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EVMs: The Unsinkable Truth?

The recent Maharashtra elections have raised concerns about the reliability of Electronic Voting Machines. With a significant mismatch between votes counted and votes polled, the electoral balance could have been compromised. Justice Kamaljit Singh Garewal highlights the importance of free and fair elections, a constitutional promise that remains unfulfilled

Maharashtra is a big state, home to 9.4 percent of Indians, who live on 9.4 percent of the nation’s land. The state’s contribution to Indian economy in terms of industrial output, export, electronics, number of demat accounts and listed companies is nearly double, at around 20 percent. This makes Maharashtra an important state, economically and politically.

Therefore, it is worrying that in the recent assembly elections there has been significant mismatch between votes counted and votes polled. This could well have tilted the electoral balance. Free and fair elections is a constitutional promise, but an unfulfilled one. To ensure free and fair elections is the constitutional duty of the Election Commission of India alone. 

Also Read: ‘Questions and doubts on EVMS are valid and must be addressed’

Individual candidates may challenge their defeat at the hustings through an election petition filed within 45 days. The well known Allahabad High Court case of Raj Narain vs Indira Gandhi is still fresh in our memories. And what followed is also fresh. This topic may be left well alone for the moment. 

The basic principle in election law is that once an election has been called, it must never be stayed and once the result has been announced, the result too must never be stayed. The only remedy is to file an election petition. But there seems to be no remedy against defective election procedures. These can only be rectified either through legislation or by constitutional courts. 

Electronic Voting Machines (EVMs) are very well designed and seemingly work well. There are many safeguards to protect the integrity of the electoral processes. However, when some glaring defect is pointed out there must be a public hearing to allay the anxieties of the citizens.

It was famously remarked by the arch-colonialist Winston Churchill that “at the bottom of all tributes paid to democracy is the little man, walking into the little booth, with a little pencil, making a little crops on a little bit of paper—no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.” The question remains whether EVMs and VVPATs and all that elaborate procedures and safeguards have knocked down the little man waiting in the queue outside a polling booth. 

This writer was a little man, who on a hot June day last summer, went to a polling booth in a small Punjab village, set up in the school, to stand in the queue to cast his vote. There were about fifty men and women and half a dozen polling staff, some of whom may not have been fully aware of the singular importance of their vote and the grave issues confronting the nation.

An indelible ink mark put on a finger verified the voter’s identity. One then moved  to the booth to be confronted by The Machine, activated by an operator. After the button was pressed against the chosen symbol, a tiny window opened to proclaim vote had been cast. One then left the booth, satisfied that participation in the elections gave voice to the local area in the House of the 1.40 billion people of India. Highly romantic view in these cynical times.

Defeated candidates can approach courts, but the little men who feel cheated by procedural lapses can only ask for procedures to be corrected. The way to deal with such grievances is re-examine the procedures as long as serious grievances of one type or the other remain. To tell the little men that he never complains if he or his candidate wins, under the very same procedures, is neither here nor there.

On April 26, 2024, all contentious issues regarding the use of EVMs and VVPATs were seemingly resolved in Association for Democratic Reforms vs Election Commission of India. The judgment by a Supreme Court bench of Justices Sanjiv Khanna and Dipankar Datta (authored by Justice Datta) begins by recording that petitioners do not attribute any motive or malice to the Election Commission of India, or for that matter contend that the EVMs have been tutored or configured to favour or disfavour a candidate or political party. However, due to possibility of manipulating the EVMs, there is suspicion and, therefore, this Court should step in to instil confidence in the voters and the people. Voters have the right to know that the franchise exercised by them has been correctly recorded and counted.

When a pointed question was put by the Court, the petitioner submitted that the Court should direct (a) return to the paper ballot system or (b) the printed slip from the Voter Verifiable Paper Audit Trail machine be given to the voter to verify, and put in the ballot box for counting or (c) there should be 100 percent counting of the VVPAT slips in addition to electronic counting by the control unit.

After hearing the parties and meticulously going through the entire intricate procedure in great detail, the Court dismissed the petitions seeking a return to the paper ballot system. Terming the suspicion of manipulation of the EVMs “unfounded”, it also rejected the demand for reverting to the old system, saying the polling devices were “secured” and eliminated booth capturing and bogus voting. However, the Court left open a window for aggrieved unsuccessful candidates securing second and third places in poll results and allowed them to seek verification of microcontroller chips embedded in five per cent EVMs per assembly constituency, on a written request upon payment of a fee to the poll panel. It was also directed that from May 1, the symbol loading units should be sealed and secured in a container and stored in a strongroom along with the EVMs for a minimum period of 45 days post-declaration of results.

The Supreme Court on Tuesday (November 26) again heard the same issue of reverting to paper ballot on a public interest petition filed by KA Paul. The PIL was dismissed. The Court said that allegations of tampering with EVMs raked up only when people lose polls. “What happens is, when you win the election, EVMs are not tampered with. When you lose the election, EVMs are tampered (with),” remarked a bench of Justices Vikram Nath and PB Varale. A “heads I win, tails you lose” type of argument, not quite appropriate in the context.

Apart from ballot paper voting, the petitioner sought several directions, including a directive to the Election Commission to disqualify candidates for a minimum of five years, if found guilty of distributing money, liquor or other material inducement to the voters during polls. Election Commission did recover Rs 9,000 crore in cash during the elections. Not a small amount. How much went undetected is not known.

In nutshell, everyone has been loudly proclaiming that EVM is unsinkable. The Court seemed to say there simply cannot be any mistake. Remember what happened to RMS Titanic. 

—The writer is former judge, Punjab and Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York

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