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A thriving and vibrant electoral democracy has been India’s distinct and durable identity, long before it asserted itself as an economic, nuclear or IT major. Founded by a great Constitution, it has been nurtured by parliament, judiciary, political parties, media and above all by the people of India, with some distinct contribution from the Election Commission of India.

Despite doubts and fears from many quarters, founders of modern India adopted universal adult suffrage thus reposing faith in the wisdom of the common Indian to elect his/her representative to the seat of power. Choice of electoral democracy was variously termed: a giant leap forward, a bold enterprise, an unparalleled adventure. When the independence came directly to the hands of ordinary people in the form of a vote, it was a period when 84% of Indians were illiterate, equal number in poverty living in an unequal society fractured by a caste-based hierarchical system. India has proved Nobel laureate Amartya Sen’s famous statement that a country does not become fit for democracy, it becomes fit through democracy. The Constitution created a fiercely independent Election Commission of India to carry the democracy forward.

Over the past sixty three years, the Election Commission has delivered fifteen elections to the Lok Sabha (the Lower House) and over 350 elections to State Legislative Assemblies, facilitating peaceful, orderly and democratic transfer of power. In India, the rise of leaders belonging to the marginalized sections of the society, farmers, women, and minorities to head national and state governments and to important positions has very much to do with the practice of electoral democracy. Increasing heterogeneity of parties and government formation through coalition reflect a bouquet of diverse aspirations.

The statistics of today’s Indian elections may be mind boggling, even if you look at them purely as numbers. There are around 780 million electors on the Electoral Roll of India, as on 1st of January, 2014, which is more than the population of both North and South American continents taken together or all the countries of Europe or of Africa combined The last elections to the Indian Parliament held in 2009 can be described as the biggest humanly managed event in the world. It involved 714 million voters, 835 thousand polling stations, 1.18 million Electronic Voting Machines and 11 million personnel.

It is not just the magnitude of Indian democracy in terms of geographical area or size of the electorate, but the anxiety to reach every single citizen. We even have a separate polling station for a lone voter in the Gir Forest in western India.

India is perhaps the most diverse country of the world, be it geographical – deserts, mountains, plains, forests, islands, coastal areas – or in being multi-religious, multi-cultural, multi-lingual, multi-ethnic. There’s a need to meet the demands of this diversity. Equally difficult are the other challenges of fighting terrorism, security threats, adjusting to globalization and rising expectations of an information savvy growing middle class. There’s a responsibility on the EC to deliver free, fair, transparent and peaceful elections, ensuring inclusiveness and participation.

The management of elections in India is continually evolving. From separate ballot boxes for each candidate to the marking system, to EVMs (electronic voting machines) has been a long journey. EVMs are simple, friendly, cost-effective and give faster and error free voting and counting and have been a game changer.

A major challenge in our elections is how to ensure level playing field. The party in power has all the resources of the state at its command. Hence there is a need to create a code of conduct to be followed by all stakeholders, particularly the party in power.

Model Code of Conduct is a unique compact evolved with the consensus of political parties in India and is a singular significant contribution by them to the cause of democracy. The Election Commission enforces it right from the day it announces any election schedule. MCC has no statutory backing and many of its provisions are not legally enforceable. Yet the compliance is immense. Public opinion is the moral sanction for its enforcement. Though ECI has quite effectively neutralized the challenges of muscle power and incumbency power, it is concerned that corruption and money power can pollute the electoral process and undermine its real potential.

Elections have to be not only free and fair but also socially just and more participative. During our sixty years democratic history, the voter turnout has remained around 55-60%. It is a good figure compared to the declining voter interest in several societies, but it is definitely far less than what we aspire to achieve.

To make democracy truly inclusive, we have come up with a Systematic Voters’ Education and Electoral Participation (SVEEP) wing that rolls out comprehensive community outreach and multi-media campaigns to bring all citizens, especially the youth, into electoral participation.

In every election now, we carry out a scientific survey of Knowledge, Attitude, Behaviour and Practices (KABP) of voters before launching voter awareness programmes in partnership with civil society and the media. This initiative has returned impressive dividends in terms of higher registration and turnout in each of the recent state elections including records in some states.

In a historic measure, Commission declared 25th January, its foundation day as the National Voters Day (NVD) from 2011 with the avowed purpose to increase enrolment of voters, especially of the newly eligible ones. More than 5.2 million newly eligible and registered youth were given their voter cards at more than half a million polling stations on the first National Voters Day, besides adding up about 17 million new voters to the roll. This has been billed as the largest exercise of empowerment of the youth on a single day, anywhere in the world. This is now an annual feature in India. Many other countries have shown interest to adopt the model.

It does not require any explanation that aspiring democracies around the world look forward to sharing the knowledge, skills and expertise at ECI’s disposal. Responding to increasing global demands, especially from Afro-Asian nations, the Commission has started off the India International Institute of Democracy and Election Management (IIDEM) that serves as a training and resource centre in the critical sector of elections and democratic processes for both national and international participants. In just two years of its existence, the institute has imparted training to election managers of over forty Afro Asian and Commonwealth countries, besides thousands of domestic master trainers. The Institute is now assisting representative democracy worldwide.

With the type of constitutional mandate that the Commission has, it cannot afford to sit on its laurels. There are several reform proposals from the Commission, that aim at cleaning up the electoral process, so that the foundation can be laid for good governance and a corruption free polity. Some of these proposals deal with criminalisation of politics and regulation of campaign finance, internal democracy of political parties, etc.

We have come to a stage in India when holding a free and fair election is no more news. In fact not holding one would be an exception. This is India’s promise to its own people and to the world. There shall be no let off in the fight against money power in elections. The other goal is to have every eligible Indian on our electoral rolls and every Indian voter to vote in the elections. The Commission has a simple vision: ‘Elections that are completely free of crime and abuse of money, based on a perfect electoral roll and with full participation of voters.' Our progress on this road is sure and steady.

Working and Legality of EVM’s and VVPAT’s

Electronic Voting Machine (EVM) was first conceived in 1977. Its prototype developed by Electronics Corporation of India Ltd. (ECIL), Hyderabad, a PSU under Department of Atomic Energy, in 1979 was demonstrated by the Election Commission of India before the representatives of political parties on August 06, 1980. After reaching a wide consensus on its introduction, the ECI issued directives under Article 324 of the Constitution of India for the use of EVMs and on 19th May, 1982 EVMs were used on a pilot basis to conduct elections. The law was amended by the Parliament in December 1988 and a new Section 61A was included in the Representation of the People Act 1951, thereby empowering the ECI to use EVM. The amendment came into force on 15th March, 1989. After convincing demonstration of prototypes developed, Bharat Electronics Ltd. (BEL), Bangalore, a Defence Ministry PSU, was selected along with ECIL to manufacture the EVM. The Government of India instituted an Electoral Reforms Committee (ERC) in January 1990, consisting of representatives from several national and state-level political parties under the chairmanship of Mr. Dinesh Goswami.

The ERC recommended the examination of EVM by a team of technical experts. A Technical Expert Committee (TEC) was formed under the chairmanship of Mr. S. Sampath, Chairman, RAC, DRDO with eminent scientists like Dr. P.V. Indiresen (IIT, Delhi), Dr. Rao C. Kasarbada (ER&DC, Trivandrum) in the list among others. In April 1990, the Expert Committee unanimously recommended the use of EVMs without any further loss of time marking it technically sound, secure and transparent. In 1998, a general consensus was reached on the use of EVMs for conducting Indian elections. In 1998, EVMs were used in 16 Legislative ACs across three states of Madhya Pradesh, Rajasthan, and Delhi. The use of EVMs further expanded in 1999 to 46 Parliamentary Constituencies (PC), and later, in February 2000, EVMs were used in 45 ACs in Haryana state assembly polls. In 2001, the state assembly elections in Tamil Nadu, Kerala, Puducherry, and West Bengal were completely conducted using EVMs. All state assembly elections thereafter witnessed the use of this machine. In 2004, the EVMs were used in all 543 Parliamentary Constituencies for the elections to the Lok Sabha. A new technologically advanced voting system completely replaced the erstwhile voting method of using ballot papers. A number of technological changes were made in the EVMs in 2001 and the machines were further upgraded in 2006.

The pre-2006 era EVMs are known as ‘Ml EVMs’, while EVMs manufactured between 2006 to 2010 are called ‘M2 EVMs’. The latest generation of EVMs, produced since 2013 are known as ‘M3 EVMs’. To improve the transparency and verifiability in poll process, the conduct of Election Rules, 1961 were amended and notified on 14th August 2013, thereby, Voter Verifiable Paper Audit Trail (VVPAT) was introduced. They were first used in the by-election for 51-Noksen AC in Nagaland.

First usage of EVM

EVM was first used by the Election Commission in fifty polling stations for election to No. 70 Parur Assembly Constituency in Kerala on May 19, 1982. The returned candidate had secured 30450 votes, out of which 11268 votes were cast manually, according to the conventional method provided in the Conduct of Election Rules, 1961 (“Rules”) made under the Representation of the People Act, 1951 (“Act”), and 19182 votes were cast by means of electronic machines. Votes by the mechanical process were cast in 50 out of the 85 polling stations. Voting by way of EVM was done in pursuance of the direction issued by the Commission under Article 324 of the Constitution, by virtue of a notification published in the Kerala Gazette on May 13, 1982. Interestingly, prior to issuing the said notification, the Commission had sought sanction of the Government of India, which was refused. Usage of EVMs and election of the returned candidate was challenged, which was ultimately decided by the Hon’ble Supreme Court in A.C. Jose v. Sivan Pillai, 1984 SCR (3) 74 (decided on March 05, 1984). Briefly, the arguments put forth by the Commission before the Hon’ble Supreme Court were thus:

  • The Commission being a creature of the Constitution itself, its plenary powers flow directly from Article 324 and it will prevail over any Act passed by the Parliament or Rules made thereunder.
  • The manner of voting was a matter coming within the ambit of Articles 324 and Article 327 would be deemed to be subsidiary to the power contained in Article 324 and if there was any conflict between a law enacted by the Parliament and the powers given to the Commission regarding regulating the conduct of elections to Parliament that law must yield to Article 324, otherwise the very object of Article 324 would be defeated. Article 324 is a Code in itself and was couched in a very plain and simple language which admits of no ambiguity and, if so construed, it gives full powers and authority to the Commission to give any direction in connection with the conduct of elections.
  • Section 59 of the Act and Rule 49 of the Rules framed under the Act authorizes the Commission to give direction to hold voting by the use of a voting machines.
  • The process of voting by machines eliminates a number of drawbacks of voting by ballot boxes. 
  • Ratio of the Hon’ble Supreme Court: Article 324 authorizes the Commission to exercise powers of superintendence, direction and control of preparation of electoral rolls and the conduct of elections to Parliament and State legislatures, but the Article 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 Commission in the garb of passing orders for regulating the conduct of elections cannot take upon itself a purely legislative activity which has been reserved under the scheme of the Constitution only to Parliament and the State legislatures.
  • Reliance was placed on the decision of a 5 – Judge Constitution Bench in Mohinder Singh Gill v. The Chief Election Commissioner (1978) 1 SCC 405 to hold that two limitation at least are laid on its plenary character in the exercise of powers under Article 324.

Firstly, when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission shall act in conformity with, not in violation of such provision but where such law is silent, Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice in so far as conformance to such canons can reasonably and realistically be required of it as fair play-in- action in a most important area of the constitutional order, viz., elections.

  • Reliance was also placed on the decision of a 6 – Judge Bench in N.P. Ponnuswami v. Returning Officer, 1952 SCR 218 to hold that before an election machinery can be brought into operation, there are three requisites which require to be attended to, namely, (1) there should be a set of laws and rules making provisions with respect to all matters relating to, or in connection with, elections, and it should be decided as to how these laws and rules are to be made; (2) there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should be a judicial tribunal to deal with disputes arising out of or in connection with elections.
  • An absolute and uncanalised power given to the Commission without providing any guidelines would destroy the basic structure of the Rule of Law.
  • When the Act and the Rules, prescribed a particular method of voting, the Commission cannot innovate a new method and contend that use of the mechanical process was not covered by the existing law and, therefore, did not come in conflict with the law in the field.
  • Where there is an Act and express Rules made thereunder it is not open to the Commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Act or the Rules. The powers of the Commission are meant to supplement rather than supplant the law in the matter of superintendence, direction and control as provided by Article 324.

Section 59 of the Act uses the words “ballot in such manner as may be prescribed”, which means prescribed by the Rules made under the Act. In this connection, reference was made to Rule 22 which relates to the form of ballot paper and its contents. Rule 23 requires the Returning officer to record on the counterfoil of the ballot paper the electoral roll number of the elector as entered in the marked copy of the electoral roll. Rule 27 refers to the return of ballot paper after an elector has recorded his vote or made his declaration. Rule 30, which prescribes the contents of ballot papers, is completely contrary to the concept of ballot by machine. Similarly, Rules 33, 38, 39 and 40 seem to be wholly inconsistent with the mechanical process but seem to adopt the conventional method. These Rules are binding on the Commission and it cannot by an executive fiat either override them or act contrary to the statutory provisions of the Rules. On a proper and detailed analysis of these Rules it is clear that the Act by framing the Rules completely excluded the mechanical process which, if resorted to, would defeat in a large measure the mandatory requirements of the Rules. • In 1951 when the Act was passed or the Rules were made, the system of voting by machine was not in vogue in this country. Therefore, the word ‘ballot’ in its strict sense would not include voting by the use of voting machines. It was ultimately held that the order of the Commission regarding casting of ballot by machines in some of the polling stations was without jurisdiction. The election of the returned candidate with respect to the 50 polling stations where the voting machines were used was set aside. The Hon’ble Supreme Court refrained from making any comment on either the defects or advantages of EVMs. Incidentally, the Hon’ble Supreme Court was informed by the Commission that at eleven elections held under the Act, the mechanical device was used and in nine, no challenge has been raised. The Hon’ble Court observed that this judgment will not affect those nine elections in any manner.

LEGISLATIVE AMENDMENT TO ENABLE USAGE OF EVM

Subsequent to the Hon’ble Supreme Court’s Judgment in A.C. Jose v. Sivan Pillai, 1984 SCR (3) 74, the Commission recommended the Government of India to bring legislative amendment in order to provide legal sanction for the use of EVMs. Consequently, Section 61A was inserted in the year 1989 in the Representation of the People Act, 1951 which 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. The constitutional vires of Section 61A of the Act was challenged and eventually upheld by the Hon’ble Supreme Court in All India Anna Dravida Munnetra Kazhagam v. Chief Election Commissioner, Special Leave Petition (Civil) 2824 – 25 of 2001 (decided on April 23, 2001). The Hon’ble Supreme Court distinguished the decision in A.C. Jose v. Sivan Pillai, 1984 SCR (3) 74 by stating that in A.C. Jose case, EVMs were sought to be used by way of an executive order which was not permissible being contrary to the Rules. It was held that after introduction of Section 61A in the Act, usage of EVMs cannot be challenged on the basis of the said ruling.

LEGAL PROVISIONS REGARDING EVM & VVPAT

Along with introduction of Section 61A to the Representation of the People Act, 1951, several amendments were made to the Act and Conduct of Election Rules, 1961 to enable smooth usage of EVMs/ VVPAT (Voter Verifiable Paper Audit Trail). Relevant statutory provisions under the Representation of the People Act, 1951 are as follows:

Section 58. Fresh poll in the case of destruction, etc., of ballot boxes (1) If at any election — (a) any ballot box used at a polling station or at a place fixed for the poll is unlawfully taken out of the custody of the presiding officer or the returning officer, or is accidentally or intentionally destroyed or lost, or is damaged or tampered with, to such an extent, that the result of the poll at that polling station or place cannot be ascertained; or (aa) any voting machine develops a mechanical failure during the course of the recording of votes; or (b) any such error or irregularity in procedure as is likely to vitiate the poll is committed at a polling station or at a place fixed for the poll, the returning officer shall forthwith report the matter to the Election Commission. (2) Thereupon the Election Commission shall, after taking all material circumstances into account; either— (a) declare the poll at that polling station or place to be void, appoint a day, and fix the hours, for taking a fresh poll at that polling station or place and notify the day so appointed and the hours so fixed in such manner as it may deem fit, or (b) if satisfied that the result of a fresh poll at that polling station or place will not, in any way, affect the result of the election or that the mechanical failure of the voting machine or the error or irregularity in procedure is not material, issue such directions to the returning officer as it may deem proper for the further conduct and completion of the election. (3) The provisions of this Act and of any rules or orders made thereunder shall apply to every such fresh poll as they apply to the original poll.

Section 135A. Offence of booth capturing — (1) Whoever commits an offence of booth capturing shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine, and where such offence is committed by a person in the service of the Government, he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine. Explanation — For the purposes of this sub-section and section 20B, “booth capturing” includes, among other things, all or any of the following activities, namely: — (a) seizure of a polling station or a place fixed for the poll by any person or persons, making polling authorities surrender the ballot papers or voting machines and doing of any other act which affects the orderly conduct of elections; (b) taking possession of a polling station or a place fixed for the poll by any person or persons and allowing only his or their own supporters to exercise their right to vote and prevent others from free exercise of their right to vote; (c) coercing or intimidating or threatening directly or indirectly any elector and preventing him from going to the polling station or a place fixed for the poll to cast his vote; (d) seizure of a place for counting of votes by any person or persons, making the counting authorities surrender the ballot papers or voting machines and the doing of anything which affects the orderly counting of votes; (e) doing by any person in the service of Government, of all or any (ee) the manner of giving and recording of votes by means of voting machines and the procedure as to voting to be followed at polling stations where such machines are used; (f) the procedure as to voting to be followed at elections held in accordance with the system of proportional representation by means of the single transferable vote; (g) the scrutiny and counting of votes including cases in which a recount of the votes may be made before the declaration of the result of the election; (gg) the procedure as to counting of votes recorded by means of voting machines; (h) the safe custody of ballot boxes, voting machines, ballot papers and other election papers, the period for which such papers shall be preserved and the inspection and production of such papers; (hh) the material to be supplied by the Government to the candidates of recognised political parties at any election to be held for the purpose of constituting the House of the People or the Legislative Assembly of a State; (hhh) any other matter required to be prescribed by this Act. (3) Every rule made under this Act shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

Relevant legal provisions under the Conduct of Elections Rules, 1961 (Statutory Rules and Order) read with Conduct of Elections (Amendment) Rules, 2013 are as follows:

Rule 49A

Design of Electronic Voting Machines — Every electronic voting machine (hereinafter referred to as the voting machine) shall have a control unit and a balloting unit and shall be of such designs as may be approved by the Election Commission. Rule 49B. Preparation of voting machine by the returning Officer — (1) The balloting unit of the voting machine shall contain such particulars and in such language or languages as the Election Commission may specify. (2) The names of the candidates shall be arranged on the balloting unit in the same order in which they appear in the list of the contesting candidates. (3) If two or more candidates bear the same name, they shall be distinguished by the addition of their occupation or residence or in some other manner. (4) Subject to the foregoing provisions of this rule, the returning officer shall — (a) fix the label containing the names and symbol of the contesting candidates in the balloting unit and secure that unit with his seal and the seals of such of the contesting candidates or their election agents present as are desirous of affixing the same; (b) set the number of contesting candidates and close the candidate set section in the control unit and secure it with his seal and the seals of such of the contesting candidates or their election agents present as are desirous of affixing the same.

Rule 49C

Arrangements at the polling stations — (1) Outside each polling station there shall be displayed prominently— (a) a notice specifying the polling area, the electors of which are entitled to vote at the polling station and, when the polling area has more than one polling station, the particulars of the electors so entitled; and (b) a copy of the list of contesting candidates. (2) At each polling station there shall be set up one or more voting compartments in which the electors can record their votes free from observation. (3) The returning officer shall provide at each polling station one voting machine and copies of relevant part of the electoral roll and such other election material as may be necessary for taking the poll. (4) Without prejudice to the provisions of sub-rule (3), the returning officer may, with the prior approval of the Election Commission, provide one common voting machine for two or more polling stations located in the same premises.

Rule 49E

Preparation of voting machine for poll — (1) The control unit and balloting unit of every voting machine used at polling station shall bear a label marked with — (a) the serial number, if any, and the name of the constituency; (b) the serial number and name of the polling station or stations as the case may be; (c) the serial number of the unit; and (d) the date of poll. (2) Immediately before the commencement of the poll, the presiding officer shall demonstrate to the polling agents and other persons present that no voter has been already recorded in the voting machine and it bears the label referred to in sub-rule (4). (3) A paper seal shall be used for securing the control unit of the voting machine, and the presiding officer shall affix his own signature on the paper seal and obtain thereon the signature of such of the polling agents present as the desirous of affixing the same. (4) The presiding officer shall thereafter fix the paper seal so signed in the space meant therefor in the control unit of the voting machine and shall secure and seal the same. (5) The seal used for securing the control unit shall be fixed in such manner that after the unit has been sealed, it is not possible to press the “result button” without breaking the seal. (6) The control unit shall be closed and secured and placed in full view of the presiding officer and the polling agents and the balloting unit placed in the voting compartment.

Rule 49L

Procedure for voting by voting machines — (1) Before permitting an elector to vote, the polling officer shall— (a) record the electoral roll number of the elector as entered in the marked copy of the electoral roll in a register of voters in Form 17A. (b) obtain the signature or the thumb impression of the elector on the said register of votes; and (c) mark the name of the elector in the marked copy of the electoral roll to indicate that he has been allowed to vote: (d) give details of the document produced by the elector in proof of his/her identification. Provided that no elector shall be allowed to vote unless he has his signature or thumb impression on the register of voters. (2) Notwithstanding anything contained in sub-rule (2) of rule 2, it shall be necessary for any presiding officer or polling officer or any other officer to attest the thumb impression of the elector on the register of voters.

Rule 49M

Maintenance of secrecy of voting by electors within the polling station and voting procedures — (1) Every elector who has been permitted to vote under rule 49L shall maintain secrecy of voting within the polling station and for that purpose observe the voting procedure hereinafter laid down. (2) Immediately on being permitted to vote the elector shall proceed to the presiding officer or the polling officer incharge of the control unit of the voting machine who shall, by pressing the appropriate button on the control unit, activate the balloting unit; for recording of elector’s vote. (3) The elector shall thereafter forthwith— (a) proceed to the voting compartment; (b) record his vote by pressing the button on the balloting unit against the name and symbol of the candidate for whom he intends to vote; and (c) come out of the voting compartment and leave the polling station. (4) Every elector shall vote without undue delay. (5) No elector shall be allowed to enter the voting compartment when another elector is inside it. (6) If an elector who has been permitted to vote under rule 49L or rule 49P refuses after warning given by the presiding officer to observe the procedure laid down in sub-rule (3) of the said rules, the presiding officer or a polling officer under the direction of the presiding officer shall not allow such elector to vote. (7) Where an elector is not allowed to vote under sub-rule (6), a remark to the effect that voting procedure has been violated shall be made against the elector’s name in the register of voters in Form 17A by the presiding officer under his signature.

Rule 49MA

Procedure in case of complaint about particulars printed on paper slip – (1) Where printer for paper trail is used, if an elector after having recorded his vote under rule 49M alleges that the paper slip generated by the printer has shown the name or symbol of a candidate other than the one he voted for, the presiding officer shall obtain a written declaration from the elector as to the allegation, after warning the elector about the consequence of making a false declaration. (2) If the elector gives the written declaration referred to in sub-rule (1), the presiding officer shall make a second entry related to that elector in Form 17A, and permit the elector to record a test vote in the voting machine in his presence and in the presence of the candidates or polling agents who may be present in the polling station, and observe the paper slip generated by the printer. (3) If the allegation is found true, the presiding officer shall report the facts immediately to the returning officer, stop further recording of votes in that voting machine and act as per the direction that may be given by the Returning Officer. (4) If, however, the allegation is found to be false and the paper slip so generated under sub-rule (1) matches with the test vote recorded by the elector under sub-rule (2), then, the presiding officer shall – (a) make a remark to that effect against the second entry relating to that elector in Form 17A mentioning the serial number and name of the candidate for whom such test votes has been recorded; (b) obtain the signature or thumb impression of that elector against such remarks; and (c) make necessary entries regarding such test vote in item 5 in Part I of Form 17C.

Rule 49N

Recording of votes of blind or infirm electors- (1) If the presiding officer is satisfied that owing to blindness or other physical infirmities an elector is unable to recognise the symbol on the balloting unit of the voting machine or unable to record his vote by pressing the appropriate button thereon without assistance the presiding officer shall permit the elector to take with him a companion of not less than eighteen years of age to the voting compartment for recording the vote on his behalf and in accordance with his wishes: Provided that no person shall be permitted to act as the companion of more than one elector at any polling station on the same day: Provided further that before any person is permitted to act as the companion of an elector on any day under this rule that person shall be required to declare that he will keep secret the vote recorded by him on behalf of the elector and that he has not already acted as the companion of any other elector at any other polling station on that day. (2) The presiding officer shall keep a record in Form 14A of all cases under this rule.

Rule 49Q

Presiding Officer’s entry in the voting compartment during poll — (1) The presiding officer may whenever he considers it necessary so to do, enter the voting compartment during poll and take such steps as may be necessary to ensure that the balloting unit is not tampered or interfered with in any way. (2) If the presiding officer has reason to suspect that an elector who has entered the voting compartment is tampering or otherwise interfering with the balloting unit or has remained inside the voting compartment for unduly long period, he shall enter the voting compartment and take such steps as may be necessary to ensure the smooth and orderly progress of the poll. (3) Whenever the presiding officer enters the voting compartment under this rule, he shall permit the polling agents present to accompany him if they so desire. Rule 49R. Closing of poll — (1) The presiding officer shall close a polling station at the hour fixed in that behalf under section 56 and shall not thereafter admit any elector into the polling station: Provided that all electors present at the polling station before it is closed shall be allowed to cast their votes. (2) If any question arises whether an elector was present at the polling station before it was closed it shall be decided by the presiding officer and his decision shall be final.

Rule 49S

Account of votes recorded — (1) The presiding officer shall at the close of the poll prepare an account of votes recorded in Form 17C and enclose it in a separate cover with the words ‘Account of Votes Recorded’ superscribed thereon. (2) The presiding officer shall furnish to every polling agent present at the close of the poll a true copy of the entries made in Form 17C after obtaining a receipt from the said polling agent therefor and shall attest it as a true copy. Rule 49T. Sealing of voting machine after poll — (1) As soon as practicable after the closing of the poll, the presiding officer shall close the control unit to ensure that no further votes can be recorded and shall detach the balloting unit from the control unit and from the printer, where printer is also used, so however, that the paper slips contained in the drop box of the printer shall remain intact. (2) The control unit and the balloting unit and the printer, where it is used, shall thereafter be sealed, and secured separately in such manner as the Election Commission may direct and the seal used for securing them shall be so affixed that it will not be possible to open the units without breaking the seals. (3) The polling agents present at the polling station, who desire to affix their seals, shall also be permitted to do so.

Rule 49U

Sealing of other packets — (1) The presiding officer shall then make into separate packet, — (a) the marked copy of the electoral roll; (b) the register of voters in Form 17A; (c) the cover containing the tendered ballot papers and the list in Form 17B; (d) the list of challenged votes; and (e) any other papers directed by the Election Commission to be kept in a sealed packet. (2) Each packet shall be sealed with the seal of the presiding officer and with the seal either of the candidate or of his election agent or of his polling agent who may be present at the polling station and may desire to affix his seal thereon.

Rule 49V

Transmission of voting machines, etc., to the returning officer — (1) The presiding officer shall then deliver or cause to be delivered to the returning officer at such place as the returning officer may direct,— (a) the voting machine; (b) the account of votes recorded in Form 17C; (c) the sealed packets referred to in rule 49U; and (d) all other papers used at the poll. (2) The returning officer shall make adequate arrangements for the safe transport of the voting machine, packets and other papers for their safe custody until the commencement of the counting of votes. Rule 49W. Procedure on adjournment of poll — (1) If the poll at any polling station is adjourned under sub-section (1) of section 57, the provision of rules 49S to 49V shall, as far as practicable, apply as if the poll was closed at the hour fixed in that behalf under section 56. (2) When an adjourned poll is recommended under sub-section (2) of section 57, the electors who have already voted at the poll so adjourned shall not be allowed to vote again. (3) The returning officer shall provide the presiding officer of the polling station at which such adjourned poll is held, with the sealed packet containing the marked copy of the electoral roll, register of voters in Form 17A and a new voting machine. (4) The presiding officer shall open the sealed packet in the presence of the polling agents present and use the marked copy of the electoral roll for marking the names of the electors who are allowed to vote at the adjourned poll. (5) The provisions of rule 28 and rules 49A to 49V shall apply in relation to the conduct of an adjourned poll before it was so adjourned. Rule 49X. Closing of voting machine in case of booth capturing — Where the presiding officer is of opinion that booth capturing is taking place at a polling station or at a place fixed for the poll, he shall immediately close the control unit of the voting machine to ensure that no further votes can be recorded and shall detach the balloting unit that from the control unit.

Rule 55C

Scrutiny and inspection of voting machines— (1) The returning officer may have the control units of the voting machines used at more than one polling station taken up for scrutiny and inspection and votes recorded in such units counted simultaneously. (2) Before the votes recorded in any control unit of voting machine are counted under sub-rule (1), the candidate or his election agent or his counting agent present at the counting table shall be allowed to inspect the paper seal and such other vital seals as might have been affixed on the unit and to satisfy themselves that the seals are intact. (3) The returning officer shall satisfy himself that none of the voting machines has in fact been tampered with. (4) If the returning officer is satisfied that any voting machine has in fact been tampered with, he shall not count the votes recorded in that machine and shall follow the procedure laid down in section 58, or section 58A or section 64A, as may be applicable in respect of the polling station or stations where that machine was used. Rule 56C. Counting of votes — (1) After the returning officer is satisfied that a voting machine has in fact not been tampered with, he shall have the votes recorded therein counted by pressing the appropriate button marked “Result” provided in the control unit whereby the total votes polled and votes polled by each candidate shall be displayed in respect of each such candidate on the display panel provided for the purpose in the unit. (2) As the votes polled by each candidate are displayed on the control unit, the returning officer shall have,— (a) the number of such votes recorded separately in respect of each candidate in Part II on Form 17C; Provided that the test vote recorded, if any, for a candidate, as per item 5 in Part I of Form 17C, shall be subtracted from the number of votes recorded for such candidate as displayed on the control unit. (b) Part II of Form 17C completed in other respects and signed by the counting supervisor and also by the candidates or their election agents or their counting agents present; and (c) corresponding entries made in a result sheet in Form 20 and the particulars so entered in the result sheet announced.

Rule 56D

Scrutiny of paper trail – (1) Where printer for paper trail is used, after the entries made in the result sheet are announced, any candidate, or in his absence, his election agent or any of his counting agents may apply in writing to the returning officer to count the printed paper slips in the drop box of the printer in respect of any polling station or polling stations. (2) On such application being made, the returning officer shall, subject to such general or special guidelines, as may be issued by the Election Commission, decide the matter and may allow the application in whole or in part or may reject in whole, if it appears to him to be frivolous or unreasonable. (3) Every decision of the returning officer under sub-rule (2) shall be in writing and shall contain the reasons therefor. (4) If the returning officer decides under sub-rule (2) to allow counting of the paper slips either wholly or in part or parts, he shall- (a) do the counting in the manner as may be directed by the Election Commission; (b) 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; (c) announce the amendments so made by him; and (d) complete and sign the result sheet. Rule 57C. Sealing of voting machines — (1) After the result of voting recorded in a control unit has been ascertained candidate-wise and entered in Part II of Form 17C and Form 20 under rule 56C, the returning officer shall reseal the unit with his seal and the seals of such of the candidates or their election agents present who may desire to affix the seals thereon so however that the result of voting recorded in the unit is not obliterated and the unit retains the memory of such result and where printer for paper trail is used, the returning officer shall seal the paper slips in such manner, as may be directed by the Election Commission. (2) The control unit and the paper slips so sealed shall be kept in specially prepared boxes on which the returning officer shall record the following particulars, namely: — (a) the name of the constituency; (b) the particulars of polling station or stations where the control unit has been used; (c) serial number of the control unit and printer wherever used; (d) date of poll; and (e) date of counting; (f) the provisions of rules 60 to 66 shall, so far as may be, apply in relation to voting by voting machines and any reference in those rules to, — (ff) ballot paper shall be construed as including a reference to such voting machine; (fff) any rule shall be construed as a reference to the corresponding rule in Chapter II of Part IV or, as the case may be, to rule 55C or 56C or 57C.

Rule 92

Custody of ballot boxes and papers relating to election – (1) All voting machines used at an election shall be kept in the custody of the concerned district election officer. (2) The district election officer shall keep in safe custody- (a) the printed paper slips sealed under the provisions of rule 57C. (b) The packets containing registers of voters in Form 17A.

Rule 93

Production and inspection of election papers— (1) While in the custody of the district election officer or, as the case may be, the returning officer— (a) the packets of unused ballot papers with counterfoils attached thereto; (b) the packets of used ballot papers whether valid, tendered or rejected; (c) the packets of the counterfoils of used ballot papers; (cc) the printed paper slips sealed under the provisions of rule 57C. (d) the packets of the marked copy of the electoral roll or, as the case may be, the list maintained under sub-section (1) or subsection (2) of section 152; and (dd) the packets containing registers of voters in form 17A; (e) the packets of the declarations by electors and the attestation of their signatures; shall not be opened and their contents shall not be inspected by, or produced before, any person or authority except under the order of a competent court. (f) The control units sealed under the provisions of rule 57C and kept in the custody of the district election officer shall not be opened and shall not be inspected by, or produced before, any person or authority except under the order of a competent court. (2) Subject to such conditions and to the payment of such fee as the Election Commission may direct, — (a) all other papers relating to the election shall be open to public inspection; and (b) copies thereof shall on application be furnished. (3) Copies of the returns by the returning officer forwarded under rule 64, or as the case may be, under clause (b) of sub-rule (1) of rule 84 shall be furnished by the returning officer, district election officer, chief electoral officer or the Election Commission on payment of a fee of two rupees for each copy.

Rule 94

Disposal of election papers — (1) Subject to any direction to the contrary given by the Election Commission or by a competent court or tribunal— (a) the packets of unused ballot papers shall be retained for a period of six months and shall thereafter be destroyed in such manner as the Election Commission may direct; (aa) the voting machines kept in the custody of the district election officer under sub-rule (1A) of rule 92 shall be retained intact for such period as the Election Commission may direct and shall not be used at any subsequent election without the prior approval of the Election Commission; (b) the other packets referred to in sub-rule (1) of rule 93 shall be retained for a period of one year and shall thereafter be destroyed: Provided that packets containing the counterfoils of used ballot papers and the printer paper slips, if any, shall not be destroyed except with the prior approval of the Election Commission; (c) all other papers relating to the election shall be retained for such period as the Election Commission may direct.

Rule 95

Power of the Election Commission to issue directions — Subject to the other provisions of these rules, the Election Commission may issue such directions as it may consider necessary to facilitate the proper use and operation of the voting machines.

JUDICIAL DECISIONS ON EVM & VVPAT SUPREME COURT OF INDIA

1. People’s Union for Civil Liberties v. Union of India, (2013) 10 SCC 1 Date of Order: September 27, 2013 This Writ Petition was filed under Article 32 of the Constitution of India challenging the vires of Rules 41(2) and (3) and 49-O of the Conduct of Elections Rules, 1961 to the extent that these provisions violate the secrecy of voting which is fundamental to the free and fair elections and is required to be maintained as per Section 128 of the Representation of the People Act, 1951 and Rules 39 and 49-M of the Rules. The Petitioner had sought inclusion of necessary provision in the ballot papers as well as in EVMs for secrecy/ protection of right of not to vote.

Contentions of the Election Commission of India:

It was argued on behalf of the Commission that inasmuch as secrecy is an essential feature of “free and fair elections”, Rules 41(2) and (3) and 49-O of the Rules violate the requirement of secrecy. 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 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.

Hon’ble Court’s ruling:

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. The Hon’ble Court also held that the Rules 41(2) and (3) and Rule 49-O of the Rules are ultra vires Section 128 of the Representation of the People Act, 1951 and Article 19(1)(a) of the Constitution to the extent they violate secrecy of voting. 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. The Government of India was also directed to provide necessary help for implementation of the above directions.

2. Subramanian Swamy v. Election Commission of India, (2013) 10 SCC 500 Date of Order: October 8, 2013 This Civil Appeal was filed against the Judgment dated 17.01.2012 passed by the Hon’ble High Court of Delhi in Subramanian Swamy v. Election Commission of India, WP (C) No. 11879 of 2009 [2012 SCC OnLine Del 314] whereby the High Court disposed of the petition by disallowing the prayer for issuance of a writ of mandamus directing the Election Commission of India to incorporate a system of “paper trail/ paper receipt” in the electronic voting machines as a convincing proof that the EVM has rightly registered the vote cast by a voter in favour of a particular candidate. Contentions of the Election Commission of India: The Election Commission filed a detailed affidavit highlighting the steps taken in this regard. The Hon’ble Court was apprised of the fact that EVMs used in India are unique and they are of such high-end technology that they cannot be hacked/ tampered. The Commission submitted that it is exploring possibility of incorporating voter verifiable paper audit trail (VVPAT) system as part of EVMs to make election system more transparent. It was submitted that a Technical Experts Committee has approved and finalized VVPAT design. It was also submitted before the Hon’ble Court that in order to implement new system, the Conduct of Election Rules 1961 will require certain amendments. To this effect, the Commission had addressed a letter to the Legislative Department of the Ministry of Law and Justice regarding these amendments including Rules 49-A to 49-X, 66-A, 55-C, 56-C, 57-C and Form 17C of the Conduct of Election Rules, 1961, as well as introduction of Rules 49-MA and 56-D in the said Rules. Accordingly, the Ministry of Law and Justice notified the amendments to the Conduct of Election Rules, 1961 in the Gazette of India vide Notification No. SO 2470(E) dated 14.08.2013 to enable the use of VVPAT with EVMs. It was also argued that the Election Commission has decided to increase the use of VVPAT units in a phased manner

Hon’ble Court’s ruling: 

The Hon’ble Supreme Court held that “paper trail” is an indispensable requirement of free and fair elections. 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. The Hon’ble Court appreciated the efforts and good gesture made by Election Commission in introducing VVPAT system. For implementation of such a system in a phased manner, the Government of India was directed to provide required financial assistance for procurement of units of VVPAT.

3. Reshma Vithalbhai Patel v. Union of India, (2018) 18 SCC 675 Date of Order: October 8, 2013 This appeal arose out of the decision passed by the Hon’ble High Court of Gujarat in Reshma Vithalbhai Patel v. Union of India 2017 SCC OnLine Guj 1395. Before the High Court, a Public Interest Litigation was filed seeking inter alia the following prayers: (a) Issuance of an appropriate writ, order or direction directing that ballot papers be used in the 2017 Gujarat Assembly Election in place of EVMs. (b) In case continuation of EVMs is deemed fit to be used in the Assembly Election, issuance of an appropriate writ, order or direction for incorporating a system of “paper trail/paper receipt” in the Electronic Voting Machines. (c) Directing that the EVMs with VVPAT system be tested, verified and audited by competent independent technical experts’/ agency having expertise in such evaluation. Contentions of the Election Commission of India: The Election Commission has reiterated its commitments to 100% coverage of VVPATs in all future elections to Parliament and State legislative Assemblies by way of: (a) Status Paper on EVMs and VVPATs published on its website on 09.05.2017; (b) All Political Meet conducted on 12.05.2017 where parties were informed of the resolution to ensure 100% coverage of VVPATs in all future elections; and (c) a Press Note dated 03.06.2017 to this effect. Hon’ble Court’s ruling: The Hon’ble Supreme Court observed that the Commission’s affidavit leaves no room for any doubt that all future elections will be held using VVPATs.

4. Nyaya Bhoomi & Anr. v. Election Commission of India, Writ Petition (Civil) 1332/ 2018 Date of Order:

November 22, 2018 This Writ Petition was filed seeking direction to Election Commission to hold 2019 General Election and State Assembly Polls with ballot papers instead of EVMs. The writ petition was vehemently opposed by the Commission. Hon’ble Court’s ruling: The Hon’ble Court dismissed the Writ Petition. 

5. N. Chandrababu Naidu v. Union of India, (2019) 15 SCC 377 Date of Order: April 8, 2019 This Writ Petition was filed seeking the following reliefs: (a) Quashing and setting aside Guideline No. 16.6 of the Manual on EVM and VVPAT as framed and issued by the Commission. (b) Issuance of writ directing that minimum of 50% randomized VVPAT paper slip verification of EVM shall be conducted in every General and Bye-Elections.

Contentions of the Election Commission of India:

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. It was contended that the sample verification of the VVPAT paper trail of one EVM is done by a team of three officers under the direct supervision of the Returning Officer and the Election Observer of the constituency. The process takes about an hour. If verification of VVPAT paper trail of 50% of the EVMs is done as sought for by the Petitioner, the declaration of result of election could be delayed by 5-6 days. Hon’ble Court’s ruling: The Hon’ble Court observed that neither the satisfaction of ECI nor the system in vogue today, is being doubted by the Court in sofar 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, namely, one machine per Assembly Constituency or Assembly Segment in a Parliamentary Constituency. It was also held that random selection of the machines that would be subjected to the process of VVPAT paper trail verification, in terms of the guidelines in force, shall apply to the VVPAT paper trail verification.

6. Tech for All v. Election Commission of India, Writ Petition (Civil) 692 / 2019 Date of Order: May 21, 2019 This Public Interest Litigation was filed seeking 100 % verification of VVPAT against the EVM outcomes. The writ petition was vehemently opposed by the Commission. Hon’ble Court’s ruling: While dismissing the PIL, the Hon’ble Court lambasted the Petitioner for making a ‘mockery of democracy’ by moving the Court despite a clear ruling N. Chandrababu Naidu v. Union of India, (2019) 15 SCC 377 directing the counting of VVPAT slips of five EVMs per assembly segment. The Hon’ble Court also underscored that it was unethical to move such a petition when the polls were already over.

7. C.R. Jaya Sukin v. Election Commission of India, Special Leave Petition (Civil) 13278/ 2021 Date of Order: September 05, 2022 This SLP arose out of the decision dated August 03, 2021 passed by the Hon’ble High Court of Delhi in C.R. Jaya Sukin v. Election Commission of India & Ors., Writ Petition 6635/ 2021. Before the Hon’ble High Court, a Public Interest Litigation was filed seeking inter alia the following prayer: “Issue a writ of mandamus or any other appropriate Writ or Order or Direction or any suggestion or observation or particularly the nature of Writ, by giving direction to the Respondents No.1 to stop the use of Electronic Voting Machine (EVM) and use ballot paper in any forthcoming elections.” Contentions of the Election Commission of India: The EVMs have been approved by the Election Commission of India after due deliberation and also have a sanction by the Parliament under Section 61A of the Representation of the People Act, 1951. Hon’ble Court’s ruling: While dismissing the PIL, the Hon’ble High Court observed that the Petitioner was unable to place any material on record to show alleged drawbacks or that EVMs can be manipulated. Thus, the PIL was dismissed with costs. The Hon’ble Supreme Court upheld the decision of the Hon’ble High Court and dismissed SLP.

8. Madhya Pradesh Jan Vikash Party v. Election Commission of India, Special Leave Petition (Civil) 16870/ 2022 Date of Order: September 30, 2022 This SLP arose out of the decision dated December 14, 2021 passed by the Hon’ble High Court of Madhya Pradesh, Principal Bench at Jabalpur in Writ Petition 26671/2021. The Writ Petition was filed seeking directions for ruling out discrepancies in the Electronic Voting Machines (EVM). Before the Hon’ble High Court, the Petitioner sought inter alia with the gist of prayers as under: To command the respondents to take effective measures to rule out the discrepancies in the Electronic Voting Machines, stated in the petition to conduct the free and fair upcoming assembly and general elections with the purity of the electoral process or may be directed to conduct the election with the other alternative mode in accordance with law; To command the respondents to take effective measures to comply the rule 49E (2), wherein it is mandatory to show the storage empty and to ascertain the polling agents that there is no prior voting recorded earlier; To command the respondents to disclose the approved hardware configuration of the electronic voting machines and approved size, shape, colour and number of components, before the representatives of the candidates of the political parties; • To issue a writ in the nature of mandamus commanding respondents to allow the technical experts/engineers of the petitioner political party with necessary equipment’s at the time of first level checking, commissioning, candidate setting randomization and at the time of symbol loading to check and examine the fairness of all the stages of electoral process; To direct the respondent to demonstrate the source code/programming/ software to examine that there is not such a programming which benefits the particular candidates or to the candidates of a particular party; To direct the respondent to permit the petitioner on the polling day, to examine the EVMs with its technical experts/engineers in respect of software/ source code/programming or microchip as well as any bluetooth or wireless device, may not be available in the machines which benefits the special candidate or particular political party as per rule 49 (E)(2) of the election conduct rule 1961; To direct the respondent to certify each and every machine that it is original and there is no tempering or manipulation; To direct the respondent to conduct the examination from their own regular employee/technical engineer or expert at the time of FLC/ commissioning/ randomization/ symbol loading just after the EVMs come into the possession of election commission; Even otherwise without the aforesaid measured & reliefs claimed hereinabove in the EVM and VVPAT, respondent shall kindly be restrained from using electronic voting machines & VVPAT in the upcoming elections going to be conducted in future or Electronic voting machines be banned in the conduct of elections, due to the large scale discrepancies available in the machines as mentioned in the petition.

Hon’ble Court’s ruling: The Hon’ble Court observed that EVMs have been utilized in 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! The court is of the view that party which may not have got much recognition from the electorate seeks recognition by filing such frivolous petitions. Thus, the SLP was dismissed with costs Rs.50,000/-.

Association for Democratic Reforms vs Election Commission of India and Anr WRIT PETITION (CIVIL) NO. 184 OF 2024 A N D WRIT PETITION (CIVIL) NO. OF 2024 (DIARY NO. 35782 OF 2023)

The Supreme Court on Friday dismissed a batch of petitions requesting 100 per cent verification of votes cast using Electronic Voting Machines (EVMs) with Voter Verifiable Paper Audit Trail (VVPAT) slips.The top court recommended that the Election Commission of India (EC) consider incorporating bar codes for each political party on the paper slips.A two-judge bench comprising Justices Sanjiv Khanna and Dipankar Datta turned down appeals to revert to ballot papers in elections. They also issued a series of directives to the EC and asked it to implement them on or after May 1, 2024.

Key directions from the Supreme Court

The Supreme Court instructed EC to seal and secure all Symbol Loading Units (SLUs) of VVPAT machines, with symbol loading processes scheduled for May 1, 2024.

These SLUs must be stored for a minimum of 45 days.

Additionally, the court mandated that burnt memory in the microcontroller EVMs be examined by a team of engineers post-results declaration.

Candidates numbered 2 and 3 may request this examination within 7 days of the results being announced.

Candidates initiating such requests must cover the verification expenses; if tampering is detected, these expenses will be reimbursed.

ADDITIONAL INFORMATION ON EVMs/VVPATs

KEY FEATURES OF M-3 EVMs/VVPATs

  1. Standalone Machine: EVM is a standalone system not connected with the external world through any wired or wireless network medium.
  2.  Unauthorised Access Detection Module (UADM): UADM embedded in the machine disables EVM permanently, if any attempt is made to access microcontroller or memory.
  3. Advanced Encryption Techniques: Encrypted communication between Control Unit, Ballot Unit and VVPAT cannot be deciphered by tapping cables.
  4. Automated self diagnostics on every switch ON: EVM checks its own health parameters each time it is Switched ON. 
  5. Strong Mutual Authentication Capability: The strong mutual authentication capability ensures that no unauthorised device can interact with EVM.
  6. No Radio Frequency Transmission or Reception Capability: Tampering of ECI-EVMs by any wireless coded signal using any protocol (Bluetooth, WIFI, RFID,
  7. NFD etc.) is ruled out as EVM does not have any radio frequency (RF) communication capability, hence, cannot communicate through any wireless protocol.
  8. One Time Programmable (OTP): The programme (software) used in these machines is key hashed and burnt into a One Time Programmable (OTP) chip at the time of manufacturing so that it cannot be altered or tampered with. 
  9. Dynamic Coding of Key Presses: Every key press is coded dynamically making it impossible for anyone to decode the signals flowing among the Control Unit, Balloting Unit and VVPAT.
  10. Real Time Clock for date and time stamping of events: Every authorised or unauthorised key press is recorded with date and time stamp on real time basis.

SALIENT ASPECTS OF EVMs/VVPATs:

  • The ECI-EVMs are manufactured by two PSUs namely Electronics Corporation of India Limited (ECIL), Hyderabad and Bharat Electronics Limited (BEL), Bangalore.
  • An independent TEC (a) provides technical advice to build specifications and design of newer versions of EVMs and VVPATs, in order to incorporate the latest technology both in Hardware and Software Design and towards improving Robustness against Tampering and operation in the field. (b) Examines design proposals of manufacturers on EVMs and offers recommendations for improvement. (c) Mentors design process wherever asked. (d) Examines concerns raised on EVM tamperability.
  • Standardisation Testing and Quality Certification (STQC) under Ministry of Information and Technology, an accredited third party entity, conducts standardization and certification of ECI EVMs produced by manufacturers.
  • EVMs data is stored internally and is non-transferrable to or by any device.
  • Commission has evolved end-to-end stringent security protocol and administrative safeguards for the use, storage, transportation and tracking of ECI EVMs.

INTERESTING FACTS ON EVMS:

In 1982, when EVM was first used in Kerala, a candidate Sivan Pillai challenged its use even before the election.

But Kerala High Court did not entertain his challenge and EVM was introduced as a pilot project. Interestingly, Mr. Pillai, the challenger, won the election when the result was declared. However, Mr. Pillai’s opponent challenged the introduction of EVMs thereafter. The said election was re-conducted with paper ballots after Supreme Court ruling in 1984. However, the 1984 SC ruling against EVMs had been on a legal technicality, and not about their fundamental suitability, and the legal glitch was corrected through amendment of the Representation of the People Act 1951 in 1988. • The introduction of EVMs for voting in India was met with certain reservations considering the then existing large-scale illiteracy and socioeconomic backwardness of the country. It was often asserted by the naysayers that the multitudes of poor, illiterate, down-trodden, especially in the rural areas, would face hardships and problems in accessing the EVMs and may get dis-enfranchised out of ignorance, lack of voting education or awareness. But, a joint study of Indian School of Business, Indian Statistical Institute and Brookings Institution in 2017 with the help of post-poll survey data between 2000 and 2005 from the independent Centre for the Study of Developing Societies (CSDS), establishes that introduction of EVMs led to greater participation in electoral process by the marginalised and vulnerable voters such as women, Scheduled Castes and Scheduled Tribe. 

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