By Gautam Thaker*
Electronic Voting Machine (EVM) was introduced in The Representation of the People Act, 1951 by Amendment Act No. 1 of 1989 with effect from 15.03.1989. Before the said amendment, elections were conducted through the paper ballot. Section 61A of The Representation of the People Act, 1951 says that wherever any reference to ballot box or ballot paper has been used in the Act or the Rules, it will be construed as a reference to the EVM wherever such voting machine is used at any election.
In the year 2009, through a Writ Petition under Article 32 of the Constitution filed before the Supreme Court of India, the EVMs being free from any tampering/manipulation was questioned. The Supreme Court disposed of the said Writ Petition by asking the Petitioners therein to pursue the said issue with the Election Commission. All the political parties took up the issue before the Election Commission of India, who in turn appointed a technical experts committee to look into the complaints.The said Committee after conducting the trials approved the EVM with VVPAT system. On 14.08.2013, the Conduct of Election Rules, 1961 were amended, enabling the Election Commission to conduct the elections with VVPAT system.
Thereafter, came an important judgment by the Supreme Court on 08.10.2013, in the case of Dr. Subramaniam Swamy v. Election Commission of India, in which, after going through the status report filed by the Election Commission of India on the VVPAT system, the Supreme Court noted as follows:
“23. From the materials placed by the ECI, it is noted that the purchase order has been placed with M/s BEL and M/s ECIL for supplying 150 and 300 VVPAT units respectively at Rs. 16,200/- per unit excluding excise duty, sales tax and transportation etc. costing Rs. 72,90,000/- (approx.). The ECI has also highlighted that if the VVPAT systems are ultimately to be used with all the 13 lakh EVMs available, the total cost in the purchase of VVPAT units may come to about Rs. 1,690 crores, taking into account the possible reduction in the cost per unit due to bulk production the cost may come to Rs. 13,000/- per unit approximately.”
After making reference to the cost involved in introducing the VVPAT system, the following important observation was made by the Supreme Court:
“29) 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 VVPT 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 with VVPT system because vote is nothing but an act of expression which has immense importance in democratic system.
30) In the light of the above discussion and taking notice of the pragmatic and reasonable approach of the ECI and considering the fact that in general elections all over India, the ECI has to handle one million (ten lakhs) polling booths, we permit the ECI to introduce the same in gradual stages or geographical-wise in the ensuing general elections. The area, State or actual booth(s) are to be decided by the ECI and the ECI is free to implement the same in a phased manner. We appreciate the efforts and good gesture made by the ECI in introducing the same.
31) For implementation of such a system (VVPAT) in a phased manner, the Government of India is directed to provide required financial assistance for procurement of units of VVPAT.”
It is clear from the above that the Hon’ble Supreme Court gave a clear finding that paper trail in the EVM is an indispensable requirement of free and fair elections. It further added that the confidence of the voters in EVMS could only be achieved with the introduction of the paper trail. It is also observed by the Supreme Court that vote is nothing but an act of expression under Article 19(1)(a) of the Constitution.
This right of the voter is of immense importance in the democratic system, which can be ensured only when there is fullest transparency in a system. In the present EVM, there is no device by which a voter is ensured that the vote cast by him in favour of a candidate has indeed gone to that candidate. It is only when paper trail is available in VVPAT system that he is given that assurance.
It is only when the voter is assured about his vote that his right of expression in a vote, which is a fundamental right, is fulfilled. Once this finding has been given, it is binding on all the courts/authorities, including the Election Commission of India. In fact, after the Supreme Court on 08.10.2013 gave the aforesaid judgment, it was not permissible for the Election Commission to conduct Parliamentary election/ State Assembly elections through EVM without VVPAT system.
The Election Commission of India is an independent body, which has the constitutional authority to supervise, direct and control elections in a manner, which ensures free and fair elections. The Election Commission, being bound by the directions of the Hon’ble Supreme Court, must emphasize that any future election, including the ensuing election for the Gujarat Assembly, will be conducted only with EVMs having VVPAT system.
The Commission must take into consideration the wide criticism, which has been made in the recent elections, particularly, in UP, where elections were conducted without the VVPAT system. The Commission must now take into consideration with all seriousness what has been observed by the Supreme Court and thus, restore confidence of the voter in EVM by implementing VVPAT system as directed by the Supreme Court.
It is also an obligation of the Government of India as well as all State Governments, including the Government of Gujarat to make available funds for the EVMs with VVPAT system to show its respect to the Supreme Court’s directions and allow the voters to cast their votes in the election process which is free and fair.
*General secretary, People’s Union for Civil Liberties, Gujarat