On Wednesday (24th April), the Supreme Court while highlighting the autonomy of the Election Commission of India observed that they don’t control the elections and the poll body has cleared doubts regarding EVMs. During today’s proceedings, the top court also reiterated that the EVM source codes should never be disclosed as doing so can lead to its misuse.
After a senior ECI official answered all the queries of the top court, the two-judge bench comprising Justices Sanjiv Khanna and Dipankar Dattahad reserved its verdict on a batch of pleas that have sought 100% cross-verification of votes cast using EVMs with Voter Verifiable Paper Audit Trail (VVPAT) slips.
During the proceedings, the court sought clarification from the ECI on five queries regarding the functioning of EVMs. The queries relate to the functions of the microcontroller installed in the EVMs, securing the EVMs and VVPATs, and the maximum period for which the machines are to be retained.
The court said, “We cannot control the elections, we cannot control the functioning of another constitutional authority.”
The court also slammed Adv Prashant Bhushan, counsel for petitioner Association for Democratic Reforms (ADR) stating, “If you are predisposed about a thought process, then we cannot help you… we are not here to change your thought process.”
SC: They are not saying flash memory cannot be programmed.
— Bar and Bench (@barandbench) April 24, 2024
Bhushan: but
SC: if you are predisposed about a thought process then we cannot help you.. we are not here to change your thought process..
Justice Khanna: they are saying quantum of flash memory is very low. they can…
Stressing that the court can’t act based on mere suspicion, it added, “The ECI has cleared doubts. We cannot change your thought process. We cannot issue a mandamus on the basis of suspicion.”
Justice Datta: Can we issue a mandamus on the basis of a suspicion? the report you are relying on says that there is no incident of hacking yet.. we are not the controlling authority of another constitutional authority..we cannot control the elections… the judgment of SC did…
— Bar and Bench (@barandbench) April 24, 2024
Further, counsel for one of the petitioners stated that the source code of EVMs should also be disclosed for transparency. Responding to the argument, Justice Khanna replied, “The source code should never be disclosed. If it is disclosed, it will be misused. It should never be disclosed.”
Justice Sanjiv Khanna: But the source code cannot be disclosed else integrity will be compromised and people will try to misuse. what time has been said is one time programmable so it cannot be altered.. what undertaking is needed now? #EVM_VVPAT
— Bar and Bench (@barandbench) April 24, 2024
While the hearing was underway, 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 of our findings and hence we thought of seeking clarification.”
The court had asked an Election Commission official to appear before the bench at 2 PM to give suitable clarification.
The five queries sought by the bench and the response given by ECI official
Q1. Is the micro-controller installed in the Control Unit or in the VVPAT?
As per the Live Law report, the ECI official was quoted saying, “All three units, Control Unit, Ballot Unit, VVPAT, have their own microcontrollers and their own one-time programmes are burnt into the memory of the microcontrollers. These microcontrollers are housed in a secure, unauthorised access-detection module. The controllers therefore cannot be accessed physically.”
Q2. Is the micro-controller which is installed one-time programmable?
Senior Deputy Election Commissioner Nitesh Kumar Vyas clarified that all micro-controllers are one-time programmable. The programmes in them are burnt at the time of manufacturing. It cannot be changed or physically accessed, the Live Law report added.
ECI: First question: all three units, ballot units, vvpat and the chip.. all have their own micro controllers and these micro controllers are housed in secured unauthorised access detection module and it cannot be accessed. All the micro controllers are one time programmable. It…
— Bar and Bench (@barandbench) April 24, 2024
Q3. How many Symbol Loading Units are available?
The ECI responded, “There are two manufacturers of EVMs – Electronic Corporation of India Limited (ECIL) and Bharat Electronics Limited (BHEL). ECIL has 1904 Symbol Loading Units, BHEL has about 3154.”
SC : Can you get more SLUs.. more manufacturers..
— Bar and Bench (@barandbench) April 24, 2024
ECI: availability of components it will not take much time. But to make these machines.. it will take one month. regarding time. all machines are stored in strong room for 45 days and then it is written to the registrar elections…
Q4: The bench sought clarification as to how long Electronic Voting Machines (EVMs) are kept after elections. Shouldn’t this duration exceed 45 days, considering that the limitation period for filing an election petition is also 45 days?
The Senior ECI official responded stating that after counting, the statutory period for filing an election petition is 45 days. So, all the machines are stored for 45 days. On the 46th day, the Chief Electoral Officer writes to Registrars of concerned High Courts to ascertain if any election petition has been filed for any constituency. After receiving a reply in writing from the Registrars, he informs the concerned District Election Officer to open the strong room wherever there is no Election Petition filed, the report added.
If any Election Petition is filed, “it (EVM) remains sealed and locked, nobody touches it”.
Q5. On securing EVMs, do both the control unit and VVPAT bear seals? Is VVPAT also stored with BU and CU?
The ECI response states, “The Control Unit is most important, so that is sealed (with pink seal) at the time of First-Level Checking (FLC) of the EVM. At the time of commissioning (of the EVM) and after the polling is over, all three – Ballot Unit, Control Unit, and VVPAT – are sealed. After the second randomisation and commissioning, all three are stored together in the strong room as a unit. After polling, the green paper seal is applied.”
Justice Khanna was satisfied with the explanation offered by the ECI official. Bhushan’s claim of flash memory being re-programmable was shot down with an observation that reliance has to be placed on the ECI on “technical data”. It was further emphasized that the report cited by the counsel uses the word “doubtful”, and thus its finding does not come with 100% surety.
Currently, VVPAT verification is conducted on five randomly selected EVMs in each Assembly segment of a parliamentary constituency.
One of the petitions has argued that with simultaneous verification of VVPATs and deployment of additional officers, the poll body could expedite the process and complete VVPAT verification in just five to six hours.
However, the ECI has opposed the demand to count all VVPAT slips or even 50%, saying that it would delay the announcement of results by five to six days.
ECI also points out that in all the instances where the slips are counted, no discrepancy was found with EVM results. As per the poll body, calculations by the Indian Statistical Institute show that even counting slips from 479 randomly selected VVPATs across the country would guarantee over 99% accuracy. At 5 VVPATs per assembly constituency, at present over 20,000 VVPATs are counted.
It has also maintained that the EVM is tamper-proof and that complete counting of VVPAT slips is not practically feasible.
Nonetheless, earlier on 16th April, the SC had dismissed petitions that sought India to revert back to voting through paper ballots. The court had observed that considering the size of India’s population and other factors, it would not be practical for the country to return to paper ballots.
Further, Justice Sanjiv Khanna remarked, “We are in our 60s. We all know what happened when there were ballot papers, you may have, but we have not forgotten.”
