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SUPREME COURT OF INDIA
SANJIV KHANNA, DIPANKAR DATTA, JJ.
Association for Democratic Reforms – Petitioner
Versus
Election Commission of India and Another – Respondents
Writ Petition (Civil) No. 434 of 2023, Writ Petition (Civil) No. 184 of 2024, Writ Petition (Civil) No..........of 2024, Diary No. 35782 of 2023
Decided On : 26-04-2024
Per Sanjiv Khanna, J.
(A) Conduct of Election Rules, 1961 – Rule 49MA – Electronic Voting Machines [EVMs] – Trust issue – Suspected vulnerability to manipulations – Paper ballots were norm, till EVMs were projected as a viable alternative in 1980s – To ensure full transparency and confidence of voters, this Court recommended that EVMs be set up with VVPATs in Subramanian Swamy vs. Election Commission of India, (2013) 10 SCC 500 – Advantages of EVM-VVPAT mechanism are that (i) It runs on battery/power-packs and does not require any external power supply. (ii) Voting is done by pressing a button thereby negating a scenario of invalid vote akin to an invalid paper ballot. (iii) It does not permit more than 4 votes per minute, thereby deterring and disincentivising booth capturing. (iv) After pressing of ‘CLOSE’ button on control unit, there is no possibility of voting. (v) It ensures quick, error-free and mischief-free counting of votes. (vi) Voter is instantly able to verify recording of their vote through beep sound. VVPAT slip helps verify that vote casted is recorded correctly. (vii) By pressing ‘TOTAL’ button on control unit at any time, total number of votes polled up to the time of pressing button is displayed, without indicating candidate-wise result of votes. (viii) Original program, which is political party and candidate agnostic, is ported on to microcontroller of EVM during manufacturing at factory. This process is done way before elections and it is impossible to know serial number of any candidate in advance and it is not possible to pre-program EVM in a spurious manner – Possibility to hack or tamper with agnostic firmware in burnt memory to tutor/favour results is unfounded – Accordingly, suspicion that EVMs can be configured/manipulated for repeated or wrong recording of votes to favour a particular candidate should be rejected. (Paras 8, 33, 35 and 42)
(B) Conduct of Election Rules, 1961 – Rules 49MA and 56D – Electronic Voting Machines [EVMs] – Suspected vulnerability to manipulations – EVMs have been subjected to test by technical experts committee from time to time – These committees have approved and did not find any fault with EVMs – M3 EVMs currently in use are designed by engineers of BHEL and ECIL – These designs are vetted by technical experts committee – It is necessary to exercise care and caution when we raise aspersions on integrity of electoral process – Repeated and persistent doubts and despair, even without supporting evidence, can have contrarian impact of creating distrust – This can reduce citizen participation and confidence in elections, essential for a healthy and robust democracy – Unfounded challenges may actually reveal perceptions and predispositions, whereas this Court, as an arbiter and adjudicator of disputes and challenges, must render decisions on facts based on evidence and data – Imagination and suppositions should not lead us to hypothesize a wrong doing without any basis or facts – Credibility of ECI and integrity of electoral process earned over years cannot be chaffed and over-ridden by baroque contemplations and speculations – Giving physical access to VVPAT slips to voters is problematic and impractical – It will lead to misuse, malpractices and disputes – This is not a case where fundamental right to franchise exists only as a parchment, rather, entire electoral process protocol, and checks as well as empirical data, ensure its meaningful exercise. (Paras 62, 67, 68 and 69)
(C) Elections – Use of EVMs – Voting mechanism must uphold and adhere to principles of security, accountability, and accuracy – EVMs are simple, secure and user-friendly – Voters, candidates and their representatives and officials of ECI are aware of nitty-gritty of EVM system – They also check and ensure righteousness and integrity – Moreover, incorporation of VVPAT system fortifies principle of vote verifiability, thereby enhancing overall accountability of electoral process – Directions: –
(a) On completion of symbol loading process in VVPATs undertaken on or after 01.05.2024, symbol loading units shall be sealed and secured in a container. Candidates or their representatives shall sign the seal. Sealed containers, containing symbol loading units, shall be kept in strong room along with EVMs at least for a period of 45 days post declaration of results. They shall be opened, examined and dealt with as in case of EVMs.
(b) Burnt memory/microcontroller in 5% of EVMs, that is, control unit, ballot unit and VVPAT, per assembly constituency/assembly segment of a parliamentary constituency shall be checked and verified by team of engineers from manufacturers of EVMs, post announcement of results, for any tampering or modification, on a written request made by candidates who are at S. No. 2 or S. No. 3, behind highest polled candidate. Such candidates or their representatives shall identify EVMs by polling station or serial number. All candidates and their representatives shall have option to remain present at the time of verification. Such a request should be made within a period of 7 days from date of declaration of result. District Election Officer, in consultation with team of engineers, shall certify authenticity/intactness of burnt memory/microcontroller after verification process is conducted. Actual cost or expenses for verification will be notified by ECI, and candidate making request will pay for such expenses. Expenses will be refunded in case EVM is found to be tampered. (Paras 75 and 76)
Per Dipankar Datta, J. (Assenting View)
(A) Conduct of Election Rules, 1961 – Rule 49MA – Electronic Voting Machines [EVMs] – Trust issue – Suspected vulnerability to manipulations – Electronic voting is not something which is prevalent only in India – Multiple countries use electronic voting in varying degrees in their national elections – However, use of EVMs in elections in India are not without its checks and balances – Reverting to “paper ballot system” of bygone era, as suggested, reveals real intention of petitioning association to discredit system of voting through EVMs and thereby derail electoral process that is underway, by creating unnecessary doubts in minds of electorate – In recent years, a trend has been fast developing of certain vested interest groups endeavouring to undermine achievements and accomplishments of nation, earned through hard work and dedication of its sincere workforce – There seems to be a concerted effort to discredit, diminish, and weaken progress of this great nation on every possible frontier – Any such effort, or rather attempt, has to be nipped in bud – No Constitutional court, far less this Court, would allow such attempt to succeed as long as court has a say in the matter – Question of reverting to “paper ballot system”, does not and cannot arise – It is only improvements in EVMs or even a better system that people would look forward to in ensuing years. (Paras 4, 5 and 10)
(B) Conduct of Election Rules, 1961 – Rule 49MA – Electronic Voting Machines [EVMs] – Suspected vulnerability to manipulations – Republic has prided itself in conducting free and fair elections for past 70 years, credit wherefor can largely be attributed to ECI and trust reposed in it by public – Petitioners have neither been able to demonstrate how use of EVMs in elections violates principle of free and fair elections; nor have they been able to establish a fundamental right to 100% VVPAT slips tallying with votes cast – Petitioners’ apprehensions are misplaced – Reverting to paper ballot system, rejecting inevitable march of technological advancement, and burdening ECI with onerous task of 100% VVPAT slips tallying would be a folly when challenges faced in conducting elections are of such gargantuan scale – Unless substantial evidence is presented against EVMs, current system will have to persist with enhancements – Regressive measures to revert to paper ballots or any alternative to EVMs that does not adequately safeguard interests of Indian citizens have to be eschewed. (Paras 18, 19 and 35)
(C) Constitution of India – Article 32/226 – Writ petition – Maintainability – To succeed in a claim under Article 32 or 226, one must demonstrate either mala fide, or arbitrariness, or breach of a law in impugned State action – Writ jurisdiction under Article 32/226 of Constitution of India being special and extraordinary, it should not be exercised casually or lightly on mere asking of a litigant based on suspicions and conjectures, unless there is credible/trustworthy material on record to suggest that adverse action affecting a right is reasonably imminent or there is a real threat to rule of law being abrogated – It must be shown, at least prima facie, that there is a real potential threat to a right which is guaranteed by law to person concerned – A writ petition ought not to be entertained if plea is based on mere suspicion that a right could be infringed – Suspicion that a right could be infringed and a real threat of infringement of a right are distinct and different – 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 present set of writ petitions to be considered maintainable. (Paras 22, 23, 27 and 28)
(D) Civil Procedure Code, 1908 – Section 11 – Constitution of India – Article 32/226 – Res Judicata – Doctrine of res judicata is applicable to writ petitions under Article 32 and Article 226 as well – This principle is not rigid in cases of substantial public interest and Constitutional Courts are empowered to adopt a flexible approach in such cases, acknowledging their far-reaching public interest ramifications – However, this standard is applicable only when substantial evidence is presented to validate irreversible harm or detriment to public good resulting from action impugned – Court must come to conclusion that petition is not just an old wine in a new bottle, but rather raises substantial grounds not previously addressed in litigation – Only under these circumstances may it consider such a petition; otherwise, it is within its authority to dismiss it at threshold. (Paras 30, 33 and 34)
Facts of the case:
It is pleaded on behalf of the petitioner - Association for Democratic Reforms, that the Court should direct:
(a) return to the paper ballot system.
(b) that printed slip from the Voter Verifiable Paper Audit Trail machine [‘VVPAT’] be given to the voter to verify, and put in the ballot box, for counting.
(c) that there should be 100% counting of the VVPAT slips in addition to electronic counting by control unit.
Findings of Court:
Be it citizens, Judiciary, 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 foundations of our democracy and ensure that voices and choices of all citizens are valued and respected. With each pillar fortified, our democracy stands robust and resilient.
Result : Writ Petitions disposed of.
JUDGMENT :
SANJIV KHANNA, J.
1. Delay in refiling is condoned.
2. At the outset, we take on record that the counsel for the petitioners, in unison, have stated that the petitioners do not attribute any motive or malice to the Election Commission of India1 [For short ‘ECI’], or for that matter contend that the Electronic Voting Machines2 [For short ‘EVMs’] have been tutored or configured to favour or disfavour a candidate or political party. However, due to possibility of manipulating the EVMs there is suspicion and, therefore, this Court should step in to instil confidence in the voters3 [‘Voters’ and ‘Electors’ is used interchangeably] and the people. Voters have the right to know that the franchise exercised by them has been correctly recorded and counted.
3. On a pointed question put by the Court, it was argued, without prejudice and in the alternative, on behalf of the petitioner - Association for Democratic Reforms, that the Court should direct:
(a) return to the paper ballot system.
(b) that the printed slip from the Voter Verifiable Paper Audit Trail machine4 [For short ‘VVPAT’] be given to the voter to verify, and put in the ballot box, for counting.
(c) that there should be 100% counting of the VVPAT slips in addition to electronic counting by the control unit.
4. Other arguments raised relate to - the alleged modification of the VVPAT in the year 2017, whereby the glass window on the VVPAT was made translucent/tinted instead of transparent, depriving the voter from knowing whether the vote cast by him was actually registered and counted; Rule 49MA of the Conduct of Election Rules, 19615 [For short ‘1961 Rules’] is draconian, arbitrary, and contrary to law as reference to Section 177 of the Indian Penal Code, 18606 [For short ‘IPC’] in the written declaration under Rule 49MA is wrong and misconceived; and lastly, the voters’ right to know that the vote as cast is duly registered, being a paramount and indelible fundamental right, any administrative reason and ground raised by the ECI objecting to 100% counting of the VVPAT paper trail should be rejected.
5. Paper ballots were the norm, till EVMs were projected as a viable alternative in 1980s. EVMs were first used in an assembly bye-election in Kerala in 1982. All through the 1980s and early 1990s, the use of EVMs for elections was discussed and debated by politicians and experts in the domain of technology and electoral process, and after due deliberations and review, the EVMs were accepted and embraced. In view of the legal challenge [See A.C. Jose vs. Sivan Pillai and Others, (1984) 2 SCC 656] regarding use of EVMs without legislative approval, the Parliament vide Act 1 of 1989 amended the Representation of the People Act, 19517 [For short ‘RP Act’] allowing the use of EVMs. They were used in the General Elections in 2004 and have been used in each and every General and other election thereafter.
6. ECI maintains that the EVMs have been a huge success in ensuring free, fair and transparent elections across the nation in all elections. They restrict human intervention, checkmate electoral fraud and malpractices like stuffing and smudging of votes, and deter the errors and mischiefs faced in manual counting of ballot papers. While earlier it was apprehended that the introduction of EVMs will lead to hardship and disenfranchisement, independent studies showcase that EVMs have led to increase in voter participation.8 [Legal History of EVMs and VVPATs, Edition 1, January 2024, p. 654] Yet, it is also true that time and again use of EVMs has been objected to and questioned, not by one but by all political parties and others. There have been several litigations in this Court and the High Courts, albeit the challenge to the use of EVMs has been rejected recording good grounds and reasons.
7. We deem it appropriate to begin this decision by referring to some of the earlier case laws and judgments of this Court on the efficacy and use of EVMs in the elections in this country.
(1) Electronic Voting Machines [EVMs] – Unless substantial evidence is presented against EVMs, current system will have to persist with enhancements – Regressive measures to revert to paper ballots o....
Election - Conducted through ballot paper instead of EVM in absence of VVPAT Petition has been filed without any logic and justification - No foundation has been laid as to why EVMs be not used - Ele....
When an election process has commenced and reached an advanced stage, the High Court will not intervene to alter the mode of polling (EVMs vs. ballot papers) in a PIL; the appropriate remedy for aggr....
: CONDUCT OF ELECTION - Lack of guarding of the EVMs at the pre-poll stage - Granted permission not to circulate the details pertaining to the vulnerable or critical booths for the districts other th....
The assertion of illegal votes without substantial evidence fails to establish a justiciable claim; a petitioner must first demand justice from relevant authorities before seeking judicial interventi....
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