Implementing a Supreme Court Judgment, Election Commission of India-Style

On April 26, 2024, the Supreme Court delivered the Electronic Voting Machine (EVM) judgment  rejecting the petitioners’ prayers for 100% counting of VVPAT slips and making Form 17C, which records an account of votes, available to public at large by the Election Commission of India (ECI).

The court, however, issued two directions “to only further strengthen the integrity of the election process”.

One of the two directions was the following:

“The burnt memory/microcontroller in 5% of the EVMs, that is, the control unit, ballot unit and the VVPAT, per assembly constituency/assembly segment of a parliamentary constituency shall be checked and verified by the team of engineers from the manufacturers of the EVMs, post the announcement of the results, for any tampering or modification, on a written request made by candidates who are at SI.No.2 or Sl.No.3, behind the highest polled candidate. Such candidates or their representatives shall identify the EVMs by the polling station or serial number. All the candidates and their representatives shall have an option to remain present at the time of verification. Such a request should be made within a period of 7 days from the date of declaration of the result. The District Election Officer, in consultation with the team of engineers, shall certify the authenticity/intactness of the burnt memory/ microcontroller after the verification process is conducted. The actual cost or expenses for the said verification will be notified by the ECI, and the candidate making the said request will pay for such expenses. The expenses will be refunded, in case the EVM is found to be tampered.”

The responsibility of implementing this direction fell, naturally, on the ECI.

ECI’s action

The ECI issued an “Administrative-SoP,” on June 1, 2024, addressed to all the chief electoral officers, and the chairmen-cum-managing directors of the two public sector units (PSUs) who manufacture EVMs, with the subject “Administrative Standard Operating Procedure (Administrative-SoP) for checking and verification of burnt memory/microcontroller of EVM (Ballot Unit, Control Unit and VVPAT) post the announcement of results-regarding”.

It is a 16-page document with the following paragraph headings:

1. Overall Responsibility.
2. Application for checking & verification of burnt memory/microcontrollers of EVMs (EVM C&V Process).
3. Action to be taken on the Application(s).
4. Schedule of Checking & Verification.
5. Arrangements at checking & verification premises (‘EVM C&V Hall‘).
6. Opening of Strong-room(s).
7. EVM Checking& Verification process.
8. Participation of applicant candidates/representatives.
9. Completion of checking and verification process.
10. Mechanism for payment to Manufacturers/Refund to applicant.
11. Overall important timelines.
12. Retention of records of EVM C&V activity.

Content of the SoP

As can be expected, the SoP, rightly so, repeats some of the directions in the Supreme Court judgment, such as the following:

• Request for checking and verification should be made within a period of 7 days from the date of declaration of the result.
• The burnt memory/microcontroller in 5% of the EVMs, that is, the control unit, ballot unit and the VVPAT, per assembly constituency/assembly segment of a parliamentary constituency shall be checked and verified by the team of engineers from the manufacturers of the EVMs.
• All the candidates and their representatives shall have an option to remain present at the time of verification.
• The actual cost or expenses for the said verification will be notified by the ECI, and the candidate making the said request will pay for such expenses. The expenses will be refunded, in case the EVM is found to be tampered.

However, the ECI has also added some stipulations, apparently based on its own experience and judgment as the most appropriate way of implementing the Supreme Court judgment. Some of these which are worth noting are the following.

• “The charges for EVM C&V activity to be paid by the applicant candidate is fixed at Rs 40,000/– (plus GST@ 18%) per set of EVM for the current financial year 2024–25, i.e. till 31/03/2025.”

The SoP clarifies that this is: “The cost submitted by the manufacturers (BEL and ECIL) to carryout EVM C&V.” In an apparent display of generosity by the ECI, the SoP also says:

“In addition to the cost incurred by the manufacturers, there are also administrative costs like cost of labour to shift the units, CCTV coverage, electricity charges, videography costs and various other operational costs at the DEO level. With regards to fixation of cost or expenses of EVM C&V activity to be paid by the eligible candidate(s), to make the EVM C&V activity more accessible and inclusive in compliance to the referred mandate of the Hon‘ble Supreme Court in letter and spirit, it is decided that instead of going purely by the actual economic costs incurred, … The administrative expenditure on EVM C&V activity shall be treated as election expenditure and borne by the Central or State government, as the case may be. Accordingly, the administrative charges will be waived for the applicant(s) i.e. the same shall not be charged to the applicant(s).”

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• ECI will not take any action on the requests for checking and verification for 45 days, till the “completion of Election Petition (EP) period i.e. 45 days from the date of declaration of result …” Even after that, initiation of action will begin only “(after obtaining) a written confirmation on the status of filing of EPs … by the Chief Electoral Officer from the Hon’ble High Court concerned”.
  • “In case EP has been filed, then checking and verification process shall not be carried out until a specific Court order permitting to conduct the EVM C&V activity on EP cases is obtained.”
    • For this purpose, the candidate(s) applying for EVM C&V shall approach the Court where Election Petition has been filed to obtain the required Court order permitting DEO/RO to conduct EVM C&V activity during pendency of Election Petition.
    • After obtaining the competent court order the applicant candidate(s) shall provide a copy of the order to DEO for taking further necessary action on the application on EVM C&V.
    • The DEO shall intimate the same to the respective CEO. Subsequently, EVM C&V activity shall be taken up as mentioned below at (f).
  • “In case there are no EPs filed, then the checking and verification process shall be carried out as mentioned below at (f).”
  • “Based on the report of the DEOs concerned, CEO shall communicate the EP status w.r.t. CEO EVM-C&V Application Summary (Annexure-3) submitted earlier, to the respective manufacturers under intimation to the Commission within 10 days of confirmation of EP status from the Hon‘ble High Court concerned, mentioning the DEO-wise non-EP/clear Units that may be taken up for the EVM C&V process.”
  • “Based on the EP status received from the CEOs, the manufacturers, i.e. BEL/ECIL shall provide within 2 weeks:
    • State/UT-wise and district-wise checking and verification schedule, duly prepared in consultation with the respective CEO, along with the details of the authorised engineers to be deputed for the aforesaid process.
    • The manufacturers shall also nominate a District in-charge engineer for the purpose of signing the certificate to be issued upon completion of the EVM C&V process.
    • The above details shall be provided to the CEOs under intimation to the Commission.”

• “Technical SoP for the manufacturers enumerating the methodology and check and verification of the burnt memory/ microcontroller of the EVM unit (Ballot Unit, Control Unit, and VVPAT) will be issued separately.”

Also read: Why Election Commission’s FAQs on EVM-VVPATs Don’t Clear Cloud of Suspicion Over Electoral Process

Subsequent developments

The results for the 2024 Lok Sabha election were declared on June 4, 2024. The seven-day window for filing requests for checking and verification (C&V) was over on June 11, 2024. The ECI issued a press note through the Press Information Bureau (PIB) on June 20, 2024, giving details of such requests received. The note reveals the following:

• A total of 11 requests have been received, eight from Lok Sabha and three from State assemblies.
  • Lok Sabha requests are from six states Andhra Pradesh, Chhattisgarh, Haryana, Maharashtra, Tamil Nadu and Telangana.
  • State assembly requests are from two states, Andhra Pradesh and Odisha.
• The state-wise break-up of the number of polling stations for which C&V have been requested is as follows:
  • Lok Sabha (92): Andhra Pradesh (2), Chhattisgarh (4), Haryana (6), Maharashtra (40), Tamil Nadu (20) and Telangana (20).
  • State assemblies (26): Andhra Pradesh (13) and Odisha (13).
• The party-wise break-up of the number of polling stations for which C&V have been requested is as follows:
  • Yuvajana Sramika Rythu Congress Party (YSRCP) (15), Biju Janata Dal (BJD) (13), Indian National Congress (INC) (10), Bharatiya Janata Party (BJP) (66) and Desiya Murpokku Dravida Kazhagam (DMDK) (14). 
• The note reiterates, “According to the standard operating procedure issued and the legal position, checking & verification process can be initiated within 4 weeks of verification of status of Election Petition filed in the respective constituencies, selected as above, from the Registrars of the respective High Courts by CEOs. Timeline to file Election Petition (EP) is July 19, 2024 for the current cycle of election i.e. 45 days from date of declaration of results.”
• It adds, “Manufacturers will issue schedule for EVM Checking & Verification within two weeks of receipt of EP status from CEOs concerned. Checking and verification of units will start within 4 weeks of confirmation of Election Petition status.”
• And, of course, “The technical Standard Operating Procedure enumerating the methodology and steps for checking and verification of burnt memory/microcontroller of EVM units will be issued by the Commission in due course before the end of election petition period.”.

What does all this show?

It is not easy to figure out from all the legalese as to what will happen, when, and how. So, here it goes:

• The first action will be taken on July 20, 2024, when the CEOs of all the states will write to their respective high courts  to ascertain whether any election petitions have been filed or not, and if any filed, details thereof.
  • The date when the hight courts will respond is not known.
  • If an EP is filed, the candidate will have to get a court order permitting C&V of the EVM. How long will this process take is also not known.
  • “As far as possible, based on the number of applications received the PSUs shall provide a district-wise EVM C&V schedule in such a way that the EVM C&V process is started at the earliest but not later than 4 weeks from the communication about EP status received from the CEO concerned.”

What is not said here is that if it is not possible, then it will happen whenever.

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• The C&V will start “within four weeks” after this unknown date.
• The next issue is cost. The cost per EVM set is Rs.40,000/– (plus GST@ 18%), which works out to Rs.47,200/-
  • The note of June 20 shows that the lowest number of polling stations wherein EVM sets have been requested for C&V is two. One YSRCP candidate from Andhra Pradesh, in Bobbili and Nellimarla assembly segments, in the Vizianagram constituency; and the other, an INC candidate from Haryana from INC, in the Badkal assembly segment, in the Faridabad constituency.
  • Each of these two candidates, will therefore have to deposit Rs.94,400/-.
  • On the other hand, consider the BJP candidate from Maharashtra, who has requested for C&V in 40 polling stations, in Shevgaon, Rahuri, Parner, Ahmednagar City, Shrigonda, and Kajrat Jamkhed assembly segments, in the Ahmednagar constituency.
  • This candidate will have to deposit Rs.18.88 Lakhs.
  • These deposits are, of course, liable to be forfeited if nothing wrong is found during the C&V process. Even otherwise, the deposits are of course for an indeterminate period, as shown above.

• The third issue goes back to the Supreme Court judgment itself. This pertains to who will do the “checking and verification”. The judgement itself says, “The burnt memory/microcontroller in 5% of the EVMs, that is, the control unit, ballot unit and the VVPAT, per assembly constituency/assembly segment of a parliamentary constituency shall be checked and verified by the team of engineers from the manufacturers of the EVMs, post the announcement of the results, for any tampering or modification”
  • With due deference to the highest court in the land, it is submitted that “checking and verification”, or “inspection” as it is usually called in manufacturing and industrial literature, is always an independent function, to be carried out by entities which are completely separate from the designers and manufacturers of any equipment. This should not be difficult to understand as it is akin to the principle of separation of powers which is an integral part of even our own Constitution. 
  • Asking a “team of engineers from the manufacturers of the EVMs” to perform the “checking and verification” of EVMs that they have themselves designed and manufactured is, therefore, a clear case of conflict of interest.
  • Notwithstanding what the results of the C&V process, whenever they come, are, it will be quite a surprise if anything wrong is found during the C&V process.
• An analysis of party-wise requests for C&V in polling stations is given in the table below.

Though the sample is admittedly very small, the data in the table might provide at least a broad indication of which party has how much confidence in the electoral system. Notably, the way the ECI has decided to operationalise the entire exercise of ‘checking and verification’ mandated by the Supreme Court, is unlikely to lead to anything substantive.

Note: The ECI should be given full credit for its gender sensitivity and concern for safety. Item 5(i) of the “Administrative-SoP,” on June 1, 2024, reads, “Proper arrangements like drinking water, toilets (separate for male & female), first-aid kit, fire extinguishers etc. shall be provided.”

Jagdeep S. Chhokar is a concerned citizen.