This article is part of The Wire‘s ‘India Black Boxed’ series. Read it here: Introduction | Part I | Part II | Part III | Part IV | Part V
A few days ago, the Supreme Court of India refused to grant the Association for Democratic Reforms (ADR) an urgent hearing of its 2021 petition about a host of matters relating to the 2019 Lok Sabha elections. One of the major issues raised by the petitioner as the basis for seeking an urgent hearing is the suitability of electronic voting machines (EVMs) and voter verifiable paper audit trail (VVPAT) units for ascertaining the people’s mandate. The Bench seemed visibly exasperated by what it called – the repeated filing of petitions which cast aspersions on the functioning of the EVM-VVPAT combo.
To a layperson, these remarks hint at the Bench’s faith in the infallibility of the machine-based voting system based on the Election Commission of India’s (ECI) claims as the respondent to the petition. A few weeks before this hearing took place, the ECI had released a revised set of 100 FAQs (frequently asked questions) with the objective of clarifying all doubts about these electoral machines. Several experts have commented about these FAQs in these columns already.
Once upon a time, I would also press the EVM button (both before and after the introduction of VVPATs) with full confidence in the reliability and infallibility of the electronic voting system. Having witnessed a demonstration of the electronic voting system at Nirvachan Sadan, several years ago, where a senior officer showed how these machines work and what fool-proof administrative measures are put in place to ensure their safe custody and transport, before, during, and after parliamentary and assembly elections, there was reason to entertain any kind of doubt.
In fact, this is what the ECI proudly claims in its FAQ 2 “…no technical knowledge is required for casting a vote on the EVM and ordinary citizens can easily cast their votes on ECI EVMs”. Consequently, the public education campaigns the ECI launches prior to every general or bye-election are limited to such demonstrations only. One such awareness drive is going on across the country even as I write this piece. We are expected to take the reliability of EVMs as an article of faith based on what the ECI shows and tells us.
The Election Commission building in New Delhi. Photo: Twitter/@PIB_INDIA. November 5, 2022.
But there is also a tricky thing called the ‘voters’ right to know’ which the Supreme Court of India discovered more than 22 years ago. The court recognised every voter’s right to receive information about the educational qualifications, financial background, and criminal antecedents, if any, of every electoral candidate, so that they choose wisely between those with a clean and tainted background. Incidentally, it was ADR that had moved the apex court, not once, but twice, to have this right read into Article 19 (1)(a) of the constitution which guarantees free speech and expression to every citizen.
Can it then be said that the voter’s right to know is limited to accessing details about the public character of electoral candidates and nothing more relating to the electoral process? Does it not extend to seeking adequate knowledge about the current voting system which is facilitated through machines, unlike the paper-based system that was the primary balloting method until a decade ago? Prior to pressing the EVM button of choice, voters play another equally important role. As taxpayers, we provide the funds with which the ECI buys these machines. So, these machines are made for our use and we have the right to ask questions to resolve every one of our doubts.
But why ask questions about these machines above and beyond what the ECI already tells us? A comparison between paper-based and electronic voting systems will reveal the foundation on which these doubts start to crop up. In a paper-based system, the ECI through its appointed functionaries gets a ballot paper printed with the names of all independent and political party-ticketed candidates along with their allotted symbols. All that the registered voter – literate and unlettered, both – had to do was simply take a ballot paper and a rubber stamp from the Presiding Officer, go to the polling booth, stamp the cross mark against the preferred candidate and drop it in the ballot box oneself.
The ballot paper was even pre-folded while being handed over to the voter. The voter was able to see every step of this action sequence with one’s own eyes or with the help of an assistant if the person was blind. On counting day, the counting agents of candidates could see every ballot paper – both valid and invalid – while it was being counted before the results were announced. Nothing was hidden from the naked eye (with or without prescription glasses) as everything except the recording of the voter’s choice on the ballot was clearly visible.
Now contrast this with the electronic voting system. There is a Ballot Unit (BU) with the names of candidates displayed on a printed label affixed on top of it. The voter presses the button next to the name and symbol of the preferred candidate in the polling booth and after it beeps something happens (we will explain below why it is not possible to say anything more specific than this). Then the VVPAT unit gets into action and prints out a slip which is visible to the voter for seven seconds through an illuminated window. This slip contains the name, serial number and symbol of the candidate in favour of whom the voter pressed the button. Then it automatically gets cut and falls down into the VVPAT’s drop box and the light is turned off. Next, a ‘loud beep is heard’, which according to the ECI, completes the action sequence of voting from casting to its registration in the EVM-VVPAT combo. Only one stage of this process is visible to the voter, namely, the printed VVPAT slip, to satisfy oneself that the vote has been printed as per one’s choice. What gets recorded on the Control Unit (CU) is not visible at all, the voter has to be satisfied by the mere sound of a beep.
On counting day, only the CUs are brought to the counting hall and the tally of votes is calculated by pressing the relevant button in the presence of candidates. Only the serial numbers, not the names of the candidates are visible on the CU. Further, according to the Supreme Court directives, VVPAT slips are counted from only five randomly selected units in Assembly elections. For parliamentary elections, five units are chosen randomly from the Assembly segments of the constituency for the purpose of tallying the VVPAT slip count with the candidate-wise totals that the CU calculates. This random selection process is not visible to the counting agents (having served as a counting agent to an independent candidate in the 2020 Delhi assembly elections, I know this for a fact).
So, when the transition is made from the starkly visual attributes of a paper-based voting and counting system to the present machine-mediated system (with only two very limited visual and even shorter audio feedback- beep! beep! Beep!), the ECI has a more onerous duty of transparency towards the electorate. Convincing the voter places a much higher burden of proof than what the ECI is currently willing to discharge.
In my opinion, the ECI’s answers to several of the 100 FAQs do not satisfactorily discharge this burden. Let us start with the most basic FAQs where the ECI has tried to explain how the EVM-VVPAT combo works, internally.
1. FAQs relating to signal flow (FAQs #2, 39, and 86): In response to FAQ #2- “In what way functioning of EVMs is different from conventional voting through paper ballots? Whether technical knowledge is required for casting vote through the EVM?”, the ECI explains the process of electronic voting that I have summarised above and says that it is better than a paper ballot-based system which had problems like improper marking or smudging of ink. Further, the ECI says:
“When the voter presses a button against the candidate of his/her choice on Ballot Unit, a red LED glows against the chosen candidate’s button on BU. A paper slip showing the serial number, name and the symbol of the candidate of his/her choice is generated and is visible for about 7 seconds through transparent window of VVPAT. Hence the voter is able to see the “printed slip” and verify that vote is cast as per his/her choice. Thereafter, the printed paper slip gets cut automatically and stored in sealed Drop box of VVPAT. A loud BEEP is heard from the Control Unit which confirms that the vote is registered successfully.” (emphasis supplied)
But at FAQ #39 in response to the query- “Is it possible to vote more than once on an EVM by pressing the button again and again”, the ECI’s explanation (reproduced below) about how the EVM behaves is at complete variance with the explanation given against FAQ #2:
“No, it is not possible to vote more than once on an ECI-EVM by a particular voter. As soon as a particular button on the Ballot Unit is pressed, the vote is recorded for that particular candidate and a loud beep is emitted for officials and election agents to note that the vote has been completed.” (emphasis supplied)
Note the complete absence of any reference to the VVPAT stage of the voting process in this reply. Those with unshakeable faith in the electronic voting system may claim this is just a legacy response from the times when EVMs were not paired with VVPATs at all and it must not be seen in isolation from the ECI’s reply to FAQ #2. After all, the deployment of VVPAT units became mandatory only after the 2013 directive of the Supreme Court of India, in the matter of Dr. Subramanian Swamy vs the Election Commission of India. Let us accept that reasoning temporarily and move on.
FAQ #86 is a recent addition (January 2024), not found in the much shorter FAQs list the ECI released in August 2023. The query is: “How does signal/command flow between various units of EVM viz. BU, CU and VVPAT? Since the VVPAT is kept along with BU inside the voting compartment of the voter, does VVPAT receive any signal/command from BU and vice-versa?” To this, the ECI’s elaborate reply is as follows:
“In M3 EVMs, CU always acts as Master, irrespective of the position in which it is placed or connected. BU and VVPAT act as Slave units in the connected network, which receive commands from CU to act as per the application programme. BU and VVPAT do not communicate with each other. It is the CU that communicates with both the BU and VVPAT. When a voter presses a candidate button on BU, the BU sends the button number to CU and in turn, the CU communicates to VVPAT to print the slip of the corresponding button number. Only after printing and cutting of the printed VVPAT slip, the CU registers the vote.
Votes are recorded only in CUs and not in BUs or VVPATs. When a particular Candidate’s button in BU is pressed by the voters, BU sends the button number to CU and CU commands printing of slip related to that button number to VVPAT. The VVPAT slip so printed remains visible to the voters for about seven seconds to verify their votes cast through the VVPAT display window. VVPAT then sends an acknowledgment to the CU to mark completion of printing of slip. The CU then initiates the cut of the printed slip and the slip falls in the sealed drop box of the VVPAT (Rules 49A and 49M, The Conduct of Elections Rules, 1961). After the successful completion of all these steps, i.e. printing and cutting of the VVPAT slips, the VVPAT sends an acknowledgement to the CU. Upon receiving the message from VVPAT, the CU records the vote electronically and emits a long BEEP. The BEEP marks the completion of the voting process for the voter.
In M3 model, Master-Slave bus architecture is used. VVPAT can be connected anywhere in the EVM M3 bus. The Control Unit (CU) implements communication, command processing, handling of key operations and handling of all the commands/responses to/from BU and VVPAT. The Master-Slave protocol is used to control access to the communication bus. Communication on the bus is initiated by the “Master” (CU) with a “Command” to a “Slave” (BU & VVPAT). The “Slave” which is constantly monitoring the bus for “Commands” will recognize only the “Commands” addressed to it and will respond by performing an action and by returning a “Response”. Only the Master can initiate a command. CU is always the Master in the ECI M3 EVM system setup.”
The answer to FAQ #86 ends with a signal flow schematic and suggests that readers refer to Annexure-I as well for further clarity. Annexure-I contains a signal flow diagram (see Images 1 & 2 below):
Image 1: Signal flow schematic under ECI’s answer to FAQ #86
Image 2: Signal flow diagram at Annexure-I to ECI’s FAQs
II. What is problematic with these answers?
It is common knowledge that only two Union Government-owned public sector undertakings (CPSUs) namely, BEL (under the Ministry of Defence) and ECIL (under the Department of Atomic Energy) have been manufacturing the EVMs and VVPATs. According to the ECI’s answer to FAQ #7 they have a duopoly on the supply of these machines for parliamentary and assembly elections. However, few people know two related facts which the ECI has not bothered to mention in any of its FAQs.
First, in 2001, both BEL and ECIL applied for the grant of exclusive patent rights under The Patents Act, 1970, claiming that their EVMs are their unique invention/innovation markedly different from the electronic voting machines that were in use in other countries. After due examination of their claims the Patent Office, Chennai granted patent rights to both CPSUs in 2006 for a period of 20 years – the maximum duration permissible under the law. These patents expired in 2021 (as per law the 20-year period is calculated from the date of the patent application and not the date of the order granting the patent). How is exclusivity being maintained by the two CPSUs after the lapse of the EVM patents is a mystery because there is no provision in the patents law for extending the validity of a patent beyond 20 years (evergreening of a patent is not permitted under our law).
As patent-related documents are required to be publicly accessible to any person by law, the Office of the Controller General of Patents, Designs and Trademarks under the Union Ministry of Commerce and Industry publishes all documents from the application stage to the stage of grant of the patent on a dedicated website. The patent application, complete specifications of and claims related to the invention/innovation (what it is capable of doing and how) for which an applicant is seeking the patent, the drawings which visually portray the looks of the invention, corporate data about the applicant entity, details of the patent agent through whom the applicant interacts with the Patent Office, the report of the examiner who studies the claims and any amendments to the original documents submitted by the applicant etc. are all available through a very utilitarian database. If the patent is granted that order is also uploaded on this database along with a copy of its communication to the applicant.
All this transparency is an essential to enable any person to file an objection against the patent application or claim on the grounds permissible under the Patents Act. If the objection is upheld, the patent application will be rejected. EVM patent-related documents continue to be accessible on this database despite the expiry of the validity of the patents. After the successful completion of the application process, the patent holder may deploy his/her/their invention/innovation exclusively for commercial use unless he/she/it voluntarily grants a license to any other entity for a similar purpose.
Second, only BEL applied for a patent for the VVPAT machine in March 2018 and received the patent order from the Chennai Patent Office in May 2022 (after the completion of the 2019 Lok Sabha elections). To the best of my knowledge, ECIL’s patent application for a VVPAT machine is not available on this database, so it may be presumed that there is some working arrangement between the two CPSUs for manufacturing the VVPAT machines. All the aforementioned documents and many more relating to the VVPAT patent which BEL secured are downloadable free of charge from this database (no you do not need an RTI application to seek access to these documents!).
An extract from the detailed drawings BEL submitted to the Patent Office in March 2019 which shows the backend of the VVPAT machine is reproduced below:
Image 3: Backend view of the VVPAT unit as per BEL’s drawing submitted to the Patent Office
The above image clearly shows two ports that permit connection of the CU and BU units of the EVM to the VVPAT unit’s backend. In the early versions of VVPAT machines, there were two units- a printer that printed the choice of the voter on paper slips and the VSDU (visual status display unit) which would display the functional status of the VVPAT especially any errors detected in the printer. However, according to ECI’s 2018 Status Paper on EVMs, in M3 model of EVMs (which are currently in use all over the country), VSDUs were integrated into the CU itself. This version of the EVM Manual has been replaced with subsequent versions and is unfortunately no longer displayed on the ECI’s website. As I happened to download a copy in 2018 itself, I am able to cite from this document.
Now according to the ECI’s latest Manual on EVMs and VVPATs, engineers of the two CPSUs who are tasked with the job of candidate-setting are instructed to connect the VVPAT with CU and BU with separate cables for this purpose (see Image 4 below). BEL’s MSPPT also says that in order to commission the VVPAT it must be connected to the CU and BU individually (see Image 5 below). So, there is no cable connection between the CU and BU at all. All communication is mediated through the bus architecture which is physically housed in the VVPAT unit. This is the inevitable and logical conclusion that one arrives at based on the information contained in the drawings of the VVPAT and the instructions of ECI and BEL mentioned above.
Images 4 & 5: Instructions for Engineers for candidate-setting in VVPATs
Given this logical conclusion, what do we make of this portion of the ECI’s answer to FAQ #86:
“…BU and VVPAT do not communicate with each other. It is the CU that communicates with both the BU and VVPAT. When a voter presses a candidate button on BU, the BU sends the button number to CU and in turn, the CU communicates to VVPAT to print the slip of the corresponding button number.”
How then do the BU and CU communicate with each other when both are required to be connected only to the VVPAT unit and not to each other? Is the ‘bus architecture’ on the VVPAT unit something like the bypass routes that are constructed on National Highways (like Agra bypass, Lucknow bypass, Chennai bypass etc.) to skirt around major cities and towns and travel faster to one’s destination? After the voter presses the button of choice on the BU is that signal somehow flowing to the CU unbeknownst to the VVPAT even though this communication is happening between the two units on the real estate of the VVPAT unit? The ECI ought to explain how this magical signal flow takes place to lay voters like me who are neither hardware nor software engineers.
Before ending this writeup, another element of the answer to FAQs #2 and #86 deserve critical examination. In response to FAQ #2 the ECI says, after the voter presses the button of choice on the BU, the VVPAT unit gets into action, prints the slip, turns its light on for the voter to see and verify that his/her choice has been correctly printed, cuts it and drops it into the drop box before switching the light off. Then “a loud BEEP is heard from the Control Unit which confirms that the vote is registered successfully.” In response to FAQ #86, the ECI explains how the CU is the Master and the BU and VVPATs are Slave units which receive commands from CU to act as per the application programme. Further the explanation says: “…The Master-Slave protocol is used to control access to the communication bus. Communication on the bus is initiated by the “Master” (CU) with a “Command” to a “Slave” (BU & VVPAT). The “Slave” which is constantly monitoring the bus for “Commands” will recognize only the “Commands” addressed to it and will respond by performing an action and by returning a “Response”. Only the Master can initiate a command. CU is always the Master in the ECI M3 EVM system setup.” (emphasis supplied)
If this is the set protocol, what do we make of these assertions of BEL before the Patents Office?:
“[0030] In an aspect, the apparatus [VVPAT] can be functionally or physically integrated with the ballot unit of EVM, the physical artefact of which provides the functionality of both the units.
[0031] In an aspect, the apparatus [VVPAT] can be functionally or physically integrated as a single unit providing functionality of VVPAT, control unit and ballot unit of EVM…
[00120] In an aspect, if the printing is not successful for any reason, then the vote cast cannot be stored, and the VVPAT system can be put in an error mode and prevented from further use in the election process. This ensures number of votes stored in the CU and the number of slips in the VVPAT is same.” …
“[00125] In an aspect, proposed system [VVPAT] can, after successful printing, displaying and storing a ballot slip can send an acknowledgement of successful operation to the corresponding EVM.” (emphasis supplied)
Paragraphs #0030 and 0031 are part of the Complete Specifications submitted while seeking grant of a patent and paragraphs #00120 and 00125 are part of the Detailed description of the VVPAT-related drawings attached to these Complete Specifications (see Images 6, 7 & 8 below).
First, BEL claimed before the Patents Office that the VVPAT can be integrated with the BU physically and not the CU (as is the case from the evidence presented above). Second, even though according to the ECI’s reply to FAQ #86 the CU is initially aware of the choice made by the voter, according to BEL it can record the same only if the printing process is successful. If the printing process is unsuccessful, the CU cannot record the voter’s choice even if it somehow had prior knowledge of the same. In this respect at least, the VVPAT must be seen as acting like a Master and the CU as a Slave which records the voter’s choice digitally.
Image 6: Extract from BEL’s Complete Specifications of VVPAT machine submitted to the Patents Office.
Image 7: Extracts from BEL’s Complete Specifications of VVPAT machine submitted to the Patents Office.
Image 8: Extract from BEL’s Complete Specifications of VVPAT machine submitted to the Patents Office.
Which is the vote that must be counted?
Readers, wearied by all these technical details, may ask- “what is the point of all this argumentation and evidence-splashing?” Well, the point is very simple and goes to the very heart of the demand made by several opposition political parties and civil society groups like the Citizens Commission on Elections (CCE)- all VVPAT slips must be counted rather than a small sample of five randomly chosen VVPAT units which the ECI has defended to be scientifically of adequate size before the Supreme Court and in its reply to FAQ #62.
In the context of electronic voting which is the “vote” that must be counted on counting day after polling is over- is it the candidates’ tally of votes as calculated by the CU or the VVPAT slips which the voters see and verify to their satisfaction? This is the question that many opposition leaders and CCE have posed to the ECI. ECI deals with this issue at FAQ #63 in this manner:
“Q63. The ECI has to define which one is true representation of the will of the voter? Vote recorded on Control Unit or voter verified SLIP in VVPAT? If Counting is based on the Control Unit count what is the use of Verifiable paper SLIP?
Ans. The system of VVPAT has been introduced only for the purpose of greater transparency and enhancing the confidence of voters by way of immediate verification of the printed ballot slip having the chosen candidate’s Name, Serial Number and Symbol and recording of vote in the Control Unit.
As per existing legislation, Rule 56C of the Conduct of Elections (Amendment) Rules clearly states that after the returning officer is satisfied that a voting machine has not been tampered with, he shall have the votes counted by pressing the appropriate button marked “Result” provided in the control unit whereby the total votes polled and votes polled by each candidate shall be displayed in respect of each candidate on the display panel provided for the purpose in the unit. The candidate wise result so obtained from all control units used in the election is to be tabulated in a result sheet in Form 20 and the particulars so entered in the result sheet announced.
Contesting candidates have the opportunity to request for the VVPAT slip count under Rule 56D of the Conduct of Elections Rules, 1961 after completion of counting of votes from the EVMs. Rule 56D (4) (b) clearly states that in case of a discrepancy between the Electronic Count in the Control Unit and the ballot slip count of the VVPAT, the VVPAT slip count shall prevail.”
However, at paragraph no. 00116 of the Complete Specifications submitted to the Patents Office BEL makes the following assertion about what is the vote (see Image 9 below):
“[00116] In this manner, proposed system can faithfully record the digital choice (vote being cast) of the voter (using the BU of the associated EVM) in form of a printed ballot slip that is directly and easily understood by the voter as soon as the voter has exercised his/her digital choice; and thereafter store the printed ballot slip at a secure location for further audit if required.” (emphasis supplied)
Is it not the digital choice of the voter as recorded by the VVPAT on paper which must be counted, and not merely the electronic data recorded in the CU which the voter will never get to see at the polling booth?
: Extract from BEL’s Complete Specifications of the VVPAT machine submitted to the Patents Office.
Conclusion
At the beginning of this piece, I raised these questions- “can it then be said that the voter’s right to know is limited to accessing details about the public character of electoral candidates and nothing more relating to the electoral process? Does it not extend to seeking adequate knowledge about the current voting system which is facilitated through machines unlike the paper-based system that was the primary balloting method until a decade ago? When I began writing this piece, these questions were open-ended. However, the Supreme Court’s Constitution Bench which struck down the electoral bonds route of funding political parties has answered them conclusively. While concurring with the judgement (Association for Democratic Reforms & Ar., vs Union of India) authored by Chief Justice D Y Chandrachud on behalf of the Bench, Justice Khanna in his separate opinion says- “
“19. The right to vote is a constitutional and statutory right,… grounded in Article 19(1)(a) of the Constitution, as the casting of a vote amounts to expression of an opinion by the voter… The citizens’ right to know stems from this very right, as meaningfully exercising choice by voting requires information. Representatives elected as a result of the votes cast in their favour, enact new, and amend existing laws, and when in power, take policy decisions. Access to information which can materially shape the citizens’ choice is necessary for them to have a say in how their lives are affected. Thus, the right to know is paramount for free and fair elections and democracy.” (emphasis supplied)
Chief Justice Chandrachud records the views of the Constitution Bench about the importance of the voters’ right to know in the following words:
“77. The following principles can be deduced from the decisions of this Court in ADR (supra) and PUCL (supra):
- The right to information of voters which is traced to Article 19(1)(a) is built upon the jurisprudence of both the first and the second phases in the evolution of the doctrine, identified above. The common thread of reasoning which runs through both the first and the second phases is that information which furthers democratic participation must be provided to citizens. Voters have a right to information which would enable them to cast their votes rationally and intelligently because voting is one of the foremost forms of democratic participation;…” (emphasis supplied)
The issues discussed above are just a sample of the multiple doubts that crop up when the ECI’s answers to FAQs are compared with the contents of other publicly available documents about the EVM-VVPAT combo. Therefore, it must be said, our doubts will not go away by simply admonishing or ignoring them. The levels of transparency that the ECI has adopted are hopelessly inadequate to meet the very high standards that the Supreme Court of India has set for our right to know, as citizen-voters.
Venkatesh Nayak is Director, Commonwealth Human Rights Initiative, New Delhi. All facts narrated above are in the public domain.
