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IN THE
SUPREME COURT OF INDIA
CIVIL
APPELLATE JURISDICTION
CIVIL
APPEAL NO.**** OF 2017
(Arising
out of SLP (Civil) No. 13735 of 2012)
Bahujan Samaj Party
….
Appellant(s)
Versus
Ex CJI Sathasivam Ex Election
Commission of India Sampath
….
Respondent(s) Narendra Modi, Mohan Bagawath, Amit Shah, Venkaiah naidu,
WITH
WRIT
PETITION (C) NO. 406 OF 2012
J U D G M
E N T
P.
Sathasivam, CJI for Ballot Paprers until entire EVMs/VVPAT are replaced
1)
Leave
granted.
Civil
Appeal @ SLP (C) No. 13735 of 2012
2)
This
appeal is directed against the judgment and order
dated
17.01.2012 passed by the Division Bench of the High
Court of
Delhi at New Delhi in W.P.(C) No. 11879 of 2009
whereby
the High Court disposed of the petition by
disallowing
the prayer made by the appellant herein for
issuance
of a writ of
mandamus
directing
the Election
Commission
of India (ECI)-Respondent herein to incorporate
a system
of Paper Ballots until entire “paper trail/paper receipt” in the Electronic
Voting
Machines (EVMs) as a convincing proof that the EVM
has
rightly registered the vote cast by a voter in favour of a
particular
candidate.
Being
aggrieved of the above, the present appeal has
been
filed by way of special leave.
Writ
Petition (Civil) No. 406 of 2012
4)
One
Jgatheesan Chandrasekharan, R Muniappa, Gopinath, Dr Ashok Siddharth, Rajendra Satyanarayan Gilda has filed this Writ
Petition,
under Article 32 of the Constitution of India, praying
for
issuance of a writ of
mandamus/
direction(s)
directing the
Union of
IndiaNarendra Modi, Mohan Bagawath, Amit Shah, Venkaiah naidu,
WITH
, the Chief Election Commissioner and the
Technical
Experts Committee-Respondent Nos. 1-3 herein
respectively
to effect the necessary modifications in the
EVMs so
as to allow the voters to verify their respective votes
and to
attach the printers to the EVMs with a facility to print
the
running record of the votes for the purpose of verification
by the
voters in the process of voting. He also prayed for a
Page
3
direction
to frame guidelines and to effect necessary
amendments
in the Conduct of Election Rules, 1961.
5)
In view
of the pendency of the appeal filed by Dr.
Subramanian
Swamy, this Court issued notice in the writ
petition
and tagged with the said appeal.
6)
Heard Dr.
Subramanian Swamy, appellant-in-person in
the
appeal, Dr. R.R. Deshpande, learned counsel for the writ
petitioner,
Mr. Ashok Desai and Ms. Meenakshi Arora, learned
senior
counsel for the ECI.
Contentions:
7)
Dr.
Subramanian Swamy, the appellant herein
contended
before this Court that the present system of
EVMs, as
utilized in the last few general elections in India,
does not
meet all the requirements of the international
standards
and though the ECI maintains that the EVMs
cannot be
tampered with, but the fact is that EVMs, like all
electronic
equipments, are open to hacking.
8)
The
appellant has further highlighted that the instant
matter
arises out of the refusal of the ECI to incorporate a
certain
obvious safeguard in the EVMs called “paper
backup”,
“paper receipt” or “paper trail”, presently in use
and
mandated in some countries like USA, which would easily
and
cheaply meet the requirement of proof that the EVM has
rightly
registered the vote cast by a voter. The appellant has
further
highlighted that the “paper trail” system is to
supplement
the procedure of voting as in this procedure,
after
recording a vote in the EVM, a print out will come out
which
will appraise the voter that his vote has been rightly
registered
and the same will be deposited in a box which can
only be used
by the ECI in case of election dispute.
9)
It is the
categorical stand of the appellant that the
above
said system will bring more accuracy in the present
system
and if a particular election is challenged on the
ground
that some particular identified voter’s voter or the
votes of
a group of voters have been suppressed/have not
been
correctly assigned by the EVMs, the accepted current
procedure
is for a re-run of the same EVMs for a re-count,
however,
under the new procedure, a re-count will be of the
receipts
in the ballot box containing the printouts the EVMs
5
had
issued to the voter thereby ensuring more transparency
in the
process.
10)
The writ
petitioner has also raised similar contentions as
those of
Dr. Swamy. According to the petitioner, in the
present
system of voting through EVMs, there is no such
facility
by which a voter can verify and confirm his own
voting.
At present, a voter presses a button only but cannot
ascertain
the actual voting. He is not sure whether his vote
is
recorded or not, if recorded, whether it is recorded in
favour of
the person to whom it was intended or not.
Whether
it is valid or invalid and whether it is counted or not.
It is
submitted by the petitioner that unless and until answers
to these
questions are personally seen by the voter, it cannot
be said
that voting is made by him because “pressing a
button of
choice and getting flashed the red-light” is not
actual
voting in real sense unless the voter knows well that
what has happened
in consequence of pressing a button of
his
choice from the EVMs.
Stand of
the Election Commission of India
Page
6
11)
Mr. Ashok
Desai, learned senior counsel for the ECI
submitted
that the apprehension that EVMs could be
tampered
with is baseless. It was also informed to this Court
that the
ECI has been exploring the possibility of
incorporating
a viable Voter Verifiable Paper Audit Trail
(VVPAT)
system as a part of the presently used EVMs to
make the
election system more transparent. Further, it was
brought
to our notice that the ECI conducted field trials for
VVPAT
system earlier also but the same had not been
successful
and were discontinued. The ECI also filed a
counter
affidavit stating that the EVMs provided by the
Commission
are of such a high end technology that it cannot
be
hacked.
12)
Referring to Section 61A of the Representation of the
People
Act, 1951, it is submitted that the Statute itself
provides
for recording of votes by EVMs and the ECI has been
given the
discretion to prescribe recording of votes by such
EVMs as
it may deem fit. This discretion has to be exercised
in a
manner to preserve the sanctity of the election process
and
ensure that the election is conducted in a free and fair
6
Heard Dr.
Subramanian Swamy, appellant-in-person in
the
appeal, Dr. R.R. Deshpande, learned counsel for the writ
petitioner,
Mr. Ashok Desai and Ms. Meenakshi Arora, learned
senior
counsel for the ECI.
Contentions:
7)
Dr.
Subramanian Swamy, the appellant herein
contended
before this Court that the present system of
EVMs, as
utilized in the last few general elections in India,
does not
meet all the requirements of the international
standards
and though the ECI maintains that the EVMs
cannot be
tampered with, but the fact is that EVMs, like all
electronic
equipments, are open to hacking.
8)
The
appellant has further highlighted that the instant
matter
arises out of the refusal of the ECI to incorporate a
certain
obvious safeguard in the EVMs called “paper
backup”,
“paper receipt” or “paper trail”, presently in use
and
mandated in some countries like USA, which would easily
and
cheaply meet the requirement of proof that the EVM has
rightly
registered the vote cast by a voter. The appellant has
further
highlighted that the “paper trail” system is to
supplement
the procedure of voting as in this procedure,
after
recording a vote in the EVM, a print out will come out
which
will appraise the voter that his vote has been rightly
registered
and the same will be deposited in a box which can
only be used
by the ECI in case of election dispute.
9)
It is the
categorical stand of the appellant that the
above
said system will bring more accuracy in the present
system
and if a particular election is challenged on the
ground
that some particular identified voter’s voter or the
votes of
a group of voters have been suppressed/have not
been
correctly assigned by the EVMs, the accepted current
procedure
is for a re-run of the same EVMs for a re-count,
however,
under the new procedure, a re-count will be of the
receipts
in the ballot box containing the printouts the EVMs
5
had
issued to the voter thereby ensuring more transparency
in the
process.
10)
The writ
petitioner has also raised similar contentions as
those of
Dr. Swamy. According to the petitioner, in the
present
system of voting through EVMs, there is no such
facility
by which a voter can verify and confirm his own
voting.
At present, a voter presses a button only but cannot
ascertain
the actual voting. He is not sure whether his vote
is
recorded or not, if recorded, whether it is recorded in
favour of
the person to whom it was intended or not.
Whether
it is valid or invalid and whether it is counted or not.
It is
submitted by the petitioner that unless and until answers
to these
questions are personally seen by the voter, it cannot
be said
that voting is made by him because “pressing a
button of
choice and getting flashed the red-light” is not
actual
voting in real sense unless the voter knows well that
what has happened
in consequence of pressing a button of
his
choice from the EVMs.
Stand of
the Election Commission of India
Page
6
11)
Mr. Ashok
Desai, learned senior counsel for the ECI
submitted
that the apprehension that EVMs could be
tampered
with is baseless. It was also informed to this Court
that the
ECI has been exploring the possibility of
incorporating
a viable Voter Verifiable Paper Audit Trail
(VVPAT)
system as a part of the presently used EVMs to
make the
election system more transparent. Further, it was
brought
to our notice that the ECI conducted field trials for
VVPAT
system earlier also but the same had not been
successful
and were discontinued. The ECI also filed a
counter
affidavit stating that the EVMs provided by the
Commission
are of such a high end technology that it cannot
be
hacked.
12)
Referring to Section 61A of the Representation of the
People
Act, 1951, it is submitted that the Statute itself
provides
for recording of votes by EVMs and the ECI has been
given the
discretion to prescribe recording of votes b
y such
EVMs as
it may deem fit. This discretion has to be exercised
in a
manner to preserve the sanctity of the election process
and
ensure that the election is conducted in a free and fair
6
Page
7
manner. The ECI has exercised due diligence to ensure that
EVMs so used are “tamper proof” and it is also in the process
of exploring to incorporate VVPAT system which is
compatible with the present EVMs used by it. It is asserted
that there is no instance of tampering with EVMs so far by
anyone.
13)
It is further submitted that the EVMs used in India are
unique and unlike the ones used in the elections in USA and
other countries, which are personal computer based. EVMs
deployed by the ECI have been lauded not only in India but
also abroad. EVM’s Control Unit retains in the memory each
vote recorded elector-wise. The information stored in the
memory of the Control Unit can be retrieved by using a
device called the “decoder” which, when attached to the
Control Unit of EVM, can print out the statement of voting
data showing the order in which each voter has voted and to
whom he has voted.
14)
Insofar as the transparency of the election process as
well as the right of a voter to know whether his vote has
actually been recorded for the candidate for whom it was
7
Page
8
cast is concerned, it is submitted that as soon as a vote is
recorded by a voter by pressing the “candidate’s” button on
the Ballot Unit, a light glows against the name and symbol of
the candidate, which the voter can see for himself/ herself.
This is a visual (electronic) assurance to the voter that the
candidate for whom he has cast his vote has actually got that
vote. Thereafter, the light goes off to protect the secrecy of
voting.
15)
It is further submitted that the feasibility of VVPAT
system was sought to be explored to by various political
parties and they were explained the technical and
administrative safeguards. The ECI also constituted a
Technical Experts Committee to examine the viability of the
VVPAT system. On 27.05.2011, the Technical Experts
Committee, after discussion with political parties and civil
society members and also after seeing the demonstration of
the prototype VVPAT system developed by M/s. Bharat
Electronics Ltd. (BEL) and M/s. Electronics Corporation of
India Ltd. (ECIL), recommended that a field test of the
prototype VVPAT system should be carried out in a simulated
8
Page
9
election under different environmental conditions in
Jaisalmer, Thiruvananthapuram, Delhi, Leh and Cherapunji.
The ECI also held further meetings with the manufacturers of
EVMs on various dates to fine tune the system and expedite
the follow up action required. Several meetings were also
held with the Expert Committee on VVPAT system.
16)
In wider fulfillment of the objectives of the field trial, the
ECI has requested the National and State parties to extend
necessary cooperation by getting involved in the trial process
actively and also witness the trial in order to have a first
hand experience of the system. The ECI has also requested
the individuals including the appellant – Dr. Subramanian
Swamy and the groups, who have been engaged with the ECI
on the issue of EVM-VVPAT, to witness the trial.
17) We have carefully perused the relevant materials and
considered the rival contentions.
Discussion
18)
When the matter was listed before this Court for
hearing on 27.09.2012, Mr. Ashok Desai had brought to our
notice that the ECI is contemplating foolproof method in
Page
10
EVMs for which they are taking various steps in consultation
with the Technical Experts Committee and the views of all
recognized political parties. Mr. Desai also promised to
appraise this Court about the deliberations and the ultimate
decision to be taken by them in this regard. Accordingly, this
Court granted sufficient time to the ECI to file Status Report
regarding introduction of VVPAT system in EVMs to be used
in the elections.
19)
Pursuant to the directions of this Court, the ECI filed a
Status Report on the developments of VVPAT system. In the
said report, the ECI, citing various technicalities, prayed for
further time to make the system more robust for the field
conditions.
20)
On 15.12.2012, M/s BEL, Bangalore filed a report
showing the status of development of VVPAT system which
contains changes that have been carried out in VVPAT from
September to December, 2012 and also furnished
chronological changes made in VVPAT system after the field
trial of the VVPAT system held in July and August, 2012.
10
Page
11
21)
Pursuant to the directions of this Court, the Secretary,
ECI, filed an affidavit highlighting the following steps/
information:
“
(i)
That vide its Affidavit dated 14.01.2013, the
Commission had filed the status report regarding
introduction of the VVPAT system in the Electronic
Voting Machines (EVMs).
(ii)
That subsequently, in the Technical Expert
Committee meeting held on 04.02.2013, the
Committee approved the design of the VVPAT and
decided that software fine tuning will be done and
completed by the end of February, 2013, and
modified design specifications will be submitted to
the Technical Expert Committee for approval.
The Committee also recommended that the
Commission may for using the VVPAT and that the
VVPAT should be tried in a bye-election.
(iii)
That in the Technical Expert Committee
meeting held on 19.02.2013, the Committee
finalized the VVPAT design.
The manufacturers, namely, M/s. Bharat Electronics
Limited and M/s. Electronics Corporation of India
Limited have quoted Rs. 16,200/- (excluding duties,
taxes and transport charges) per VVPAT system.
The Commission has decided to purchase sufficient
units of VVPAT for trials in a Bye-election, at an
approximate cost of Rs.72,90,000/- (Rupees seventy
two lakh ninety thousand) approximately.
(iv)
It is submitted that the Commission will
require approximately 13 lakh VVPAT units to be
manufactures for 13 lakh EVMs presently available
and roughly about Rs. 1690 crores (One Thousand
Six Hundred Ninety Crores)(i.e. 13 lakh units x
Rs.13,000 per unit) are required for the purpose of
implementation of the VVPAT system taking into
account the possible reduction in the cost per unit
when produced in bulk.
(v)
It is further submitted that in order to
implement the new system the Conduct of Election
Rules, 1961 will require certain amendments.
In this connection, vide letter No.
3/1/2013/Vol.II/SDR/86 dated 28.03.2013, the
11
Page
12
Commission has informed the Legislative
Department of the Ministry of Law and Justice
inter
alia
the various amendments required to the
relevant parts of Rules 49A to 49X, 66A, 55C, 56C,
57C and Form 17C of the Conduct of Elections Rules,
1961, as well as introduction of Rules 49MA and 56D
in the said Rules…
(vi)
That the Commission has called for a meeting
of all the recognized National and State Parties on
10
th
May, 2013 for the purpose of demonstration of
VVPAT unit to them and for discussion with them for
eliciting their views regarding use of VVPAT system
in the elections. The petitioner herein and others
interested in the matter would also be invited at the
meeting.”
22)
It is seen from the records that after various
deliberations with the experts and persons concerned with
the technology, the Technical Experts Committee approved
the final design of VVPAT units in its meeting held on
19.01.2013. In order to meet the directions of this Court and
for proper execution of VVPAT system, as noticed above, the
ECI in its letter dated 28.03.2013, addressed to the Secretary
to the Government of India, Ministry of Law and Justice stated
that necessary ground work for amendment to the Conduct
of Election Rules, 1961 (in relevant parts in Rules 49A to 49X,
66A, 55C, 56C, 57C and Form 17C) may be made so that the
amendment to the Rules can be notified immediately which
12
Page
13
will enable the ECI to use the VVPAT system in bye-elections
in consultation with the political parties. By placing all those
materials, the ECI requested the Ministry of Law and Justice
for drafting and notifying amendment Rules expeditiously.
23)
From the materials placed by the ECI, it is noted that
the purchase order has been placed with M/s BEL and M/s
ECIL for supplying 150 and 300 VVPAT units respectively at
Rs. 16,200/- per unit excluding excise duty, sales tax and
transportation etc. costing Rs. 72,90,000/- (approx.). The ECI
has also highlighted that if the VVPAT systems are ultimately
to be used with all the 13 lakh EVMs available, the total cost
in the purchase of VVPAT units may come to about Rs. 1,690
crores, taking into account the possible reduction in the cost
per unit due to bulk production the cost may come to Rs.
13,000/- per unit approximately.
24)
The affidavit dated 21.08.2013, filed on behalf of the
ECI, shows that the Ministry of Law and Justice, on
24.07.2013, referred the draft notification to amend the
Conduct of Election Rules, 1961 to provide for use of VVPAT
system of elections to the ECI for its views and comments.
13
Page
14
The ECI suggested certain minor modifications in the draft
notification and sent the same back to the Ministry of Law
and Justice on 02.08.2013 with a request to notify the
amendment Rules at the earliest. Accordingly, the Ministry
of Law and Justice notified the amendments to the Conduct
of Election Rules, 1961 in the Gazette of India vide
notification No. S.O. 2470(E) dated 14.08.2013 to enable use
of VVPAT with EVMs.
25)
The aforesaid affidavit of the ECI also shows that the
ECI had also convened a meeting of all the recognized
National and State political parties on 10.05.2013 and
demonstrated before their representatives the working of
VVPAT system. Separately, on the same day, the ECI also
held a meeting with individuals including the appellant
herein who had been engaged with the ECI over the past
several years regarding the functioning of EVMs. VVPAT
system was demonstrated before them as well.
Representatives of political parties and other individuals
expressed their satisfaction over the VVPAT system.
Thereafter, the ECI had decided to use the VVPAT system in
14
Page
15
the bye-election from 51-Noksen (ST) Assembly Constituency
in the State of Nagaland. Instructions were issued to hold
special meetings with the contesting candidates in that
constituency to brief them about the use of VVPAT system.
The ECI also organized special training sessions for poll
officers for the use of VVPAT and steps were taken to
educate the electors for the same.
26)
After various hearings, when the matter was heard on
4.10.2013, an affidavit dated 01.10.2013 filed on behalf of
the ECI was placed before this Court. The said affidavit was
filed to place on record the performance/result of the
introduction of the VVPAT system in the bye-election from
51-Noksen (ST) Assembly Constituency of Nagaland for which
the poll was conducted on 04.09.2013 indicating the future
course of action to be decided by the ECI on the basis of said
performance. By this affidavit, it was brought to our notice
that since VVPAT system was being used for the first time,
the ECI has decided that intensive training shall be given to
the polling officers. Members of the Technical Experts
Committee of the ECI also went to supervise training and the
Page
16
actual use of VVPAT in the bye-election. It is further stated
that the ECI also wrote letters to all the recognized political
parties and other persons, including the appellant herein,
engaged with the ECI on this subject inviting them to witness
the use of VVPAT. It is also brought to our notice that VVPAT
was successfully used in all the 21 polling stations of 51-
Noksen (ST) Assembly Constituency of Nagaland. It was also
stated that as per the Rules, the paper slips of VVPAT shall
not be counted normally except in case the Returning Officer
decides to count them on an application submitted by any of
the candidates. However, since VVPAT system was being
used for the first time in any election, the ECI decided on its
own to count paper slips of VVPAT in respect of all polling
stations. According to the ECI, no discrepancy was found
between the electronic and paper count.
27)
In the said affidavit, it is finally stated that the ECI has
decided to increase the use of VVPAT units in a phased
manner and for this purpose the ECI has already written to
the Government of India, Ministry of Law and Justice to issue
administrative and financial sanction for procurement of
16
Page
17
20,000 units of VVPAT (10,000 each from M/s BEL and M/s
ECIL) costing about Rs. 38.01 crore.
28)
Though initially the ECI was little reluctant in
introducing “paper trail” by use of VVPAT, taking note of the
advantage in the system as demonstrated by Dr.
Subramanian Swamy, we issued several directions to the
ECI . Pursuant to the same, the ECI contacted several expert
bodies, technical advisers, etc. They also had various
meetings with National and State level political parties,
demonstrations were conducted at various places and finally
after a thorough examination and full discussion, VVPAT was
used successfully in all the 21 polling stations of 51-Noksen
(ST) Assembly Constituency of Nagaland. The information
furnished by the ECI, through the affidavit dated 01.10.2013,
clearly shows that VVPAT system is a successful one. We
have already highlighted that VVPAT is a system of printing
paper trail when the voter casts his vote, in addition to the
electronic record of the ballot, for the purpose of verification
of his choice of candidate and also for manual counting of
votes in case of dispute.
17
Page
18
29)
From the materials placed by both the sides, we are
satisfied that the “paper trail” is an indispensable
requirement of free and fair elections. The confidence of the
voters in the EVMs can be achieved only with the
introduction of the “paper trail”. EVMs with VVPAT system
ensure the accuracy of the voting system. With an intent to
have fullest transparency in the system and to restore the
confidence of the voters, it is necessary to set up EVMs with
VVPAT system because vote is nothing but an act of
expression which has immense importance in democratic
system.
30)
In the light of the above discussion and taking notice of
the pragmatic and reasonable approach of the ECI and
considering the fact that in general elections all over India,
the ECI has to handle one million (ten lakhs) polling booths,
we permit the ECI to introduce the same in gradual stages or
geographical-wise in the ensuing general elections. The
area, State or actual booth(s) are to be decided by the ECI
and the ECI is free to implement the same in a phased
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manner. We appreciate the efforts and good gesture made
by the ECI in introducing the same.
31)
For implementation of such a system (VVPAT) in a
phased manner, the Government of India is directed to
provide required financial assistance for procurement of units
of VVPAT.
32)
Before parting with the case, we record our appreciation
for the efforts made by Dr. Subramanian Swamy as well as
the ECI, in particular Mr. Ashok Desai and Ms. Meenakshi
Arora, learned senior counsel for the ECI.
33)
With the above directions, the appeal and the writ
petition are disposed of. No separate order is required in the
applications for intervention. Both sides are permitted to
approach this Court for further direction(s), if need arises.
………………………………………….CJI
(P. SATHASIVAM)
………………………………………..J.
(RANJAN GOGOI)
19
20
NEW DELHI;
OCTOBER 8, 2013.
We already know that you are expert in manipulating everything within few
hours.Enough show offs & cheatings. Now we know how to stop the nuisance from you
for ever. We are now repenting and need to rectify the mistake of electing you.