With the growth of India’s population, concerns about electoral fraud associated with ballot papers, also began to escalate. In 1989, the People’s Representation Act was amended to enable EVMs to prevent electoral fraud. In 1998, EVMs made their debut during legislative assembly elections and for the first time for general elections in 2004.
However, criticisms against the EVMs and questions about their integrity have been raised by political parties, civil society and the general population. On 2 February 2024, there was a noteworthy demonstration of dissent where numerous individuals, including Ambedkarite advocates, legal professionals, and other members of civil society convened at Delhi’s Jantar Mantar demanding the prohibition of EVMs.
In 2024, the Supreme court had slapped down a petition to return to paper ballots on the basis that machines give “absolutely accurate results” unless human bias maligns them. The court stated that it was open to testing the performance of the EVMs if it was based entirely on data provided by the Election Commission. The Bench, which was hearing separate petitions filed by the Association for Democratic Reforms (ADR) and by Arun Kumar Agarwal highlighting the voter’s fundamental right to information about his vote, peremptorily rejected the idea of returning to paper ballots.
The petitioners had submitted that they were not attributing malice to the EVMs, but that the voters’ interface was with a button which neither provided confirmation or confidence about the votes. There was no way to know if the machine had accurately recorded the votes, with the Voter Verifiable Paper Audit Trail (VVPAT) machine displaying the slip for a brief seven seconds after the vote was cast.
Advocate Prashant Bhushan, who represented the petitioner, had said that the voter leaves the booth with no sense of accuracy and suggested three options -to revert to paper ballots, to give the VVPAT slips to voters to put into the ballot boxes or to make the VVPAT screens transparent rather than opaque as they are now. The petitioners had also asked for 100% cross verification of the slips with EVM vote counts rather than the approximately 20,000 that are being currently verified.
They have also quoted a judgement in 2013 in the Subramanian Swamy v. Election Commission of India that the election process should “have fullest transparency in the system and to restore the confidence of the voters”. This petition sought to introduce a system of paper trail with EVM as “indispensable requirement of free and fair elections and for achieving confidence of the voters”. The writ petition under Article 32 prayed for modifications in the EVMs to allow voters to verify their respective votes and for printers to be attached to EVMs with a facility to print running records of votes. The appellant had said that a paper trail would bring more accuracy into the system and if a particular election was challenged on the ground that some vote/votes had been suppressed or not correctly assigned by the EVMs, the accepted current procedure would be a rerun of the same EVMs for a recount and this should be done of the receipts in the ballot boxes printed by the EVM machines.
At present a voter presses a button but cannot be sure if her vote was recorded or not, was in favour of the person intended, whether it was valid or not and whether it was actually counted or not. Unless all these are known it is not actual voting in the real sense.
The Election Commission, however, took the stance that the machines are of such high end technology that they were impossible to hack and any apprehension that they could be tampered with, are baseless. They refer to Section 61A of the Representation of the People Act, 1951- that the Statute itself allows for recording of votes by EVMs with the ECI being given the discretion to prescribe recording of votes by such EVMs as it sees fit, in a matter to preserve the sanctity of the election process and ensure that elections are conducted in a free and fair manner.
The court said that the countries like Germany which had gone back to paper ballots did not have a huge population like India did, and that trust should be reposed with the ECI - That the Election Commission is accountable but should not be brought down.
The ECI had constituted a Technical Experts Committee which discussed with political parties and civil society, saw demonstrations of the prototype VVPAT system and also carried out field tests.Apart from no proven instance of tampering, the ECI states that, unlike the personal computer based EVMs used in elections in the USA and other countries, the ones used in India are unique. The information stored in the memory of the Control unit can be retrieved with a device called the decoder which can print the statement of voting data showing the order of voting and who has been voted for. As soon as the vote is cast, a light glows against the name and symbol of the candidate which is visible to the voter and thereafter going off to protect the secrecy of the voting.
However, a critical revelation emerged from a Right to Information (RTI) request - that EVMs do not have software permanently burnt into one-time programmable (OTP) chips, as previously claimed by the ECI. Instead, they use chips that can be reprogrammed.
The seminal legal case of AC Jose vs. Sivan Pillai represents an early instance, wherein a petition was filed seeking a stay order on the utilisation of EVMs for an impending bi-election in Kerala.The SC ruled in the favour of the petitioner and ordered a repoll in the 50 booths using paper ballots. As a result, Jose defeated Pillai, the winner in the first vote, with a margin of around 2000 votes.
EVM is not the only issue that is under discussion. The Right to Information Act was brought into effect just to ensure transparency and the citizens' rights to know what is happening in the closed doors of administration. Unfortunately a few things are exempted from the ambit of the Right to Information Act. For example the PM cares fund is not a private account. It is an account of the public and we the people have no access to it. Yet another example of electoral bonds which is now struck down as unconstitutional by the supreme court. The information was completely blocked for the public and it was justified for a long time.
Expert opinions about EVMs are concerning
Scientists and technologists have studied other voting systems in Europe and the US and found them to have serious security flaws, in some instances leading to discontinuation.
When it was discovered in the Netherlands that the EVMs had severe security problems and inadequate transparency, these were abolished and paper ballots reintroduced.
The countries which have done away with EVMs are Germany, The Netherlands, Ireland. England and France use conventional methods rather than EVM. Italy ran a pilot project on EVMs after which they went back to paper ballot. In the USA, EVM without paper trails were banned.Venezuela, Macedonia and Ukraine stopped using EVMs after massive rigging was found.
A court in Germany has put across the reasoning very accurately -- “Transparency is a constitutional right but efficiency is not a constitutionally protected value.” So basically, they want to be able to track the paper trail back to an individual, but are willing to accept the inefficiencies that come with the system.
Experts also highlight that India's machines had never been subjected to credible independent research. They have suggested that an attacker with brief access to EVMs can tamper with votes and potentially change election outcomes. Parts of the machine can be replaced with malicious look alike parts with involvement of local poll officials. Vote records stored in the machines can be changed using portable hardware devices. This can be carried out by local election officials and undetected by national authorities or the EVM manufacturers. When attacked, a Bluetooth radio can be added to the display board so that certain candidates can be wirelessly favoured. Memory manipulation can happen between election and counting. Even when simple mock polls show accurate results, final election results can be manipulated.
The experts state, “Until now, the EVMs have not been subjected to rigorous, independent, public scrutiny. Claims that the EVMs are 'perfect' and 'infallible' are not based on verifiable arguments. If the Election Commission disagrees with our claims, we look forward to a proper scientific debate based on credible, published evidence”.
Growing skepticism about the EVMs
The skepticism surrounding voting machines has intensified, with opposition parties including AAP and INC voicing concerns about potential bias favoring the ruling party. Recent state elections in Rajasthan, Telangana, Chhattisgarh and Madhya Pradesh showed discrepancies between election results and exit polls leading to vehement protests.
Ahead of the Lok Sabha election results, the INDIA alliance has urged the Election Commission (EC) to prioritize the counting of postal ballots over Electronic Voting Machine (EVM) votes. Members of the INDIA alliance met with EC officials, requesting clear guidelines on the counting process and emphasizing the significance of postal ballots and that they could swing election results.
The INDIA bloc has also moved the Supreme court against EVM tampering in and irregularities in election procedures in Maharashtra with names of voters being added and deleted until three days before polls. Similar concerns had been raised by the INDIA bloc after the results of the Haryana and the Maharashtra Assembly polls.
The Election Commission has, however, insisted that no discrepancies were found during the mandatory counting of Voter Verifiable Paper Audit Trail (VVPAT) slips in the Maharashtra Assembly elections.
Despite suspicions of fraud, Indian authorities have never permitted a serious, independent review of the machines' security.
Growing concerns about the Election Commission of India
The Election Commission of India was founded on the 25th of January 1950. Since 2011, this day has been celebrated as National Voters’ Day. There have been several concerns raised that this body has been showing an “alarming erosion of its credibility as an impartial and independent body”.
Twenty five years ago, this body was voted highly in a public poll, much ahead of the police, the bureaucracy, political parties, and even the judiciary, lauded at the global level for its efficiency and impartiality. However, it is increasingly being criticised for becoming non-transparent with electoral rolls being prepared in an arbitrary and discriminatory manner with lakhs of names being added and several others being deleted just prior to elections.
Of late, the Supreme Court has also expressed concerns about EC’s independent functioning. For instance, on November 24, 2022, two years before the 75th anniversary of the EC’s founding, a five-judge constitution bench headed by Justice K.M. Joseph, while hearing a batch of petitions seeking reforms in the system of appointing election commissioners, observed that the government pays only “lip service” to the independence of election commissioners. It described the situation as alarming. On 2 March 2023, the Supreme Court stated that the EC “must act within the constitutional framework and the laws” without transgressing the mandate of either.
Dr. Ambedkar had raised concerns even in 1949, while discussion Article 289 of the draft Constitution dealing with the EC, that in the absence of a Constitutional provision for appointment of election commissioners, the government would themselves appoint people who can be controlled.
The government has to proactively address the concerns
When the government is facing serious questions about its transparency and credibility, it has to prove beyond reasonable doubt that it is indeed upholding Constitutional mandates for free and fair elections. Demanding that people ‘trust’ the government without offering tangible, measurable evidence does not bode well for democracy. People need to know beyond doubt that the candidate or party that they have voted for is indeed the candidate or party that is finally counted. If this cannot be ensured with the existing EVMs, then they should be withdrawn till such time better systems have been developed. Even though the ballot paper system is fraught with inefficiencies, particularly in a country like India, this should be used till such time better systems are put into place. The government has to convince its citizens beyond all reasonable doubt that its election systems are dependable and trustworthy. The ECI cannot become the spokespersons of the party in power.
In legal terms, preponderance of evidence means that the evidence in favour of an issue has a greater weight than opposing evidence. Jurisprudence demands that a case will be proven beyond doubt before any judgement is made and that the standard of proof is not proof beyond doubt but only beyond reasonable doubt. Therefore, if Opposition parties and civil society is offering proof that EVMs are not trustworthy, it is the responsibility of the government to prove beyond reasonable doubt that they are indeed trustworthy. In the absence of this, the percentage of people voting will steadily decline because of loss of faith in the election itself and goes against the democratic ethos of the country.
In India, any demands for accountability are met with a high degree of resistance. Attempts are made to hide information and use fear and threat to silence whistleblowers and those asking important questions. The majority upholding corruption and lawlessness does not become legal. Unfortunately, the majority opinion is treated as truth in our country. This is even more dangerous for the furtherance of democracy in a country like India.
In the case of EVMs, robust oversight procedures, such as impartial audits and exacting testing procedures can be employed. Additionally, procuring advanced EVM technology with enhanced security features, such as end-to-end verifiable systems and paper audit trails, can strengthen the integrity of electoral outcomes. If the votes cast cannot be tallied with the VVPAT machines, then the government should revert to the paper ballot system. This will ensure a system of governance that is transparent and accountable, where questions by concerned citizens are addressed adequately and beyond reasonable doubt.
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The author is Director of St. Joseph’s Law College, Bengaluru
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