ
INTRODUCTION
The Electronic Voting Machines (“EVMs”) have become the mainstay of the
electoral process in India for more than two decades. The idea of replacing
ballot papers with EVMs was conceived first in the year 1977 which led to the
development of the first proto-type by the Electronics Corporation of India Ltd
(“ECIL”), a Central Public Sector
Undertaking. After the proto-type was demonstrated by the Commission before the
representatives of various political parties, another Central Public Sector
Undertaking, Bharat Electronic Ltd. (“BEL”),
was co-opted along with ECIL to manufacture EVMs after a broad consensus emerged
regarding its introduction.
Eventually, the Commission deployed
the EVMs for the first time at 50 polling booths during the Kerala Legislative
Assembly Elections, 1982, however, the Hon’ble Supreme Court ordered a
repolling for these booths after the deployment of these machines was
challenged by the defeated candidate on grounds of lack of statutory backing.
Subsequently, the governing law for
conduct of elections i.e., the Representation of the People Act, 1951 (“RP Act 1951”) was amended by the
Parliament in 1989[1] which
paved the way for use of EVMs in Indian elections. A broad consensus for its
introduction was later reached in the year 1998 and subsequently, the EVMs
began to replace ballot papers across the country as the preferred system of
voting.
LITERATURE
REVIEW
During the course of writing this
paper, I had the privilege of reading and analysing the literature produced by Election
Commission of India regarding EVMs. Shri S.K. Mendiratta’s How India Votes:
Election Laws, Practice and Procedure has served as a bible for officials
working in the Commission. This book serves as a treasure of legal cases
pertaining to Election Commission and how the functioning of the Commission was
shaped by these case laws. With respect to the EVMs, this book traces the
history of these machines and how the Commission went through the legal
challenges that arose regarding its deployment.
Lastly, the judicial pronouncements
on EVMs, including landmark judgments of the Hon’ble Supreme Court as well as
Hon’ble High Courts, throw light on how the Commission was able to demonstrate
the infallibility of the EVMs through its wide ranging technical and
administrative safeguards and how the Hon’ble Courts affirmed the voting system
through EVMs.
RESEARCH
METHODOLOGY
I have adopted doctrinal research
methodology. This will include analysis of existing literature as well as
relevant case laws on the subject matter. An attempt will be made to understand
the lacunae that exist in the statutory framework and the possible solutions
which may help in filling the legal loopholes. The nature of data used during
this paper is qualitative in nature which includes examining statutes, ECI’s
literature as well as case laws on the subject matter.
THE FIRST
ELECTION
While the marking system of voting,
adopted since the 1962 elections, had been working remarkably well, there were
certain inherent problems in this system such as printing of crores of ballot papers
and storage of lakhs of ballot boxes[2]. To
address these problems and to take advantage of the scientific and
technological developments, ECI made a proposal to ECIL in the year 1977 to
design an EVM suitable to Indian conditions. The prototype developed by ECIL
was demonstrated to the representatives of political parties on 06.08.1980.
A few EVMs were produced by ECIL and
BEL and ECI decided to deploy them for about 50 polling booths for election to
70- Parur AC of Kerala in the 1982 Legislative Assembly Elections. In this
election, the winning candidate had secured 30,450 votes, among which 11,268
votes were received manually, i.e., through ballot papers and 19,182 votes were
recorded in EVMs. Due to absence of any law which mandated the usage of EVMs,
the Commission had to resort to Article 324 of the Constitution to notify the
deployment of EVMs for the aforesaid election. The election of the returned
candidate was thereafter challenged before the Hon’ble Supreme Court in the
matter of A.C. Jose v. Sivan Pillai[3].
In the aforesaid case, the Commission
contended that under Article 324 of the Constitution, it is empowered to give
any direction with respect to the superintendence and conduct of elections.
However, the Hon’ble Supreme Court held that the plenary power under has to be
read harmoniously with the Articles 325 to 329 and the powers that are given to
the Legislatures under entry No. 72 in the Union List and entry No. 37 of the
State List of the Seventh Schedule to the Constitution. The Hon’ble Court
further held that the Commission in the garb of Article 324 cannot encroach
upon the legislative domain of the Parliament.
The Hon’ble Court ultimately held
that the order of the Commission regarding using of EVM machines for recording
votes in some of the polling stations was without jurisdiction and therefore,
the election of the returned candidate with respect to the 50 polling stations
where the voting machines were used was set aside. It is pertinent to mention
that despite setting aside the aforesaid election, the Hon’ble Court refrained
from making observation on either the defects or advantages of EVMs.
AMENDMENT
IN LAW AND INTRODUCTION OF SECTION 61A IN THE RP ACT 1951
In light of the aforesaid judgment of
A.C. Jose (supra), the Commission sent a recommendation to the
Union Government for bringing an amendment and consequently, granting a legal
sanction for the deployment of EVMs. This led to insertion of Section 61A in
the RP Act 1951 in the year 1989. This provision reads as follows:
“Section 61A. 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 constituency or
constituencies as the Election Commission may, having regard to the
circumstances of each case, specify.
Explanation — For the purposes of
this section, “voting machine” means any machine or apparatus whether operated
electronically or otherwise used for giving or recording of votes and any
reference to a ballot box or ballot paper in this Act or the rules made
thereunder shall, save as otherwise provided, be construed as including a
reference to such voting machine wherever such voting machine is used at any
election.”
However, the constitutional validity
of the aforesaid provision was challenged before the Hon’ble Supreme Court in All
India Anna Dravida Munnetra Kazhagam v. Chief Election Commissioner[4].
Herein, the Appellant challenged Section 61A of RP Act 1951 inter alia on
the grounds that in A.C. Jose (supra), the Hon’ble Supreme
Court itself had set aside the election conducted through EVMs. The Hon’ble
Supreme Court, however, dismissed the petition by distinguishing the decision
in A.C. Jose (supra). The Hon’ble Court observed that in the said judgment,
EVMs were sought to be deployed through an executive order which was ultra
vires the Rules, but in the present case, the introduction of Section 61A in
the Act, has made the ruling in A.C. Jose (supra) as inadmissible for
the case in hand.
INTRODUCTION OF NOTA IN EVM
In People’s Union
for Civil Liberties v. Union of India[5],
a Writ Petition had been filed under Article 32 of the Constitution of India seeking
inclusion of necessary provision in the ballot papers as well as in EVMs for
secrecy/ protection of right of not to vote. The Commission supported the prayer of the Petitioner
and submitted before the Hon’ble Court that in the larger interest of promoting
democracy, a provision for “None of the Above” or “NOTA” button should be made
in the EVMs/ballot papers. It was further contended that such an action, apart
from promoting free and fair elections in a democracy, will provide an
opportunity to the elector to express his dissent/disapproval against the
contesting candidates and will have the benefit of reducing bogus voting.
The Hon’ble Supreme Court
took note of the submissions put forth by the Commission and observed that the
implementation of the “None of the Above” (NOTA) button will not require much
effort except for allotting the last panel in the EVM for the same. Further,
the Commission was directed to provide NOTA button in EVMs so that the voters,
who come to the polling booth and decide not to vote for any of the candidates
in the fray, are able to exercise their right not to vote while maintaining
their right of secrecy. It was observed that the Commission can implement the
same either in a phased manner or at a time with the assistance of the Government
of India. The Commission was further directed to undertake awareness programmes
to educate the masses.
INTRODUCTION OF VVPAT IN EVM
In 2010, all political
parties in a meeting convened by the Election Commission of
India, expressed satisfaction about the functioning of EVMs. At this
stage, the idea of Voter Verified Paper Audit Trail (VVPAT) was moved for
further exploration. The Election Commission of India, in consultation with the
political parties, considered to explore the use of VVPAT with a view to
enhance transparency during the election process. Introduction of VVPAT implied
that a paper slip is generated bearing serial number, name and symbol of the
candidate along with recording of vote in the Control Unit, so that in case of
any dispute, paper slip could be counted to verify the result being shown on
the EVM. Under VVPAT, a printer is attached to the Balloting Unit and kept in
the voting compartment. The voter after pressing the button on Balloting Unit
can view the printed slip on VVPAT through the viewing window
and, thus, can verify that the vote is recorded for the Candidate of
his/her choice. The paper slip remains visible on VVPAT for about seven (7)
seconds through a transparent window.
The Election Commission
of India referred the matter to its Technical Expert Committee (TEC) on EVMs
for examining and making a recommendation in this regard. The Expert Committee
had several rounds of meetings with the manufacturers of EVM, namely, Bharat
Electronics Limited (BEL) and Electronics Corporation of India Limited (ECIL),
on this issue and then had met the political parties and other civil society
members to explore the design requirement of the VVPAT system with the EVM. On
the direction of the Expert Committee, BEL and ECIL made a prototype and
demonstrated before the Committee and the Election Commission of India in 2011.
On the recommendation of the Expert Committee on EVM & VVPAT system, the
Election Commission of India conducted simulated election for the field trial
of VVPAT system in Ladakh (Jammu & Kashmir), Thiruvananthapuram (Kerala),
Cherrapunjee (Meghalaya), East Delhi District (NCT of Delhi) and Jaisalmer
(Rajasthan) in July 2011[6].
All stake holders including senior leaders of political parties and civil
society members participated and witnessed the field trial. After 1st
field trial of the VVPAT system, Election Commission of India made a
detailed reassessment of the VVPAT system to further fine tune the VVPAT
system. Accordingly, the manufacturers developed 2nd version of VVPAT
prototype. The same was again subjected to 2ndfield trial in the
said five locations in July-August 2012[7].
Thereafter, in the meeting of the Technical Expert Committee held on 19th
February, 2013, the Committee approved the design of VVPAT and also recommended
the Election Commission of India to take action on amendment of the rules for
using VVPAT. The model was demonstrated to all the political parties in an
all-party meeting on 10th May, 2013.
Accordingly, introduction
of VVPAT was facilitated by amending the Conduct of Elections Rules, 1961
vide the Conduct of Elections (Amendment) Rules, 2013, which
was notified in the Official Gazette of
India by the Ministry of Law and Justice on 14.08.2013[8],
whereby a proviso was inserted after Rule 49A, inter
alia, to provide for a printer with a drop box to be attached to
a voting machine. Furthermore, Rule 49MA and Rule 56D (contained in
Rule 66A) were also inserted in the Conduct of Elections Rules, 1961 vide the
said notification.
In Subramanian
Swamy v. Election Commission of India, reported in (2013) 10 SCC 500,
the Petitioner had prayed for directing the Commission to incorporate a system
of “paper trail/ paper receipt” in EVMs as a convincing proof that the machine
has rightly registered the vote cast by a voter in favour of a particular
candidate. The Commission submitted before the Hon’ble Court that it is
exploring possibility of incorporating voter verifiable paper audit trail
(VVPAT) system as part of EVMs to make election system more transparent,
however, its introduction can be done only in a phased manner and after
legislative amendments.
The Hon’ble Supreme Court
held that “paper trail” is an indispensable requirement of free and fair
elections and that the confidence of the voters in EVMs can be achieved only
with the introduction of the “paper trail”. EVMs with VVPAT system ensure the
accuracy of the voting system. It was held that with an intent to have fullest
transparency in the system and to restore the confidence of the voters, it is necessary
to set up EVMs with VVPATs system because vote is nothing but an act of
expression which has immense importance in a democratic system. The Hon’ble
Court took note of the pragmatic and reasonable approach of the Election
Commission and considering the fact that in general elections all over India,
the Election Commission has to handle one million (ten lakh) polling booths,
the Commission was permitted to introduce VVPAT in gradual stages or
geographical-wise in the ensuing general elections. It was held that the area,
State or actual booth(s) are to be decided by Commission and that it is free to
implement the same in a phased manner.
Later, a contempt
petition titled Backward & Minority Community Employees Federation
(BAMCEF) vs. Syed Nasim Ahmad Zaidi[9],
was filed in relation to the alleged non-implementation of the Judgment of the Hon’ble
Supreme Court in Dr. Subramanian Swami Vs. Election Commission of
India (Supra). It was noted by the Hon’ble Court in the above matter
that the Election Commission of India had not yet received the grant
of sanction and release of funds for implementation of VVPAT,
and thus the Hon’ble Court had directed “the Election Commission of India to
bring on record the approximate time within which the entire system of VVPAT
can be introduced subject to grant of sanction and release of funds as and when
required”. Furthermore, the Hon’ble Court also asked the
learned Solicitor General of India to assist it in so far as sanction and
release of funds are concerned. By Order dated 24.04.2017, the Hon’ble Court
disposed of the aforementioned contempt petition in the following terms:
?“2. From the materials laid
before the Court it appears that on 19th April, 2017 the sanction of the
President of India for purchase of 16,15,000 Voter Verifiable Paper Audit Trail
(VVPAT) at an estimated cost of Rs.3,173.47 crore (excluding taxes and freight
as applicable) from M/s Bharat Electronics Ltd., Bangalore and M/s Electronics
Corporation of India Ltd., Hyderabad has been conveyed to the Election
Commission of India.
3. Pursuant to the above, on 21st
April, 2017, the Election Commission of India has placed orders with M/s Bharat
Electronics Ltd., Bangalore and M/s Electronics Corporation of India Ltd.,
Hyderabad for purchase of 8,07,500 VVPAT units from each of the aforesaid
firms indicating September, 2018 as the outer limit for procurement of the
said units.
4. Shri Ashok Desai, learned Senior
Counsel for the Election Commission of India has also placed a set of written
instructions received by him from the Election Commission of India which
indicates that all the VVPAT machines should be available by September 2018 and
such machines should be available for deployment in the next General Elections
to constitute 17th Lok Sabha.
By virtue of the Hon’ble
Court’s aforesaid orders, the concrete steps of the Election Commission of
India came to fruition with the 100% deployment VVPAT along with EVMs in the
ensuing elections.
In N. Chandrababu
Naidu v. Union of India[10],
the Petitioner had prayed for directing that minimum of 50% randomized VVPAT
paper slip verification of EVM shall be conducted in every General and
Bye-Elections. The Election Commission submitted that Indian Statistical
Institute [ISI], an expert body, has stated that verification of VVPAT paper
trail of 479 (randomly selected) EVMs would generate over 99% accuracy in the
election results. And, as per Guideline No. 16.6, verification of VVPAT paper
trails would involve verification of VVPAT paper trail of 4125 EVMs instead of
479 EVMs which is eight times more than what has been reported by the ISI.
Additionally, the Election Commission pointed out infrastructure difficulties,
including manpower availability, at that point of time, in increasing the number
of EVMs for verification.
The Hon’ble Court
observed that neither the satisfaction of ECI nor the system in vogue today, is
being doubted by the Court in so far as fairness and integrity is concerned.
However, having regard to the need to generate the greatest degree of
satisfaction in all with regard to the full accuracy of the election results,
it was held that the number of EVMs that would now be subjected to verification
so far as VVPAT paper trail is concerned would be 5 per Assembly Constituency or
Assembly Segments in a Parliamentary Constituency instead of what is provided
by Guideline No. 16.6[11],
namely, one machine per Assembly Constituency or Assembly Segment in a
Parliamentary Constituency.
OTHER JUDGMENTS UPHOLDING THE EVM/
VVPAT SYSTEM
Over the last two
decades, various Courts including the Hon’ble Supreme Court has held voting
EVMs/VVPATs in high esteem, as early as in the early introductory years when
the VVPAT system was not even in place. Reference is drawn to the observation
made by the Hon’ble Karnataka High Court in the Judgment and Order dated
05.02.2004 in Michael B. Fernandes vs. C.K. Jaffer Sharief[12]
wherein it was observed that “this invention is undoubtedly a great
achievement in the electronic and computer technology and a national pride.”
It may also be noted that
the Hon’ble Courts have dismissed petitions seeking the ECI to refrain the use
of EVMs and use ballot paper instead. In one such petition, of Madhya
Pradesh Jan Vikas Party vs. Election Commission of India[13],
the SLP was dismissed by the Hon’ble Supreme Court with costs of Rs. 50,000.
Relevant extract of the order is reproduced here below:
“The election process under the
representation of the People Act, 1951 is monitored by a Constitutional
Authority like Election Commission. Electronic Voting Machines (EVM) process
has been utilized in our Country for decades now but periodically issues are
sought to be raised. This is one such endeavor in the abstract. It appears that
party which may not have got much recognition from the electorate now seeks
recognition by filing petitions!
It is also apposite to
mention the observation of the Hon’ble Gujarat High Court in the matter of Khemchand Rajaram Koshti vs. Election
Commission of India [WP(PIL)
No. 36 of 2019] wherein the Hon’ble Court vide judgment dated 19.03.2019 held
that the allegations of tampering of EVMs were unfounded and observed as
follows:
“The apprehension of the petitioner seems to be based on the unjustified
apprehension of a malfunction and tamperability of the EVMs, which
claims have been rendered completely unfounded and unjustified.”
Recently, even the Hon’ble Supreme Court in Sunil
Ahya vs. Election Commission of India[14],
wherein the petitioner sought for a direction to conduct an independent audit
of the source code governing the EVMs, dismissed the petition stating that such
exercise bears on sensitive issues pertaining to the integrity of elections in
a democracy which are conducted in the supervision of ECI. The Hon’ble Court
further observed that such petitions touched upon policy issue on which the
Court would not be inclined to issue directions. Relevant extract of the order
dated 22.09.2023 passed in the aforesaid case is reproduced here below:
“5. The Election Commission is a constitutional entity entrusted under
Article 324 of the Constitution with superintendence and control over the
conduct of the elections. The petitioner has placed no actionable material on
the record of the Court to indicate that the Election Commission has acted in
breach of its constitutional mandate. Ultimately, the manner in which the
source code should be audited and the way the audit should be dealt with bears
on sensitive issues pertaining to the integrity of the elections which are
conducted under the superintendence of the Election Commission. On such a policy issue, we are not
inclined to issue a direction as sought by the petitioner. There is no material
before this Court, at this stage, to indicate that the Election Commission is
not taking suitable steps to fulfill its mandate.
POSSIBLE ISSUES & SOLUTION
Though the aforesaid
statutes and judicial pronouncements have established faith and trust in EVMs
adopted by the Commission, there are certain grey areas which are required to
be addressed for making the EVM VVPAT system of voting full proof. Firstly,
in the Representation of the People Act, 1951, it is seen that the offences
which may relate to EVMs such as its destruction and forcible removal only
pertains to an ‘election’. It is pertinent to mention that an election is
notified when the Commission announces it and the Model Code of Conduct comes
into force. Moreover, the Hon’ble Courts in a catena of judgments including Mohinder
Singh Gill vs. The Chief Election Commissioner[15] and
Durga Shankar Mehta vs. Thakur Raghuraj Singh[16]
has held that the election period commences from the date of issue of
notification and ends at completion of election. This means that if any damage
or illegal transport of EVMs is done during a non- election period, then there
is no violation of law as per the Representation of the People Act, 1951. This
assumes significance since the EVMs/ VVPATs are often in the custody of
district administration and are stored in their respective storehouses. Therefore,
there is a need for bringing amendments which makes the offences relating of
EVMs applicable irrespective of the election period.
Secondly, there is also a need for bringing a
strict law which prevents motivated persons and political parties from raising
unsubstantial and baseless allegations against the technical aspects of these
machines. As mentioned above, these machines have adequate administrative and
technical safeguards which have been recognized by the constitutional courts of
the country, yet, on the eve of elections or after the announcement of results,
various political parties and their leaders question the veracity of these
machines. This not only demoralized the whole election machinery but also
affects the voters’ trust in the EVM VVPAT system.
Thirdly, while the introduction of EVMs has addressed the
erstwhile election issues of booth capturing and bogus voting, a long-standing
issue of providing a voting mechanism for migrant citizens also needs to be
addressed through technology. Just like Electronic Voting Machines, there is
now a need for introducing “Remote Voting Machines” (RVMs) to enable a migrant
voter, who is not residing in his constituency at the time of election, to
remotely cast his vote from his or her location. In this regard, the Commission
has already held a meeting with leaders of political parties[17]. However,
the problems faced during the introduction of EVMs such as its credibility and
legal backing is bound to arise again if RVMs are planned to be introduced. The
Commission will have to carefully steer through the legal hurdles and
demonstrate its proto-type effectively before the political parties so as to
ensure that the machines are trusted and supported.
CONCLUSION
The Election Commission
of India has always been open to bringing about any technological improvements
that would further the cause of free & fair elections and increase the
trust of voters in the EVM VVPAT system of voting. Further, the Commission has
continuously demonstrated the administrative and technical safeguards of these
machines before the constitutional courts of the country. However, nothing
stays still and static. Further improvements and legal safeguards will have to
be provided to keep up with the changing times so that the trust of the people
in the EVM VVPAT system of voting remains intact and the Election Commission of
India continues to fulfill its constitutional duty of conducting elections
across the country with full vigour and robustness.
[9] Contempt Petition (C) No. 303 of
2016 in Civil Appeal No. 9093 of 2016
before the Hon’ble Supreme Court
Article Information
TRACING THE JOURNEY OF ELECTRONIC VOTING MACHINES IN INDIA THROUGH JUDICIAL PRONOUNCEMENTS BY – ATUL RAJ
Authors: ATUL RAJ
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/06
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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