We Are Not Here To Change Your Thought Process: Apex Court Tells Prashant Bhushan Who Appeared For Petitioners In EVM-VVPAT Case While Reserving Judgment

The Bench of Justice Sanjiv Khanna and Justice Dipankar Datta observed, “The queries have been answered. We have also heard Learned Counsel for the Petitioner on the said aspect. Judgment is reserved.”

Advocate Prashant Bhushan, for Association For Democratic Reforms, referred to the RTI reply about the microcontroller of Bharat Electronics and submitted, “This microcontroller has a flash memory also so therefore to say that this microcontroller is not reprogrammable is not correct. That is exactly what the citizen commission also said after examining…flash memory is always reprogrammable”.

Justice Khanna said to Advocate Bhushan, “If you are already prejudiced in the predetermined about it, then there is no use. There is a reason why we called him (Vyas), we had some questions…but if you are already predisposed about a particular thought process, then we cannot help it…We are not here to change your thought process.”

Justice Datta said, “The report that you are relying on says that till date there has been no incident of hacking identified, if there is some incident, the law provides what is to be done. We cannot control the elections Mr Bhushan…we are not a controlling authority of another constitutional authority”.

During the hearing, the Court today sought clarification from the Election Commission on certain aspects regarding the functioning of the Electronic Voting Machines (EVMs), including whether the microcontrollers fitted in them are reprogrammable, and summoned a senior poll panel official at 2 pm.

In the second session, Nitish Vyas, who is a Senior Duty Election Commissioner appeared before the Court and submitted, “First Question…all such three units i.e. ballot units, control units and VVPAT... all have their own micro controllers…they have one time programmes in the micro-controller…and these micro controllers are housed in…secured unauthorised access detection module so they cannot be accessed physically also…Second Question… All the micro controllers are one-time programmable. The program is burned at the time of manufacturing, it can never be changed. It can never physically exist.”

“Third, how many Symbol Loading Units are available… so we have 2 manufacturers in ECIL that is Electronics Corporation Of India Limited and we have Bharat Electronics Limited. So ECIL has 1904 SLUs and Bharat Electronics has 3154 SLUs.”, he clarified.

“All the machines are stored for 45 days. On the 46th day, Chief Election Officer writes to Registrars of concerned HCs to ascertain if any election petition filed. If any Election Petition is filed, the machines remain stored…All three are sealed after the polling.”, he further submitted.

During the first Session of the hearing Justice Khanna said that when the Bench went through the Frequently Asked Questions, they had doubts as regards the microcontroller with the memory. He asked, “First clarification needed is with regard to microcontroller. Whether it is installed in controlling unit or in the VVPAT. We were under the impression that the microcontroller is the memory installed in the control unit (CU). One of the questions in the FAQs indicates that it is also installed in the VVPAT. What we were told was VVPAT has a flash memory…Confirm that.”

“The third thing is, that you refer to Symbol Loading Units, how many of them are available?... The fourth thing is, it was said the limitation for an election petition is 30 days and hence the data was stored for 45 days. When we checked section 81 of the Representation of People Act, we found that the limitation period for filing of EVMs is 45 days. So please confirm us because it is 30 days or 45 days storage. If the limitation period is 45 days, then the corresponding period for storage needs to be enhanced…But as per the Representation of Peoples’ Act, the limitation period is 45 days. So the period for storage may have to be correspondingly increased", Justice Khanna said.

"We went through the FAQs. We just wanted three-four clarifications. We don’t want to be factually wrong but doubly sure in our findings and hence we thought of seeking the clarification," the bench told Additional Solicitor General Aishwarya Bhati.

Senior Advocate Santosh Paul, appearing for one of the petitioners, said that the source code of EVMs should also be disclosed for transparency. The bench said, "No, the source code cannot be disclosed as there is a chance of it to be misused."

On the last day, the Court had heard the arguments at length and reserved the judgment on petitions seeking 100% verification of Electronic Voting Machines (EVM) with Voter Verifiable Paper Audit Trail (VVPAT).

During the hearing, Solicitor General Tushar Mehta appeared for the Centre had contended that filing of such petitions has an impact on the voters and voter turnout.

The Supreme Court had also remarked that if there is any gap between the Register of votes and the Account of votes counted, and if there are any additional votes registered, then such polling will be bogus and a matter of concern.

Nitish Vyas had appeared before the Court and explained the workings of the EVMs, Control Unit and VVPAT. He had also submitted that all the polls are secured and kept in custody with the Returning Officer. He had discussed the working of the Symbol Loading Unit (SLU) and the Control Unit that gives commands to VVPAT to print it.

Advocate Prashant Bhushan had cited a report where mock polls were conducted in Kasaragod, Kerala on April 17 and he alleged that more than four EVMs registered votes in favour of one party i.e. Bhartiya Janta Party. The Bench then asked ECI to check the issue. Consequently, after some time, the ECI denied the authenticity of the report.

The VVPAT is an independent vote verification system which enables an elector to see whether his vote was cast correctly. It generates a paper slip which can be viewed by the voter. It is kept in a sealed cover and can be opened in case of a dispute. The seven-phase Lok Sabha polls will begin on April 19.

The Apex Court on April 16, 2024 had heard the submissions made by the Petitioners in the matter.

On April 1, the Apex Court had sought responses from the Election Commission and the Centre on a plea by activist Arun Kumar Agrawal seeking a complete count of VVPAT slips in polls as opposed to the current practice of tallying slips from only five randomly selected EVMs from each assembly segment comprising a parliamentary constituency.

Cause Title: Association For Democratic Reforms v. Election Commission Of India and Ors. (W.P. (C) No. 434 of 2023)