By Dismissing Doubts Over EVMs, EC Must Know It Can't Promise a Free and Fair Elections

While announcing the schedule for the 18th Lok Sabha elections on March 16, Chief Election Commissioner (CEC) Rajiv Kumar snubbed the Doubting Thomases who question the reliability of EVMs (which most of the electorate do). He was at his poetic best and hit out at EVM doubters by sharing an Urdu couplet he had penned on how the machines would have themselves responded to such allegations. “Adhooree hasaraton ka iljaam har baar ham par lagana theek nahin, vafa khud se nahin hoti, khata EVM ki kahate ho (It is not right to blame us every time for unfulfilled desires. While you fail to prove yourself, you say it is the fault of EVM).”

CEC mocked democratic voices when he derided the political parties, social media and EVM experts demanding the banning of EVMs amid laughs saying that the machines made the poll process fairer and better and expressed his expert opinion that all parties know this in their hearts. And he falsely claimed that courts have certified the integrity of these machines.

Also read: Are India’s Elections Free and Fair?

These utterances expose CEC’s ignorance of the basic concept of elections and democracy. His comment that only those who lose elections question the reliability of EVMs implies that elections are only meant for political parties and the candidates, which is a fallacy. He should know that in a democracy sovereignty vests with the citizens and elections are the tool for the citizens to transfer this sovereignty to his/her chosen representative once in five years. To do so elections and voting system must adhere to certain “democratic principles” which are:

1. The voting process should be transparent in a manner that the general public can be satisfied that their vote is correctly recorded and counted.
2. The voting and counting process should be publicly auditable.
3. Ordinary citizens should be able to check the essential steps in the voting process.
4. There should be verifiability in the counting of votes and ascertainment of the results reliably without too much special knowledge.
5. The election process should be free and fair, and also be seen to be free and fair.
6. The Election Commission should be in full control of the entire voting process, and the public at large should be able to verify the casting and counting of their votes.
7. Electronic processes and technological practices should be subject to public scrutiny/examinability.

In short, the voting/counting system must ensure that the voter should have the knowledge that her vote is cast as intended, recorded as cast and counted as recorded. Why has not the CEC ever responded to this critical poser raised by several sources including the Report of the Citizens Commission on Elections (CCE) headed by a former Supreme Court judge which was submitted to the ECI in January/February 2021?

Now to the CEC’s half-baked poetry, “It is not right to blame us every time for unfulfilled desires. While you fail to prove yourself, you say it is the fault of EVM.”

Did the CEC go through the report of the CCE, the expert group which had reviewed the functioning of EVMs primarily on the touchstone of whether and how far their use complied with the ‘democracy principles.’ In short, it insists on absolute transparency in facilitating the voter to exercise his or her choice and in ensuring that these selections are, indeed, reflected in the stored vote and counted as such— without the slightest deviation whatsoever.

Representational image. Voters at a polling booth in Bangalore during 2009 general elections. Photo: Wikimedia Commons/Ranjit Bhaskar/CC BY-SA 2.0 DEED

These principles also mandate that the voting procedure is easily understandable and verifiable by the voter and open to audit without complications even when relevant technology is utilised. There should be absolutely no scope for error or misrepresentation of the elector’s choice.

CCE had relied on depositions and opinions of several national and international experts and was informed of the reasons why even the most advanced countries do not prefer the use of EVMs during polls. Among the domain knowledge holders who submitted deposition before this CCE group were Ronald L. Rivest of the Massachusetts Institute of Technology, Cambridge, USA; Alex Halderman of the University of Michigan, USA; Poorvi L. Vora and Bhagirath Narahari of George Washington University, USA; Alok Choudhary of North-western University, USA Sandeep Shukla, Professor, Computer Science and Engineering, IIT Kanpur; Douglas W. Jones of the University of Iowa, USA; Nasir Memon of New York University (Brooklyn), USA; Philip B. Stark of the University of California, Berkeley, Vanessa Teague, Associate Professor, School of Computing and Information Systems, University of Melbourne, Cybersecurity, Australia; Bappa Sinha of Free Software Movement of India, Subodh Sharma of Computer Science and Engineering and of the School of Public Policy, IIT, Delhi; KV Subrahmanyam, Professor, Computer Science, Chennai Mathematical Institute, Chennai; Dr Sanjiva Prasad and Dr. Subhashis Banerjee of IIT, Delhi and Anupam Saraf, Professor and Future Designer among others.

These are the best brains on the subject across the globe and it would not be possible to put together another group to match this vast and varied expertise. And the conclusions of the CCE report are:

1. Due to the absence of End-to-End (E2E) verifiability, the present EVM/VVAPAT system is not verifiable and therefore is unfit for democratic elections.
2. That an EVM has not yet been detected to have been hacked provides no guarantee that it cannot be hacked. Thus, elections must be conducted assuming that the EVMs may possibly be tampered with.
3. In practice, it may be necessary to test more EVMs than even what the civil society and the political parties demand (30% and 50% respectively) to ensure verification and reliable ascertainment of results.
4. There must be stringent pre-audit of the electronic vote count before the results are declared. The audit may in some cases – depending on the margin of victory – require a full manual counting of VVPAT slips.
5. The electronic voting system should be re-designed to be software and hardware independent in order to be verifiable or auditable.

The CEC should know that none in the CCE or those who deposed had “unfulfilled desires” to capture political power by any means and did not fault the EVM for failing to do so!

Also read: The Case for Bringing Paper Ballots Back

Integrity of EVMs

Now to the falsehood about the courts certifying the integrity of EVMs. The first serious legal challenge to EVMs was made by Dr Subramanian Swamy of BJP in the Delhi high vourt in W.P.(C) No. 11879 of 2009 and this was the verdict in January 2012: “Dr. Swamy is right to the extent that it cannot be ruled out that EVMs may be vulnerable to frauds.  There may be security issues as well.”

Dr Swamy moved the Supreme Court for relief. On October 8, 2013 the Court confirming the doubts on the integrity of EVMs mandated the use of voter verified paper audit trail (VVPAT) system in a phased manner to bring about some semblance of democratic principles.

The Court observed: “From the materials placed by both the sides, we are 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.”

That the VVPAT system introduced thus has been morphed into a meaningless bioscope is another story!

The writer himself had filed W.P(C) 1514 of 2018 titled M.G. Devasahayam & Ors. v. Election Commission of India in which vide judgement reported as N. Chandrababu Naidu v. Union of India, (2019) 15 SCC 377, Supreme Court, keeping in mind that the ECI had, “pointed out infrastructure difficulties, including manpower availability, at this point of time, in increasing the number of EVMs for verification” because of which the, “declaration of result of election could be delayed by 5-6 days,”  directed the ECI to count VVPATs in five polling stations per assembly constituency as opposed to the prayer in the writ petition for counting of 30% VVPATs across the country.

The Court at that point in time had found that, “the proximity to the election schedule announced by the ECI must be kept in mind.”  significantly, vide the same order, Writ Petition (C) No. 23 of 2019 was disposed of by the Court expressing its “reluctance to go into the issues regarding the integrity of the EVMs which have been raised at a belated stage. The petition was filed in the month of December 2018 raising various technical issues which are not possible to be gone into at this stage.”

How can a CEC utter such falsehood? As an ordinary citizen of the country, I would like to ask the CEC one question. As it is because of the totally partisan way in which CEC and Election Commissioners are being selected and appointed and the alienation of the Commission from the public and political opposition, the credibility of ECI is at a very low ebb. Why is he lowering it further by serenading the Black-Box called EVM which can be grossly misused for bulk-manufacturing of votes to steal peoples’ mandate?  And in the process mocking the people who seek free and fair elections? Pray, is this the mandate of the ECI?