The current system of polling through Electronic Voting Machines (EVMs) cannot be pulled down without there being any substantial issue of propriety in the process, the Supreme Court observed on Tuesday, advocating caution against the perils of reverting to the traditional ballot box system.

A bench of justices Sanjiv Khanna and Dipankar Datta cited the sheer size of India’s population and the vast number of voters as key factors, as it heard a clutch of petitions demanding 100% cross-verification of votes cast on EVMs with Voter Verified Paper Audit Trails (VVPATs), just days before the first phase of the 2024 Lok Sabha elections. At present, the VVPAT-EVM verification is limited to five in each assembly segment of a constituency.

Alternatively, the petitions argued in favour of going back to the ballot box system, contending that several European countries, including Germany, went back to the traditional system of casting votes.

But the bench sounded a word of caution.

“What’s the population of Germany? And how many people vote in India? There are almost 98 crore voters in India and around 60% vote. At least that many people vote…So, you are saying 60 crore VVPAT should be tallied,” it told advocates Prashant Bhushan, and senior counsel Gopal Sankaranarayanan, Anand Grover and Huzefa Ahmadi, who appeared for the bunch of petitioners.

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The court added that voting in India is a “humongous task” that may not even be possible for several European countries. “My home state, West Bengal, has more population than the country (Germany) Mr Bhushan mentioned. We will have to repose trust and confidence in some institution. Of course, they have to be accountable. But don’t try to bring down a system like this,” justice Datta added.

Setting down the next hearing of the case on Thursday (April 18), the bench further remarked that the statistics shown by the petitioners show no discrepancies or irregularities in 99.9% of cases.

“As we said, when there are no human interventions, there are mostly no problems. Machines are manipulated by humans…There’s bound to be some instances of mismatch because of human errors,” added the court, asking ECI to be ready with statistics and pertinent information on the functioning of EVMs and VVPATs on the next date.

The bench opined that human intervention leads to problems with the fairness of the process. “Then questions regarding human weaknesses, including biases, will crop up. Machines without human intervention will give you correct results. It will be accurate,” it observed.

Addressing the lawyers’ contention regarding reverting to the ballot box system, justice Khanna said: “Fortunately, we are not in the 60s when we have all seen what used to happen with ballot papers. I haven’t forgotten what the situation at the time was…We have all seen the problems in the past. And we are not only talking about booth capturing. There are other problems too.”

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It also found no favour with a private survey cited by Bhushan to argue that “majority of voters do not trust EVMs. “So, you want us to go by a private survey to believe that majority of countrymen do not trust EVMs? Let us not reduce it to such a level…This type of argument won’t be acceptable,” it said.

The petitions, which have stirred significant public and political interest, argue for a more robust mechanism to ensure the accuracy of electronic voting through the VVPAT system. This system provides a paper slip confirmation, viewed by the voter through a transparent window, which then goes into a sealed cover, available for verification in case of disputes.

Currently, the verification process involves checking VVPAT slips from five randomly selected EVMs in each assembly constituency or segment. However, the petitions, filed by the Association for Democratic Reforms (ADR) and activist Arun Kumar Agarwal, sought a more comprehensive approach. Agarwal advocated for the counting of all VVPAT slips to ensure transparency, while the ADR’s petition focussd on enabling voters to confirm that their votes are counted as they were cast.

The petitions further challenged the August 2023 ECI guidelines, which only allow for sequential verification of VVPAT slips and purportedly cause an excessive delay in the counting of all VVPAT slips, besides permitting voters to physically deposit their VVPAT slip in a ballot box and by making the machine’s glass transparent.

Bhushan, arguing for ADR, pointed out that although he does not make a claim that EVMs were tampered with in the previous elections, he is seeking to persuade the bench that since EVMs were prone to be hacked, an additional layer of protection was warranted to maintain the purity of the election process.

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Supporting him, Sankaranarayanan, who represented Agarwal, laid emphasis on furthering the voter’s right to know to buttress the confidence of the voters in the vote cast by them. “The right to information in this case is not sought to be exercised in reference to a candidate but in reference to the person who cast his vote. It’s about satisfaction of the vote cast. Confidence of the voters is at the heart of these petitions,” he said.

Senior counsel Maninder Singh appeared for ECI while additional solicitor general Aishwarya Bhati represented the central government, opposing these petitions. Both pointed out that the issue was dealt with by the Supreme Court in the past as well and there were no new grounds in the fresh petitions to entertain them.

The bench said it would continue hearing the case on Thursday.

The integration of VVPAT with EVMs gained legal prominence following a petition by BJP leader Subramanian Swamy after the 2009 general elections. Swamy advocated for a paper trail to augment the reliability of electronic voting, arguing that it would ensure that each vote cast on an EVM is accurately recorded. Although initially dismissed by the Delhi high court, the plea found favour in the Supreme Court, which, in its landmark 2013 judgment, declared the VVPAT system an “indispensable requirement” for free and fair elections.

The Supreme Court’s assertion stemmed from a fundamental view of voting not only as a right but as a profound act of expression within a democratic framework. It underscored that the confidence of voters in the EVM system could only be achieved by introducing a transparent method that allows voters to verify that their votes were cast as intended.

Following this, ECI was directed to implement VVPAT systems across electoral processes to complement EVMs. This system enables the generation of a paper slip for each vote cast, which is displayed to the voter behind a transparent window for seven seconds before being securely stored. This mechanism allows for a physical audit trail of votes cast electronically, serving as a safeguard against potential discrepancies in the electronic tally.

Initially, ECI conducted a mandatory verification of VVPAT paper slips for one randomly selected polling station per assembly segment in a constituency. In April 2019, the top court ordered that the number of EVMs subjected to VVPAT verification be increased from one EVM per assembly segment to five EVMs. The direction came following a petition filed jointly by 21 Opposition parties, seeking a review of at least 50% of VVPAT slips with the EVMs to ensure the integrity of the elections. The parties went back to the Supreme Court in May 2019 asking for counting of at least 25% per cent EVM paper trail machines instead of only five in every assembly segment but the court turned down their plea.