M.G. Devasahayam 
The recent Maharashtra assembly election results were stunning. The three main parties of the defector-infested NDA government won a landslide victory with a strike rate of 76.9%, with the BJP topping with an unprecedented 89%.
The response from the losing opposition was sharp. Shiv Sena (Uddhav Balasaheb Thackeray) leader, Sanjay Raut, said this: “Former CJI [Chief Justice of India] Chandrachud is responsible for the unexpected results of the Maharashtra elections. He did not give a timely judgement on the case involving the party symbol and unconstitutional government running in the state. History will not forgive Justice Chandrachud for not giving the decision, his name will be written in black letters.”
The Congress, which managed a measly strike rate of 16%, had this to say: “The Maharashtra outcome has been brought out through a targeted conspiracy after the level playing field was disturbed in the state to defeat the Congress.”
While the Shiv Sena’s statement was specific, one wonders what the Congress was trying to convey! Neither fish nor fowl as usual! But the use of the words “targeted conspiracy” is alarming. Therein lies the tale of the mega-legacy of the recently retired CJI D.Y. Chandrachud.
The former CJI was fond of legacy-hunting and among the many legacy-postings floating around this graph is very appropriate. It says that during his tenure he “avoided election integrity cases” because they had “high political stakes”.
The fact is that because of that very reason, he went several steps forward and facilitated the evisceration of the integrity of elections by misusing/abusing his role as “master of the roster”.
This is described as the most consequential role played by the CJI as it gives them the discretionary, unchecked power of assigning cases to select benches, thereby substantially influencing the direction of the court during their tenure whether or not they are personally involved in deciding those cases.
This article would be a narrative of such a case with my personal experience.
Justice Chandrachud took over as CJI and master of the roster in November 2022. In March 2023, a PIL under Article 32 of the constitution was filed in the Supreme Court by the Association for Democratic Reforms (ADR). It sought appropriate directions to the Election Commission (EC) to give full effect to the purport and object of the court’s directions in Subramanian Swamy v. Election Commission of India (2013) 10 SCC 500.
In this case, the court while “taking note of the advantage in the system” without insisting on any incontrovertible proof of errors/manipulation held that in order to “have fullest transparency in the system and to restore the confidence of the voters”, a “‘paper trail’ was an indispensable requirement of free and fair elections” and directed the EC to introduce the voter-verifiable paper audit trail (VVPAT) in electronic voting machines (EVMs).
It is noteworthy that the term used is ‘voter’ verifiable. It is the knowledge, satisfaction and verification of the voter that is at the heart of electoral democracy and not just that of the EC, political parties or candidates. ‘Voter-verifiable’ means each voter should have the knowledge that her vote has been cast as intended, recorded as cast and counted as recorded.
Though the requirement of the voter verifying that her vote has been ‘cast as intended’ is cursorily met when the VVPAT slip is displayed for about seven seconds after she presses the button on the EVM, there is no procedure for the voter to verify that her vote has been ‘recorded as cast’ and ‘counted as recorded’, which are indispensable for voter verifiability. The EC only counts the unseen ‘electronic vote’ and not the ‘paper vote’ seen by the voter.
This is plain fraud.
Inter alia, the petition prayed for the following relief from the Supreme Court to ensure the integrity of EVMs:
- Direct the EC to cross-verify in full the count in EVMs with votes that have been verifiably ‘recorded as cast’ by the voters themselves i.e. the VVPATs;
- Issue direction to the EC to ensure that voters are able to verify through VVPATs that their vote has been ‘counted as recorded’.
Actually, this petition was in continuation of the Supreme Court order in writ petition (C) no. 23 of 2019, wherein the court expressed 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.”
Also read: The Technical Impossibilities of the SC’s Judgment on EVMs
This order was passed just before the parliament election in 2019 by the first bench of three judges comprising CJI Ranjan Gogoi, Justice Deepak Gupta and Justice Sanjiv Khanna while disposing of the main petition N. Chandrababu Naidu v. Union of India (2019) 15 SCC 377, wherein as an ad hoc measure the court had ordered the matching of about 2% to 2.5% of EVM memory with VVPAT slips.
I was also part of this group of petitions as lead petitioner of the one filed by civil society seeking 30% matching based on the opinion given by top statistical experts.
In filing the 2023 PIL, the ADR had taken care to comply with two essential requirements. One, to give enough time (more than one year) for the Supreme Court “to go into the issues regarding the integrity of the EVMs” before the parliament election of 2024, which it could not do in 2019.
Two, the petition was backed up by a comprehensive report prepared by the Citizens’ Commission on Elections (CCE) chaired by a former Supreme Court judge titled, ‘An inquiry into India’s election system: Is the Indian EVM and VVPAT system fit for democratic elections?’, published in January 2021.
I was the coordinator of the CCE, whose expert group reviewed the functioning of EVMs primarily from the angle of their integrity and gave these important findings:
- Due to the absence of end-to-end verifiability, the EVM/VVPAT system as being practiced by the EC is not verifiable and therefore unfit for democratic elections.
- There must be a stringent audit of the electronic vote count before the results are declared. The audit may in some cases require a full manual counting of VVPAT slips.
- The electronic voting system should be re-designed to be software and hardware independent in order to be verifiable or auditable.
The CCE had relied on the depositions and expert opinions of several national and international experts in the areas of computer hardware, software, cyber security, statistics and election management.
Among the domain knowledge holders were Ronald L. Rivest of the Massachusetts Institute of Technology; Alex Halderman of the University of Michigan; Poorvi L. Vora and Bhagirath Narahari of George Washington University; Philip B. Stark of the University of California, Berkeley; Vanessa Teague of the University of Melbourne; Sandeep Shukla of IIT Kanpur; Subhashis Banerjee of IIT Delhi and K.V. Subrahmanyam of the Chennai Mathematical Institute.
There can’t be a galaxy of better expertise on the subject than this.
At the time of filing this PIL, another related petition filed by ADR on the issue of serious discrepancies between the number of votes polled and the number of EVM votes counted in the 2019 general elections filed on December 13, 2019 (W.P. (C) 1382/2019) was pending.
From the contents of these two writ petitions and the report of the CCE, it was evident that the integrity of EVMs for conducting elections was in serious doubt.
The Supreme Court was morally and legally bound to take up the case in all seriousness, post it before the first bench of three judges, examine the issues expeditiously, consider the expert opinion and pronounce a judgment well before the process for the 2024 parliament election commenced.
And this was the duty and responsibility of CJI Chandrachud in his role as master of the roster!
Also read: Implementing a Supreme Court Judgment, Election Commission of India-Style
But what actually happened was almost the opposite. Breaking all norms and conventions, the petition was listed for hearing before a single-judge bench of Justice M.R. Shah. On his retirement, the petition landed with a two-judge bench of Justice Sanjiv Khanna and Justice Bela M. Trivedi, and on July 17, 2023 they strongly remarked that the PIL was casting too much suspicion on the sanctity of the election process.
On the next hearing on September 6, 2023 the bench adjourned the case saying there was no urgency in the verification of EVM data against VVPAT records.
Therefore, the case dragged on with several adjournments, at which time I filed an intervening petition in my capacity as coordinator of the CCE, explaining its background, unique expertise and the key findings in the report.
The case was finally taken up and dismissed by a bench of Justices Sanjiv Khanna and Dipankar Datta, and the judgment was handed out on April 26, 2024, the day when 191 constituencies had completed the polling and 35% of the electorate had cast their votes! The CCE’s report and its expert inputs were totally ignored and the false and misleading affidavits filed by the EC were taken as gospel truth.
What is more, the Supreme Court order read more like preaching than a judgment on merits:
“[EC] maintains that the EVMs have been a huge success in ensuring free, fair and transparent elections across the nation in all elections. They restrict human intervention, checkmate electoral fraud and malpractices like stuffing and smudging of votes, and deter the errors and mischiefs faced in manual counting of ballot papers. While earlier it was apprehended that the introduction of EVMs will lead to hardship and disenfranchisement, independent studies showcase that EVMs have led to increase in voter participation.”
The judgment upheld not the integrity but the whim of the machines over the will of the people that is the foundation of democracy:
“In our considered opinion, the EVMs are simple, secure and user-friendly. The voters, candidates and their representatives, and the officials of the [EC] are aware of the nitty-gritty of the EVM system. They also check and ensure righteousness and integrity. Moreover, the incorporation of the VVPAT system fortifies the principle of vote verifiability, thereby enhancing the overall accountability of the electoral process.”
For good measure, the honourable judges condemned the paper ballots to the dog-house largely based on hearsay and the dramatic hearing in the court of CJI on the ‘fraud’ committed by a Chandigarh official while counting 15 paper-votes cast in the mayoral election:
“We must reject as foible and unsound the submission to return to the ballot paper system. The weakness of the ballot paper system is well known and documented. In the Indian context, keeping in view the vast size of the Indian electorate of nearly 97 crores, the number of candidates who contest the elections, the number of polling booths where voting is held, and the problems faced with ballot papers, we would be undoing the electoral reforms by directing reintroduction of the ballot papers.”
Perhaps the honourable judges are not aware that in India, as per the Representation of the People Act, the paper ballot is the primary mode of polling (Section 59) while the EVM is only an option (Section 61A) to be adopted according “to the circumstances of each case”.
The extreme prejudice of the Supreme Court judges in dealing with this critical matter of the survival of India’s electoral democracy is revealed from this censure issued by Justice Dipankar Datta:
“It is of immediate relevance to note that in recent years there seems to be a concerted effort to discredit, diminish and weaken the progress of this great nation on every possible frontier. Any such effort, or rather attempt, has to be nipped in the bud. No constitutional court, far less this court, would allow such attempt to succeed as long as it [the court] has a say in the matter. I have serious doubt as regards the bona fides of the petitioning association when it seeks a reversion to the old order.”
With one stroke, sincere citizens craving to establish the “integrity of EVMs” have been condemned for ‘discrediting, diminishing and weakening the progress of this great nation’. And expert opinions par excellence have been trashed.
By unilaterally upholding the ‘supremacy of EVMs’ without complying with essential democratic principles, the core of India’s election system has been eviscerated.
The bifocal provided in the judgment for a blinded voting system – keeping the symbol-loading units sealed and secured in a container along with the EVMs and checking/verifying the burnt memory/microcontroller in 5% of EVMs for any tampering or modification – have been effectively blackened by the EC in its subsequent standard operating procedures.
All these had a direct impact on the outcome of the parliament election of 2024 as brought out in the report of Voice For Democracy in July 2024. The report has flagged a cumulative hike of 4,65,46,885 (4.65 crore) votes from initial turnout figures to final turnout figures, indicating spurious injection through EVMs.
The percentage-point increase between initial turnout figures and the final turnout figures was on average 4.72% across the seven-phase poll and has led to the possible conclusion that the people’s mandate has been stolen in at least 79 constituencies across 15 states. In some states the hike was more than 12%.
The ADR also flagged significant discrepancies of 5,89,691 votes in as many as 538 constituencies between the votes cast and the votes counted in the 2024 Lok Sabha election. This overflowed into the Haryana assembly polls, wherein the BJP won a clear mandate and became a cloud-burst in the Maharashtra assembly election, wherein with a 7.83% hike after the polls got over, the BJP secured a historic strike rate of 89%.
A pattern has evolved, wherein election results are manufactured at will with the ever-compliant media standing ready to rationalise the most brazen ‘stealing of the people’s mandate’ with reams of cooked-up ‘survey reports’!
Evisceration is the act of removing the internal organs, or viscera, from a body cavity. With the way they are being conducted, this is what is happening to India’s elections and their integrity.
This evisceration, that has facilitated EC in conducting brazenly unfair elections, was made possible because of former CJI Chandrachud’s dishonest abuse and misuse of his powers as master of the roster.
The tragedy is that unless remedied and rectified by the Supreme Court itself, this horrid mega-legacy of Justice Chandrachud could sink India’s electoral democracy itself!
M.G. Devasahayam, formerly of the IAS, is coordinator, Citizens Commission on Elections.