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BREAKING| Supreme Court Reserves Judgment On Pleas

For 100% EVM-VVPAT Verification
Debby Jain
(/debby-jain)
18 April 2024 4:42 PM

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The Supreme Court on Thursday (April 18) reserved judgment on a batch of petitions
seeking 100% verification of Electronic Voting Machine (EVM) data with Voter-
Verifiable Paper Audit trail (VVPAT).

After a day-long hearing today, which was preceded by a half-day hearing on April 16,
the Bench of Justices Sanjiv Khanna and Dipankar Datta reserved the verdict on the
petitions filed by Association for Democratic Rights (ADR) and others.

During the hearing, the bench held extensive interactions with an official of the
Election Commission of India (ECI) to understand the security features of the EVMs.

Petitioners' submissions

Today, on the second day of the hearing, Advocate Prashant Bhushan suggested that
the light in the VVPAT screen should be kept lit throughout the voting time (as
opposed to the present practice of keeping the light lit for seven seconds) so that the
voter can see the slip cutting and falling.

Advocate Nizam Pasha suggested that the voter be allowed to physically take the
VVPAT slip and deposit in the ballot box. When Justice Khanna asked wouldn't it
infringe the voter's secrecy, Pasha submitted that the voters' privacy cannot be used
to defeat their own rights. "I hope you understand the practical results of what you
are seeking," Justice Khanna commented.

Senior Advocate Sanjay Hegde, emphasizing that VVPAT is for 'audit', suggested that
all VVPATs should be counted even after the counting of the EVM votes, for an 'audit'.
"Counting is immediate. Audit can take time. There should be a separate audit which
would then add greater credibility to counting process. Please consider what
safeguards can be put in today," Hegde submitted. Requesting the Court not to
consider the issue as concluded by the 2019 judgment (https://www.livelaw.in/top-
stories/vvpat-sc-elections-144122) (which directed the increase of VVPAT counts to
5 EVMs per assembly segment in a Parliamentary constituency), Hegde submitted
that the issue should be seen as a "work in progress" and any measure to increase
the voter's confidence in the system should be welcomed.

During the hearing, Bhushan cited a report published

(https://www.onmanorama.com/news/kerala/2024/04/17/lok-sabha-evm-gives-
extra-votes-to-bjp-during-mock-polls-kasaragod.html) by Manorama Online about
complaints of EVMs recording extra votes for the BJP during mock polls conducted
in the Kasargod constituency in Kerala. The bench asked the ECI to check this matter.
At 2 PM, the official of the ECI told the Supreme Court that the news report cited is
"totally false."

Bench interacts with the ECI official

Observing that all apprehensions regarding EVMs should be allayed, the bench chose
to interact with an official of the ECI, who was present in the Court, to understand the
technical aspects of security features.

"This is electoral process. There has to be sanctity. Let nobody have apprehension
that something which is expected is not being done," Justice Datta observed.

After the interaction with the official, Justice Khanna observed, "So, 7 days before
election, in the presence of candidates, you are feeding in images in flash memory of
VVPAT. Once uploaded, it can't be changed because it's not connected to any
computer, laptop."

The official told the bench that about 17 lakh VVPAT machines are there. He
explained that the manufacturer does not know which machine is going to which
constituency and which button is allocated to which party.
Further, there is no software loading in the VVPAT machine and it is a mere printer.

VVPAT slips not meant for counting: ECI

To the bench's query why it took five hours to count the VVPAT slips in an assembly
segment in a constituency, the official said that the VVPAT slips are "not actually
meant for counting". They are small papers, which are sticky, and hence the manual
counting is a cumbersome process taking time. To count the VVPAT of one EVM, it
will take at least an hour and hence, it will take at least 5 hours to complete the
process as per the 2019 SC direction.

There has never been a mismatch between VVPATs and EVM : ECI

The ECI official told the bench that there has never been a mismatch between VVPAT
slips and EVM votes ever. "If there has never been any mismatch, it speaks for itself,"
Justice Khanna commented.

Senior Advocate Maninder Singh termed the petitioners' demand for a return to paper
ballots a "retrograde step." Singh asserted that EVMs are tamper-proof and beyond
manipulation. "Human error cannot be ruled out in manual counting. Human
participation has been minimized under present system," he stated.

Everything can't be suspected, can't be critical of everything : Court to petitioners

During the petitioners' rejoinder arguments, the bench told Advocate on Record
Prashant Bhushan to be not suspicious of everything, when he raised the argument
regarding non-transparent VVPAT screens.

"Now you're going too far. Everything can't be suspected.You can't be critical of
everything please also appreciate if they have done something good. We heard you
because we are also concerned," Justice Khanna said.
Bhushan reiterated that the voter should be able to see the VVPAT slip cutting off and
falling down. He also stated that the counting of VVPATs was not a humungous task.
In this regard, he quoted former Chief Election Commissioner Dr SY Quraishi who
purportedly said that two days were enough to count the ballot papers.

Solicitor General of India Tushar Mehta, stating that he was appearing as an officer
of the Court, said that such petitions were filed on the eve of elections to cast
aspersions on the election system.

"This happens periodically on the eve of elections. It has an impact on voter turnout,
harms democracy. They are making choice of voter into a joke. I have told everyone
on my side that be ready for some planted article/news article for tomorrow," SG
submitted.

Senior Advocates Gopal Shankaranarayanan and Santhosh Paul also made

submissions for the petitioners.

Briefly stated, the petitioners, including NGO-Association for Democratic Reforms,

pray that all VVPATs be verified, instead of the current practice of Election
Commission to randomly verify 5 EVMs per assembly segment. The petitioners also
seek measures to ensure that votes are "recorded as cast" and "counted as
recorded".

The matter was heard (https://www.livelaw.in/top-stories/plea-for-100-evm-vvpat-

verification-human-intervention-creates-problems-says-supreme-court-during-
hearing-255233)extensively on April 16, when in response to petitioners' suggestion
to resort to ballot paper voting and/or manual counting of VVPAT slips, Justice Sanjiv
Khanna said that human intervention will create problems. The bench also raised
doubts about the feasibility of physical counting of votes given the large population
of India. A query regarding penalty for EVM tampering was also posed by the court, to
answer which the ECI counsel referred to Section 132 (misconduct in polling station)
and 132A (penalty for failing to observe procedure for polling) of the Representation
of the People Act.

As Justice Khanna said that, "this is much more serious than procedure, there must
be some IPC offences...", the ECI counsel sought time to check and respond.

It may be noted that the first phase of Lok Sabha polls commences tomorrow.

For a detailed report on ADR's plea and submissions, click here

(https://www.livelaw.in/top-stories/supreme-court-evm-vvpat-tally-election-
commission-general-elections-241567). To understand the underlying controversy, ie
the EVM-VVPAT issue, click here (https://www.livelaw.in/top-stories/supreme-court-
explainer-evm-vvpat-paper-slip-cross-verification-adr-pil-254438).

Case Title: Association of Democratic Reforms v. Election Commission of India &

Anr. | Writ Petition (Civil) No. 434 of 2023 (and connected matters)

Tags Jusitce Sanjiv Khanna (https://www.livelaw.in/tags/jusitce-sanjiv-khanna)

Justice Dipankar Datta (https://www.livelaw.in/tags/justice-dipankar-datta)

EVM-VVPAT (https://www.livelaw.in/tags/evm-vvpat)

Electronic Voting Machine(EVM) (https://www.livelaw.in/tags/electronic-voting-machineevm)

Lok Sabha Election (https://www.livelaw.in/tags/lok-sabha-election)

Association for Democratic Reforms (https://www.livelaw.in/tags/association-for-democratic-

reforms)