The Congress-led state governments’ response to the central agricultural Acts marks a shift from the usual response of the opposition to the central government, as they adopt their constitutional authority as the axis point of their response. In this backdrop, expectations are high about the possibility of a state government’s constitutional intervention in other cases of constitutional violations by the central government and other institutions.
Among the several issues the opposition parties had raised in the past years, the concerns regarding India’s election system stand out in several respects. There is nothing more fundamental and essential to the sustenance of democracy as the conduct of free and fair elections. Bringing transparency in the EVM-VVPAT based election process is one of the issues that was raised by the opposition parties in all possible avenues during the 2019 parliament elections.
Unlike several other issues, this is a concern which refuses to die. The spectre of EVM allegations comes back to haunt the Indian election system frequently. Ever since the introduction of the EVM-VVPAT system, the election times are rife with allegations of EVM malpractices, corroborated by the evidence of mismatches. There have been mismatches between EVM count and VVPAT count, between the number of voters and the votes registered and between the serial number of EVMs that is used for polling and counting. There is no reason to think that the case would be different in the upcoming state assembly elections.
However, the objections that the opposition parties raise about the EVM-VVPAT election system is with regard to the violations of the constitutional and democratic principles. They reiterate that EVM-VVPAT elections are not transparent unless the VVPATs of all polling stations are counted. The Election Commission’s only public stated contention is that the transparency requirement is time consuming as counting of all VVPATs requires a few more hours! However, the demands for modifying the election rules related to the VVPAT counting will grab attention again in view of the opposition-led state government’s decision to address unconstitutional laws and rules by using its legislative powers.
The Supreme Court had stated, in its landmark judgment in 2013, that had ordered the introduction of VVPATs that “Paper trail is an indispensable requirement of free and fair election”. Opposition parties’ powerful and yet simple argument is that paper trail (VVPATs) is integral not only to polling but also to counting if the election has to be free and fair. At present in 98% of polling stations, VVPATs are not counted, though the VVPAT system is used in all polling stations in India.
There are two major Election Commission (EC) rules related to VVPAT counting that directly contravene the voter’s right for transparency and verification, the rights that are reinstated by the Supreme Court judgement. As per the first the EC rule (the VVPAT-sample counting rule), the VVPATs of only five polling stations per assembly segment are counted. In the 2019 parliament election, only the VVPATs of 20,600 polling stations out of the total 10.6 lakh polling stations were counted. The EC’s use of the sampling method in VVPAT counting is unjustifiable as it goes against the very basic principle of democratic election which says that ‘each and every vote counts’.
The logical implication of the 2013 Supreme Court judgment is that the paper slips (VVPATs), which are verified by the voters, are the citizens’ vote and not the input received in an unverifiable, opaque machine. Given the Supreme Court judgment, EVMs are only a convenient mode of casting votes (for clear and valid casting of votes) and they cannot be considered as the vote itself. As VVPATs are the citizens’ vote, the refusal to count 98% of the VVPATs (the VVPATs of 98% of polling stations) amounts to not counting 98% of the citizens’ vote.
The second undemocratic EC rule is the EVM-VVPAT mismatch rule. The EC’s argument for the use of sample method is that in the randomly chosen polling stations if EVM – vote count matches with VVPAT- vote count match then it is highly probable that EVM counts match with VVPAT counts in the 98% of polling stations where the VVPAT was not counted. But the key question is what if the VVPAT- vote count in the sample polling stations does not match with its corresponding EVM- vote count. Then it means EVM counts are unreliable in the polling stations all over the country.
If discrepancies are found in the sample then the methodological implication is that the same discrepancies will be likely to be found in the entire statistical population because sample is the representation of the population. That is, if VVPAT count doesn’t match with EVM count in the sample polling stations, then it is highly likely that the same is the case in many other polling stations too. Therefore, in principle, VVPATs ought to be counted in all polling stations in India. However, the EC chooses not to count a single additional VVPAT even when there is a discrepancy between EVM counts and VVPAT counts in the randomly chosen sample. The EC’s rule recommends no action in the case of VVPAT mismatch, other than taking the VVPAT count as final in the concerned polling station. That is, in 98% polling stations, the EC endorses EVM- vote counts as final vote counts even when it is proven as unreliable vote count by its own chosen method.
The two VVPAT counting rules are not only absurd and self-contradictory but also came into effect illegally. They are neither the part of any election law passed by the Parliament nor rules that are formulated by a central ministry and ratified by the Parliament. They are only notifications issued by the EC. Under the constitution and the Representation of the People Act, 1951, the EC does not have any authority to form laws or rules to conduct elections. Its authority is severely limited to notifying the existing rules and giving directions on the basis of the laws and rules passed or ratified by the parliament.
The election rule that imposes sampling method in the VVPAT counting process is only a notification (No.51/8/VVPAT-INST/2018-EMS) issued by the Election Commission on February 13, 2018 and revised on April 15, 2019. It is true that the VVPAT sample counting rule was challenged in the Supreme Court by the opposition party in 2019. However, the legality of the notification or the EC’s authority to issue such a notification was never challenged.
The sole point that was challenged in the apex court is the inadequacy of the sample size taken by the EC. So, the Supreme Court had never endorsed the EC’s authority to form election rules. The same is the case with the EVM-VVPAT mismatch rule. It is only a notification issued by the EC (No.51/8/7/2019-EMPS Dated: 21st May,20l9). Though the returning officers had been practicing the system of taking no further action, other than taking the VVPAT count as final in the particular polling station in the eventuality of mismatch, the notification was issued by the election commission only during the last parliament election.
The important matter is that the two major election rules related to the counting of VVPATs are neither the part of the election law passed by the Parliament nor a rule ratified by the Parliament. Here comes the significance of state legislative assemblies. States have the complete constitutional authority to step in under such circumstances. Under Article 328, the state legislative assembly has the authority to pass acts related to all matters in connection with the state election if there are no acts passed by the parliament related to that provision.
That means the state legislative assemblies have the constitutional authority to pass an act that stipulates a transparent and rational process of VVPAT counting and thus nullifies the two ECI- notified “rules’ ‘ of VVPAT counting. A state legislation can either stipulate that all VVPATs of all polling stations are to be counted or they are counted at least when any mismatch between VVPAT count and EVM count is detected.
*The author is former visiting faculty, IIT Kanpur
Related:
ECI Silent on Serious Irregularities in May 2019 Gen Election: Constitutional Conduct Group
2019 polls: ECIL seeks disclosure of information on EVM, VVPAT; BEL, EC equivocate under RTI Act
RTI info on Electronic Voting Machines would ‘endanger’ life of engineers: BEL