There is no question of going back to the paper ballot: S.Y. Quraishi

The former Chief Election Commissioner on the EVM controversy, why the Supreme Court’s verdict on criminals in politics is a missed opportunity, and electoral bonds

Published - December 19, 2018 12:15 am IST

The debate on the reliability of electronic voting machines (EVMs) refuses to settle, with political parties continuing to voice their concerns about malfunctioning machines. Former Chief Election Commissioner S.Y. Quraishi explains how EVMs work, why he is disappointed with the Supreme Court for refusing to bar politicians with serious criminal charges from contesting elections, and expresses concern over the growing number of hate speeches by senior leaders. Excerpts from an interview:

You were upset that the Supreme Court refused to bar politicians who face serious criminal charges from contesting elections.

For the last 20 years, the Election Commission, besides civil society, has been demanding that people who face criminal cases of a serious nature, which are pending, should be debarred from contesting elections. Even the Law Commission has demanded this. The standard defence of the politician is that you are presumed innocent until proven guilty. The second stand they take is that in politics, quite often the Opposition files false cases against opponents to defeat them judicially, if not politically, which is also a valid argument.

The Election Commission’s response to this has been to ensure three safeguards. One, that every criminal case will not debar you [from contesting]; only heinous offences which carry imprisonment of five years or more will. Two, the FIR should have been registered at least six months before the election so that a case is not filed on the eve of the election. Three, a court of law should have framed the charges. The court of law in case of heinous offences would be the district and sessions court, which means the highest court below the high court.

At one stage, the then Law Minister, Salman Khurshid, suggested that the Election Commission should change its formulation about registration of the case from six months before the election to one year. We said, no problem. Then he said, can we begin from the time the charge sheet is framed and not when an FIR is registered? We said we have no problem with that either.

I called the Supreme Court judgment a missed opportunity because the ball is now in Parliament’s court. Parliament has refused to act for two decades. It is unlikely that it will act now. Asking MPs to pass a bill against themselves is futile.

Surely it is the prerogative of Parliament to legislate?

Of course. But let us now examine the legal maxim, innocent until proven guilty. There are four lakh prisoners in Indian jails today — 71% are undertrials. Yet, you have taken away four of their fundamental rights: the right to liberty, freedom of movement, freedom of occupation, and freedom of dignity. And the legal right to vote as well. If, under the presumption of innocence, you can take away their fundamental rights, what is the big deal about taking away the right to contest, which is not even a fundamental right? Why doesn’t the same presumption apply to undertrials?

Another reason why it was a missed opportunity was that the Supreme Court did not even touch upon the issue of fast-tracking politicians’ cases, which is very much in its domain. In fact, in 2014, the apex court had already taken the view that all such cases must be disposed of within a year, failing which the concerned court should bring it to the notice of the Chief Justices of the respective high courts. The Law Minister wrote to all the States to help enforce this judgment. But the Supreme Court did not say a word about this.

Often the public blames the Election Commission for its ineffectiveness in keeping criminals out. They don’t realise that disqualifying any candidate from contesting is the function of law. That is why the Election Commission is asking Parliament to legislate on the matter.

The controversy surrounding EVMs refuses to die down. Recently, an EVM was found abandoned on a national highway in Rajasthan and another was found in an MLA’s house. Why not go back to the paper ballot?

There is no question of going back to the paper ballot. EVMs are good and they have done India proud. However, they are machines — sometimes they malfunction. Out of 20 lakh machines in operation, a few hundred or thousand can malfunction. For these there is a clearly defined protocol: replace them within half an hour.

But that is a lot, isn’t it? Enough to switch the fortunes of a party when cleverly manipulated?

When there is malfunctioning, it doesn’t mean rigging or cheating. As soon as defects are detected, the machines have to be replaced within half an hour, for which reserved machines are kept in place. Twenty per cent reserve machines are on standby. In cities, these extra machines are kept in a roving vehicle so that they can reach a booth within half an hour following a complaint. In rural and remote areas, the extra machines are placed in the booth itself. Every single machine is individually tested and subjected to a mock poll thrice.

But isn’t it odd that EVMs are found on highways and in an MLA’s house? Shouldn’t the Election Commission be worried?

These were reserved EVMs which had not been used. But they are also expected to be returned intact on time. Any lapse invites strict action against the staff, including suspension and even an FIR.

You are saying all this is a drop in the ocean. Yet all you need to win is to ensure malfunctioning. Is there room for doubt that a party in power can manipulate an EVM?

Every political party has questioned these machines but they have all been winning or losing with the same machines. Every machine is guarded by the paramilitary, State police, and district police. The machine is the most observed object. And nobody is more vigilant than politicians during the time of elections about EVMs. They even sleep outside the strongrooms.

Despite the assurances, there are lapses. How do you explain that?

Eleven million people conduct elections at one million polling stations. Some can be inefficient, some extremely nervous. ‘Zero error’ effort is sought to be maintained. Yet, mistakes happen and corrective action is promptly taken. In any case, with the introduction of VVPAT, the controversy should have died down.

But it hasn’t.

Because people have not fully understood the operation. Every EVM now has a printer attached. This printer has a screen on which the selected candidate appears — his face, name and symbol — and stays there for seven seconds, which is enough time to register the correctness of the vote. Then the slip drops into a sealed box to be counted for cross-checking when required. In the last four years, nearly 800 such machines have been counted. Not one mismatch has been reported. What better proof do we need?

Yet, there are doubts about how the Election Commission arrived at such a small sample for every constituency.

I agree that counting just one machine per constituency is too little. My proposition is to have 5% VVPAT of the constituency. That would mean 10 to 15 machines in a constituency. I had mentioned this to the former Chief Election Commissioner, O.P. Rawat, in a casual conversation. He had told me that the Election Commission had written to the Indian Statistical Institute, Kolkata, asking what sample would be scientific enough to achieve 99.99% public satisfaction. This was music to my ears. But I don’t know what response came from the institute. It must be put in the public domain.

The recent Assembly elections were marred by Uttar Pradesh Chief Minister Yogi Adityanath’s communal speeches. What do you think the Election Commission should have done?

Hate speech by senior leaders is a matter of grave concern. Unfortunately, we notice a growing tendency among senior leaders to indulge in such speech. There was a time when political leaders had evolved a code of self-discipline known as the model code of conduct. This was followed in letter and spirit for decades. But today’s leadership doesn’t seem to bother. They even test the patience of the Election Commission. Instead of respecting the model code, they repeatedly challenge it. This will have consequences: there will either be a severe backlash from the Commission or the image of the Commission will get eroded, which will be suicidal for our democracy.

What is your view on the dissolution of the Jammu and Kashmir Assembly and the role of the Governor?

In the present context, when Governors have become too political, the powers of the Governor should be clearly defined, according to the recommendations of the Sarkaria Commission. They should invite the party with the largest numbers to form the government, failing which [they should invite] the combination of parties claiming the largest numbers. In Jammu and Kashmir it seems that a political coalition, however disparate, was coming into place. In the famous Bommai judgment, the Supreme Court had clearly held that the question of majority can only be tested on the floor of the House, not in a Raj Bhavan.

What do you think of electoral bonds?

Electoral bonds have taken away whatever little transparency there was. The only little good that has come out of it is that cash donations have been replaced by banking transactions. The Finance Minister had stated in his Budget speech that for seven decades, efforts to achieve transparency of political funding have not succeeded, without which free and fair elections are not possible. After these fine statements one expected transparency in political funding, to know which corporate has paid how much to which party so that quid pro quo could be known. Electoral bonds have made the whole transaction secretive and opaque. Only the government knows who gave how much to which party. Crony capitalism has been legalised and institutionalised.

According to media reports, over ₹10 billion has been donated by citizens through electoral bonds and most of the donations seem to have come in October, ahead of the recently concluded Assembly elections. What do you make of this?

I am not surprised. The ruling party always corners more funds for obvious reasons.

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