Association For Democratic Reforms vs Election Commission of India and Another

the EVM have microcontrollers in which the respective firmware is burnt – The burnt programme/code is unalterable and cannot be modified after the EVM is delivered/supplied to Election Commission of India (ECI) – Every key press of the control unit is dynamically coded, making it impossible to decode the signal flowing among the units of the EVM inter se – Firmware of the control unit is agnostic to any candidate name or political party symbol – The possibility to hack or tamper with the agnostic firmware in the burnt memory to tutor/favour results is unfounded – The suspicion that EVMs can be manipulated for repeated or wrong recording of vote(s) to favour a particular candidate, rejected – ECI has conducted random VVPAT verification of 5 polling booths per assembly segment/constituency for 41,629 EVMs-VVPATs – More than 4 crore VVPAT slips have been tallied with the electronic counts of their control units – Not even a single case of mismatch (except one which arose on account of failure of the presiding officer to delete the mock poll data) or wrong recording of votes was detected – EVMs subjected to test by technical experts committee from time to time wherein no fault was found – The M3 EVMs currently in use are designed by engineers of BHEL and ECIL and vetted by the aforesaid committee – A number of safeguards and protocols with stringent checks have been put in place, as elucidated – Administrative and technical safeguards of the EVM reviewed in detail – Data and figures do not indicate artifice and deceit – Imagination and suppositions should not lead to hypothesize a wrong doing without any basis or facts – Credibility of the ECI and integrity of the electoral process earned over years cannot be over-ridden by contemplations and speculations – In N. Chandrababu Naidu v. Union of India, the direction for counting the VVPAT paper trail in 5 EVMs per assembly constituency or assembly segment in a parliamentary constituency was issued to ensure the highest level of confidence in the accuracy of election results – Giving physical access to VVPAT slips to voters is problematic and impractical and will lead to misuse, malpractices and disputes – Not inclined to modify the directions to increase the number of VVPAT undergoing slip count – Data and the results do not indicate any need to increase the number of VVPAT units subjected to manual counting – EVMs are simple, secure and user-friendly – Moreover, the incorporation of the VVPAT system fortifies the principle of vote verifiability, enhancing the overall accountability of the electoral process – Electoral reforms would be undone by directing reintroduction of the ballot papers – Submission to return to the ballot paper system, rejected – Per Dipankar Datta, J. (Concurring) Use of EVMs in elections in India are not without its checks and balances – Reasonable measures to ensure transparency, such as tallying VVPAT paper trail in 5 EVMs per assembly constituency or assembly segment in a parliamentary constituency with votes polled, are already in place after the decision in N. Chandrababu Naidu v. Union of India – The aforesaid exercise of tallying has till date not resulted in any mismatch – This assertion of ECI not proved incorrect by petitioners – Grounds for the reliefs sought lie in the realm of apprehension and suspicion – Petitioners neither able to demonstrate how the use of EVMs in elections violates the principle of free and fair elections; nor were they able to establish a fundamental right to 100% VVPAT slips tallying with the votes cast – Their apprehensions are misplaced – Reverting to the paper ballot system and burdening the ECI with the onerous task of 100% VVPAT slips tallying would be a folly. [Paras 17, 19-21, 42, 58, 62, 68-70, 72, 75 and 10-12, 19]

Elections – Electoral Process – Use of Electronic Voting Machines (EVMs) – EVM-VVPAT (Voter Verifiable Paper Audit Trail) mechanism – Constitution of India – Article 19(1)(a) – Conduct of Election Rules, 1961 – r.49M – ‘transparent window’ – Alleged modification of the VVPAT in 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 – Petitioners submitted that a voter’s right to be informed u/Article 19(1)(a) vis-à-vis the electoral process have two facets- right to know that the vote is recorded as cast; and, secondly that the vote as cast is counted:

Held: Per Sanjiv Khanna, J. (for himself and Dipankar Datta, J.) The test for determining the scope of unenumerated rights is based on tracing them to specific provision of Part III of the Constitution or to the core values which the Constitution espouses – Petitioners were neither able to demonstrate how the use of EVMs in elections violates the principle of free and fair elections; nor were they able to establish a fundamental right to 100% VVPAT slips tallying with the votes cast – While the fundamental right of voters to ensure their vote is accurately recorded and counted is acknowledged, the same cannot be equated with the right to 100% counting of VVPAT slips, or a right to physical access to the VVPAT slips, which the voter should be permitted to put in the drop box – These are two separate aspects – The former is the right itself and the latter is a plea to protect or how to secure the right – The voters’ right can be protected and safeguarded by adopting several measures – Direction in Subramanian Swamy v. Election Commission of India for gradual introduction of VVPATs to guarantee utmost transparency and integrity in the system has been implemented – The voter can see the VVPAT slip through the glass window and this assures the voter that his vote as cast has been recorded and will be counted – Further, ECI was categoric that the glass window on the VVPAT has not undergone any change – The term used in r.49M is ‘transparent window’ – The tinted glass used on the VVPAT printer is to maintain secrecy and prevent anyone else from viewing the VVPAT slips – Voter in the voting compartment who is viewing the glass from the top can have clear view of the slip for 7 seconds – Marginal tint on the VVPAT glass window, or the fact that the cutting and dropping of the slip from the roll in to the drop box of the printer is not visible, does not violate r.49M – The words ‘before such slips get cut’ in the proviso to r.49M(3) indicate and require that the slip should be cut from the roll after the elector has seen the print through the glass window – Use of glass window prevents damage, smudging, attempt to deface or physically access the VVPAT slip – The rule ensures that the voter is able to see the slip along with the serial number with name of the candidate and the symbol for whom they have voted – Per Dipankar Datta, J. (Concurring) A citizen’s right ‘to freedom of speech and expression’ u/Article 19(1) is not absolute and the State by virtue of Article 19(2) can place reasonable restrictions on these rights – The ordainment of r. 49M (3) is that the VVPAT slip should be momentarily visible to the voter; and it is not the requirement of the rule that the VVPAT slip or its copy has to be handed over to the voter – Recording of the vote cast signifying the choice of the voter and its projection on the VVPAT slip, albeit for 7 seconds, is fulfilment of the voter’s right of being informed that his/her vote has been duly recorded – As long as there is no allegation of statutory breach, there can be no substitution of the Court’s view for the view of the ECI that the light in the VVPAT would be on for 7 seconds and not more – There is in place a stringent system of checks and balances (Form 17A, 17C, r.56D(4), 56-D), to prevent any possibility of a miscount of votes, and for the voter to know that his/her vote has been counted – Such a system, which is distinctly more satisfactory compared to the system of the yester-years, suitably satisfies the voter’s right under Article 19(1)(a) to know that his/her vote has been counted as recorded. [Paras 69, 73, 16, 17] Directions by Supreme Court – 2024 General Elections underway for constituting the 18th Lok Sabha – Directions issued to further strengthen the integrity of election process: Held: On completion of the symbol loading process in the VVPATs undertaken on or after 01.05.2024, the symbol loading units be sealed and secured, as directed and be opened, examined and dealt with as in the case of EVMs; the burnt memory/microcontroller in 5% of the EVMs, that is, the control unit, ballot unit and the VVPAT, per assembly constituency/assembly segment of a parliamentary constituency be checked and verified by the team of engineers from the manufacturers of the EVMs, post the announcement of the results, for any tampering or modification, on a written request made by candidates at SI.No.2 or 3, behind the highest polled candidate. [Para 76]

Conduct of Election Rules, 1961 – r.49MA – Petitioner pleaded that r.49MA is draconian, arbitrary, and contrary to law as reference to s.177, Penal Code, 1860 in the written declaration u/r.49MA is wrong and misconceived:

Held: r.49MA permits the elector to raise a complaint if she/he is of the view that the VVPAT paper slip did not depict the correct candidate/political party she/he voted – However, whenever a challenge is made, the voting process must be halted – An overly liberal approach could cause confusion and delay hindering the election process and dissuading others from casting their votes – However, no comments made on the application of s.177, Penal Code, 1860 – ECI stated that only 26 such requests in terms of r.49MA were received, and in all cases, the allegation was found to be incorrect – Plea that any elector should be liberally permitted as a routine to ask for verification of vote, rejected. [Para 74] Elections – Electoral Process – Use of Electronic Voting Machines (EVMs) – Case laws affirming the efficacy and use of EVMs in the elections, referred to.

Elections – Electoral Process – EVM-VVPAT (Voter Verifiable Paper Audit Trail) mechanism – Suggestions as regards counting of the VVPAT slips that instead of physically counting the VVPAT slips, they can be counted by a counting machine; and barcoding of the symbols loaded in the VVPATs may be helpful in machine counting:

Held: Suggestions made may be examined by the ECI – These are technical aspects, which will require evaluation and study, and hence no comment made either way. [Para 71]

Elections – Electoral Process – Conduct of Election Rules, 1961 – Voting by Electronic Voting Machines (EVMs) – EVMVVPAT (Voter Verifiable Paper Audit Trail) mechanism – Free and fair elections – Procedure and safeguards adopted by ECI to ensure free and fair elections and the integrity of the electoral process; features of EVMs; checks and protocols to ensure and ascertain the legitimacy and integrity of the EVMs and the election process; data on the performance of the EVMs; mechanics and safeguards embedded in the EVMs, discussed.

Elections – Electoral Process – Use of Electronic Voting Machines (EVMs) – EVM-VVPAT (Voter Verifiable Paper Audit Trail) mechanism – Advantages – Enumerated.

Conduct of Election Rules, 1961 – Part IV, Chapter II – Voting by EVMs – rr.49L, 49M (3), (6), 49(O), 49 (S), 56-D; Form 17A, 17C – Preparation of the voting machine by returning officer, arrangements at the polling station, admission to the polling stations, and preparation of voting machine for poll. Constitution of India – Article 32/226 – Writ petitions – Maintainability – Suspicion of infringement of a right, if adequate ground to invoke the writ jurisdiction: Held: Per Dipankar Datta, J. No – A writ petition ought not to be entertained if the plea is based on the 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 – To succeed in a claim under Article 32 or 226, one must demonstrate either mala fide, or arbitrariness, or breach of a law in the impugned State action – Though a writ of right, it is not a writ of course – Writ jurisdiction u/Article 32/226 being special and extraordinary, should not be exercised casually or lightly on the 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 the rule of law being abrogated – It must be shown, at least prima facie, that there is a real potential threat to a right guaranteed by law to the person concerned – 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 the present set of writ petitions to be considered maintainable. [Paras 22, 23, 28] Doctrines – Doctrine of res judicata – Civil Procedure Code, 1908 – s.11 – “public right” in Explanation VI – Applicability to public interest litigations:

Held: Per Dipankar Datta, J. Doctrine of res judicata is applicable to writ petitions under Article 32 and Article 226 as well – The inclusion of the term “public right” in Explanation VI of s.11 of the Civil Procedure Code, 1908 aims to avoid redundant legal disputes concerning public rights – Thus, there is no room for debate regarding the application of s.11 to matters of public interest litigation presented through writ petitions – Principle of res judicata 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 the irreversible harm or detriment to the public good resulting from the action impugned – Court must come to the conclusion that the petition raises substantial grounds not previously addressed in litigation – Only then it may consider such a petition; otherwise, it is within its authority to dismiss it at the threshold – This issue at hand of doubting the efficacy of the EVMs has been previously raised before this Court and it is imperative that such issue is concluded definitively now. [Paras 30, 33, 34]