Election Commission Must Count All VVPAT Slips to Protect Electoral Integrity

Uttar Pradesh, Uttarakhand, Punjab, Goa and Manipur are in the midst of elections to their Assemblies. These could turn out to be semi-finals for the General Election in 2024. Despite deep suspicions and misgivings about their integrity and fairness, the Election Commission of India (ECI) is persisting with the “black box” called Electronic Voting Machines (EVMs) for polling and counting votes.

As the electoral process kickstarted in Uttar Pradesh on February 10, and went on to the second phase on February 14, there have been allegations of serious violations of the Model Code of Conduct by the Prime Minister of India and the Chief Minister of the state.

Section 126 (3) of the Representation of the People Act prohibits candidates and campaigners from putting out “election matter” calculated to influence voters in the 48 hours before polling ends—whether through television or theatrical performances. Code 1 and 2 of the Model Code of Conduct lays down:

1. “No party or candidate shall indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic.

2. Criticism of other political parties, when made, shall be confined to their policies and programme, past record and work. Parties and Candidates shall refrain from criticism of all aspects of private life, not connected with the public activities of the leaders or workers of other parties. Criticism of other parties or their workers based on unverified allegations or distortion shall be avoided.”

Both the law and the code were blatantly violated by the Prime Minister and the Chief Minister through televised interviews and communal or caste-tinged speeches and exhortations. Despite complaints, the ECI has played deaf and mute despite having the powers to launch a prosecution. Section 16A of The Election Symbols (Reservation and Allotment) order, 1968 allows it to suspend or withdraw the recognition of a recognised political party if it fails to observe the Model Code of Conduct or follow lawful directions and instructions of the Election Commission after giving it a reasonable opportunity of showing cause.

Besides malfunctioning of EVMs, there are reports of other serious violations. One allegation is that some polling booths in Uttar Pradesh displayed a picture of Prime Minister Narendra Modi. There are also reports of impersonations, some on a fairly large scale. What is worse, it appears that “cash for vote” is being resorted to liberally to purchase the mandate!

All these bring to the fore the integrity of the ongoing election and the possibility of hijacking people’s mandate. EVM voting only adds to the misery. It is universally known that EVM voting does not comply with the essential requirements of democratic principles: that is, each voter has direct knowledge and capacity to verify that their vote is cast as intended, recorded as cast, and counted as recorded. It also does not provide provable guarantees against hacking, tampering and spurious vote injections. Thus, elections must be conducted assuming that the EVMs may possibly be tampered.

The design and implementation of EVMs and the results of both software and hardware verification are not public, nor open to a full independent review. The Voter Verifiable Paper Trail or VVPAT system does not allow voters to verify the slip before the vote is cast. Due to the absence of end-to-end (E2E) verifiability, the present EVM system is not verifiable and, therefore, unfit for democratic elections.

In these elections, there is another crisis. With the EVM patent of BEL and ECIL having expired, there could be a free-for-all in accessing and using this device. Even when the patent was operational, there was reportedly enormous pressure from the Prime Minister’s Office on the ECI to procure EVMs from favourite corporate entities. The ECI then had resisted, which may not happen now, when the EVMs themselves have become rogue devices. With the ECI maintaining complete secrecy, one does not know where the current set of EVMs has come from or their integrity levels.

VVPATs were introduced to resolve some of these matters, at least to some extent. The Supreme Court has laid down the norm to verify EVM votes against VVPAT slips in five randomly-selected booths in each Assembly constituency. And VVPATs are installed in every EVM, but not even one paper slip is counted and matched to verify the votes polled and counted before the results are announced. It has exposed elections to serious fraud.

Making things worse are duplications in voting, which have happened since the introduction of VVPATs. There are two votes now--one recorded in the EVM and one printed by the VVPAT. Rule 56D(4)(b) of the Conduct of Election (Amendment) Rules, 2013, provides for the primacy of the VVPAT slip count over the electronic tally of ballots cast and calculated on the EVMs. Therefore, there is no justifiable reason why all VVPAT slips should not be counted in every Assembly Constituency to assuage suspicions in voters’ minds that their votes have not been recorded and counted accurately.

To go a step further, since VVPAT slips supersede EVM memory, it is futile and a waste of time and energy for the ECI to continue electronic counting. It should shift to only 100% counting of VVPAT slips to ensure honesty and integrity in the declarations of results. Counting of EVM memory is always open to the ECI for cross-verification and auditing.

Former Chief Election Commissioner SY Quraishi, during whose tenure VVPATs were introduced, has also suggested: “All the VVPAT slips may be counted. This will end the demand for return to ballot paper for good. Counting the VVPAT slips would be much like paper ballots, without return to the ballot papers as the VVPAT chits are much smaller in size, containing the name of only one candidate, unlike the big ballot paper with multiple candidates…. So, in the end there would not be much difference whether we count EVMs or VVPAT slips. Only that reversing the process—that is counting VVPAT slips—would enhance transparency and credibility of the electoral system….”

It gives the lie to the false claims of certain ECI officials that counting all VVPAT slips to declare results will take several days. It is common knowledge that under the paper-ballot system, even in larger Parliament or Assembly Constituencies, votes were counted and results declared within 16 or 18 hours. Counting 100% VVPAT slips will not take longer than this. If need be, mechanical sorters can hasten the counting process.

Article 324(1) of the Constitution vests the ECI with plenipotentiary powers to carry out the mandate of “Superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice President.”

Rulings of the Supreme Court India, inter alia, lay down that Article 324 is a reservoir of power to act for the avowed purpose of conducting free and fair elections with expedition. The apex court has observed in a catena of cases that free and fair elections are a basic feature of the Constitution.

Therefore, the ECI must notify the vote-counting process immediately and on these lines for which it is fully empowered and so it has no excuse not to. Although elections to five state assemblies have already commenced, vote-counting would take place only on 10 March 2022. Therefore, the ECI should issue the required notification immediately to conduct these elections with integrity and fairness.

The fallacies of the first-past-the-post system, when combined with opaque voting and counting systems, could create an autocratic, kleptocratic and oligarchic ruling establishment. It would sound the death knell of democracy.

(This article is the first in a series run by Newsclick to examine how to address the ambiguity on what is a ballot, as defined in the People's Representation Act.)

The writer is a former Indian Army and IAS officer. The views are personal. He edited the book, “Electoral Democracy-An Inquiry into the Fairness and Integrity of Elections in India”. The views are personal.