No fundamental right to cross-verify votes cast through VVPATS: ECI tells Supreme Court

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In July, the top court had sought a response from Election Commission on a plea by an NGO to cross verify the count in EVMs with votes that have been verifiably ‘recorded as cast’ by the voters themselves, through the VVPATs


The Election Commission of India (ECI) has told the Supreme Court that there is no 'fundamental right' of the voter to verify through VVPATs, that their vote has been 'recorded as cast' and 'counted as recorded'. 

In an affidavit, it stated that the provisions of the Conduct of Election Rules, 1961 do not violate any fundamental right and in fact the concerned provisions have undergone judicial scrutiny at many occasions and their constitutionality has been upheld time and again.

The poll panel termed a plea filed by NGO Association For Democratic Reforms (ADR) led by advocate Prashant Bhushan for raising the number of VVPATs verification as "misconceived and devoid of merits" and a "regressive thought". 

"The present petition is a yet another attempt to cast doubt over the functioning of EVMs/VVPATS with vague and baseless grounds. The EC anticipates that the present petition casting aspersion over the EVM/VVPAT system will not be the last of such petitions before the Lok Sabha Elections, 2024," the EC in a lengthy affidavit of 469-page filed on September 4.

On Wednesday, upon a mentioning made by advocate Bhushan, a bench led by Justice Sanjiv Khanna posted the matter for consideration in November.

"How many times this issue has been raised, every six months, there is no urgency, we will hear it in November," the bench said.

The EC also said any possible increase in the number of randomly chosen VVPATs that are to be verified from the existing number of five (5) VVPATs per Assembly Constituency/Assembly segment will pose "tremendous administrative challenges that may not commensurate with the potential improvements that may be achieved in the statistical confidence levels". 

"Given the fact that till now there has been no discrepancy observed in the VVPAT slip count, the plea appears to be in nature of finding a solution wherein no problem exists in the first place," it said.

The panel said the prevalent practice of testing of five randomly chosen EVM-VVPAT systems per Assembly constituency in compliance of the mandate of this Supreme Court issued on April 08, 2019, in N Chandra Babu Naidu case translates to a total of 20,600 randomly chosen EVM- VVPAT systems. 

"This is far beyond the recommendation of Indian Statistical Institute, and the Election Commission of India's own earlier practice of verification of one (01) EVM-VVPAT system per AC/AS which in itself was much in excess to the statistically recommended figure," it pointed out. 

As per the present sampling mandate of five (5) randomly chosen EVM-VVPAT systems per assembly segment - the proportion of error in the entire population of EVM-VVPAT systems used in that election is less than 0.2% with 99.9998479% confidence level which is much higher than 4 sigma and near-certainty. It may be noted that complying with the rigor of statistical sciences, the present system of random verification of five (5) VVPATS-per AC/AS achieves a state of near-certainty, it added.

"Till date, ballot slips of 38,156 randomly selected VVPATs have been tallied with the electronic counts of their CUs and not a single case of transfer of vote meant for candidate 'A' to candidate 'B' has been detected," the EC asserted.

The EC maintained that it has put in place stringent technical and administrative safeguards for the EVMS so that the machines could not be tampered or manipulated to any extent whatsoever. 

“Further, all the election activities related to the EVMs are carried out in the presence of the political parties/candidates in the most transparent manner. EVMs are totally stand-alone machines having One Time Programmable (OTP) chips. It cannot be hacked or tampered," the affidavit said.

It also contended the counting of 100% VVPAT slips will against the spirit of use of EVM i.e. reverting back to Paper ballot system. 

The affidavit said that since the introduction of VVPATs, more than 118 Crore voters have cast their votes with full satisfaction and only 25 complaints have been received, which were all found to be false.

The panel also contended the plea by the petitioner is misconceived and incorrect as there is no difference between 'recorded as cast' and 'counted as recorded'. "Moreover, there is no 'fundamental right' of the voter to verify through VVPATs that their vote has been 'recorded as cast' and 'counted as recorded'," it said.

"Election Commission of India is always open to bringing about any improvements that would further the cause of free and fair elections and the Commission undertakes to make every possible effort to implement any direction that this Court may deem fit to pass in the facts and circumstances of the case," it said.


Case Title: Association of Democratic Reforms Vs. Election Commission of India and Anr.