India being the largest democracy elects its representatives or the leaders who govern the country through the people’s vote. The voting systems around the world are very different but the primary division includes
1. The Majoritarian Systems (First past the post system)
2. The Proportional Representation System
3. The Semi-Proportional Representation System
India follows the first type because the tradition in Anglo-Saxon system was similar; also the country at that time wanted a two-party system. In this system the territories are divided in constituencies and the person with highest vote wins the election. In order to ensure that the rights of the voters are protected there is a need for a legal framework to determine and ensure that constitutional values should be upheld. In India to regulate election process election laws of India have been formulated. The election conducting body is endowed with powers but they come with some responsibilities, a set of law governs their actions, it should be an independent body and no political party shall influence its decision and thirdly a mechanism to solve the disputes have to be there.
The ECI is a hard-working organisation committed to increasing the involvement of the public in elections. They have made it easier to register for a Voter ID and have digitised the ballot casting by using EVMs. As a voter, you must be mindful of the fundamental rules regulating our elections to stay updated. To make election more transparent a system called VVPAT was introduced. It is a machine which confirms the voters vote once the respective button has been pressed. This leads to more transparency which allows the voter to exactly know who he has voted for. After displaying the voting slips for seven seconds, the slip falls in the sleeve to maintain the voters right to secrecy. After that, a series of short beeps signals that it has been installed in the storage box.
But in the recent times the use of VVPAT’s have been questioned by several opposition parties but the Election Commission of India has publicly rejected all allegations of EVM fraud, but it's unclear if VVPATs are used for this purpose, and there have been allegations of VVPAT fraud in elections such as a few times as this. Instead of demanding the assistance of an expert audit agency, the Election Commission made a commission which has selected an algorithm developed by the Indian Statistical Institute to arrive at a "practically sound and statistically relevant" solution which the ISI then developed into "mathematically sound and empirically rigorous" in the process of dealing with VVPAT audit slips.
Below is a landmark judgement which paved the way for the VVPAT system and its implementation around the country.
CASE ANALYSIS: Subramanian Swamy v. Election commission of India
The case tries to analyse the electoral laws and transparency issues involved in the electoral process. India, being a democratic nation follows a system of electing the representatives through public. Elections form the basis of the system and there are three players in an election – the electors, the grid of candidates and the election making machinery. In the Mohinder Singh V. Chief Election Commissioner it was held that “the right of election is the very essence of the constitution.” The free and fair conduct of election also plays a key role in parliamentary form of government. There should not be any two say for a particular action and for this reason in the case TN Seshan v. Union of India an independent body under article 324(1), EC was set up. The voting process in the country has seen a sea change. Ballot papers were used from 1960-1999 but later as new technologies came up the need for modern solutions arose. So in the year 1977 EVM’s came into existence with the help of electronic corporation of India. After getting a green signal in the year 1981 the EC approached Bharat Electronics Limited for the manufacture of EVM’s. For the first time in Kerala legislative assembly in 1982 these were used, but it was challenged on the grounds of Representation of people’s act 1951 and conduct of elections rule 1961 which didn’t allow EC to use some other mode to conduct elections. The court further brought some changes by adding Section 61A, which empowered EC to use EVM’s. The EVM’s heaped a lot of praises for example the high court of Karnataka in the case Michael B. Fernades Vs. C.K. Jaffer Sharief & Orsand in the Madras high court the case All India Anna Dravida Munnetra Kazhagam Vs. The Chief Election Commissioner, Election Commission of India & Ors narrated the advantages of using EVM’s. The Bombay high court in the case Banwarilal V. Shri Vilas Muttemwar & Ors praised the EVMs system.
But there were threats which were looming around the transparency of this system. In of the cases a researcher from Michigan University tried to find a loop whole in the entire system. In the election conducted in Dholapur (Rajsthan) some malfunctions in EVM’s were detected. In the Bhind (bye elections) it was stated that 4 buttons when chosen gave one party symbol, all these allegations were denied by the EC.
EVM’s around the world are under intense scanner as it threatens the security, accuracy, reliability and transparency. There are 24 countries which have quashed the decision to use these systems. Some of them include:
Germany, Netherlands and Ireland banned the NEDAP manufactured e-voting machines because it casted serious doubt on public examination of elections and the voting procedure.
USA doesn’t state a proper standard procedure to elect representatives as it is governed by local administration. In one of the TIME magazine reports it came to be known that ballot paper acquire a high standard as they ensure security and voter preference
Venezuela, garnered a lot of fame when it introduced the registering system with touch screens, but in the presidential elections it was claimed that about 1 million vote were manipulated. During a news briefing Smartmatic CEO Antonio Mugica said that “We know, without any doubt, that the turnout of the recent election for a National Constituent Assembly was manipulated,”
FACTS AND ISSUE OF THE CASE
The petitioner Rajendra Satyanarayan Gilda approached the SC under article 32 to issue the writ of mandamus, because there were some apprehensions with regards to the transparency in the present system of EVM’s. The voters when they casted their vote had no proof so as to ascertain whom they voted for. The red flash light was not enough safeguard to prove its credibility. Accordingly the petitioner demanded for an audit through “paper trial” as the receipt with a name of the candidate could be a value addition to the given system.
Another appeal filed by the way of special leave was by Mr Subramanian Swamy .The appeal made in Subramanian Swamy v. Election Commission of India the high court was denied by the division bench and so the writ of mandamus was used. It was contained that EVM’s used in the country do not follow the international requirements and they can be tampered and hacked easily by software’s.
PRAYERS IN THE COURT
In the petition filed in the year 2012
It was submitted by Subramanian sir that it was beyond the plenary powers that the EC introduced EVM’s without paper trials. To support this argument in the case of A.C. Jose V. Sivan Pillai and ors 25th paragraph it was stated that EC could not go beyond the provisions already mandated by the statute.
Another claim challenged was on the writ petition order dated August 8th where the ECI recorded to conduct trials and appoint experts to verify the same, but owing to some reasons the trials were stopped in the middle.
It was highlighted that in the Affidavit dated April 12th the micro controller in the machine was manufactured in Japan and this did not allow the EVM’s to come under the patents act. An international patent was rejected for the same. The German courts had stopped the usage of electronic voting as it threatened the public admissibility of voting. EVM’s were deemed to be unconstitutional.
A paper receipt will help in re-counting of votes which earlier had to be re-run of the EVM’s in case if some vote counts were lost or were suppressed due to some fault.
In the present case it was held that EVM’s are susceptible to tampering of votes as the EVM’s did not meet the international standards and demanded paper trials to be incorporated as in countries like USA, this was a fool proof method in order to tackle this
In the defence of ECI the counsel Ashok Desai has refuted the claims in the following manner:
The field trials on which the petitioner contested was baseless as the trials weren’t successful and hence had to be stopped in the middle. A counter- affidavit was given to prove that ECI uses high- end technology that cannot easily be tampered. There are have been positive remarks about the EVM’s used by the ECI
It was submitted that the EVM’s in India uses a decoder to tap the exact information of the voter and his vote and this statement could be printed in order to verify the claim. The system has been praised in abroad
In the present case representation of People’s act 1951, the statute provides the ECI to register vote in the manner what it deems fit. The votes should be registered in a manner that there is no tampering and rigging of votes which threatens the free and fair conduct of elections.
The VVPAT system had been taken into consideration and its usage was being governed by a technical experts committee. Various meetings were held in order to fine-tune its applicability
The system of glowing of light once the voter votes gives the assurance to which candidate the vote has been casted.
The ECI urged for a field trial and also welcomed Mr Swamy to participate in the process.
ORDERS AND JUDGEMENTS
The SC in its orders stated that Paper trials are very important to ensure transparency in the voting system. To instil the confidence of voters it was required to introduce EVM with VVPAT system. They have to be introduced in gradual phases and Government of India has to provide the necessary finances to procure VVPAT units. The ECI had formulated a draft to the Ministry of law and justice for amending the Rule 49-A to 49-X, 66-A, 55-C,56-C 57-C And form 17-C of Conduct of election rules,1961.ECI in the beginning was reluctant to use this system but it was first time introduced in the bye-elections of Noksen in Nagaland in 21 polling stations and SC appreciated their efforts. The writ petition was hence disposed of and set aside.
The case study has given an exemplary display of how the courts in India have tried to uphold the values ingrained in the constitution. Not just the Supreme Court verdict even the high court verdict had a similar decision. The decisions were given taking into consideration that it was a constitutional body and gave it some time to make some amendments. The petitioners in the above case never claimed that there was some malpractice which was detected through the use of EVM’s. There was also no suggestion for scrapping the entire system of EVM’s so the German case and its judgement was not a strong consideration, in the 2012 case the entire argument of the petitioner was based under the assumption that EVM’s are vulnerable to rigging practices. The writ of mandamus was quashed in the 2012 case citing that IT act has no relevance to elections. But to base the claims on the basis of assumptions would not suffice as the court of law needs evidences to prove a claim. Right to secrecy is a central right for a voter and this right is also recognised as per the international laws, so the question of introducing a paper trial could question the confidentiality of the system. But in 2019, when the VVPAT’s were used for the elections and the results were satisfactory. This could have restored the confidence of public in the present system. The chances tampering of votes had been eliminated as it is sin qua non in a democratic country. This lead to strengthening the belief in the fundamental principles of democratic values. This case gives a good legal framework wherein it can be seen that election body is an independent organisation and it upholds the article 21 of the constitution. Election commission has the power to conduct free and fair election and the case Ram deo bhandari v. election commission gives the power to do the same. Section 21 in The General Clauses Act, 1897 gives the ECI the authority to issue notices, orders, regulations or by-laws, including the power to introduce, modify, vary or revoke them, using this provision with the help of ministry of law some sections were amended, this shows that ECI followed the given provisions and amended the clause.
The Constitution of India, 1950
The Representation of People Act 1951
Name of the author: Disha Kini
College: NMIMS, Kirit P. Mehta School of Law (1st year- BA-LLB hons)