VVPAT Verification | Judgement Summary

Setting the record straight

“We could have dismissed the present writ petitions by merely relying upon the past precedents and decisions of this Court which, in our opinion, are clear and lucid, and as repeated challenges based on suspicion and doubt, without any cogent material and data, are execrable and undesirable,” wrote Justice Khanna. 

However, he stated that he wanted to “put on record all safeguards adopted by the ECI to ensure free and fair elections” to ensure that the same petition does not arise in the future. The opinion detailed all the features of EVMs, including a step by step process of how the EVMs are stored, sealed, and secured.

On the functioning of the EVMs, Justice Khanna detailed that the EVM consists of three units—the ballot unit, the control unit, and the VVPAT. The ballot unit acts as a keyboard and consists of 16 buttons. The voter, presses one of these buttons to exercise his choice to vote for any candidate. The keys of the ballot unit as well as the burnt memory or the loaded firmware of the control unit, the judgement highlighted, are “agnostic” to “political party and candidate”, which means that these systems do not recognise a particular political party or candidate. The control unit recognises the “button/key pressed on the ballot unit.”

The control unit remains with the Presiding Officer. For a vote to be cast, he presses the “ballot” button which enables the voter to cast his vote on the ballot unit. As soon as the voter presses the button on the EVM to cast the vote, an LED light against the candidate button glows red and the control unit sends the command to the VVPAT. The VVPAT then prints the VVPAT slip consisting of the serial number, candidate name and the symbol.

The judgement noted that “till the symbol loading into the VVPAT is done by using the symbol loading unit, the EVM is blank and has no data/particulars of political parties or candidates. One cannot ascertain and know which button/key in the ballot unit will be allocated to a particular candidate or a political party.”

Justice Khanna also outlined the process of how the EVMs are tested in the presence of a candidate or the representative of a political party. His opinion also enlisted several advantages of the EVM-VVPAT system. For instance, the machines run on battery and do not require any external power supply. The system, he said, “ensures quick, error-free and mischief-free counting of votes.”

After detailing the process of the system, Justice Khanna concluded that “the EVMs are simple, secure and user-friendly. The voters, candidates and their representatives, and the officials of the ECI 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.”

Paper ballot system is “weak” compared to technologically advanced systems as EVMs

The Bench held that reintroducing the paper ballot system will undo the “electoral reforms” and advantages achieved by EVMs. EVMs have “effectively eliminated booth capturing” as they only accept four votes per minute, which puts a check on “bogus votes,” they held. Bench acknowledged that EVMs reduce paper usage, “alleviate logistical challenges”, and expedites the counting process. They also noted that the size of the Indian electorate of nearly 97 crore voters may not be sufficient to successfully pull off the ballot paper system. 

During the course of the hearings ADR had advocated for 100% VVPAT verification by relying on the right to information—a facet of Article 19(1)(a). ADR argued that the voter had the right to know if their vote was recorded. 

Justice Datta’s opinion examined whether the right existed when a paper ballot system was in place. The “voters would simply drop their paper ballots into a box, for it to be safely ferried away to the counting stations,” unaware that their votes were being counted by the election officials. Under EVMs, the VVPAT slip, which appears for seven seconds through a translucent window in the VVPAT machine would inform the voter that their vote was recorded. Justice Datta wrote that the technologically advanced system of EVMs was “distinctly more satisfactory” as it satisfies the voter’s right under Article 19(1)(a) to know that their vote has been counted.  

Physical access to VVPAT slips “impractical”

Another submission by ADR was permitting the voters to physically hand over the VVPAT slip and place it into a box for counting. This would allow the voter to closely scrutinise the slip. Once that is complete, all the VVPAT slips in the box would be verified with the votes. Justice Khanna wrote that physical access to VVPAT slips was “problematic and impractical” leading to “misuse, malpractices, and disputes.” He referred to Subramanian Swamy v Union of India (2013), where the Supreme Court found the VVPATs essential to guarantee transparency and integrity in the system. Allowing the voter to see the VVPAT slip through a glass window, assures them that their vote was cast and recorded. The glass window prevents damage and smudging to the VVPAT slip. 

Later, in N. Chandrababu Naidu v Union of India (2019), the Supreme Court directed the counting of VVPAT papers in five EVMs in each constituency. The direction was a “precautionary measure” rather than a “necessity,” held Justice Khanna. The VVPAT slip is a thermal paper coated with a chemical to ensure print retention for five years. The surface is “soft and sticky” making the counting process tedious. ECI stated that the process of counting the VVPAT slips takes up to five hours during which the officers are constantly under CCTV supervision. 

The Bench refused to increase the number of VVPAT counts as it would increase the time of counting, delay the declaration of results, and double the manpower required. Further, manual counting is prone to errors and “deliberate mischief” and the purpose of EVMs is to restrict human intervention as much as possible. The Bench also noted that there were no instances, except one, where data from the VVPAT was found to be mismatched with the votes cast through EVMs. The one instance took place in the 2019 Lok Sabha Elections in Andhra Pradesh where a presiding officer forgot to delete mock poll data, resulting in a discrepancy. 

Justice Datta observed that a mere suspicion that there might be a mismatch is not a sufficient ground for a writ petition seeking 100% VVPAT slips verification. Further, ADR had not substantiated a “tangible threat of infringement.” He pointed out that “efficacy of the EVMs has been previously raised” in the Supreme Court, stating that the petition should be on substantial grounds and not “old wine in a new bottle.” 

Directions of the Court

Justice Khanna issued two directions in the case. First, he directed that the Symbol Loading Units (SLUs) in the VVPATs be securely sealed and stored for a period of 45 days post-election. 

Second, he directed that in case of a dispute, a panel of engineers from the EVM manufacturing companies should inspect whether the burnt memory in the semi-controller of the EVMs was tampered with in five percent of the EVMs within a constituency. This happens when a candidate, securing the second or third largest vote share, submits a written request within seven days following the announcement of results. The expenses incurred for this procedure will be covered by the concerned candidate. Should their suspicion prove valid and the manufacturer indeed discovers evidence of tampering, the candidate will be refunded the incurred expenses.

Justice Datta’s concurring opinion

Justice Datta in his 18-page opinion placed emphasis on the importance of trust and working harmoniously in the system. He also rebuked the Association for Democratic Reforms for relying on private reports and apprehensions in making their plea and noted that he has “serious doubt as regards the bona fides of the petitioning association”.  

“Question of reverting to the paper ballot system”, on facts and in the circumstances, does not and cannot arise. It is only improvements in the EVMs or even a better system that people would look forward to in the ensuing years”, noted Datta. While he stressed that “the sanctity of the electoral process has to be secured at any cost”, he rejected the trust-deficit argument of the petitioners, pointing out the increased voter percentage in elections. He held that the petitioners had been unable to establish any grounds to suspect EVM or establish the need for 100 percent VVPAT counting.