EVM voting 'doesn't comply with' essential, basic requirements of electoral democracy

Counterview Desk 
Three advocacy groups, Constitutional Conduct Group (CCG), Jan Sarokar and People First, have released a detailed note, endorsed by 112 technical professionals, academicians and former senior civil servants, and sent to the Election Commission of India (ECI) as memorandum, on what they call "challenges to India’s electoral democracy from machine, money and media", or 3Ms.
They insist, "If the act of voting is constitutive to the functioning of a democracy, the electoral process, and those responsible for conducting elections, must meet the highest standards of transparency, accountability and independence."
Noting that "over the last few years, there have been several controversies surrounding the reliability of EVM and VVPAT machines and their susceptibility to malfunction or the potential to be manipulated", they say, "The need for complete transparency and voter confidence in the process makes it necessary to ensure that not only should the process be as foolproof as possible, but also has to be seen to be so."
According to them, "The least possible doubt should remain in the voter’s mind of manipulation or fraud. This along with challenges of opacity of electoral bonds and election expenditure, and the role and misuse of media in spreading fake news and disinformation pose a serious threat to the sanctity and integrity of India’s Electoral Democracy."

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As you are aware “Election” and “Democracy” have become synonymous. As of now the only way for ‘We, the People’ to choose our representatives to govern ourselves is through the electoral process. The Universal Declaration of Human Rights of 1948 states as much: “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”
We already have the ‘Social Contract’ theory propounded by political philosophers Thomas Hobbes, John Locke, and Jean-Jacques Rousseau, through which democracies have emerged and evolved, that state power is justified and lawful only when consented to by majority of the governed. This consent can be derived only through an honest and genuine electoral process of polling votes and counting them. Furthermore, in an election citizen transfers his/her ‘sovereignty’ to his elected representative for a certain period of time. There is no gainsaying therefore that conducting free, fair and transparent elections is a sacred duty and responsibility.
"We, the people, who gave ourselves the Constitution” have given this duty and responsibility to the Election Commission of India (ECI) under Article 324. To carry out this duty without fear or favour, ‘People’, have also bestowed the Commission the status of the Supreme Court along with legal and plenipotentiary powers. In a catena of judgments Supreme Court has further strengthened it by ruling that "conducting free and fair elections is the basic feature of the Constitution" and this is the responsibility of ECI. For this ECI is principally answerable to the People of India.
It is therefore imperative that ECI should address every concern of the people pertaining to impartiality, fairness, and credibility of elections and even a shadow of a doubt cast over the integrity of the electoral process must be removed to the complete satisfaction of the electorate. This is not being done and over the last several years, there is ample material in the public domain, which has led to questions being posed regarding the sanctity of the electoral process mainly due to the severe flaws and misuse of Electronic Voting Machines (“EVMs”).
As a pointer it is alarming to note that large number of EVMs are reportedly missing, which raises grave concerns regarding the integrity of the electronic voting machines and the possible misuse of these missing EVMs to manipulate election results and steal people’s mandate. Despite the issue festering for over three years all ECI has done is to issue some denial but has not bothered to resolve the issue by conducting a comprehensive audit to allay the suspicions. It is because of this during the recent UP Assembly election there were rumours and reports of truck-loads of EVM moving around freely without authorisation. Someone close to the ruling party even claimed that “at least 200 EVMs have been changed… arrangements will be made overnight.”

Why  is ECI refusing 100% counting of VVPAT slips and keep on counting only EVM memory?

But this is only tip of the iceberg and there are many more serious issues and questions concerning the suitability of the EVM/VVPATs to conduct fair elections with integrity to uphold Electoral Democracy. Through this Memorandum, we, a representative group of concerned civil society members including technical professionals, academicians and former civil servants would like to place certain posers before the ECI that has bearing on the very survival of India as an Electoral Democracy. And we would expect an urgent response to each from the ECI:

1. It is common knowledge that EVM voting does not comply with basic and essential requirements of ‘Democracy Principles’ i.e., each voter having the direct knowledge and capacity to verify that his/her vote is cast-as-intended; recorded-as-cast and counted-as-recorded. It also does not provide provable guarantees against hacking, tampering and spurious vote injections. Thus, elections must be conducted assuming that the EVMs may possibly be tampered with and results manipulated. How then elections conducted with EVMs be democratic and India continue to be considered as Electoral Democracy?
2. Design and implementation of ECI-EVMs as well as the results of both software and hardware verification are not public and open to independent review. VVPAT system does not allow the voter to verify the slip before the vote is cast. According to top experts, due to absence of End-to-End (E2E) verifiability, the present EVM system is not verifiable and therefore by its very design itself is unfit for democratic elections. In the event does ECI have technical competency to design EVMs? Are the current Technical Teams fully qualified? How are its members selected--through their Institutions adopting a rigorous process or just whimsical pick-and-chose method? Which was the technical team that designed the original EVMs and the VVPATs? Was at any point of time the original design of EVM was altered resulting in dilution of its safeguards?
3. With reference to EVMs-VVPATs, in the ECI’s opinion what output constitutes a “vote” cast by a voter at the polling booth within the meaning of that term in Section 61A of the Representation of the People Act, 1951? Is it the VVPAT slip that is printed or is it only the totality of “votes” recorded by the Control Unit (CU) of the EVM? If it is the former, why should all VVPAT slips not be counted? If it is the latter, why should all individual votes recorded by the CU along with the time stamp not be counted and tallied with the VVPAT slips?
4. What constitutes a vote? With the introduction of VVPAT in all EVMs there are two votes now--one recorded in the EVM memory and one printed by the VVPAT. And Rule 56D(4)(b) of the Conduct of Election (Amendment) Rules, 2013 provides for the primacy of the VVPAT slip count over the electronic tally of ballots cast and calculated on the EVMs. Why then is ECI consistently refusing 100% counting of VVPAT slips and keep on counting only the EVM memory, which is not the real vote?
5. ECI is responsible for ensuring 100% secrecy of voting within each constituency by randomising the vote counting which is essential for conducting elections in a free and fair manner as mandated in Article 324 of the Constitution of India and Section 128 of the Representation of the People Act, 1951. This is not being done thereby exposing the weak and vulnerable sections of society to intense pressure by candidates and political parties hell-bent on winning the election at any cost. This has led to ‘voter manipulation and suppression’? Why has ECI allowed this?
6. In an EVM, a vote is recorded electronically by press of a button. But the voter cannot examine what has been recorded, there is no way to provide a guarantee to a voter that her/his vote is cast as intended (recorded correctly in the EVM), recorded as cast (what is recorded in the EVM is what is collected in the final tally) and counted as recorded. Due to absence of end-toend (E2E) verifiability, is the present EVM system verifiable? Can such a system be fit for democratic elections?
7. Is the EVM-VVPAT connected to any external device after the elections are announced? If yes, then what are those external devices, and what is the communication protocol used? If no, then how and at what stage the information regarding candidate names and symbols are uploaded to VVPAT?
8. Does the VVPAT have a programmable memory? If yes, then at what stages in the election process it is accessed by any external device? If no, then where are the names and symbols of the candidates stored in the VVPAT for it to print the same in the VVPAT slip later?
9. What is the name and postal address of the suppliers of microcontrollers installed in the EVMs used in every election after the 2019 Lok Sabha Elections? What is the name and model no. of these microcontrollers?
10. Why has the ECI not disclosed suo motu all reports of the Technical Evaluation Committees that have approved the original design and every subsequent modification of EVMs and VVPAT machines?
11. Why has the ECI not disclosed suo motu, the operational manual of Symbol Loading Units in the manner of operational manuals of EVMs and VVPAT machines on its website?
12. Has the ECI taken a decision on the September 2018 recommendation of the Central Information Commission that certain software-related details of EVMs and VVPATs must be disclosed in order to increase public trust in the entire machine voting system? If not, what are the reasons for delay of 4 years?
13. The ECI’s VVPAT system is not truly voter-verified because it does not provide the necessary agency to a voter to cancel her/his vote if she/he thinks it has been recorded incorrectly. Also, in case the voter raises a dispute, there is no way for her to prove that she/he is not lying. The present Rule of penalising her is draconian. Does it not militate against the very idea of universal franchise and citizen’s sovereignty?
14. Based on the Supreme Court’s order, the ECI tallies the VVPAT slips with a pathetically low number of 5 EVMs (2%) in each Assembly segment. Even this is not done upfront but at the fag-end of the counting process by which time the results are publicly known and celebrated. Why this deceiving and meaningless exercise? This means the election results are declared and governments formed without 100 percent post-election audit of the EVM counts against manual counting of the VVPAT slips, to ensure verification and reliable ascertainment of results. Can this be called Electoral Democracy by any means?
15. Immediately after the Parliament election-2019 several civil society organisations had pointed out the serious discrepancies between the number of voters in different constituencies (i.e., the voter turnout data collated and provided by the ECI) and the number of votes counted. The Master summary of 542 constituencies shows discrepancies in 347 seats; discrepancies range from 1 vote (lowest) to 1,01,323 votes @ 10.49% of the total votes (highest); in 6 seats where discrepancy in votes is higher than the winning margin and the total volume of discrepancies is in the nature of 73,9104 votes put together. What did the ECI do to clarify and resolve this serious issue so that the integrity of people’s mandate in this election is not in doubt?
16. RTI replies reveal that EVM patent of Public Sector Undertakings (PSUs) Bharat Electronics Limited (BEL), Bengaluru, and the Electronic Corporation of India Limited (ECIL), Hyderabad, that manufacture the EVMs have expired. Also, the VVPATs manufactured by these PSUs do not have patent rights. There are also reports of the latest state-of-the-art EVMs under the ‘supervision’ of ECI. With ECI maintaining complete secrecy one does not know from where the present set of EVMs and VVPATs come from and what are their levels of integrity. Will the ECI be transparent enough to reveal the sources from where EVMs and VVPATs are being procured now and their design as well as functional integrity?
17. Article 324 of the Constitution provides that the power of superintendence, direction and control of elections to parliament and state legislatures, shall be vested in the ECI. EVMs and VVPATs contain two EEPROMS (Electrically Erasable and Programmable Memory) in which the voting data is stored. BEL and ECIL are not under the control or supervision of ECI. These PSUs share the confidential software programme with foreign chip manufacturers to copy it on to micro-controllers used in the EVMs which are then burnt-in and ECI has no control over it. Recently ECI, by actively promoting and legislating linkage of Aadhar with EPIC, has subjugated the constitutional authority issued Voter ID to the ID card issued by UIDAI, a government-controlled entity thereby losing supervision and oversight over the voter’s list, the very basis of free and fair elections. With the electoral roll as well as the voting/counting process out, where then is the “control and supervision” of ECI over the process and mechanism of the elections mandated under Article 324?

Most of these posers are based on the Report of the Citizens’ Commission on Elections (CCE)-Volume I released in early, 2021 that relied on the depositions made by some of the top international and national experts on the subject who have made substantial research in election matters. The Report was sent to the ECI and there was no response. This was followed by the Book “Electoral Democracy: An Inquiry into the Fairness and Integrity of Election in India,” released in early 2022. The Book, edited by MG Devasahayam (one of the signatories of this Memorandum) was also sent to ECI. For this also there was no response.
It is earnestly hoped that this Memorandum will not receive the same fate, and we would receive a response within a reasonable period of time.