Supreme Court Says A Firm “no” On The Revival Of Paper Ballot System While Observing Concern Against The Increasing Distrust Against Electoral System Based On Mere Suspicions

CASE NAME:

Association For Democratic Reforms Vs. Election Commission of India and Another

DATE OF ORDER:

26th April 2024

BENCH:

Justice Sanjay Khanna & Justice Dipankar Datta

PARTIES TO THE CASE:

PETITIONER: Association for Democratic Reforms

RESPONDENTS: Election Commission of India

SUBJECT:

The Supreme Court considered writ petitions which challenged the use of EVMS in India citing EVM tampering as the major cause of distrust. The supreme court discussed in detail the workings of EVM and the election commission (EC) role in facilitating a smoot election process in India.

LEGAL PROVISONS

Article 324 – Superintendence, Direction and Control of Elections to Be Vested in An Election Commission. The article lays down the provision for an election commission of India which shall oversee elections to parliament as well as to legislature to every state.

Article 32 – Remedies For Enforcement of Rights conferred by part III of the Indian constitution. The article lays down the provision for moving to the supreme court in case of infringement of any fundamental right.

BRIEF FACTS

1. The case was filed by the petitioner in July 2023 before a division bench led by justice Khanna. However, the bench refused to grant an urgent listing for the case.
2. A writ petition was filed challenging the legitimacy of the EVMs due to their exposure to tempering and manipulation.
3. The writ petition was heard by the bench comprising justice Khanna and Dipankar Datta.

ISSUES RAISED

Whether the present electoral system of EVM-VVPAT be changed given its vulnerability to tampering and manipulation?

ARGUMENTS RAISED BY THE PETITIONER 

1. The counsel prays that the court must issue the writ of mandamus to the ECI to arrange for tallying 100% VVPAT slips on the grounds of manipulation of the EVMs.
2. The counsel for petitioner while relying on the report titled “An Inquiry into India’s Election System: Is the Indian EVM And VVPAT System Fit for Democratic Elections?” emphasize on the vulnerabilities of the current electronic voting system which is grossly vulnerable to hacking. 
3. Counsel for petitioners contend that under article 19(1)(a) it is their right to be informed of the electoral process. The two primary facets of the process - whether the votes casted has been recorded as it is and if the vote as cast was counted. 
4. Under rule 49M (3) of the Conduct of Election Rules Of 1961 the petitioners have characterized the present system inadequate.

ARGUMENTS RAISED BY THE RESPONDENTS

1. The counsel for respondent, contended that, there existed “no cogent material and data” to distrust the current polling system, especially after the introduction of the VVPATs.
2. The ECI maintains the verification of VVPAT slips in five random polling booths as held by the court in 2019 in the case of N Chandrababu Naidu Vs Union of India.
3.  Counsel for ECI contended that five random polling booths were chosen. which totaled up to a total of 20,600 EVM-VVPAT systems. This was well above the 479 recommendations of the Indian statistical institute.

JUDGEMENT ANALYSIS

1. Hon’ble Judges, Khanna and Datta, while acknowledging and supporting the findings of this court in the case of D.A.V. College, Bhatinda v. State of Punjab, acknowledged that a writ petition can be filed when a petitioner can make out prima facie that their fundamental rights are either threatened or violated.
2. Such a writ will be entertained by this Court and that it is not necessary for any person who considers himself to be aggrieved to wait till the actual threat has taken place.” 
3. Presently the apex court ruled that a writ petition must not be based on mere apprehension or suspicion. There must either be mala fide or arbitrariness or breach of law in the impugned state action. As the right of writ must not be exercised lightly on mere conjecture but only in instance of relevant and credible material on record which demands swift action.
4. The learned judges quashed the various petitions filed in the apex court questioning the legitimacy of EVM and EC. Conducting elections in India is a challenging task, is an understatement; rather, it is a humongous task and presents a novel challenge, not seen elsewhere in the world. India is home to more than 140 crore people and there are ninety-seven crore eligible voters for the 2024 General Elections, which is more than 10% of the world population. 
5. The supreme court lauded the election commission which had risen to every challenge presented without fail. The court held that the apprehensions casted by the various petitioners were misplaced. 
6. The Hon’ble court in their esteemed opinion held that –
7. The Supreme Court issued two orders. After the completion of the the symbol loading process, the symbol Loan Unit (SLU) must be sealed and stored for at least a period of 45 days.
8. Burnt memory of EVM microcontroller will be checked by an engineering team after the declaration of result of on the submission of applications by candidates’ number 2 and 3. These applications should be submitted within 7 days from declaration of result. “The actual cost to be borne by the candidate making the request. Expenses to be refunded in case the EVMs are found to be tampered with," said Justice Datta
9. Quashing the argument presented by petitioners counsel the court retreated that electronic voting is not something only undertaken by the Indian election authorities. use of EVMs in elections in India are not without its checks and balances. Reasonable measures to ensure transparency, such as tallying 5% VVPAT slips with votes polled, are already in place after the decision of this Court in N. Chandrababu Naidu v. Union of India.
10. “The 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 sufficient ground for the present set of writ petitions to be considered maintainable. To maintain these writ petitions, it ought to have been shown that there exists a tangible threat of infringement; however, that has also not been substantiated,” Justice Datta analyzed.
11. Further in case of a voter/ candidate’s right being infringed due to hacked electronic voting machine, the sufferer has a remedy by filing an election petition under section 80 of The Representation of The People Act, 1951 within 45 days from the date of the declaration of the result of the elections.
12. The apex court granted little to no value to privately conducted reports which aimed to raise questions upon the credibility of the election process and the election overseeing committee on no reliable basis. The court held that if the voters were indeed apprehensive of EVMs as stated by the petitioners then there would not have been an increase in the voting percentage. 
13. The apex court held that the growing voting percentage was a testament to the growing trust of the voters in the EVMs and the electoral process.
14.  While dealing with the issue of article 19(1) (a) being infringed during the voting process due to the present procedure wherein, the voter after pressing the ‘blue button’ and casting his/her vote can see his VVPAT slip for 7 seconds through a  glass window, as inadequate for the voter to verify if his/her vote, as cast, is recorded.
15. The court held that a voter seeing the VVPAT slip for a period of 7 seconds adequately fulfills the necessary requirements of Rule 49M (3) which ordains that the VVPAT slip should be momentarily visible to the voter. The court found no infringement of the voters right to be informed in the above instance.
16. The court observed that the petitioner has failed to prove beyond doubt how the use of EVMs in the electoral process is violative of the principles of free and fair elections. Therefore, the court finds no reason to suspend the currently ongoing electoral process and to switch to the paper ballot system.

CONCLUSION

The supreme court while quashing the various writ petitions filed against the EVMs and the electoral process under Article 32 of the Indian constitution held that the distrust and apprehension maintained against the election overseeing body is built upon on mere suspicion. 

The apex court found the EVMs to be at par with all checks and balances conducted for manipulation or tempering. Therefore, the court denied the request for revival of paper ballots.