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ELECTIONS = Introduction of EVMs with VVPAT system in Elections for transparency – DR. SUBRAMANIAN SWAMY Vs. ELECTION COMMISSION OF INDIA published in judis.nic.in/supremecourt/filename=40874

Introduction of EVMs with VVPAT  system  ensure

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

the accuracy  of  the  voting  system.  Necessary directions for implementation and  for necessary amendments in R.P. Act =

 

 

 

whereby the High Court  disposed  of  the

 

petition by  disallowing  the  prayer  made  by  the  appellant  herein  for

 

issuance of a writ of mandamus directing the Election  Commission  of  India

 

(ECI)-Respondent herein  to  incorporate  a  system  of  “paper  trail/paper

 

receipt” in the Electronic Voting Machines  (EVMs)  as  a  convincing  proof

 

that the EVM has rightly registered the vote cast by a voter in favour of  a

 

particular candidate. =

 

 

 

From the materials placed by both the sides,  we  are  satisfied  that

 

the  “paper  trail”  is  an  indispensable  requirement  of  free  and  fair

 

elections.  The confidence of the voters in the EVMs can  be  achieved  only

 

with the introduction of the “paper trail”.  EVMs with VVPAT  system  ensure

 

the accuracy  of  the  voting  system.   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 VVPAT system because vote  is  nothing  but

 

an act of expression which has immense importance in democratic system.

 

30)   In the light  of  the  above  discussion  and  taking  notice  of  the

 

pragmatic and reasonable approach of the ECI and considering the  fact  that

 

in general elections all over India, the ECI has to handle one million  (ten

 

lakhs) polling booths, we permit the ECI to introduce the  same  in  gradual

 

stages or geographical-wise in the ensuing  general  elections.   The  area,

 

State or actual booth(s) are to be decided by the ECI and the  ECI  is  free

 

to implement the same in a phased manner.  We  appreciate  the  efforts  and

 

good gesture made by the ECI in introducing the same.

 

31)   For implementation of such a system (VVPAT) in a  phased  manner,  the

 

Government of India is directed to  provide  required  financial  assistance

 

for procurement of units of VVPAT.

 

32)   Before parting with the case,  we  record  our  appreciation  for  the

 

efforts made by Dr. Subramanian Swamy as well as the ECI, in particular  Mr.

 

Ashok Desai and Ms. Meenakshi Arora, learned senior counsel for the ECI.

 

33)   With the above directions,  the  appeal  and  the  writ  petition  are

 

disposed of.   No  separate  order  is  required  in  the  applications  for

 

intervention.  Both sides are permitted to approach this Court  for  further

 

direction(s), if need arises.

 

 

 

REPORTABLE

 
IN THE SUPREME COURT OF INDIA

 

CIVIL APPELLATE JURISDICTION

 

1

 
2

 
3 CIVIL APPEAL NO.9093 OF 2013

 
4 (Arising out of SLP (Civil) No. 13735 of 2012)

 

 

 
Dr. Subramanian Swamy …. Appellant(s)

 

Versus

 

Election Commission of India …. Respondent(s)

 

WITH

 

WRIT PETITION (C) NO. 406 OF 2012

 

 

 

J U D G M E N T

 
P. Sathasivam, CJI.
1) Leave granted.
Civil Appeal @ SLP (C) No. 13735 of 2012
2) This appeal is directed against the judgment and order dated
17.01.2012 passed by the Division Bench of the High Court of Delhi at New
Delhi in W.P.(C) No. 11879 of 2009 whereby the High Court disposed of the
petition by disallowing the prayer made by the appellant herein for
issuance of a writ of mandamus directing the Election Commission of India
(ECI)-Respondent herein to incorporate a system of “paper trail/paper
receipt” in the Electronic Voting Machines (EVMs) as a convincing proof
that the EVM has rightly registered the vote cast by a voter in favour of a
particular candidate.
3) Being aggrieved of the above, the present appeal has been filed by
way of special leave.
Writ Petition (Civil) No. 406 of 2012
4) One Rajendra Satyanarayan Gilda has filed this Writ Petition, under
Article 32 of the Constitution of India, praying for issuance of a writ of
mandamus/direction(s) directing the Union of India, the Chief Election
Commissioner and the Technical Experts Committee-Respondent Nos. 1-3 herein
respectively to effect the necessary modifications in the EVMs so as to
allow the voters to verify their respective votes and to attach the
printers to the EVMs with a facility to print the running record of the
votes for the purpose of verification by the voters in the process of
voting. He also prayed for a direction to frame guidelines and to effect
necessary amendments in the Conduct of Election Rules, 1961.
5) In view of the pendency of the appeal filed by Dr. Subramanian Swamy,
this Court issued notice in the writ petition and tagged with the said
appeal.
6) Heard Dr. Subramanian Swamy, appellant-in-person in the appeal, Dr.
R.R. Deshpande, learned counsel for the writ petitioner, Mr. Ashok Desai
and Ms. Meenakshi Arora, learned senior counsel for the ECI.
Contentions:
7) Dr. Subramanian Swamy, the appellant herein contended before this
Court that the present system of EVMs, as utilized in the last few general
elections in India, does not meet all the requirements of the international
standards and though the ECI maintains that the EVMs cannot be tampered
with, but the fact is that EVMs, like all electronic equipments, are open
to hacking.
8) The appellant has further highlighted that the instant matter arises
out of the refusal of the ECI to incorporate a certain obvious safeguard in
the EVMs called “paper backup”, “paper receipt” or “paper trail”, presently
in use and mandated in some countries like USA, which would easily and
cheaply meet the requirement of proof that the EVM has rightly registered
the vote cast by a voter. The appellant has further highlighted that the
“paper trail” system is to supplement the procedure of voting as in this
procedure, after recording a vote in the EVM, a print out will come out
which will appraise the voter that his vote has been rightly registered and
the same will be deposited in a box which can only be used by the ECI in
case of election dispute.
9) It is the categorical stand of the appellant that the above said
system will bring more accuracy in the present system and if a particular
election is challenged on the ground that some particular identified
voter’s voter or the votes of a group of voters have been suppressed/have
not been correctly assigned by the EVMs, the accepted current procedure is
for a re-run of the same EVMs for a re-count, however, under the new
procedure, a re-count will be of the receipts in the ballot box containing
the printouts the EVMs had issued to the voter thereby ensuring more
transparency in the process.
10) The writ petitioner has also raised similar contentions as those of
Dr. Swamy. According to the petitioner, in the present system of voting
through EVMs, there is no such facility by which a voter can verify and
confirm his own voting. At present, a voter presses a button only but
cannot ascertain the actual voting. He is not sure whether his vote is
recorded or not, if recorded, whether it is recorded in favour of the
person to whom it was intended or not. Whether it is valid or invalid and
whether it is counted or not. It is submitted by the petitioner that
unless and until answers to these questions are personally seen by the
voter, it cannot be said that voting is made by him because “pressing a
button of choice and getting flashed the red-light” is not actual voting in
real sense unless the voter knows well that what has happened in
consequence of pressing a button of his choice from the EVMs.
Stand of the Election Commission of India:
11) Mr. Ashok Desai, learned senior counsel for the ECI submitted that
the apprehension that EVMs could be tampered with is baseless. It was also
informed to this Court that the ECI has been exploring the possibility of
incorporating a viable Voter Verifiable Paper Audit Trail (VVPAT) system as
a part of the presently used EVMs to make the election system more
transparent. Further, it was brought to our notice that the ECI conducted
field trials for VVPAT system earlier also but the same had not been
successful and were discontinued. The ECI also filed a counter affidavit
stating that the EVMs provided by the Commission are of such a high end
technology that it cannot be hacked.
12) Referring to Section 61A of the Representation of the People Act, 1951,
it is submitted that the Statute itself provides for recording of votes by
EVMs and the ECI has been given the discretion to prescribe recording of
votes by such EVMs as it may deem fit. This discretion has to be exercised
in a manner to preserve the sanctity of the election process and ensure
that the election is conducted in a free and fair manner. The ECI has
exercised due diligence to ensure that EVMs so used are “tamper proof” and
it is also in the process of exploring to incorporate VVPAT system which is
compatible with the present EVMs used by it. It is asserted that there is
no instance of tampering with EVMs so far by anyone.
13) It is further submitted that the EVMs used in India are unique and
unlike the ones used in the elections in USA and other countries, which are
personal computer based. EVMs deployed by the ECI have been lauded not
only in India but also abroad. EVM’s Control Unit retains in the memory
each vote recorded elector-wise. The information stored in the memory of
the Control Unit can be retrieved by using a device called the “decoder”
which, when attached to the Control Unit of EVM, can print out the
statement of voting data showing the order in which each voter has voted
and to whom he has voted.
14) Insofar as the transparency of the election process as well as the
right of a voter to know whether his vote has actually been recorded for
the candidate for whom it was cast is concerned, it is submitted that as
soon as a vote is recorded by a voter by pressing the “candidate’s” button
on the Ballot Unit, a light glows against the name and symbol of the
candidate, which the voter can see for himself/ herself. This is a visual
(electronic) assurance to the voter that the candidate for whom he has cast
his vote has actually got that vote. Thereafter, the light goes off to
protect the secrecy of voting.
15) It is further submitted that the feasibility of VVPAT system was
sought to be explored to by various political parties and they were
explained the technical and administrative safeguards. The ECI also
constituted a Technical Experts Committee to examine the viability of the
VVPAT system. On 27.05.2011, the Technical Experts Committee, after
discussion with political parties and civil society members and also after
seeing the demonstration of the prototype VVPAT system developed by M/s.
Bharat Electronics Ltd. (BEL) and M/s. Electronics Corporation of India
Ltd. (ECIL), recommended that a field test of the prototype VVPAT system
should be carried out in a simulated election under different environmental
conditions in Jaisalmer, Thiruvananthapuram, Delhi, Leh and Cherapunji.
The ECI also held further meetings with the manufacturers of EVMs on
various dates to fine tune the system and expedite the follow up action
required. Several meetings were also held with the Expert Committee on
VVPAT system.
16) In wider fulfillment of the objectives of the field trial, the ECI
has requested the National and State parties to extend necessary
cooperation by getting involved in the trial process actively and also
witness the trial in order to have a first hand experience of the system.
The ECI has also requested the individuals including the appellant – Dr.
Subramanian Swamy and the groups, who have been engaged with the ECI on the
issue of EVM-VVPAT, to witness the trial.
17) We have carefully perused the relevant materials and considered the
rival contentions.
Discussion
18) When the matter was listed before this Court for hearing on
27.09.2012, Mr. Ashok Desai had brought to our notice that the ECI is
contemplating foolproof method in EVMs for which they are taking various
steps in consultation with the Technical Experts Committee and the views of
all recognized political parties. Mr. Desai also promised to appraise this
Court about the deliberations and the ultimate decision to be taken by them
in this regard. Accordingly, this Court granted sufficient time to the ECI
to file Status Report regarding introduction of VVPAT system in EVMs to be
used in the elections.
19) Pursuant to the directions of this Court, the ECI filed a Status
Report on the developments of VVPAT system. In the said report, the ECI,
citing various technicalities, prayed for further time to make the system
more robust for the field conditions.
20) On 15.12.2012, M/s BEL, Bangalore filed a report showing the status
of development of VVPAT system which contains changes that have been
carried out in VVPAT from September to December, 2012 and also furnished
chronological changes made in VVPAT system after the field trial of the
VVPAT system held in July and August, 2012.
21) Pursuant to the directions of this Court, the Secretary, ECI, filed
an affidavit highlighting the following steps/ information:
“(i) That vide its Affidavit dated 14.01.2013, the Commission
had filed the status report regarding introduction of the VVPAT
system in the Electronic Voting Machines (EVMs).
(ii) That subsequently, in the Technical Expert Committee
meeting held on 04.02.2013, the Committee approved the design of
the VVPAT and decided that software fine tuning will be done and
completed by the end of February, 2013, and modified design
specifications will be submitted to the Technical Expert
Committee for approval.
The Committee also recommended that the Commission may for using
the VVPAT and that the VVPAT should be tried in a bye-election.
(iii) That in the Technical Expert Committee meeting held on
19.02.2013, the Committee finalized the VVPAT design.
The manufacturers, namely, M/s. Bharat Electronics Limited and
M/s. Electronics Corporation of India Limited have quoted Rs.
16,200/- (excluding duties, taxes and transport charges) per
VVPAT system.
The Commission has decided to purchase sufficient units of VVPAT
for trials in a Bye-election, at an approximate cost of
Rs.72,90,000/- (Rupees seventy two lakh ninety thousand)
approximately.
(iv) It is submitted that the Commission will require
approximately 13 lakh VVPAT units to be manufactures for 13 lakh
EVMs presently available and roughly about Rs. 1690 crores (One
Thousand Six Hundred Ninety Crores)(i.e. 13 lakh units x
Rs.13,000 per unit) are required for the purpose of
implementation of the VVPAT system taking into account the
possible reduction in the cost per unit when produced in bulk.
(v) It is further submitted that in order to implement the new
system the Conduct of Election Rules, 1961 will require certain
amendments.
In this connection, vide letter No. 3/1/2013/Vol.II/SDR/86 dated
28.03.2013, the Commission has informed the Legislative
Department of the Ministry of Law and Justice inter alia the
various amendments required to the relevant parts of Rules 49A
to 49X, 66A, 55C, 56C, 57C and Form 17C of the Conduct of
Elections Rules, 1961, as well as introduction of Rules 49MA and
56D in the said Rules…
(vi) That the Commission has called for a meeting of all the
recognized National and State Parties on 10th May, 2013 for the
purpose of demonstration of VVPAT unit to them and for
discussion with them for eliciting their views regarding use of
VVPAT system in the elections. The petitioner herein and others
interested in the matter would also be invited at the meeting.”

 

22) It is seen from the records that after various deliberations with the
experts and persons concerned with the technology, the Technical Experts
Committee approved the final design of VVPAT units in its meeting held on
19.01.2013. In order to meet the directions of this Court and for proper
execution of VVPAT system, as noticed above, the ECI in its letter dated
28.03.2013, addressed to the Secretary to the Government of India, Ministry
of Law and Justice stated that necessary ground work for amendment to the
Conduct of Election Rules, 1961 (in relevant parts in Rules 49A to 49X,
66A, 55C, 56C, 57C and Form 17C) may be made so that the amendment to the
Rules can be notified immediately which will enable the ECI to use the
VVPAT system in bye-elections in consultation with the political parties.
By placing all those materials, the ECI requested the Ministry of Law and
Justice for drafting and notifying amendment Rules expeditiously.
23) From the materials placed by the ECI, it is noted that the purchase
order has been placed with M/s BEL and M/s ECIL for supplying 150 and 300
VVPAT units respectively at Rs. 16,200/- per unit excluding excise duty,
sales tax and transportation etc. costing Rs. 72,90,000/- (approx.). The
ECI has also highlighted that if the VVPAT systems are ultimately to be
used with all the 13 lakh EVMs available, the total cost in the purchase of
VVPAT units may come to about Rs. 1,690 crores, taking into account the
possible reduction in the cost per unit due to bulk production the cost may
come to Rs. 13,000/- per unit approximately.
24) The affidavit dated 21.08.2013, filed on behalf of the ECI, shows
that the Ministry of Law and Justice, on 24.07.2013, referred the draft
notification to amend the Conduct of Election Rules, 1961 to provide for
use of VVPAT system of elections to the ECI for its views and comments.
The ECI suggested certain minor modifications in the draft notification and
sent the same back to the Ministry of Law and Justice on 02.08.2013 with a
request to notify the amendment Rules at the earliest. 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. S.O.
2470(E) dated 14.08.2013 to enable use of VVPAT with EVMs.
25) The aforesaid affidavit of the ECI also shows that the ECI had
also convened a meeting of all the recognized National and State political
parties on 10.05.2013 and demonstrated before their representatives the
working of VVPAT system. Separately, on the same day, the ECI also held a
meeting with individuals including the appellant herein who had been
engaged with the ECI over the past several years regarding the functioning
of EVMs. VVPAT system was demonstrated before them as well.
Representatives of political parties and other individuals expressed their
satisfaction over the VVPAT system. Thereafter, the ECI had decided to use
the VVPAT system in the bye-election from 51-Noksen (ST) Assembly
Constituency in the State of Nagaland. Instructions were issued to hold
special meetings with the contesting candidates in that constituency to
brief them about the use of VVPAT system. The ECI also organized special
training sessions for poll officers for the use of VVPAT and steps were
taken to educate the electors for the same.
26) After various hearings, when the matter was heard on 4.10.2013, an
affidavit dated 01.10.2013 filed on behalf of the ECI was placed before
this Court. The said affidavit was filed to place on record the
performance/result of the introduction of the VVPAT system in the bye-
election from 51-Noksen (ST) Assembly Constituency of Nagaland for which
the poll was conducted on 04.09.2013 indicating the future course of action
to be decided by the ECI on the basis of said performance. By this
affidavit, it was brought to our notice that since VVPAT system was being
used for the first time, the ECI has decided that intensive training shall
be given to the polling officers. Members of the Technical Experts
Committee of the ECI also went to supervise training and the actual use of
VVPAT in the bye-election. It is further stated that the ECI also wrote
letters to all the recognized political parties and other persons,
including the appellant herein, engaged with the ECI on this subject
inviting them to witness the use of VVPAT. It is also brought to our
notice that VVPAT was successfully used in all the 21 polling stations of
51-Noksen (ST) Assembly Constituency of Nagaland. It was also stated that
as per the Rules, the paper slips of VVPAT shall not be counted normally
except in case the Returning Officer decides to count them on an
application submitted by any of the candidates. However, since VVPAT
system was being used for the first time in any election, the ECI decided
on its own to count paper slips of VVPAT in respect of all polling
stations. According to the ECI, no discrepancy was found between the
electronic and paper count.
27) In the said affidavit, it is finally stated that the ECI has decided
to increase the use of VVPAT units in a phased manner and for this purpose
the ECI has already written to the Government of India, Ministry of Law and
Justice to issue administrative and financial sanction for procurement of
20,000 units of VVPAT (10,000 each from M/s BEL and M/s ECIL) costing about
Rs. 38.01 crore.
28) Though initially the ECI was little reluctant in introducing “paper
trail” by use of VVPAT, taking note of the advantage in the system as
demonstrated by Dr. Subramanian Swamy, we issued several directions to the
ECI . Pursuant to the same, the ECI contacted several expert bodies,
technical advisers, etc. They also had various meetings with National and
State level political parties, demonstrations were conducted at various
places and finally after a thorough examination and full discussion, VVPAT
was used successfully in all the 21 polling stations of 51-Noksen (ST)
Assembly Constituency of Nagaland. The information furnished by the ECI,
through the affidavit dated 01.10.2013, clearly shows that VVPAT system is
a successful one. We have already highlighted that VVPAT is a system of
printing paper trail when the voter casts his vote, in addition to the
electronic record of the ballot, for the purpose of verification of his
choice of candidate and also for manual counting of votes in case of
dispute.
29) From the materials placed by both the sides, we are satisfied that
the “paper trail” is an indispensable requirement of free and fair
elections. The confidence of the voters in the EVMs can be achieved only
with the introduction of the “paper trail”. EVMs with VVPAT system ensure
the accuracy of the voting system. 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 VVPAT system because vote is nothing but
an act of expression which has immense importance in democratic system.
30) In the light of the above discussion and taking notice of the
pragmatic and reasonable approach of the ECI and considering the fact that
in general elections all over India, the ECI has to handle one million (ten
lakhs) polling booths, we permit the ECI to introduce the same in gradual
stages or geographical-wise in the ensuing general elections. The area,
State or actual booth(s) are to be decided by the ECI and the ECI is free
to implement the same in a phased manner. We appreciate the efforts and
good gesture made by the ECI in introducing the same.
31) For implementation of such a system (VVPAT) in a phased manner, the
Government of India is directed to provide required financial assistance
for procurement of units of VVPAT.
32) Before parting with the case, we record our appreciation for the
efforts made by Dr. Subramanian Swamy as well as the ECI, in particular Mr.
Ashok Desai and Ms. Meenakshi Arora, learned senior counsel for the ECI.
33) With the above directions, the appeal and the writ petition are
disposed of. No separate order is required in the applications for
intervention. Both sides are permitted to approach this Court for further
direction(s), if need arises.

 
……………….…………………………CJI

 
(P. SATHASIVAM)

 

 

 

 

 

 

 

.…….…………………………………J.

 
(RANJAN GOGOI)

 

 

 

NEW DELHI;
OCTOBER 8, 2013.
———————–
19

 

 

 

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