Can't control elections or pass directions on basis of suspicion: SC tells EVM critics

New Delhi: The Supreme Court said on Wednesday it cannot “control the elections” or issue directions simply because doubts have been raised about the efficacy of Electronic Voting Machines (EVM), as it reserved its judgement on a clutch of petitions claiming the polling devices can be tinkered with to manipulate the results.

The court said it cannot change the thought process of those doubting the advantages of polling machines and advocating going back to ballot papers.

A bench of Justices Sanjiv Khanna and Dipankar Datta reserved its verdict on a batch of pleas seeking complete cross-verification of votes cast using EVMs with Voter Verifiable Paper Audit Trail (VVPAT), after taking note of the answers to queries it had posed to the Election Commission.

It sought answers from an official of the poll panel to five questions related to the functioning of EVMs including whether the microcontrollers fitted in them are reprogrammable.

Senior Deputy Election Commissioner Nitesh Kumar Vyas, who had earlier made a presentation to the court on the functioning of EVMs, was summoned by the bench to appear at 2 p.m. to answer the queries.

Vyas, while responding to the question about microcontrollers, said they are one-time programmable at the time of manufacture and installed in all the three units of EVMs–the balloting unit, VVPAT and the control unit. They cannot be reprogrammed thereafter, he asserted.

Advocate Prashant Bhushan, appearing for petitioner NGO ‘Association for Democratic Reforms’, claimed the EC official’s statement was not fully correct. He cited a report by a private body to back his contention.

“The report says that the kind of memory used in these three units can be reprogrammed. A malicious programme can easily be uploaded at the time of symbol loading,” he claimed, adding efforts should be made to remove the doubts about the transparency of EVMs.

Justice Khanna told Bhushan that the court has to rely on the data and information provided by the EC, a constitutional body, which says the programme in the memory of an EVM can be written only once.

“If you are prejudiced or predisposed about something, then we cannot help it. We cannot change your thought process,” the bench told Bhushan.

Justice Datta said, “Can we issue a mandamus (directions) on the basis of a suspicion? The report you (Bhushan) are relying on goes on to say that there is no incident of manipulation yet. We can’t control the elections. We are not the controlling authority of another constitutional authority.”

He told Bhushan that law will take care if something goes wrong with the voting machines.

The bench recalled that the top court had in the past issued two orders on VVPAT, an independent vote verification system which enables electors to see whether their votes have been recorded correctly.

“One order was passed when the court ordered the use of VVPAT during elections and the other order was when the court directed that the use of VVPAT should be increased from one to five booths. Now, you all want us to issue directions for going back to ballot papers,” the bench said, adding all it can do is pass directions to strengthen the existing EVM system, if required.

The apex court had in April 2019 asked the poll panel to increase the number of EVMs that undergo VVPAT physical verification from one to five per assembly segment in a parliamentary constituency.

One of the petitioners has sought each and every vote cast to be tallied with the VVPAT slips.

Referring to the earlier verdicts, Justice Datta said, “One of the two judgments said use VVPAT and it was followed. But where did it say match all VVPAT slips (with votes cast using EVMs)? Has any candidate ever come forward to say that there were instances of mismatch based on VVPAT slips?”

Justice Khanna told Bhushan that the matter was listed on Wednesday for a second time because the court needed clarification on certain aspects as there was some confusion over the answers given by the EC to ‘frequently asked questions’ (FAQs) about EVMs.

“We needed some clarification and therefore we called them (EC),” the bench said, adding there cannot be any second hearing on the efficacy of EVMs.

Justice Khanna said the EC has its own independent system, its own technical experts and it is not a political party.

During the hearing, Vyas told the court that microcontrollers installed in balloting unit, control unit and VVPAT cannot be accessed physically in any manner as there is a tamper detection feature which makes an EVM inoperative the moment anyone tries to open the machine.

Vyas said EVMs are stored for 45 days after the polling in conformity with the limitation period for filing an election petition under the Representation of the People Act.

“On the 46th day, the returning officer writes to the registrar general of the high court on whether any election petition has been filed. If the registrar general informs about filing of election petition, then EVMs of that constituency are sealed and preserved for future purpose,” he said.

When senior advocate Santosh Paul, appearing for one of the petitioners, said that source code of EVMs should also be disclosed for transparency, the court rejected his contention, saying “No, the source code cannot be disclosed as there is a chance of it to be misused.”

After a two-day hearing, the bench had on April 18 reserved its verdict on the pleas. However, the matter was listed again on Wednesday as the court wanted some clarifications from the EC.

NGO ‘Association for Democratic Reforms’ (ADR), one of the petitioners, has sought reversal of the poll panel’s 2017 decision to replace the transparent glass on VVPAT machines with an opaque glass through which a voter can see the slip only when the light is on for seven seconds. The petitioners have also sought the court’s direction to revert to the old system of ballot papers.

The seven-phase Lok Sabha polls began on April 19 and will conclude with the announcement of results on June 4.