The integrity of the electoral process is the bedrock of any thriving democracy. In India, the introduction of electronic voting machines (EVMs) has revolutionized the voting system, making the process more efficient and streamlined. However, the issue of verifying the accuracy of EVM results through the voter-verifiable paper audit trail (VVPAT) system has been a subject of intense debate and litigation in the country.

The Supreme Court has played a pivotal role in shaping the discourse around this issue, with a series of landmark judgments and orders that have sought to balance the need for transparency and voter confidence with the practical realities faced by the Election Commission of India (ECI) in conducting elections.

This comprehensive blog delves into the genesis of the EVM-VVPAT verification dispute, the evolution of the legal landscape, and the ongoing deliberations in the Supreme Court, providing a detailed understanding of this critical issue that has far-reaching implications for the future of Indian democracy.

The VVPAT System: A Safeguard for Transparent Elections

In the early 2000s, the use of EVMs in Indian elections gained traction, replacing the traditional paper ballot system. While EVMs offered several advantages, such as faster counting and reduced instances of invalid votes, concerns were raised about the lack of a verifiable paper trail to audit the electronic records.

To address this issue, the Government of India, in 2013, amended the Conduct of Elections Rules, 1961, to facilitate the introduction of the VVPAT system. Under this system, a printer attached to the EVM generates a paper slip, known as the VVPAT slip, which displays the serial number, name, and symbol of the candidate for whom the voter has cast their vote. The voter can verify the accuracy of their vote by viewing the VVPAT slip through a transparent window, and the slip is then automatically deposited in a sealed box.

The Supreme Court's Landmark Judgment in Subramanian Swamy v. Election Commission of India (2013)

The EVM-VVPAT verification issue came to the forefront in 2009 when Dr. Subramanian Swamy approached the Delhi High Court, seeking the incorporation of a "paper trail" in EVMs to provide a convincing proof of the votes cast. The High Court dismissed his petition, prompting Swamy to approach the Supreme Court.

In its landmark judgment in Subramanian Swamy v. Election Commission of India (2013), the Supreme Court recognized the importance of the "paper trail" as an indispensable requirement for free and fair elections. The Court held that the confidence of the voters in the EVMs could only be achieved with the introduction of the VVPAT system, as it would ensure the accuracy of the voting system and restore the confidence of the voters.

The Court directed the ECI to introduce the VVPAT system, emphasizing that "vote is nothing but an act of expression which has immense importance in democratic system." This judgment paved the way for the widespread implementation of the VVPAT system across India.

The Push for Increased VVPAT Verification: Petitions by Opposition Leaders and Civil Society Organizations

Despite the introduction of the VVPAT system, concerns continued to be raised about the extent of VVPAT verification conducted by the ECI. In 2019, a group of 21 opposition leaders, including former Andhra Pradesh Chief Minister N. Chandrababu Naidu, filed a plea before the Supreme Court seeking to enhance the minimum VVPAT verification from 1 polling station per assembly segment to 50% of the polling stations.

The ECI argued that the proposed increase in VVPAT verification would delay the declaration of election results by 5-6 days and that a report by the Indian Statistical Institute suggested that verifying the VVPAT paper trail of 479 randomly selected EVMs would generate over 99% accuracy in the election results.

The Supreme Court, in its judgment, struck a balance between the concerns raised by the petitioners and the practical limitations faced by the ECI. The Court enhanced the number of randomly selected polling stations for VVPAT verification from 1 to 5 per assembly constituency or assembly segment, noting that this would "generate the greatest degree of satisfaction in all with regard to the full accuracy of the election results."

The Court's decision was premised on the objective of ensuring a higher degree of accuracy and enhancing the satisfaction of both political parties and the people in the integrity of the electoral process, without compromising the credibility of the EVMs or the existing system.

Discrepancies in Election Data and Calls for Greater Transparency

Alongside the push for increased VVPAT verification, concerns were also raised about the discrepancies between the voter turnout data reported by the ECI and the actual number of votes counted. In 2019, pleas were filed before the Supreme Court by organizations such as the Association for Democratic Reforms (ADR) and Common Cause, seeking directions to the ECI to publish detailed election data and investigate any discrepancies.

The petitioners argued that the ECI had a statutory duty to collate and publish accurate data relating to the elections, and that the lack of transparency in this regard undermined the integrity of the electoral process. While notices were issued in these petitions, they remain pending before the Supreme Court.

The ADR's Petition Seeking Comprehensive EVM-VVPAT Verification (2023)

In 2023, the ADR filed a fresh petition before the Supreme Court, contending that the prevalent procedure of verifying the VVPAT paper trail in only 5 randomly selected polling stations per assembly constituency was deficient. The petition sought a declaration that every voter has a fundamental right to verify that their vote has been "recorded as cast" and "counted as recorded."

The ADR argued that the mere display of the VVPAT slip for a few seconds does not fulfill the requirement of verifying that the vote has been "counted as recorded." It asserted that there exists a "complete vacuum" in the law, as the ECI has not provided any procedure for a voter to verify this critical aspect of the electoral process.

The ECI's Response and the Supreme Court's Observations

In response to the ADR's petition, the ECI filed a detailed affidavit, staunchly defending the integrity of EVMs and VVPATs. The commission argued that the petition was another attempt to cast doubt over the functioning of these machines on "vague and baseless" grounds, and that manual counting of all VVPAT paper slips would be labor-intensive, prone to human error, and susceptible to "mischievous false narratives."

The ECI reiterated that the EVMs were "non-tamperable" due to technological measures and strict administrative and security procedures, and that the current system of verifying the VVPAT paper trail in 5 randomly selected polling stations was sufficient to ensure the accuracy of the election results.

The Supreme Court, during the hearings, expressed reservations about being "overly suspicious" of the electoral process. The Bench, led by Justice Sanjiv Khanna, acknowledged the practical limitations faced by the ECI, such as the manpower requirements for extensive VVPAT verification, and questioned whether the proposed measures would provide any "big advantage."

The Court also noted that the existing provisions allow candidates to request a recount of the VVPAT paper slips, and that manually counting the slips could be prone to errors, similar to the challenges faced in manual accounting. The matter is currently pending final disposal before the Supreme Court.

Other Litigation Efforts and the Ballot Voting Debate

While the ADR's petition remains the focal point of the ongoing litigation, there have been other attempts to address the EVM-VVPAT verification issue. A petition filed by activist Arun Kumar Agrawal has challenged the ECI's Manual, which mandates that VVPAT verification be done sequentially, seeking a comprehensive verification of all VVPAT paper slips.

Additionally, the Dravida Munnetra Kazhagam (DMK) party has approached the Madras High Court, questioning the design of the third-generation M3 EVMs and the absence of a clear procedure for the approval of these machines by the ECI.

In a recent development, Advocate Mahmood Pracha has filed an intervention application in the Arun Kumar Agrawal matter, suggesting that voting in the upcoming Lok Sabha elections should primarily be conducted using ballot papers, with EVMs being considered only in exceptional circumstances.

The Ongoing Debate and the Way Forward

The EVM-VVPAT verification issue has been a contentious and complex matter, with valid concerns raised by various stakeholders and the Supreme Court's efforts to strike a balance between transparency and practical constraints.

On one hand, the petitioners' arguments for comprehensive EVM-VVPAT verification and the fundamental right of voters to verify that their vote has been "recorded as cast" and "counted as recorded" are rooted in the principles of free and fair elections and the need for robust accountability measures. The discrepancies in election data and the lack of transparency further fuel the demands for enhanced verification.

On the other hand, the ECI's position emphasizes the technological safeguards and administrative procedures in place to ensure the integrity of the electoral process, and the practical challenges of implementing extensive manual verification, which could potentially delay the declaration of results and introduce the risk of human error and mischief.

The Supreme Court's observations in the ongoing deliberations suggest a cautious approach, acknowledging the merits of the concerns raised while also recognizing the operational realities faced by the ECI. The Court's role in striking the right balance between these competing interests will be crucial in shaping the future of the EVM-VVPAT verification regime in India.

As the debate continues, it is evident that the issue of EVM-VVPAT verification is not merely a technical one, but a fundamental question of safeguarding the integrity of the democratic process. The outcome of the Supreme Court's final decision will have far-reaching implications for the public's trust in the electoral system and the overall health of India's thriving democracy.

Conclusion

The EVM-VVPAT verification issue has been a complex and multifaceted challenge, with the Supreme Court playing a pivotal role in shaping the discourse and striking a balance between the concerns raised by various stakeholders and the practical realities faced by the ECI.

The Court's landmark judgment in Subramanian Swamy v. Election Commission of India (2013) was a critical milestone, recognizing the importance of the VVPAT system as an indispensable safeguard for free and fair elections. Subsequent petitions, such as those filed by opposition leaders and civil society organizations, have further pushed the boundaries, seeking enhanced VVPAT verification to ensure the greatest degree of satisfaction in the accuracy of election results.

The ongoing litigation, particularly the ADR's 2023 petition, has raised fundamental questions about the rights of voters and the need for comprehensive verification of the EVM-VVPAT data. The ECI's staunch defense of the existing system and the Court's cautious approach suggest that the issue remains a delicate and complex one, with no easy solutions.