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The Supreme Court Monday sought a response from Election Commission on a plea by an NGO to cross verify the count in EVMs with votes that have been verifiably ‘recorded as cast’ by the voters themselves, through the VVPATs.

A bench of Justices Sanjiv Khanna and Bela M Trivedi sought a reply from the poll panel on the petition filed by 'Association for Democratic Reforms' after hearing advocate Prashant Bhushan on behalf of the NGO.

The bench, however, asked Bhushan if we are not sometimes over suspicious.

To this, Bhushan contended that sometimes the registers and the vote counts do not match, as only few VVPATs were being tallied with EVM vote counts. 

The bench then sought a response from the EC and fixed the matter for hearing after three weeks.

The plea also sought a direction to declare as unconstitutional the Conduct of Election Rules, 1961, and the practice and procedure of ECI to the extent that they violate the fundamental right of the voters to verify through VVPATs that their vote has been ‘recorded as cast’ and ‘counted as recorded'.

The plea claimed that during the 2019 General Elections, there were EC acknowledged instances, where there was variance in the results captured in the EVMs and that of the VVPATs. 

The NGO claimed during mandatory verification of paper slips of VVPAT of five randomly selected polling stations, in polling station No 63 of Mydukur assembly constituency in Andhra Pradesh in the 2019 General Elections, the returning officer officially verified that there was a discrepancy of 14 votes in the EVM and VVPAT counts. 

“The EVM count was 233 votes whereas the VVPAT count was 219 votes. In other words, 6% of the counted votes in that EVM had not been cast. The Returning Officer of the constituency later clarified that the discrepancy is true and was due to non-clearance of votes polled in the mock-poll conducted at 7 am on the polling day from the EVM," the plea claimed.

It sought a direction to the EC to give full effect to the purport and object of the Supreme Court’s directions issued in 'Subramanian Swamy vs Election Commission of India' (2013). 

The court had then “taking note of the advantage in the system” without insisting on any incontrovertible proof of errors or manipulation and in order to “have fullest transparency in the system and to restore the confidence of the voters”, had held that “‘paper trail’ is an indispensable requirement of free and fair elections” and directed the ECI to introduce Voter Verifiable Paper Audit Trail (VVPAT) in Electronic Voting Machines.

But, only due the last minute nature of the proceedings in 'N Chandrababu Naidu vs Union of India', (2019), the Supreme Court, keeping in mind that the ECI had, “pointed out infrastructure difficulties, including manpower availability, at this point of time, in increasing the number of EVMs for verification” had directed the poll panel to count VVPATs in five polling stations per assembly constituency as opposed to the prayer in the writ petition for counting of 50% VVPATs across the country.

The Supreme Court had at that point in time also said that, “the proximity to the election schedule announced by the EC must be kept in mind" and the poll panel also said because of this “declaration of result of election could be delayed by 5-6 days", the plea stated.

"The requirement of the voter verifying that her vote has been ‘recorded as cast’ is somewhat met when the VVPAT slip is displayed for about seven seconds after pressing of the button on the EVM through a transparent window for the voter to verify that her vote has been ‘recorded as cast’ on the internally printed VVPAT slip before the slip falls into a ‘ballot box’,” it contended.

However, there is a complete vacuum in law as the EC has provided no procedure for the voter to verify that her vote has been ‘counted as recorded’ which is an indispensable part of voter verifiability. “The failure of the EC to provide for the same is in the teeth of purport and object of the directions issued by this court in paragraphs 28 and 29 of Subramanian Swamy case, (2013), the plea said.

The plea also contended that the prevalent procedure wherein the ECI only counts the electronically recorded votes in all of the EVMs and cross verifies the relevant EVMs with the VVPATs in only five randomly selected polling stations in each assembly constituency. 

“The electronic recording of the voter’s choice in the EVM does not meet the criteria of vote being verified as ‘recorded as cast’ as the voter only verifies the VVPAT; there is no way for any of the voters to verify that their individual vote has actually been ‘counted as recorded’ because there is no procedure provided for by the EC for them to match the VVPATs that they had certified as being ‘recorded as cast’ with what is actually counted,” the plea said.

Case Title: Asscn of democratic reforms Vs. ECI & Anr.