The Election Commission may have won the legal battle vis-à-vis the efficacy of electronic voting machines (EVMs) in view of the recent judgement of the Delhi High Court, but it has a lot of work to do if it wishes to remove the prevailing scepticism about the efficacy of these machines. 

Though Justice A.K.Sikri and Justice Rajiv Sahai Endlaw, who heard Dr.Subramanian Swamy’s petition said they could not issue a mandamus directing the Election Commission to introduce the system of paper trail, they have advised the Commission to take note of the fears that EVMs may be vulnerable to frauds and that there may be security issues.

The issue of  the vulnerability of EVMs to fraud, gained prominence two years ago when several international experts who had campaigned against EVMs in Europe and the U.S visited India and shared  their experiences with Indian activists. Among these experts was Mr Rop Gonggrijp, a computer hacker from the Netherlands who successfully campaigned against use of EVMs in his country and Mr Till Jaeger, the attorney who argued against the use of EVMs before the German Federal Constitutional Court. Thereafter, this campaign gained ground when Mr.Hari Prasad, an Indian activist demonstrated how EVMs could be hacked. Dr. Subramanian Swamy petitioned the Delhi High Court, following these developments. 

The central argument of Mr Gonggrijp, Mr.Hariprasad and others is that transparency is hit when the vote count happens inside a machine and there is no way in which the result can be cross-checked. This view found acceptance in the German Federal Constitutional Court  which emphasized that all essential steps in an election should be open to public scrutiny. Dr.Swamy’s petition also stressed on the issue of lack of transparency when EVMs are deployed.  He therefore argued that the Election Commission device a paper trail that provides proof to the voter that the vote has been registered as per his wish.  

In their judgement, Justice A.K.Sikri and Justice Rajiv Sahai Endlaw opined that the Election Commission had a huge responsibility of conducting elections in the country with 73 crore voters. In such a situation, use of paper ballots is cumbersome. “Not only printing of paper ballots of such a magnitude involves hundred tons of papers and printing cost, manual counting of the ballots becomes a mammoth job requiring huge manpower and man-days resulting in delays in announcing the results”. In this electronic age, the court felt that use of electronic system instead of paper ballot is a welcome change “provided it is not fraught with frailties and other possible dangers or shortcomings thereof are duly taken care of”.

The court said that for an election to be free and fair, the following international standards have to be met:

(i) Individuals have to be accurately identified as eligible voters who have not already voted;

(ii) Voters are allowed only one anonymous ballot each, which they can mark in privacy;

(iii) The ballot box is secure, observed and, during election, only able to have votes added to it by voters: votes cannot be removed;

(iv) When the election ends, the ballot box is opened and counted in the presence of observers from all competing parties. The counting process cannot reveal how individual voters cast their ballots;

(v) If the results are in doubt, the ballots can be checked and counted again by a different set of people/machines;

(vi) As far as the individual voter is concerned, he must be assured that the candidate he casts his vote for, actually gets that vote.

Those who oppose electronic voting machines have serious doubts as to whether the EVMs meet these internationally accepted standards, specially those listed in items 3 to 6. For example, the sceptics argue that voting machines can be hacked and programmed in such a way that they give advantage to one particular party or coalition. In other words,  they contend  that a credible and fool-proof method to  count the votes polled by each candidate does not exist.  Which means that items three and four in this check list cannot be vouched for. Further,  the fifth requirement is that in case of doubt, it should be possible to check and count the ballots yet again.  Here again it must be said that with EVMs,  there is no mechanism to check the votes afresh. Finally, the sixth requirement is that the individual voter “must be assured that the candidate he casts his vote for, actually gets the vote”.  This is possible when paper ballots are used, because within the privacy of the voting booth, the voter stamps the ballot paper and chooses his favourite candidate. Thereafter, he folds the paper and puts it into the ballot box. However, when an EVM is used, the voter only presses a button to register his vote. When he leaves the booth, he is not sure whether his vote has been correctly registered.  Therefore the sixth principle that ensures free and fair elections – namely that the voter feels assured that the candidate of his choice has indeed got his vote – is not guaranteed.  That is why the anti-EVM brigade has been insisting on a paper trail which gives the voter the satisfaction of knowing that the machine has registered  his vote correctly.

Dr. Subramanian Swamy argued before the court that only a paper trail would give voters the necessary guarantee that the election is free and fair. He told the court that the paper trail, in the form of a receipt, which will come out from the machine immediately after a vote is cast, indicating the name of the candidate in whose favour the vote is given, would provide satisfaction to the voter that the machine has correctly recorded the vote. Dr.Swamy said this should be treated as an essential component of free and fair election. In the absence of such a paper trail, “the system cannot be treated as amounting to conducting free and fair elections, more so, when there is a possibility of machine being skewed or it is vulnerable to fraud”. Further,  “transparency” , which is so critical to free and fair elections, takes a hit.  The writ Petition also highlighted the fact that the German Federal Constitutional Court had found EVMs to be unconstitutional.

The Delhi High Court accepted the contention that transparency was critical to free and fair elections. It said “No doubt, transparency is essential in an election process. Unless stake holder can see that the process is being conducted correctly and the results are being accurately aggregated, it is difficult to have confidence in the results and the outcome. The trust and confidence in the electoral process is an essential pre-requisite and the results and outcome being expected”.  On its part the election Commission told the court that the paper trail would destroy confidentiality, which is also an essential aspect of free and fair elections. It contended that if system of paper trail is introduced and the receipt is given indicating the candidate in whose favour a particular voter has voted, “the confidentiality in the system would be lost. That would negate the very essence of free and fair elections”. Given these competing ideas, the court observed that the challenge before it was “to reconcile the competing requirements of transparency of the process and the secrecy of the vote”.  However, in its final analysis, the court said it could not issue a mandamus directing the Election Commission to introduce the system of paper trail. But, it felt that some of the averments of Dr.Swamy – like when he says that EVMs may be vulnerable to frauds – deserve attention, as also the contention that there may be security issues as well when EVMs are deployed.  Though there is no evidence that such things have happened so far, the court said there was need for “wide consultation” and  “ample and meaningful opportunity” should be given to all stake holders in order to achieve sufficient understanding of both the issues and the technology, it said. 

One only hopes the Election Commission will pay heed to the court’s opinion in this regard and look for options which will inject greater transparency into the system of electronic voting, which ensuring confidentiality of  the  vote.