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The Supreme Court of India on Friday, April 26, rejected pleas seeking 100% cross-verification of votes cast using EVMs with a Voter Verifiable Paper Audit Trail (VVPAT) and said “blindly distrusting” any aspect of the system can breed unwarranted scepticism.

A bench of Justices Sanjiv Khanna and Dipankar Datta delivered two concurring verdicts. It dismissed all the pleas in the matter, including those seeking to go back to ballot papers in elections.

An EVM comprises three units – the ballot unit, the control unit and the VVPAT. All three are embedded with microcontrollers with a burnt memory from the manufacturer. Currently, VVPATs are used in five booths per assembly constituency.

EVM VVPAT case: Supreme Court issues two directives

1.    Justice Khanna directed the Election Commission of India to seal and store units used to load symbols for 45 days after the symbols have been loaded to electronic voting machines in strong rooms.

2.    The Supreme Court also allowed engineers of the EVM manufacturers to verify the microcontroller of the machines after the declaration of the results at the request of candidates who stood second and third. The top court said the request for the verification of the microcontroller can be made within seven days of the declaration of the results after payment of fees.

Option for candidates to seek verification of EVM programmes

•    Candidates who secure second and third position in the results can request for the verification of burnt memory semicontroller in 5% of the EVMs per assembly segment in a Parliamentary constituency. The written request to be made within seven days of the declaration of the results.

•    *On receiving such a written request, the EVMs shall be checked and verified by a team of engineers from the manufacturer of the EVMs.

•    Candidates should identify the EVMs to be checked by a serial number of the polling booth.

•    Candidates and their representatives can be present at the time of the verification.

•    After verification, the district electoral officer should notify the authenticity of the burnt memory.

•    Expenses for the verification process, as notified by the ECI, should be borne by the candidate making the request.
What did the Supreme Court say?

•    "If EVM is found tampered during verification, fees paid by the candidates will be refunded," the bench said.

•    "While maintaining a balanced perspective is crucial in evaluating systems or institutions, blindly distrusting any aspect of the system can breed unwarranted scepticism...," Justice Datta said.

Who filed the petitions?

NGO Association for Democratic Reforms, one of the petitioners, had sought to reverse the poll panel's 2017 decision to replace the transparent glass on VVPAT machines with an opaque glass through which a voter can see the slip only when the light is on for seven seconds.

The petitioners have also sought the court's direction to revert to the old system of ballot papers.

Electronics Corporation of India Ltd and Bharat Electronics Ltd have refused to disclose the names and contact details of the manufacturers and suppliers of various components of EVMs and VVPATs under the RTI Act citing "commercial confidence", according to RTI responses from the PSUs to an activist.

Activist Venkatesh Nayak had filed two identical Right To Information applications with the ECIL and BEL, seeking the details of the manufacturers and suppliers of various components used in the assembling of the electronic voting machines (EVMs) and voter-verifiable paper audit trail (VVPATs).

The VVPAT is an independent vote verification system which enables electors to see whether their votes have been cast correctly.

The ECIL and the BEL, public sector undertakings under the Ministry of Defence, manufacture EVMs and VVPATs for the Election Commission.

Nayak also sought a copy of the purchase orders for the components from both PSUs.

"Information sought is in commercial confidence. Hence details cannot be provided under Section 8(1)(d) of the RTI Act," BEL said in its response.

A similar response was sent by ECIL which said the details requested are related to a product which is being manufactured by ECIL, and third party in nature.

"Disclosing of details will affect the Competitive position of ECIL. Hence, Exemption is claimed under section 8(1) (d) of RTI ACT, 2005," it said.

In response to the purchase order copies, ECIL's central public information officer said the information is "voluminous" which would disproportionately divert the resources of the Public Authority.

"Further, the information will give away the design details of EVM components. The same may pose a danger to the machines produced. Hence, the exemption is claimed U/s 7(9) and under section 8(1)(d) of RTI Act, 2005," ECIL said.

Section 8(1)(d) of the RTI Act exempts from disclosure the information, including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information.

Section 7(9) of the Act says the information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.

"I don't know whose interests they are trying to protect against the right to know of close to a billion-strong electorate. ECIL said that disclosure of the purchase orders will reveal the design details of the components and this may pose a danger to the machines produced. ECIL did not upload even a signed copy of its reply on the RTI Online Portal," Nayak said.

He said it is reasonable to infer that the two companies are not manufacturing every single item of the EVM-VVPAT combo or else the two companies would have replied that they are manufacturing all these components internally without any outsourcing being involved.

"But the electorate is expected to take everything about the voting machines based on what the ECI is claiming in its manuals and FAQs," Nayak said.

Voting has begun in 88 constituencies across 13 states and Union Territories amid a furious row between the Congress and the BJP over manifesto and inheritance tax. Election will be held on all seats of Kerala, a chunk of Rajasthan and UP.

Key points

Elections for the second phase will be held for 20 seats of Kerala, 14 seats in Karnataka, 13 in Rajasthan, eight each in Uttar Pradesh and Maharashtra, seven in Madhya Pradesh, five each in Assam and Bihar, three each in Bengal and Chhattisgarh and one each in Jammu and Kashmir, Manipur and Tripura.

Earlier, 89 constituencies were expected to vote in this phase. But polling in Betul, Madhya Pradesh, was rescheduled after the death of a candidate from Mayawati's Bahujan Samaj Party. Betul will now vote in the third phase, due on May 7.

Key candidates for this round include the BJP's Union minister Rajeev Chandrashekhar  -- up against Congress' Shashi Tharoor from Thiruvananthapuram; actors Hema Malini, and Arun Govil from 1980s iconic serial Ramayan, senior BJP leader Tejasvi Surya and Lok Sabha Speaker Om Birla,  Congress' Rahul Gandhi, KC Venugopal, Bhupesh Baghel. and Ashok Gehlot's son Vaibhav Gehlot.

For both BJP and the Opposition, the most crucial states in this phase will be Karnataka and Kerala. Karnataka is the only BJP bastion in the south, where the Congress won in the last assembly election. The party is hoping to do well amid concerns about delimitation and the disadvantage southern states could face after it.

Further south, the BJP is trying to break into the bipolar politics of Kerala. The party is hoping to open its account in the state having fielded Union ministers Rajiv Chandrasekhar and V. Muraleedharan. In Wayanand, a Congress bastion for over 20 years, it has fielded its state unit president K Surendran against Rahul Gandhi.

For the Opposition, Kerala is a big shining hope. Even though the Left and the Congress are competing against each other in the southern state, victory by either will add to the tally of the Opposition bloc INDIA. Kerala is one of the few states that have never sent a BJP member to parliament.

With north, west and northeast India saturated, the BJP is hoping to expand in the south and east in their quest for 370 seats. The party had won 303 seats in 2019, a majority of them from the Hindi heartland and bastions new and old, including Gujarat and the northeast.

The Congress, though, has claimed it would post a much better performance compared to 2019. After the first phase of the election, their claims have got louder, especially in Rajasthan and western Uttar Pradesh. Rashtriya Janata Dal chief Tejashwi Yadav has claimed INDIA will win all five seats in Bihar.  

The election is being held amid a bitter face-off between the Congress and the BJP. The row was sparked by Prime Minister Narendra Modi's comment that the Congress, if voted to power, will redistribute the personal wealth of people among "infiltrators" and won't even spare the mangalsutras of women. The Congress has questioned if the people had to fear for their wealth and mangalsutras in 55 years of the party's rule and accused the BJP of sidestepping issues that matter.

The next phase of election is due on May 7. The counting of votes will be held on June 4 – three days after the seventh and last phase of election on June 1.