Autobiography of an unknown EVM: On democracy deficit and other Constitutional concerns

The genesis of our race of Electronic Voting Machines (EVMs) can be traced to the patent granted to Thomas Alva Edison in 1869. We have evolved, over the last 150 years, from a very basic vote counting contraption, to a complex machine controlled by a microprocessor and a software program.

Our survival as a species of machines is a complex story. Thanks to the governments which feel the need to replace the messy, but reliable system of ballot papers, my brood has multiplied to millions. Charles Darwin best explains the basis of our natural selection - “It is not the strongest of the species that survives. Not the most intelligent that survives. It is the one that is most adaptable to change that lives within the means available and works cooperatively against common threats.”

Let me explain how we EVMs, are genetically wired. The votes cast are exclusively stored on our electronic storage medium and then are counted electronically at the end of the election. The voting machine shows the total votes cast for the respective candidates. The results can be printed through a printer that is integrated into the voting machine.

However, the primary objection is that the technology deployed is a ‘blackbox software’. This means that the people of the country and their judicial authorities can neither access nor assess the integrity of the software which is controlling the voting machines. This subjects us to suspicions and accusations of manipulation and fraudulent election results.

This is precisely what agitated the German Constitutional Court in 2009. The Federal Voting Machine Ordinance introduced computer-based electronic voting machines for the elections to the 16th German Bundestag. This was challenged as unconstitutional. The judgment is a 17,500 worded, incisive and meticulous forensic examination of the constitutionality of the voting machines. According to the Court, elections in democratic Germany necessarily require to be public in nature. It should enhance the possibility of public scrutiny and not diminish it. Thus, the electronic voting machines would meet constitutional standards only if the voting and the ascertainment of the result can be examined reliably without the aid of any specialist technical expert. it was held.

“Each citizen must be able to comprehend and verify the central steps in the elections reliably and without any special prior technical knowledge. The principle of the public nature of elections requires that all essential steps in elections are subject to public examinability.”

The German Court struck down the use of EVMs as unconstitutional. Thus, for all effective purposes, it ended our deployment in Germany. Japan, like Germany, is one of the most technologically advanced countries in the world. Yet, they have eliminated us from even their municipal elections. Both these countries have reverted to the ballots. I presume, their brush with aggressive totalitarianism which ended in their military defeat and destruction has something to do with their heightened fear of loss of their democracy.

I understand that legitimate and intelligible scrutiny of vote accuracy is the most serious challenge. The transparent scrutiny of votes cast and counted is a challenge. A credible recount with near zero voter verifiable paper audit trail (VVPAT) verification is impossible. In addition, voters have to provide much of their personal information to the systems for voter verification. Thus, voter anonymity, which is central to any democracy, is a casualty. Therefore, we have been either a non-starter or abandoned in many of the advanced democracies like the Netherlands, Australia, UK, Italy, Norway, Ireland, and even smaller countries like Philippines, Costa Rica, Guatemala, Paraguay and others.

In India, the demand for our constitutional scrutiny emerged from political parties, civil society and most importantly, the legal fraternity, which has close links to India’s Independence movement and played a stellar role in the framing of the Constitution. I am reminded of Alexis de Tocqueville’s comment on19th century American society: “There is hardly any political question… that sooner or later does not turn into a judicial question.” Similarly, in India, the Constitution is the sounding board for acquiring popular legitimacy.

The Supreme Court was made aware of the serious issues of transparency surrounding the EVM regime in the case of Subramanian Swamy v. Election Commission of India (2013), wherein the necessity of a paper trail became the fulcrum of the discourse. The Supreme Court, after lengthy deliberations, was “satisfied that the paper trail is an indispensable requirement of free and fair elections." It went on to hold that “the confidence of the voters in the EVM can be achieved only with the introduction of the paper trail.”

The Court permitted the Election Commission of India (ECI) to introduce VVPAT in “gradual stages”. The judgment ran into 20 pages of elaborate discussion. However, several serious technical integrity issues were not considered. The Court cannot be faulted, for the judgment was delivered on October 8, 2013, just six months away from the general election of 2014.

What was troublesome was that despite the decision of the Supreme Court in 2013 for the introduction of VVPATs into every EVM, the progress was tardy. Besides, the ECI’s conduct has not inspired confidence. For instance, the requests to put the VVPAT machine at the end of the chain, so that the VVPAT slip is obtained after the vote recording unit has recorded the vote, has met with an unexplained, obstinate resistance. It's baffling why such a simple suggestion can be objected to.

Besides, one Hari Prasad, a much feted technocrat and a former Technical Advisor to the Andhra Pradesh government, sought to prove that EVMs could be manipulated. This was in response to a public challenge by the ECI to prove that the EVMs could not be hacked. However, the ECI would not part with an EVM machine for testing. An anonymous source supplied the group with a machine. He demonstrated, firstly, that the display unit itself, which showed for whom the votes were cast for, could be manipulated. Secondly, the memory could also be manipulated to simply change the number of votes that each party polled per machine.

Hari was promptly arrested for having stolen the machine. Thus, instead of legitimizing our race of machines by debate, dialectics and improvements, it ended up like the Scopes trial. John Scopes, if you recollect, was punished for teaching evolution in a Tennessee school despite the great Clarence Darrow defending him.

Six years later, the Supreme Court had the occasion to deal with the EVM issue once again. 21 political parties demanded for the enhanced scrutiny of the EVMs [N Chandrababu Naidu v. Union of India (2019)]. They were demanding an increase in the percentage of verification of VVPAT paper trails to at least 50% of the EVMs. It is difficult to assess whether the submissions regarding the conflict of black box technology with the Indian Constitution were at all addressed.

During the hearing, the ECI reported to the Supreme Court that it had posed a query to the Indian Statistical Institute (ISI) to ascertain the reasonable sample size for VVPAT verification to “ensure credibility and integrity of the electoral process”. The ECI revealed “that verification of VVPAT paper trail of 479 (randomly selected) Electronic Voting Machines would generate 99% accuracy in election results”. This statement on the proposed of the ECI was statistically incredulous, because the general election of 2019 deployed 2.23 million ballot units and 1.73 million VVPATs. The sample size being recommended was merely 0.000214% percent. The ECI’s conclusion defied all statistical logic.

The Supreme Court in turn directed that scrutiny of VVPAT slips be increased by eight times to 4125 EVMs. The logic for the number suggested is missing. Statistically, it translated into 0.00184%, which sample was still statistically insignificant. The Court directed that physical scrutiny of VVPATs be increased from 1 to 5 per assembly constituency or segment in a Parliamentary constituency. Therefore, in the 2019 general election, only 20,625 EVMs were scrutinized. This translates into only 0.00184% of the total number of EVMs that were deployed.

The judgment that was delivered was succinct. Some passages read as a carte blanche, “the court would like to observe that neither the satisfaction of the Election Commission nor the system in vogue today, as stated above, is being touted by the court in so far as fairness and integrity is concerned”. The judgment went on to state “it is possible and we are certain that the system ensures accurate electoral results.”

These random observations have led to some very far-reaching consequences. For instance, the complaints to the ECI regarding the November 2020 Bihar Election were met with a stereotyped response -“it has been clarified time and again that EVM is absolutely robust and tamperproof. Even the Supreme Court has upheld their integrity more than once.”

In my opinion, the judgment is being misquoted, and is being used as a lifetime inoculation against all future complaints. The observations were obiter dicta. This is manifest from the judgment itself, which stated, “we express our reluctance to go into the issues regarding the integrity of the EVMs which have been raised at a belated stage”. The judgment was unfortunately only 5 pages long. The Court again cannot be faulted. It must be remembered that the judgment was delivered on April 8, 2019, just three days before the 2019 general election.

It would be apt to remember that Article 324(1) of the Constitution, in order to maintain the integrity of elections, vests solely in the ECI, “the superintendence, direction and control of the preparation of the electoral rolls for and the conduct of all elections.” Therefore, one of the important concerns is that the manufacture and entire control of the EVMs is not with the ECI, but with two public sector undertakings, namely, Bharat Electronics and Electronics Corporation of India. These entities are under the direct control of the Union government headed by a Minister from the ruling party.

We may be a fragile race, but let me make it clear that we, like Caesar’s wife, want to be above suspicion. The surest way to our survival is to ensure that we are subjected to scrutiny with the precision and certainty of a ballot paper. To me, whether we will survive as a species is really immaterial. But what is of paramount importance is the survival and legitimacy of Indian democracy.

Let me go back in time to explain India’s constitutional history, which has an important bearing on this issue. On June 16, 1949, the Constituent Assembly of India began deliberations on how to secure democratic governance in India forever. Nothing can encapsulate the paramount object of the Constituent Assembly than the striking clarity of the words of KM Munshi, which could only come from his consummate skills as an eminent lawyer and his deep and abiding love for his country:

“If there is going to be democracy, the sovereign power of the people must be in a position to elect their own representatives in a manner which is above suspicion, above partiality.”

Let's be clear about what the issue is here. Vote integrity should be done and also seen to be done. No matter what the results are in these forthcoming 2022 assembly elections, irrespective of whether the opposition wins in all or many of the state assemblies or not, it is important that the faith in the system is never ever doubted. As Munshi said, the process should be “above suspicion”. I am sure all political parties including the ruling party would welcome greater and more transparent scrutiny, for integrity matters to all.

With more than seven decades of resolutely remaining an accountable constitutional democracy carrying with it the faith of 1.405 billion Indians, the stakes have never been higher.

Santosh Paul is a Senior Advocate at the Supreme Court of India.