Centre Argues That Pleas Seeking EVM-VVPAT Cross Verification Will Adversely Affect Voter Turnout, SC Reserves Judgment

Solicitor General argued, “My concern as an officer of the Court…this happens periodically on the eve of the elections… it has an impact on voter turnout. It has an impact on voting numbers because people might feel that there is something wrong with this system, why should we go and vote? It harms democracy…Making the democratic choice of the voter into a joke. Be ready for some planted article or news item for tomorrow…. There are planted articles before every important question Your Lordships are deciding…I have told everyone on my side that be ready for some planted article/news article for tomorrow.”

The Bench comprising Justice Sanjiv Khanna and Justice Dipankar Datta reserved the judgment in the matter after hearing all the parties at length.

Justice Khanna responded to Tushar Mehta and said, “Mr. Mehta we have learned how to accept social media, everybody has a right to say whatever they want.”

The Supreme Court, during the hearing, 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, who is a Senior Duty Election Commissioner appeared before the Court and explained the workings of the EVMs, Control Unit and VVPAT. He also submitted that all the polls are secured and kept in custody with the Returning Officer. He discussed the working of the Symbol Loading Unit (SLU) and the Control Unit that gives commands to VVPAT to print it. Further, he discussed the Storage Unit.

Vyas explained Form 17A which is the Register of Voters and Form 17C which is the Account of Votes Recorded and the Result of Counting, which is created after polling. He also submitted that if a voter has decided not to vote, a remark to that effect is made against the said entry in Form 17A by the Presiding Officer.

The Bench asked, “If there is a gap between 17A and 17C, will it not be a matter of concern if the gap is substantial?”

Vyas said, “Specifically for that purpose the scrutiny process has been introduced after the poll days, if the difference is not explainable, it is quite large and some entries are additional…it goes to the Reports Team.”

Justice Khanna remarked, “Additional(entries) are much more dangerous. Additional is something which shows that there has been bogus polling ”

In reference to the gap of data between 17A and 17C, Justice Khanna said to Senior Advocate Gopal Shankarnarayanan who appeared on behalf of a Petitioner, that, “When you argued yesterday, I didn’t want to interrupt you, the discrepancies which you were pointing out were on account of the fact that the number of persons, possibly, that have been entered in the register which is now known as 17A and the number of votes which are actually cast, that is the figure. That exercise you should have done…It occurred to me that is why I put that question.”

Justice Khanna further asked, “Can you verify that is there a possibility of one person getting two votes?”

To which the officer replied, “It is absolutely not possible.”

Justice Khanna asked, "Are there any instances of mismatch between data stored in the ballot unit and the VVPAT Slips?”

Vyas responded, “Not a single mismatch found so far.”

Per contra Senior Advocate Gopal Shankarnarayanan said, “Their own document shows that there is a mismatch.. and now it cannot be said that there is no mismatch. They can explain that one incident of a mismatch as well.. They can say the morning mock poll was added by mistake.”

Justice Datta asked Vyas, “Is it possible for voter to get a copy of the slip? What's the possible harm you can visualize?”

He said, “One is secrecy is voting. We don't know how it will be used after taking. Secondly, deliberate mischief.”

Vyas also submitted that the manufacturers do not know which button is for which party and which machine will go to which constituency, this is done to maintain the secrecy.

Advocate Prashant Bhushan, for one of the Petitioners, 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.

After the submissions of Senior Advocate Maninder Singh on behalf of the Respondents, Justice Khanna said to Advocate Bhushan, “You're going too far. Everything can't be suspected. Please also appreciate if they have done something good. We heard you because we are also concerned. Does everything have to be explained to you?... You need not understand the technical elements. A voter has to be satisfied with the explanation given by ECI. Evidence Act also says official acts are normally presumed to be done validly.”

Advocate Nizam Pasha also appeared on behalf of the Petitioners and submitted that a voter should be allowed to take a VVPAT Slip and deposit it in the ballot box.

Justice Khanna asked, “Won’t it affect voter’s privacy?”

To which Advocate Pasha replied, “Voter privacy cannot be used to defeat voter’s right.” Highlighting the issue, Advocate Bhushan suggested to the Court that if the Election Commission cannot change the glass of the VVPAT, at least the light should remain on at all times so that one could see the slip cutting and falling and therefore, no privacy of the voters will be compromised.

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 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.

The ADR had sought the court's direction to the poll panel and the Centre to ensure the voters are able to verify through VVPATs that their vote has been "counted as recorded". The petition has sought to match the count in EVMs with votes that have been verifiably "recorded as cast" and to ensure that the voter can verify through the VVPAT slip that his vote, as recorded on the paper slip, has been "counted as recorded".

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