2024 (4) TMI 1085 - SC - Indian Laws

Integrity of the electoral process - suspicion of infringement of a right - Seeking direction to return to the paper ballot system - in alternative it is sought that 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 - in alternative it is sought that there should be 100% counting of the VVPAT slips in addition to electronic counting by the control unit. As held by SANJIV KHANNA, J. HELD THAT - In-detail review of the administrative and technical safeguards of the EVM mechanism conducted - The discussion aims to address the uncertainties and provide assurance regarding the integrity of the electoral process. A voting mechanism must uphold and adhere to the principles of security, accountability, and accuracy. An overcomplex voting system may engender doubt and uncertainty, thereby easing the chances of manipulation. In the considered opinion, the EVMs are simple, secure and user-friendly. The voters, candidates and their representatives, and the officials of the ECI are aware of the nitty-gritty of the EVM system. They also check and ensure righteousness and integrity. Moreover, the incorporation of the VVPAT system fortifies the principle of vote verifiability, thereby enhancing the overall accountability of the electoral process. Thera are no doubt, but to only further strengthen the integrity of the election process, following directions are given - (a) On completion of the symbol loading process in the VVPATs undertaken on or after 01.05.2024, the symbol loading units shall be sealed and secured in a container. The candidates or their representatives shall sign the seal. The sealed containers, containing the symbol loading units, shall be kept in the strong room along with the EVMs at least for a period of 45 days post the declaration of results. They shall be opened, examined and dealt with as in the case of EVMs. (b) The burnt memory/microcontroller in 5% of the EVMs, that is, the control unit, ballot unit and the VVPAT, per assembly constituency/assembly segment of a parliamentary constituency shall be checked and verified by the team of engineers from the manufacturers of the EVMs, post the announcement of the results, for any tampering or modification, on a written request made by candidates who are at SI. No. 2 or Sl. No. 3, behind the highest polled candidate. Such candidates or their representatives shall identify the EVMs by the polling station or serial number. All the candidates and their representatives shall have an option to remain present at the time of verification. Such a request should be made within a period of 7 days from the date of declaration of the result. The District Election Officer, in consultation with the team of engineers, shall certify the authenticity/intactness of the burnt memory/ microcontroller after the verification process is conducted. The actual cost or expenses for the said verification will be notified by the ECI, and the candidate making the said request will pay for such expenses. The expenses will be refunded, in case the EVM is found to be tampered. As per Dipankar Datta, J. HELD THAT - A citizen's right 'to freedom of speech and expression' Under Article 19(1) is not absolute; the State by virtue of Article 19(2) can place reasonable restrictions on these rights. There can be no doubt that the electorate has a right to be informed if the votes, as cast, are accurately recorded. The dispute, in the present writ proceedings, centres around the modality of delivering the information. The Petitioners have characterised the present procedure, wherein the voter after pressing the 'blue button' and casting his/her vote can see his VVPAT slip for 7 seconds through an illuminated glass window, as inadequate for the voter to verify if his/her vote, as cast, is recorded. To buttress their submission, the Petitioners have relied on the proviso to Rule 49M(3) of the Conduct of Election Rules, 1961. The Petitioners urge that the ECI is not following the statutory mandate provided in the Election Rules - as long as there is no allegation of statutory breach, there can be no substitution of the Court's view for the view of the ECI that the light in the VVPAT would be on for 7 (seven) seconds and not more. Upon the conclusion of polling, there exists yet another remedy Under Rule 56-D, for a candidate to apply for a count of the VVPAT slips, should any discrepancy be suspected. Thus, it is manifest that there is in place a stringent system of checks and balances, to prevent any possibility of a miscount of votes, and for the voter to know that his/her vote has been counted. There can be no doubt that such a system, which is distinctly more satisfactory compared to the system of the yester-years, suitably satisfies the voter's right Under Article 19(1)(a) to know that his/her vote has been counted as recorded. The Republic has prided itself in conducting free and fair elections for the past 70 years, the credit wherefor can largely be attributed to the ECI and the trust reposed in it by the public. While rational scepticism of the status quo is desirable in a healthy democracy, this Court cannot allow the entire process of the underway General Elections to be called into question and upended on mere apprehension and speculation of the Petitioners. The Petitioners have neither been able to demonstrate how the use of EVMs in elections violates the principle of free and fair elections; nor have they been able to establish a fundamental right to 100% VVPAT slips tallying with the votes cast. The Petitioners' apprehensions are misplaced. Reverting to the paper ballot system, rejecting inevitable march of technological advancement, and burdening the ECI with the onerous task of 100% VVPAT slips tallying would be a folly when the challenges faced in conducting the elections are of such gargantuan scale. The mere suspicion that there may be a mismatch in votes cast through EVMs, thereby giving rise to a demand for a 100% VVPAT slips verification, is not a sufficient ground for the present set of writ petitions to be considered maintainable. To maintain these writ petitions, it ought to have been shown that there exists a tangible threat of infringement; however, that has also not been substantiated. Thus, without any evidence of malice, arbitrariness, breach of law, or a genuine threat to invasion of rights, the writ petitions could have been dismissed as not maintainable. But, considering the seriousness of the concerns that the Court suo motu had expressed to which responses were received from the official of the ECI as well as its senior counsel, the necessity was felt to issue the twin directions in the greater public interest and to sub-serve the demands of justice. While maintaining a balanced perspective is crucial in evaluating systems or institutions, blindly distrusting any aspect of the system can breed unwarranted scepticism and impede progress. Instead, a critical yet constructive approach, guided by evidence and reason, should be followed to make room for meaningful improvements and to ensure the system's credibility and effectiveness. Be it the citizens, the judiciary, the elected representatives, or even the electoral machinery, democracy is all about striving to build harmony and trust between all its pillars through open dialogue, transparency in processes, and continuous improvement of the system by active participation in democratic practices. Our approach should be guided by evidence and reason to allow space for meaningful improvements. By nurturing a culture of trust and collaboration, we can strengthen the foundations of our democracy and ensure that the voices and choices of all citizens are valued and respected. With each pillar fortified, our democracy stands robust and resilient.

Summary

Issues Involved:

1. Delay in refiling.
2. Allegations against the Election Commission of India (ECI) and Electronic Voting Machines (EVMs).
3. Arguments for returning to the paper ballot system or modifications in the Voter Verifiable Paper Audit Trail (VVPAT) system.
4. Alleged modification of VVPAT and Rule 49MA of the Conduct of Election Rules, 1961.
5. Historical use and efficacy of EVMs.
6. Legal precedents on the use of EVMs and VVPATs.
7. Technical and procedural safeguards of EVMs.
8. VVPAT slip verification and counting.
9. Miscellaneous issues including maintainability of writ petitions and doctrine of res judicata.

Summary:

1. Delay in refiling:
The Court condoned the delay in refiling.

2. Allegations against ECI and EVMs:
The Petitioners did not attribute any motive or malice to the ECI or contend that EVMs were configured to favor or disfavor any candidate or political party. However, they raised suspicions about the possibility of manipulating EVMs.

3. Arguments for returning to the paper ballot system or modifications in the VVPAT system:
The Petitioners argued for:
- Returning to the paper ballot system.
- Printed slips from the VVPAT machine to be given to the voter for verification and placed in the ballot box for counting.
- 100% counting of VVPAT slips in addition to electronic counting by the control unit.

4. Alleged modification of VVPAT and Rule 49MA of the Conduct of Election Rules, 1961:
The Petitioners challenged the modification of the VVPAT in 2017, where the glass window was made translucent/tinted instead of transparent. They also contended that Rule 49MA is draconian, arbitrary, and contrary to law.

5. Historical use and efficacy of EVMs:
EVMs were introduced in the 1980s and have been used in every General and other elections since 2004. ECI maintains that EVMs have ensured free, fair, and transparent elections, restricting human intervention and electoral fraud.

6. Legal precedents on the use of EVMs and VVPATs:
- In Subramanian Swamy v. Election Commission of India, 2013, the Court held that a paper trail is an indispensable requirement of free and fair elections.
- In N. Chandrababu Naidu and Ors. v. Union of India and Anr., 2019, the Court directed that five EVMs per assembly constituency or assembly segment in a parliamentary constituency would be subject to VVPAT verification.
- Various other writ petitions seeking return to the ballot paper system or 100% verification of VVPATs have been dismissed by the Court.

7. Technical and procedural safeguards of EVMs:
The Court detailed the technical features and procedural safeguards of EVMs, including the three units (ballot unit, control unit, and VVPAT), their manufacturing, storage, randomization, symbol loading process, and the extensive checks and protocols to ensure free and fair elections.

8. VVPAT slip verification and counting:
The Court noted that the VVPAT slip verification process is tedious and time-consuming, taking about five hours. It held that increasing the number of VVPAT units subjected to manual counting is unnecessary and impractical. The suggestion to use counting machines for VVPAT slips may be examined by the ECI.

9. Miscellaneous issues including maintainability of writ petitions and doctrine of res judicata:
The Court emphasized that writ petitions should not be entertained based on mere suspicion. The doctrine of res judicata applies to writ petitions under Articles 32 and 226. The Court concluded that the Petitioners' apprehensions were misplaced and that the current system of EVMs and VVPATs is robust and reliable.

Directions:
- Symbol loading units shall be sealed and secured in a container post the symbol loading process.
- Burnt memory/microcontroller in 5% of the EVMs per assembly constituency/assembly segment of a parliamentary constituency shall be checked and verified post the announcement of results on a written request by candidates.