Supreme Court hears plea to tally EVM votes with VVPAT slips: LIVE UPDATES

The Supreme Court is hearing a petition seeking that every vote cast through an Electronic Voting Machine (EVM) is tallied with Voter-Verifiable Paper Audit Trail (VVPAT) slips during elections.

Presently, VVPAT verification is done only for votes recorded in five randomly selected EVMs in each assembly segment.

The petitioner, lawyer and activist Arun Kumar Agrawal, has prayed that each and every EVM vote should be tallied against VVPAT slips.

The petitioner has also sought a direction that voters should be allowed to physically drop the slips generated by the VVPAT in a ballot box to ensure that the voter’s ballot has been ‘counted as recorded’.

The Court had sought the Election Commission of India's (ECI) response in the matter on April 1, when the plea was tagged with other pending matters concerning EVM and VVPAT.

During the last hearing, the Court had asked the ECI whether there is any law providing for punishment of officials and authorities for manipulating EVMs.

At the time, a bench of Justices Sanjiv Khanna and Dipankar Datta had observed that unless there is fear of stringent punishment, there is always a possibility of manipulation taking place.

Live updates from the hearing today feature here.

Advocate Nizam Pasha makes submissions: Voter secrecy is not compromised at any stage ... Also my right to secrecy cannot ...

Court: I hope you understand what you are arguing and the practical results of it

Advocate Pasha: Milord ...

Court: If you still argue, then fine ... the last slip will always be at the bottom ... Do not take more time ...

Advocate Pasha: It is the rights context in which this debate lies ...

Court: You have applied the doctrine of proportionality

Pasha: Yes, the fundamental right to know for whom the vote is cast, right to free and fair elections, etc. ... These are all rights of voters and it does not affect somebody else

Court: Tell us which are the four prongs of the doctrine of proportionality

Pasha: The doctrine comes when there are two conflicting rights.. I am a stage anterior to this ...

Court: All fundamental rights can be curtailed on the basis of certain exceptions ...

Advocate Prashant Bhushan: In the VVPAT machine the light remains on for seven seconds, if that light can be on always so that the voter can see the slip cutting and falling or other slip being cut, etc. also.. That can be done if the glass cannot be changed.

Senior Advocate Sanjay Hegde: The court can consider safeguards to be put up for this election and consider other issues later since such petitions comes to be decided very close to elections.

Counting is immediately done and audit of it can take time. There should be a separate audit which would then add greater credibility to counting process also.

Advocate Prashant Bhushan: There was a mock poll in Kasargode, Kerala. Four EVMs and VVPATs were recording one extra vote for BJP. Manorama carried this report.

Justice Sanjiv Khanna: Mr Maninder Singh please crosscheck it

Supreme Court: Mr. Maninder Singh or an officer from ECI.. Someone explain to us the entire process ... How VVPATs are calibrated.. What kind of officers are involved.. What sort of safeguards are there so that there is no tampering involved. They also relied on some standing committee report.. please focus on that as well. Regarding changes made to VVPAT or chips etc.. it is technical ... but you can answer it.

Justice Dipankar Datta: This is an electoral process and there needs to be sanctity to it and let there be no doubt about it.

Justice Khanna: The symbol which is uploaded is uploaded in which unit

ECI officer: EVM system has three components, ballot unit, control unit and the third is VVPAT. Ballot is to press the symbol, control unit stores the data and VVPAT is for verification.

ECI: Control unit gives command to VVPAT to print it. It is visible to voter for seven seconds and it falls into the sealed box of VVPAT. Each control unit has four MB of memory.. Before 4 days of poll.. there is a commissioning process and in presence of all candidates the process is checked and engineers are also present.

Supreme Court: The SLUs are not stored to ensure that there is no tampering. etc.? Of course, very difficult.. SLU is done from the computers.. laptop etc used by returning officer.. The software by ECI has a lock in mechanism.

ECI: Yes, it is a secured software.

Supreme Court: How many VVPAT machines you have?

ECI: Total of 17 lakhs.

SC: Won't they be equal to the EVMs.. ?

ECI: We specify the redundancy for operational purposes.

Supreme Court: No interference with program memory?

ECI: It cannot be reconfigured... This is a firmware and between software and hardware. it cannot be altered at all..

Supreme Court: All the three units are mutually compatible?

ECI: Yes, there are no spurious mechanism also involved..after first randomisation the machines go to strong room of the assembly and put in lock and key in presence of political parties and they put whatever note they want to put.

Supreme Court: When you do loading, are candidates allowed to do a test check?

ECI: Yes, a mock poll is conducted before machines are put in the strong room.. Candidates are allowed to pick up random machines and poll to check.

Supreme Court: How many votes can be polled in a minute?

ECI: Fifteen seconds needed for one vote.. so maximum four.. but due to human intervention.. it is less than four.

Supreme Court: It cannot be more than 4?

ECI: No. We also have EVM demonstration centre in a district and anybody can come and get educated about the machine.

Supreme Court: When we go to the polling station.. we give a slip.. our photo also there and we sign on a register.. there is a tick mark on the register.

Supreme Court: Now, if there is a mismatch between 17A and 17C? How many mismatches can you identify?

ECI: In 17A, inbuilt correction is there.

SC: Should not entry under 17A be authenticated by polling officer every hour or so? The polling officer will know when a person goes inside booth but does not vote.

Senior Advocate Gopal Sankaranarayanan: That is NOTA

Supreme Court: No, no that is not.

ECI: That comes under 17C.

SC: 17C column will not record that.. It is only total number of votes. Also Mr Sankaranarayanan, discrepancy you pointed out yesterday was that number of persons entered in register and votes cast. Mismatch will not happen if power is used under Rule 49O.

ECI: After counting it is always tallied with 17C and matches or not.

SC: We are told 1500 votes can be stored

ECI: 2,000 also

SC: But that is the CU memory... Machine has 1500

ECI: Due to roll limitation

SC: What about one person getting two votes?

ECI: That does not happen and can happen only if mock poll is not deleted.

ECI: 17A is not matched with EVM count. It is 17C... Total vote that should have gone into machine is 17A by doing adding subtracting etc..

SC: I am more concerned with... All knows community you belong to when you vote.. So I am saying nobody should be prevented from voting or one thinks that they voted but the vote is not cast.

SC: When you do manual counting.. you are doing of 5,000 - 7,000 votes.. yesterday we were told 1 lakh votes..

ECI: That is for assembly

SC: Why do you need 5 hours for that..? Also one suggestion was to have barcodes..

ECI: We have not examined it for now.. For this election it is not possible,

SC: Are there any instances of mismatch between data stored in ballot unit and the VVPAT slips?

ECI: Not a single mismatch found so far.

SC: How many VVPATs counted so far?

ECI: More than 4 crores.

Senior Advocate Gopal Sankaranarayanan: Their own document shows that there is a mismatch.. And now it cannot be said that there is no mismatch.. They can explain that one incident of mismatch as well.. They can say the morning mock poll was added by mistake.

Supreme Court: Look 5,000 to 7,000 is the figure.. so ...

ECI: It takes one hour to count 1,000 VVPAT slips... A special cell is created which is 6 by 6 and then it is done.

SC: Paper is thin.

ECI: Yes.. It is not meant for counting as such.. Takes roughly one hour and is done directly under the supervision of returning officer and done by a team who are specially trained.

SC: Can the voter get a copy of the slip? What are the harms that can happen?

ECI: One, secrecy of voter and how he used it after one steps out, we don't know and the case of deliberate mischief..

SC: What if we say 17A register should be matched with the votes polled in a booth and to ensure that 17A entries with respect to non-polling after one is registered as a voter is not made an academic exercise at the end of the day?

ECI: Entries are against the name itself.

SC: This list in 17A is made available to the candidates

ECI: No, it violates the secrecy of vote but on the next day of polling there is a process of scrutiny of 17A and it can be done in presence of everybody and it has at times led to re-poll.

Supreme Court: Are the votes time stamped?

ECI: Yes, each and every vote is timestamped.

SC: Suppose you find that there are 5-7 votes cast in a minute itself, do you take some action on your own then?

ECI: It cannot happen and we have not come across any such incident so far

SC: When does the beep sound come?

ECI: When vote gets' registered by control unit

SC: CU gives command to VVPAT and the beep sound will come the moment it gets registered.

ECI: Beep is contingent on slip.

SC: Is this not odd?

ECI: A sensor is there which records slip has fallen

Senior Advocate Maninder Singh makes submissions for ECI.

Hearing to resume at 2 pm

Hearing resumes.

SC: The returning officer is to upload the data.. and..

ECI: The section officer who supervises it can do it if the supervisor is busy

SC: It is collected from the 17A register? So it is possible for polling officer to check number of votes polled..

ECI: Only the total votes cast

SC: In 2019, you found that there were some faults in the app..

ECI: It was not getting updated in a synchronous way.

SC: One thing is very clear, that it is possible for the polling officer to check total number of votes cast in the centralised unit.

ECI: Yes, only the total.

SC: What is the data with regard to 17A registration etc.? What is the gap between the vote recorded in 17A and votes actually cast at the centralised unit?

ECI: No gap in 17A and 17C.. the relation is prescribed by the statute.

SC: We know there will be no mismatch because 17C is total we calculate on the basis of record in 17A and total number recorded in the control unit ... But what is the difference between vote recorded in the two units?

ECI: There is also an unauthorised access detection module. It is not connected with anything with outside world and anyone who tries to access the machine unauthorisedly, then the UADM alerts it and the machine gets back to factory mode and it cannot work anymore and has to be sent back to the factory. This is an additional safeguard.

SC: For uploading symbols ... some wire must be used.. But there seems to be some disconnect between what you are telling us and what is there in public domain.

ECI: There is nothing to hide.

SC: We also did not know and the safeguards put in place and the integrity of the machine put in place.. but there is a gap in what is in public domain and what is not in public domain.

Senior Advocate Singh (for ECI): The base on which the petition is filed is something which is not in existence.

Senior Advocate Singh (for ECI): The allegations are based on the result of a machine which does not belong to the Election Commission of India at all. This uncertainty is not a nuisance to the democratic process itself. This indulgence being sought repeatedly... it has no basis.

Maninder Singh: The apprehensions cast cannot be mathematical. the prayer in the plea for ballot paper voting is a retrograde suggestion and the principle of stare decisis applies. No request can be entertained once that issue has been decided.. It is answered that there is proper check and balance system and there is representation by the candidates and party members.

SC: In a polling station how many EVMs are installed? You said one.. but in Delhi we see there are number of EVMS..

ECI: That is because the number of candidates can be more..

SC: In Delhi, when we go, the compartments and rooms are more.

ECI: There can be multiple polling booths in one station..

SC: 50 percent of polling booths have cameras.

ECI: The Kasaragod incident cited is not correct. It was a fault in a 2019 app as we cited and the data was not being updated synchronously. It has been worked on now and there are no errors

Justice Khanna: Okay

SC: If two slips fall, will it be captured then itself?

Senior Advocate Maninder Singh: Yes

Senior Advocate Singh reads the rules of ECI regarding mismatch.

SC: So, no mismatch so far as per you (ECI)?

Singh: 100 instances were cited, but there was no mismatch.

Senior Advocate Maninder Singh: There was an app where there was a discrepancy on the voter turnout... That app was in question.. This is the report submitted to parliamentary standing committee is all about.. There have been technical expert committees from time to time.. Integrity of the EVM system is in question here.

Maninder Singh: Voter turnout app is not in question before the Court at all ... It has nothing to do with EVMs

SC: If it brings trouble, then why continue it only.. ?

Maninder Singh: From Subhramanian Swamy to Chandrababu Naidu to Kamal Nath.. They are also voters.. They are politicians taking care of their constituencies.

SC: If one voter wants the system and other does not want.. then what to do.. ? There is a risk of possible misuse of the VVPAT slips as to how he uses it.

Maninder Singh: Efficacy of the EVM system is the continuing thread. Media build-up does not impact the Court.. but it impacts the common man..

SC: What is the provision with regard to penalty for possible misuse of the EVMs?

Maninder Singh: Yes, I am coming to that

SC: As far as misconduct of polling officer is concerned, then there must be some punishment.. It is a serious thing. Any officer not complying with the mandate will be a very serious thing.

Singh cites a provision of Representation of Peoples Act.

SC: Yes, that is a fine of ₹ 500..

Senior Advocate Singh cites precedents to support his case.

Maninder Singh: Please see page 23 of the counter affidavit which reproduces the prayer which was earlier rejected before this Court and which was again filed before the Gujarat High Court where it sought to count VVPAT slips mandatorily along with EVM votes. The High Court dismissed it by a speaking judgment

Senior Advocate Maninder Singh cites petitions which have been filed across the country with similar prayers but dismissed by the concerned High Courts.

Singh: Madhya Pradesh High court had held that such allegations were made in abstract and the prayers here, Milord, are based on false data..

Maninder Singh: Mr. Bhushan has cited that one example of one vote being counted extra which has already been explained and accepted (Kasaragod).

Maninder Singh: Now, some commission report has been cited.. from here please see the step which was taken by the ECI .. Technical and administrative set up is there ... All checks are carried out in presence of political party representatives.

Senior Advocate Maninder Singh: EVMs are standalone machines and they cannot be tampered with.. VVPAT can also not be tampered with. Human error cannot be ruled out in manual counting but it has been minimized

Supreme Court: I told them to have bar-codes will be humongous task.. They say machine can read barcodes and human element is moved out. Barcodes have proven to be very useful. Paper ballots has huge drawbacks and we do not want to even think about it.

Maninder Singh: Only 25 complaints were received under Rule 49A and all of them were found to be false.. Till date ballot papers of 38,000 was randomly selected and no single case of transfer of vote from candidate A to candidate B has been detected. The only error which may have happened is when the data of mock poll has not been deleted.

SC: Software is not party specific but button specific so allocation of a button to a party is something the engineers won't know.. So software has no connect with membrane data.. The main memory does not know .. it only knows the party symbol.

Justice Datta: You say from beginning it was dark opaque glass.. show us that in the affidavit..

Singh: I will show the part.

SC: But the ECI side say that this design part is not in petition.. then why did you argue that?

Justice Khanna: Mr. Bhushan, whether it is transparent, translucent glass on VVPAT machine or bulb is there... you are taking it too far.. the bulb helps you see it that is all. Calculation is by the control unit every time vote is cast, the slip falls off and the total is verified by polling officer.

Justice Khanna: Now, everything cannot be suspected. You cannot be critical of everything. If an explanation is given, you must appreciate it!

Justice Khanna: Mr. Bhushan, there need not be any explanation.. If some improvement is brought, then why should they explain you till it is lawful? Whether to have bulb or not or the brightness, etc. is for them to decide.

SC: We are not disputing it is fundamental right, but over suspicion is not working out here.

SC: Suppose there is any doubt about the software - can it get checked in the election petition?

SC: After counting, units must be sealed with representatives of candidates..

SG Tushar Mehta: This happens on the anvil of elections.

SC: This was filed long back..

SG: Democratic choice of a voter is being made into a joke and after repeated reviews also it is happening. I have told my side that be ready for some planted articles or news reports.

SC: Please leave it, I do not think the voters will..

SG: Yes, they will not fall for it.. but there are planted articles.

Justice Datta: We could not decide the petition due to work pressure but this is not filed in the anvil of elections.

Justice Khanna: People have the freedom to post their opinions on social media and they can do it.

Advocate Stephens: The VVPAT and EVM count should happen simultaneously and the votes should be tallied. If there is discrepancy then it must be looked into. Hundred percent counting of VVPAT is the need of the hour.

Advocate Stephens: The counting of the polls should be on a single day and hundred percent VVPAT counting is the need of the hour.

Senior Advocate Gopal Sankaranarayanan: We are not making allegations against the election commission. We also understood how it works but what we are highlighting is the doubt we have about the system and there are reasons for the doubt. We have said what all has been put up on site since 2019.. There is a huge discrepancy which cannot be explained by 17A and 17C.. When it is not put out in public domain.. We know the total number of votes polled.. So the total votes polled cannot exceed that..

Justice Datta: But it is just one incident..

Justice Khanna: Negative news gets more publicity.

Senior Advocate Gopal Sankaranarayanan: The Kasaragode incident is a news report of a complaint by an election agent .. But now motives being added to us..

SC: We get it .. It is in press reports and you did not verify this.

Gopal Sankaranarayanan: It has been stated that there has been only one discrepancy so far..

Gopal Sankaranarayanan: They have admitted that the discrepancy is and due to human error.

SC: So Mr. Singh, we take that only once incident and no more..

Singh: Yes only one.. VVPAT slips with EVM matched in all cases.

Gopal Sankaranarayanan: The problem is the minute the ballot unit is linked to VVPAT.. The VVPAT ceases to be an independent entity as the ballot unit is not connected.

Justice Khanna: Memory or the flash memory is in the controlling unit. Little bit computers, I know

Gopal Sankaranarayanan: No, it is in the VVPAT..

ECI: The system works on RS485.. The physical location is immaterial. All the three units are connected to a common bus.. When one unit sends a signal to another one, then the third unit does not get to know about it.

Senior Advocate Gopal Sankaranarayanan: Section 177 of IPC does not lie here at all... Thus let them count the total number of VVPAT slips so that one knows that something is amiss or not.

Advocate Prashant Bhushan: There is some element of programming of symbol loading which happens in evm and it goes to VVPAT.. and if somebody writes a malicious programs then what happens is that.. it affects the VVPAT.. and that is why there is so much distrust about the VVPAT..

SC: Please confine yourself to the legal argument.

Bhushan: It is not possible for them to make out whether a malicious program has been fed into it or not.. The technician will also not know about it and thus a malicious program can be fed into it.

Bhushan: There is a point of dark opaque glass which was introduced.

SC: This has already been argued

Bhushan: Voter should be able to see the slip cutting and falling in box and counting the slip is also not time taking. Former CEC Qureshi in an interview had pointed out that ballot papers take less than two days to be counted so the slips can also be counted ... This can be done in interest of voter confidence.

A lawyer points out the system in Bangladesh.

SC: Our system is working well, you know, and we know what happened with ballot papers. Our voters number has also increased and shows the faith which people have..

Justice Datta: Do not think only foreign countries are doing well.. India is also doing well.

Senior Advocate Sanjay Hegde :The country has come to know what has happened so far and the larger questions can wait for another day.. let the matter end here.

Another lawyer: Just 2 minutes.