Right To 'PAPER TRAIL VOTING'

The Supreme Court of India in “Dr. Subramanian Swamy Versus Election Commission of India” (CIVIL APPEAL NO.9093 OF 2013; decided on 08.10.2013) has dealt with a very important issue relating to the Right to vote of a voter i.e. the right of an Indian Voter to know as to whom he has really voted for, without blindly trusting merely a beep of a machine a.k.a. EVM.

The Petitioner’s Perspective:

In this case, the petitioner & a noted Political & Social Activist Dr. Subramanian Swamy had approached the Supreme Court for issuance of a writ of mandamus directing the Election Commission of India (ECI) to incorporate a system of “paper trail/paper receipt” in the Electronic Voting Machines (EVMs) as a convincing proof that the EVM has rightly registered the vote cast by a voter in favour of a particular candidate.

1.   The present system of EVMs, as utilized in the last few general elections in India, does not meet all the requirements of the international standards and though the ECI maintains that the EVMs cannot be tampered with, but the fact is that EVMs, like all electronic equipments, are open to hacking.

2.   The “paper trail” system is to supplement the procedure of voting as in this procedure, after recording a vote in the EVM, a printout will come out which will appraise the voter that his vote has been rightly registered and the same will be deposited in a box which can only be used by the ECI in case of election dispute.

3.   The above said system is intended to bring more accuracy in the present system and if a particular election is challenged on the ground that some particular identified voter’s voter or the votes of a group of voters have been suppressed/have not been correctly assigned by the EVMs, the accepted current procedure is for a re-run of the same EVMs for a re-count, however, under the new procedure, a re-count will be of the receipts in the ballot box containing the printouts the EVMs had issued to the voter thereby ensuring more transparency in the process.

4.   In a connected Writ Petition, it was also urged that in the present system of voting through EVMs, there is no such facility by which a voter can verify and confirm his own voting. At present, a voter presses a button only but cannot ascertain the actual voting. He is not sure whether his vote is recorded or not, if recorded, whether it is recorded in favour of the person to whom it was intended or not. Whether it is valid or invalid and whether it is counted or not. Unless and until answers to these questions are personally seen by the voter, it cannot be said that voting is made by him because “pressing a button of choice and getting flashed the red-light” is not actual voting in real sense unless the voter knows well that what has happened in consequence of pressing a button of his choice from the EVMs.

The Respondent’s Version:

The ECI however responded to these by submitting that the apprehension that EVMs could be tampered with is baseless. ECI further informed that it has been exploring the possibility of incorporating a viable Voter Verifiable Paper Audit Trail (VVPAT) system as a part of the presently used EVMs to make the election system more transparent. Further, the ECI has conducted field trials for VVPAT system earlier also but the same had not been successful and were discontinued. The ECI contended that EVMs provided by the Commission are of such a high end technology that it cannot be hacked.

1.   Referring to Section 61A of the Representation of the People Act, 1951, ECI submitted that the Statute itself provides for recording of votes by EVMs and the ECI has been given the discretion to prescribe recording of votes by such EVMs as it may deem fit. This discretion has to be exercised in a manner to preserve the sanctity of the election process and ensure that the election is conducted in a free and fair manner. The ECI has exercised due diligence to ensure that EVMs so used are “tamper proof” and it is also in the process of exploring to incorporate VVPAT system which is compatible with the present EVMs used by it. It is asserted that there is no instance of tampering with EVMs so far by anyone.

2.   ECI further submitted that the EVMs used in India are unique and unlike the ones used in the elections in USA and other countries, which are personal computer based. EVMs deployed by the ECI have been lauded not only in India but also abroad. EVM’s Control Unit retains in the memory each vote recorded elector-wise. The information stored in the memory of the Control Unit can be retrieved by using a device called the “decoder” which, when attached to the Control Unit of EVM, can print out the statement of voting data showing the order in which each voter has voted and to whom he has voted.

Supreme Court’s Conciliation:

The Supreme Court after going through numerous affidavits and counter affidavits including reports on various testing/ trials done by the ECI observed, what I believe to be clinching, in Para 28 of the Judgment as follows.

“Though initially the ECI was little reluctant in introducing “paper trail” by use of VVPAT, taking note of the advantage in the system as demonstrated by Dr. Subramanian Swamy, we issued several directions to the ECI . Pursuant to the same, the ECI contacted several expert bodies, technical advisers, etc. They also had various meetings with National and State level political parties, demonstrations were conducted at various places and finally after a thorough examination and full discussion, VVPAT was used successfully in all the 21 polling stations of 51-Noksen (ST) Assembly Constituency of Nagaland. The information furnished by the ECI, through the affidavit dated 01.10.2013, clearly shows that VVPAT system is a successful one. We have already highlighted that VVPAT is a system of printing paper trail when the voter casts his vote, in addition to the electronic record of the ballot, for the purpose of verification of his choice of candidate and also for manual counting of votes in case of dispute.”

The Supreme Court was hence satisfied that the “paper trail” is an indispensable requirement of free and fair elections. The confidence of the voters in the EVMs can be achieved only with the introduction of the “paper trail”. EVMs with VVPAT system ensure the accuracy of the voting system. With an intent to have fullest transparency in the system and to restore the confidence of the voters, it is necessary to set up EVMs with VVPAT system because vote is nothing but an act of expression which has immense importance in democratic system.

In the light of the above discussion and taking notice of the pragmatic and reasonable approach of the ECI and considering the fact that in general elections all over India, the ECI has to handle one million (ten lakhs) polling booths, the Supreme Court permitted the ECI to introduce the same in gradual stages or geographical-wise in the ensuing general elections. The area, State or actual booth(s) are to be decided by the ECI and the ECI is free to implement the same in a phased manner.

The Outcome:

While the Petition sought a very noble & progressive cause, the ECI, one of the most effective & progressive instrumentality of state, too had been pondering over introducing the ‘paper trail’ in its own perspective and had been testing the same. This Supreme Court Judgement is only going to accelerate the process of implementation, even though the Supreme Court has given a free hand to ECI in this matter.

The voters might have a reason to rejoice soon enough and this step of implementation of ‘paper trail’ might go a long way in encouraging voters to participate more in the election process and reinforce their belief in this basic democratic institution, especially at a time when citizens are unfortunately fancying a ‘right to unvote’, (whether this misadventure is invoked by eccentricity or due to necessity, only time will tell).