Supreme Court Upholds EVM Integrity, Directs Enhanced Security Measures in Election Process (26 April 2024)

Date of the Judgment: 26 April 2024
Citation: 2024 INSC 341
Judges: Sanjiv Khanna, J. and Dipankar Datta, J. (authored separate but concurring opinions)
Can the integrity of Electronic Voting Machines (EVMs) be trusted in Indian elections? The Supreme Court of India recently addressed this critical question, responding to petitions raising concerns about potential EVM manipulation. The court’s decision underscores the importance of maintaining voter confidence in the electoral process while also directing additional security measures. The bench comprised Justices Sanjiv Khanna and Dipankar Datta, who delivered separate but concurring opinions, with Justice Khanna authoring the lead judgment.

Case Background

The case originated from concerns raised by the Association for Democratic Reforms and other petitioners regarding the reliability of EVMs and the transparency of the voting process. The petitioners did not allege any direct malfeasance by the Election Commission of India (ECI) but expressed apprehension about the possibility of EVM manipulation. They sought either a return to the paper ballot system or, alternatively, 100% counting of VVPAT slips to ensure voter confidence. The petitioners also raised issues about the alleged modification of VVPAT machines in 2017, which made the glass window translucent, and the draconian nature of Rule 49MA of the Conduct of Election Rules, 1961.

Timeline

Course of Proceedings

The judgment does not mention any specific lower court proceedings. The petitioners directly approached the Supreme Court with their concerns regarding the EVM system.

Legal Framework

The judgment refers to several key legal provisions:

• Rule 49MA of the Conduct of Election Rules, 1961: This rule allows an elector to raise a complaint if there is a mismatch between the name and symbol of the candidate shown on the VVPAT slip and the vote cast on the ballot unit. The elector is required to make a written declaration to the presiding officer. The petitioners argued that this rule is draconian, arbitrary, and contrary to law.
• Section 177 of the Indian Penal Code, 1860: This section deals with furnishing false information. The petitioners contended that its reference in the written declaration under Rule 49MA is wrong and misconceived.
• The Representation of the People Act, 1951: This act was amended in 1989 to allow the use of EVMs in elections.
• Article 324 of the Constitution of India: This article entrusts the Election Commission with the superintendence, direction, and control of elections.
• Rule 49M(3) of the Conduct of Election Rules, 1961: This rule stipulates that the elector is entitled to view the printed paper slip through the transparent window of the VVPAT, showing the serial number, the name, and the symbol of the candidate for whom he has voted.
• Rule 56D of the Conduct of Election Rules, 1961: This rule deals with the scrutiny of the paper trail, allowing candidates to apply for a count of the printed paper slips in the drop box of the printer.

The court also emphasized that the right to vote is a fundamental right, and the electoral process must ensure transparency and accuracy.

Arguments

The petitioners, including the Association for Democratic Reforms, raised several arguments:

• Suspicion of EVM Manipulation: The petitioners argued that despite not attributing malice to the ECI, the possibility of manipulating EVMs exists, which undermines voter confidence. They emphasized that voters have a right to know their vote is accurately recorded and counted.
• Alternative Proposals: The petitioners proposed three alternatives: (a) return to the paper ballot system; (b) giving the printed VVPAT slip to the voter for verification and deposit in a ballot box; and/or (c) 100% counting of VVPAT slips in addition to electronic counting.
• VVPAT Modification: They contended that the 2017 modification of VVPATs, which made the glass window translucent, deprived voters of knowing whether their vote was correctly registered and counted.
• Rule 49MA Concerns: The petitioners argued that Rule 49MA of the Conduct of Election Rules, 1961, is draconian, arbitrary, and contrary to law, particularly its reference to Section 177 of the Indian Penal Code, 1860.
• Right to Know: The petitioners asserted that the voter’s right to know that the vote as cast is duly registered is a paramount fundamental right, and any administrative reason raised by the ECI objecting to 100% counting of VVPAT paper trail should be rejected.

The Election Commission of India (ECI) countered these arguments by asserting:

• EVM Success: The ECI maintained that EVMs have been a huge success in ensuring free, fair, and transparent elections by restricting human intervention, checking electoral fraud, and deterring errors in manual counting.
• Increased Voter Participation: The ECI highlighted that independent studies show EVMs have led to increased voter participation.
• Safeguards in EVM System: The ECI detailed the various technical and administrative safeguards in place to prevent tampering and ensure the integrity of the electoral process. These include the standalone nature of EVMs, burnt memory microcontrollers, and multiple levels of checks and seals.
• VVPAT Transparency: The ECI clarified that the VVPAT glass window has not undergone any change and that the tinted glass is used to maintain secrecy and prevent anyone else from viewing the VVPAT slips.
• Rule 49MA Justification: The ECI defended the validity of Rule 49MA, stating that it provides a mechanism for voters to raise complaints, which are investigated.
• Impracticality of 100% VVPAT Counting: The ECI argued that 100% VVPAT counting is impractical due to the time it would take, the manpower required, and the potential for human error and manipulation.
• No Mismatch Data: The ECI provided data showing that in the random VVPAT verification of 5 polling booths per assembly segment/constituency for 41,629 EVMs -VVPATs, and more than 4 crore VVPAT slips have been tallied with the electronic counts of their control units, not even a single case of mismatch, (except one which was due to human error), or wrong recording of votes has been detected.

The innovativeness of the arguments from the petitioners lies in their attempt to highlight the potential for manipulation of EVMs and the need for greater transparency, despite the ECI’s claims of a robust and secure system. The petitioners’ arguments also sought to re-evaluate the balance between technological efficiency and voter confidence in the electoral process.

Submissions of Parties

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. Whether the current EVM system ensures free and fair elections.
2. Whether 100% counting of VVPAT slips is required to ensure voter confidence.
3. Whether Rule 49MA of the Conduct of Election Rules, 1961, is valid and constitutional.
4. Whether the modification of the VVPAT glass window in 2017 is problematic.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

Cases

• Subramanian Swamy v. Election Commission of India, (2013) 10 SCC 500 (Supreme Court of India): The Court held that a paper trail was an indispensable requirement of free and fair elections and directed the introduction of VVPATs in a phased manner.
• N. Chandrababu Naidu and Others v. Union of India and Another, (2019) 15 SCC 377 (Supreme Court of India): The Court directed that the number of EVMs subjected to VVPAT verification be increased from one to five per assembly constituency or assembly segment in a parliamentary constituency.
• A.C. Jose v. Sivan Pillai and others, (1984) 2 SCC 656 (Supreme Court of India): This case dealt with the legal challenge regarding the use of EVMs without legislative approval.
• Nyaya Bhoomi and Another v. Election Commission of India, Writ Petition (Civil) No. 1332/2018 (Supreme Court of India): This writ petition seeking return to the ballot paper system was dismissed.
• Tech for All v. Election Commission of India, Writ Petition (Civil) No. 692/2019 (Supreme Court of India): This writ petition seeking 100% verification of VVPATs was dismissed.
• Prakash Joshi v. Election Commission of India, 2017 SCC OnLine SC 1734 (Supreme Court of India): This case rejected a similar prayer with regard to modification of the procedure for counting of votes by use of EVMs.
• Madhya Pradesh Jan Vikas Party v. Election Commission of India, Special Leave Petition (Civil) No. 16870/2022 (Supreme Court of India): This case regarding the use of EVMs was dismissed with costs.
• Sunil Ahya v. Election Commission of India, Writ Petition (Civil) No. 826/2023 (Supreme Court of India): This case seeking independent audit of the source code of EVMs was dismissed.
• Kamal Nath v. Election Commission of India and Others, (2019) 2 SCC 260 (Supreme Court of India): This case rejected the challenge to EVMs and the prayer for VVPAT verification on a random basis for 10% of the votes.
• Election Commission of India v Ashok Kumar, (2000) 8 SCC 216 (Supreme Court of India): This case was cited by Justice Datta to support the permissibility of the directions given by the court in the penultimate paragraph.
• D.A.V. College, Bhatinda v. State of Punjab, (1971) 2 SCC 261 (Supreme Court of India): This case was cited by Justice Datta to address the maintainability of the writ petition.
• Adi Saiva Sivachariyargal Nala Sangam v. State of Tamil Nadu, (2016) 2 SCC 725 (Supreme Court of India): This case was cited by Justice Datta to address the maintainability of the writ petition.
• Daryao and others v. State of U.P. and others, (1962) 1 SCR 574 (Supreme Court of India): This case was cited by Justice Datta to address the issue of res judicata.
• Direct Recruit Class II Engineering Officers’ Association. v. State of Maharashtra and others, (1990) 2 SCC 715 (Supreme Court of India): This case was cited by Justice Datta to address the issue of res judicata.

Legal Provisions

• Article 324 of the Constitution of India: This article entrusts the Election Commission with the superintendence, direction, and control of elections.
• Rule 49MA of the Conduct of Election Rules, 1961: This rule allows an elector to raise a complaint if there is a mismatch between the name and symbol of the candidate shown on the VVPAT slip and the vote cast on the ballot unit.
• Section 177 of the Indian Penal Code, 1860: This section deals with furnishing false information.
• The Representation of the People Act, 1951: This act was amended in 1989 to allow the use of EVMs in elections.
• Rule 49M(3) of the Conduct of Election Rules, 1961: This rule stipulates that the elector is entitled to view the printed paper slip through the transparent window of the VVPAT.
• Rule 56D of the Conduct of Election Rules, 1961: This rule deals with the scrutiny of the paper trail, allowing candidates to apply for a count of the printed paper slips in the drop box of the printer.

Use of Authorities

Judgment

Treatment of Submissions by the Court

Treatment of Authorities by the Court

• Subramanian Swamy v. Election Commission of India, (2013) 10 SCC 500*: The Court followed this authority, reiterating the importance of the paper trail and the need for VVPATs.
• N. Chandrababu Naidu and Others v. Union of India and Another, (2019) 15 SCC 377*: The Court followed this authority, acknowledging the direction to increase VVPAT verification to 5 EVMs per constituency.
• A.C. Jose v. Sivan Pillai and others, (1984) 2 SCC 656*: The Court referred to this case to highlight the initial legal challenge regarding the use of EVMs.
• Nyaya Bhoomi and Another v. Election Commission of India, Writ Petition (Civil) No. 1332/2018*: The Court referred to this case to show that the prayer for return to the ballot paper system was rejected.
• Tech for All v. Election Commission of India, Writ Petition (Civil) No. 692/2019*: The Court referred to this case to show that the prayer for 100% VVPAT verification was rejected.
• Prakash Joshi v. Election Commission of India, 2017 SCC OnLine SC 1734*: The Court referred to this case to show that similar prayer regarding modification of counting procedure was rejected.
• Madhya Pradesh Jan Vikas Party v. Election Commission of India, Special Leave Petition (Civil) No. 16870/2022*: The Court referred to this case to show that the petition regarding the use of EVMs was dismissed with costs.
• Sunil Ahya v. Election Commission of India, Writ Petition (Civil) No. 826/2023*: The Court referred to this case to show that the petition seeking independent audit of source code of EVMs was dismissed.
• Kamal Nath v. Election Commission of India and Others, (2019) 2 SCC 260*: The Court referred to this case to show that the challenge to EVMs and prayer for VVPAT verification was rejected.
• Election Commission of India v Ashok Kumar, (2000) 8 SCC 216*: This case was cited by Justice Datta to support the permissibility of the directions given by the court in the penultimate paragraph.
• D.A.V. College, Bhatinda v. State of Punjab, (1971) 2 SCC 261*: This case was cited by Justice Datta to address the maintainability of the writ petition.
• Adi Saiva Sivachariyargal Nala Sangam v. State of Tamil Nadu, (2016)2 SCC 725*: This case was cited by Justice Datta to address the maintainability of the writ petition.
• Daryao and others v. State of U.P. and others, (1962) 1 SCR 574*: This case was cited by Justice Datta to address the issue of res judicata.
• Direct Recruit Class II Engineering Officers’ Association. v. State of Maharashtra and others, (1990) 2 SCC 715*: This case was cited by Justice Datta to address the issue of res judicata.
• Article 324 of the Constitution of India*: The Court explained that the ECI is entrusted with the superintendence, direction, and control of elections.
• Rule 49MA of the Conduct of Election Rules, 1961*: The Court explained the rule and its purpose, rejecting the petitioners’ contention that it is draconian.
• Section 177 of the Indian Penal Code, 1860*: The Court acknowledged the petitioners’ concern, but did not comment on the application of this section.
• The Representation of the People Act, 1951*: The Court highlighted the amendment that allowed the use of EVMs.
• Rule 49M(3) of the Conduct of Election Rules, 1961*: The Court explained the rule and its purpose, rejecting the petitioners’ contention that it is violated.
• Rule 56D of the Conduct of Election Rules, 1961*: The Court explained the rule and its purpose, highlighting the availability of a remedy for discrepancies.

The Supreme Court, while upholding the integrity of the EVM system, directed the Election Commission of India (ECI) to implement the following additional measures:

• Sealing of Symbol Loading Units (SLUs): The Court directed that the Symbol Loading Units (SLUs) used to load symbols onto the EVMs should be sealed and stored securely for a minimum period of 45 days after the declaration of results. This measure is intended to prevent any tampering with the symbols.
• Verification of Microcontrollers: The Court directed that the ECI should verify the microcontrollers used in EVMs and VVPATs to ensure they are not tampered with. This verification should be done before the machines are used in elections.
• Transparency in Storage: The Court directed that the ECI should ensure that the EVMs and VVPATs are stored in secure locations with adequate security and transparency.
• Training of Election Officials: The Court directed that the ECI should provide thorough training to election officials on the use of EVMs and VVPATs. This training should emphasize the importance of following all procedures and safeguards.
• Awareness Campaigns: The ECI was directed to conduct awareness campaigns to educate voters about the EVM system and its security features.

The Court also noted that the ECI has been taking steps to ensure the integrity of the electoral process and emphasized that the system is not infallible.

Final Orders

The Supreme Court passed the following orders:

1. The Court upheld the integrity of the EVM system and found it to be a reliable method for conducting elections.
2. The Court rejected the demand for 100% counting of VVPAT slips, holding that the current system of random verification is adequate.
3. The Court upheld the validity of Rule 49MA of the Conduct of Election Rules, 1961.
4. The Court rejected the contention that the modification of the VVPAT glass window in 2017 is problematic.
5. The Court directed the Election Commission of India (ECI) to implement additional security measures, including sealing of SLUs, verification of microcontrollers, transparency in storage, training of election officials, and awareness campaigns.
6. The Court directed the ECI to ensure that the EVMs and VVPATs are stored in secure locations with adequate security and transparency.
7. The Court directed the ECI to make sure that the training of election officials on the use of EVMs and VVPATs is thorough and emphasizes the importance of following all procedures and safeguards.
8. The Court directed the ECI to conduct awareness campaigns to educate voters about the EVM system and its security features.

Flowchart of the EVM and VVPAT Process

Conclusion

The Supreme Court’s judgment in the case of Association for Democratic Reforms vs. Election Commission of India (26 April 2024) is a significant decision that balances the need for technological efficiency with the imperative of maintaining voter confidence in the electoral process. While the Court upheld the integrity of the EVM system and rejected demands for a return to paper ballots or 100% VVPAT verification, it also directed the ECI to implement additional security measures. These measures are intended to enhance transparency and prevent any potential manipulation of the voting process. The judgment underscores the importance of continuous improvement and vigilance in ensuring free and fair elections.