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TMI Blog2024 (4) TMI 1085X X X X Extracts X X X X X X X X Extracts X X X X ..... n-Person, R.H.A. Sikander, AORs, Anand Grover, Sr. Adv., Pranav Sachdeva, AOR, Jatin Bhardwaj, Aakriti, Abhay Nair, Advs., Anand Grover, Sr. Adv., Neha Rathi, AOR, Kamal Kishore, Kajal Giri, Advs., Zulfiker Ali P.S., AOR, Nizam Pasha, Adv., Lzafeer Ahmad B.F., AOR and Aayushi Mishra, Adv. JUDGMENT SANJIV KHANNA, J. 1. Delay in refiling is condoned. 2. At the outset, we take on record that the counsel for the Petitioners, in unison, have stated that the Petitioners do not attribute any motive or malice to the Election Commission of India1, or for that matter contend that the Electronic Voting Machines2 have been tutored or configured to favour or disfavour a candidate or political party. However, due to possibility of manipulating the EVMs there is suspicion and, therefore, this Court should step in to instil confidence in the voters3 and the people. Voters have the right to know that the franchise exercised by them has been correctly recorded and counted. 3. On a pointed question put by the Court, it was argued, without prejudice and in the alternative, on behalf of the Petitioner - Association for Democratic Reforms, that the Court should direct: a) return to the paper ball ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also true that time and again use of EVMs has been objected to and questioned, not by one but by all political parties and others. There have been several litigations in this Court and the High Courts, albeit the challenge to the use of EVMs has been rejected recording good grounds and reasons. 7. We deem it appropriate to begin this decision by referring to some of the earlier case laws and judgments of this Court on the efficacy and use of EVMs in the elections in this country. 8. This Court in Subramanian Swamy v. Election Commission of India, 2013:INSC:699 : (2013) 10 SCC 500 held that a paper trail was an indispensable requirement of free and fair elections. The relevant portion of the judgment is reproduced below: 28. 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t if the number of EVMs in respect of which Vvpat paper slips is to be subjected to physical scrutiny is increased from 1 to 5, the additional manpower that would be required would not be difficult for the ECI to provide nor would the declaration of the result be substantially delayed. In fact, if the said number is increased to 5, the process of verification can be done by the same team of polling staff and supervisors/officials. It is, therefore, our considered view that having regard to the totality of the facts of the case and need to generate the greatest degree of satisfaction in all with regard to the full accuracy of the election results, the number of EVMs that would now be subjected to verification so far as Vvpat paper trail is concerned would be 5 per Assembly Constituency or Assembly Segments in a Parliamentary Constituency instead of what is provided by Guideline No. 16.6, namely, one machine per Assembly Constituency or Assembly Segment in a Parliamentary Constituency. We also direct that the random selection of the machines that would be subjected to the process of Vvpat paper trail verification as explained to us by Mr. Jain, Deputy Commissioner of the Election Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutional mandate. Ultimately, the manner in which the source code should be audited and the way the audit should be dealt with bears on sensitive issues pertaining to the integrity of the elections which are conducted under the superintendence of the Election Commission. On such a policy issue, we are not inclined to issue a direction as sought by the Petitioner. There is no material before this Court, at this stage, to indicate that the Election Commission is not taking suitable steps to fulfill its mandate. 15. This Court in Kamal Nath v. Election Commission of India and Ors. 2018:INSC:968 : (2019) 2 SCC 260, observed that it was without doubt that over the last several decades ECI has built the reputation of an impartial body and a constitutional authority which strives to hold fair election in which the people of this country participate with great trust and faith. The challenge to the EVMs and prayer for conducting VVPAT verification on random basis for 10% of the votes was rejected. 16. 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 ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he control unit. The data stored in the control unit, upon the vote being cast, records and counts the button or the key pressed on the ballot unit. The data, therefore, records the total number of votes as cast by the voters, and the key or the button number on the ballot unit pressed by the voters for casting their vote. After the vote is cast and the control unit has recorded the vote, a loud beep sound confirms the registration of the vote. 19. The EVMs are manufactured and supplied to the ECI by two public sector undertakings, namely, Bharat Electronics Limited11 (which functions under the Ministry of Defence), and Electronic Corporation of India Limited12 (which functions under the Department of Atomic Energy).13 The EVMs in use after 2013 are referred to as 'M3' EVMs. The EVM setup is designed in a rudimentary fashion and the EVM units are standalone and non-networked, that is, they are unconnectable to any other third-party machine or input source. In case any unauthorised attempt is made to access the microcontroller or memory of the EVM, the Unauthorised Access Detection Mechanism (UADM) disables it permanently. The advanced encryption techniques and strong mutua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... machines are checked by casting of vote in each of the 16 buttons on the ballot unit 6 times. Further, 5% of the machines are randomly selected by the representatives of the recognised political parties for a higher mock poll by them. Out of the 5% EVMs; 1200 votes are cast in 1% EVMs, 1000 votes are cast in 2% EVMs and 500 votes are cast in 2% EVMs. The voting result indicated in the control unit is tallied with the VVPAT slip count. A list of 'FLC OK' EVMs is prepared and shared with all the recognised political parties. 26. After check and verification that the EVM is working properly, the control unit of each EVM is sealed with a pink paper seal which is signed by the representatives of the political parties. Thereafter, the plastic cabinet of the EVMs cannot be opened. There is no access to any of the EVM components. Till this stage the VVPAT flash memory is empty and it does not have any data or symbols. 27. 10% of the 'FLC OK' EVMs are taken out for training and awareness purpose in the presence of the recognised political parties. The list of the training and awareness units is also shared with the political parties. These training and awareness units are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whole process takes place in the presence of the candidates or their representatives and a monitor/TV screen displays the symbol loading process. 31. It is at this stage that the specific button/key on the ballot unit is allocated to each candidate. The sequence/location of button/key allocated to a candidate of a political party is done in alphabetical order on the basis of the name of the candidate, first for the National and State recognised political parties, followed by other State registered parties, and then for independent candidates. Thus, the sequence/location of the button/key on the ballot unit and the consequent allotment for the purposes of the VVPAT varies from constituency to constituency. For example, candidate or political party 'A' may be allocated button '1' in one parliamentary constituency, whereas button '1' may be allocated to political party 'B' in another constituency. 32. There are 16 buttons/keys on each ballot unit. In case there are more than 15 candidates (one button is for NOTA), more than one ballot units are attached to the control unit. A total of 24 ballot units can be connected to a control unit to make a single ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now which button/key in the ballot unit will be allocated to a particular candidate or a political party. 36. It has been highlighted before us by the ECI that the symbol loading process conducted by using symbol loading unit in the VVPAT cannot be equated with the uploading of the software. A bitmap file comprising of the serial number, name of the candidate and the symbol allocated to the particular candidate is uploaded in the symbol loading process. The symbol loading process undertaken by using the symbol loading unit cannot alter or modify the programme/firmware in the VVPAT which has been burnt/loaded in the memory. The control unit and the ballot unit are not subjected to the symbol loading process and not touched. The burnt/loaded firmware in the control unit and the ballot unit is and remains candidate and political party agnostic. The control unit acts and functions as the calculator, computing the total votes cast on the basis of the number of times the key/button on the ballot unit are pressed, and the number of times a specific key/button on the ballot unit is pressed. 37. On the polling date, one and a half hours before the start of polling, the presiding officer/p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AL' key on the control unit can ascertain the total number of votes recorded in the control unit. However, the breakup of votes cast in favour of each candidate is not known. On the counting day, in the presence of the candidates/their representatives, the 'RESULT' key on the control unit is pressed. The control unit displays the number of times each button/key was pressed in the ballot unit on the polling day, thus depicting the result. EVMs are standalone machines which cannot be connected to internet. The EVMs do not have any ports so as to enable a person to have access to the burnt memory. 42. It flows from the above discussion that the possibility to hack or tamper with the agnostic firmware in the burnt memory to tutor/favour results is unfounded. Accordingly, the suspicion that the EVMs can be configured/manipulated for repeated or wrong recording of vote(s) to favour a particular candidate should be rejected. At this stage we would refer to other checks and protocols to ensure and ascertain the legitimacy and integrity of the EVMs and the election process. 43. Part IV, Chapter II of the 1961 Rules, which relates to voting by EVMs, lays down details of prepara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No elector is permitted to enter the voting compartment when another voter is inside. 46. Rule 49O deals with the scenario where an elector, even after entering her/his details in Form 17A and having put signature or thumb impression thereon, does not vote. The presiding officer is then required to make a remark in Form 17A and take the signature or thumb impression of the elector against such remark. 47. Rule 49M(6) deals with the scenario where the elector who has been permitted to vote Under Rule 49L or Rule 49P refuses, even after the warning by the presiding officer, to observe the procedure of voting laid down in Rule 49(M)(3). In such a case, the presiding officer, or the polling officer under the direction of the presiding officer, shall not allow such elector to vote. Rule 49M(7) lays down that in such a scenario, a remark to that effect shall be made against the elector's name in Form 17A by the presiding officer under his signature. 48. As per instructions issued by the ECI, the presiding officer is periodically required to check the total number of votes cast as recorded in the control unit with the data as recorded in Form 17A. 49. As per Rule 49S, at the clos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de in the result sheet are announced, any candidate, or in his absence, his election agent or any of his counting agents may apply in writing to the returning officer to count the printed paper slips in the drop box of the printer in respect of any polling station or polling stations. (2) On such application being made, the returning officer shall, subject to such general or special guidelines, as may be issued by the Election Commission, decide the matter and may allow the application in whole or in part or may reject in whole, if it appears to him to be frivolous or unreasonable. (3) Every decision of the returning officer Under Sub-rule (2) shall be in writing and shall contain the reasons therefor. (4) If the returning officer decides Under Sub-rule (2) to allow counting of the paper slips either wholly or in part or parts, he shall- (a) do the counting in the manner as may be directed by the Election Commission; (b) if there is discrepancy between the votes displayed on the control unit and the counting of the paper slips, amend the result sheet in Form 20 as per the paper slips count; (c) announce the amendments so made by him; and (d) complete and sign the resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lok Sabha Elections, 20,687 VVPAT slips were physically counted, and except in one case, no discrepancy or mismatch was noticed. 60. The discrepancy during mandatory verification of VVPAT slips happened in polling station No. 63, Mydukur Assembly Constituency, Andhra Pradesh during the 2019 Lok Sabha Elections. On verification, it was found that the discrepancy had arisen on account of failure of the presiding officer to delete the mock poll data.20 While it is not possible to Rule out human errors, paragraph 14.5 of Chapter 14 of the Manual on EVM and VVPATs deals with such situations and lays down the protocol which is to be followed. 61. During the course of hearing, our attention was drawn to Rule 49MA which permits an elector to raise a complaint regarding the mismatch between the name and symbol of the candidate shown on paper slip generated by the VVPAT and the vote cast on the ballot unit. Such elector is required to make a written declaration to the presiding officer. There have been 26 such cases in which the electors have complained Under Rule 49MA. There is not even a single case in which any mismatch or defect was found. 62. The EVMs have been subjected to test by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the seals etc. for a longer period. In cases where no election petitions are filed, the strongrooms are opened and the EVMs are shifted to the warehouse. 66. The ECI has also in its counter affidavit stated that the EVMs have been continuously used in different elections since the year 2000. The electoral outcome had been divergent, favouring or disfavouring different political parties. Details of the political parties with maximum number of seats since 2004 is tabulated as under: 67. We have referred to the data, after elucidating the mechanics and the safeguards embedded in the EVMs to check and obviate wrongdoing, and to evaluate the efficacy and performance of the EVMs. We acknowledge the right of voters to question the working of EVMs, which are but an electronic device that has a direct impact on election results. However, it is also necessary to exercise care and caution when we raise aspersions on the integrity of the electoral process. Repeated and persistent doubts and despair, even without supporting evidence, can have the contrarian impact of creating distrust. This can reduce citizen participation and confidence in elections, essential for a healthy and robust demo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian Swamy (supra) had directed gradual introduction of VVPATs to guarantee utmost transparency and integrity in the system. This direction was made to safeguard the right of the voters to know that the vote has been correctly recorded in the EVM. The direction has been implemented. The voter can see the VVPAT slip through the glass window and this assures the voter that his vote as cast has been recorded and will be counted. In N. Chandrababu Naidu (supra), the direction for counting the VVPAT paper trail in 5 EVMs per assembly constituency or assembly segment in a parliamentary constituency was issued, primarily as a precautionary measure rather than a justification or necessity. This decision was aimed at ensuring the highest level of confidence in the accuracy of election results. Giving physical access to VVPAT slips to voters is problematic and impractical. It will lead to misuse, malpractices and disputes. This is not a case where fundamental right to franchise exists only as a parchment, rather, the entire electoral process protocol, and the checks as well as empirical data, ensure its meaningful exercise. 70. VVPAT slip is made of a 9.9 cm x 5.6 cm thermal paper coated wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ballot papers. EVMs offer significant advantages. They have effectively eliminated booth capturing by restricting the rate of vote casting to 4 votes per minute, thereby prolonging the time needed and thus check insertion of bogus votes. EVMs have eliminated invalid votes, which were a major issue with paper ballots and had often sparked disputes during the counting process. Furthermore, EVMs reduce paper usage and alleviate logistical challenges. Finally, they provide administrative convenience by expediting the counting process and minimizing errors. 73. ECI has been categoric that the glass window on the VVPAT has not undergone any change. The term used in Rule 49M is 'transparent window'. The tinted glass used on the VVPAT printer is to maintain secrecy and prevent anyone else from viewing the VVPAT slips. The voter in the voting compartment who is viewing the glass from the top can have clear view of the slip for 7 seconds. Marginal tint on the VVPAT glass window, or the fact that the cutting and dropping of the slip from the roll in to the drop box of the printer is not visible, does not violate Rule 49M. The words 'before such slips get cut' in the proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the strong room along with the EVMs at least for a period of 45 days post the declaration of results. They shall be opened, examined and dealt with as in the case of EVMs. (b) 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... didate B has been detected. Counting of VVPAT slips Under Rule 56D has been allowed in 61 cases but there is not even a single case of mismatch. 20 The said discrepancy was duly rectified in terms of the protocol laid down in the Manual on EVM and VVPAT. 21 However, we refrain from making any comments on the application of Section 177 of the Indian Penal Code, 1860. JUDGEMENT Dipankar Datta, J. 1. I have had the privilege of reading the opinion authored by brother Hon'ble Khanna, J. His Lordship, in my opinion, has dealt with the legal and techno-legal issues arising in connection with the challenge to the process of polling of votes through Electronic Voting Machines1 mounted by the writ Petitioners and the several intervenors with unmatchable finesse and admirable clarity. I do not recollect any previous decision of this Court having explained the working of the EVMs in such great detail with lucidity and dexterity. The reasons assigned by His Lordship for negating the challenge, without doubt, are cogent and valid. The twin directions in the penultimate paragraph, notwithstanding that the electoral process for constituting the 18th Lok Sabha is in full swing, are in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uing that the petitioning association's utter lack of bona fides (in invoking this Court's writ jurisdiction Under Article 32 of the Constitution) is completely exposed thereby. I have no hesitation to accept the submission of Senior Counsel for the ECI that reverting to the "paper ballot system" of the bygone era, as suggested, reveals the real intention of the petitioning association to discredit the system of voting through the EVMs and thereby derail the electoral process that is underway, by creating unnecessary doubts in the minds of the electorate. 5. It is of immediate relevance to note that in recent years, a trend has been fast developing of certain vested interest groups endeavouring to undermine the achievements and accomplishments of the nation, earned through the hard work and dedication of its sincere workforce. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the RoP Act, which are paramount and non- negotiable. Being a complete code in itself, the RoP Act reinforces the Rule of law and upholds the principles of justice, fairness and transparency. The larger the electorate, greater are the challenges associated with the elections. As it is, the ECI has an onerous responsibility to shoulder and there is absolutely no margin for error. Periodical challenges to electoral processes, which gain momentum particularly when General Elections are imminent, require the ECI as of necessity to raise robust, valid and effective defence to spurn such challenges failing which any adverse judgment by a court is bound to undermine the authority and prestige of the ECI and bring disrepute to it. 8. The 2024 General Elections, which are proposed to be conducted in 7 (seven) phases and presently underway, will entail an estimated expenditure of around Rs. 10,00,00,00,00,000 (Rupees One lakh crore); more than 10 lakh polling booths are required to be setup to facilitate the voting process. The EVMs are carried to the remotest areas of this country, occasionally on the backs of horses and other animals; voting booths have been set up in far-off villages ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39; Commission on Elections6, to emphasize the vulnerabilities of the current electronic voting system. The CCE Report, on a bare reading, appears to be the culmination of inputs given by domain experts. For whatever such report is worth and though counsel claimed that the efficacy of the voting system through EVMs has been doubted, the CCE Report itself concludes, inter alia, that no hacking of any EVM has been detected; what it observes is that there is no guarantee that the EVMs cannot be hacked. This, in essence captures the underlying weakness in the petitioning association's entire case, inasmuch as the only grounds for the reliefs sought lie in the realm of apprehension and suspicion. In arguendo, even if the CCE Report is taken on face value and it is believed that the EVM-VVPAT system can be hacked, can it be said that there is absence of a redressal mechanism for the same? Should there be hacking, resulting in violation of a right of an elector in any manner, and if there be proof adequate enough to upturn an election result, the law already has in place a remedy, i.e., an election petition Under Section 80 of the RoP Act. Such an election petition can be filed not ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners urge that the ECI is not following the statutory mandate provided in the Election Rules. I am ad idem with the interpretation of the relevant Rule placed by Hon'ble Khanna, J. The ordainment of Rule 49M(3) is that the VVPAT slip should be momentarily visible to the voter; and it is not the requirement of the Rule that the VVPAT slip or its copy has to be handed over to the voter. Recording of the vote cast signifying the choice of the voter and its projection on the VVPAT slip, albeit for 7 (seven) seconds, is fulfilment of the voter's right of being informed that his/her vote has been duly recorded. In my considered view, as long as there is no allegation of statutory breach, there can be no substitution of the Court's view for the view of the ECI that the light in the VVPAT would be on for 7 (seven) seconds and not more. 17. We now address the second facet of the argument based on the right guaranteed by Article 19(1)(a) - the voter's right to know that his/her vote, as recorded, has been counted. To deal with this contention, a question comes to my mind - did this right not exist when the "paper ballot system", which the petitioning association wishes t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be attributed to the ECI and the trust reposed in it by the public. While rational scepticism of the status quo is desirable in a healthy democracy, this Court cannot allow the entire process of the underway General Elections to be called into question and upended on mere apprehension and speculation of the Petitioners. The Petitioners have neither been able to demonstrate how the use of EVMs in elections violates the principle of free and fair elections; nor have they been able to establish a fundamental right to 100% VVPAT slips tallying with the votes cast. 19. In view of the foregoing discussion, the Petitioners' apprehensions are misplaced. Reverting to the paper ballot system, rejecting inevitable march of technological advancement, and burdening the ECI with the onerous task of 100% VVPAT slips tallying would be a folly when the challenges faced in conducting the elections are of such gargantuan scale. 20. There are two other ancillary issues, to add to the issues already covered in detail by Hon'ble Khanna, J. 21. The first is the very issue of maintainability of writ petitions of the nature presented before us. Should mere suspicion of infringement of a right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there may be a mismatch in votes cast through EVMs, thereby giving rise to a demand for a 100% VVPAT slips verification, is not a sufficient ground for the present set of writ petitions to be considered maintainable. To maintain these writ petitions, it ought to have been shown that there exists a tangible threat of infringement; however, that has also not been substantiated. Thus, without any evidence of malice, arbitrariness, breach of law, or a genuine threat to invasion of rights, the writ petitions could have been dismissed as not maintainable. But, considering the seriousness of the concerns that the Court suo motu had expressed to which responses were received from the official of the ECI as well as its senior counsel, the necessity was felt to issue the twin directions in the greater public interest and to sub-serve the demands of justice. 29. Finally, I wish to touch upon one other issue of importance. 30. It is pertinent to reiterate that the doctrine of res judicata is applicable to writ petitions Under Article 32 and Article 226 as well. The inclusion of the term "public right" in Explanation VI of Section 11 of the Code of Civil Procedure, 1908 aims to avoid red ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rits, a subsequent petition in the Supreme Court Under Article 32 on the same facts and for the same reliefs filed by the same parties will be barred by the general principle of res judicata. The binding character of judgments of courts of competent jurisdiction is in essence a part of the Rule of law on which the administration of justice, so much emphasised by the Constitution, is founded and a judgment of the High Court Under Article 226 passed after a hearing on the merits must bind the parties till set aside in appeal as provided by the Constitution and cannot be permitted to be circumvented by a petition Under Article 32. An attempted change in the form of the petition or the grounds cannot be allowed to defeat the plea [...]. 33. No doubt, res judicata bars parties from re-litigating issues that have been conclusively settled. It is true that this principle is not rigid in cases of substantial public interest and Constitutional Courts are empowered to adopt a flexible approach in such cases, acknowledging their far-reaching public interest ramifications. 34. However, this standard is applicable only when substantial evidence is presented to validate the irreversible harm o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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