Electronic voting machines (EVMs) were supposed to be the cure for the malady of booth-capturing in elections in India, but in the present form of use they have only worsened the problems. Moreover, EVMs also do not meet the legal requirements set out in the Information Technology Act, 2000.
EVMs, as they are being used by the Election Commission of India (ECI), create worries about the very legitimacy of the choice of governments through elections based on them, and raise questions about whether the ECI has become partisan in its defence of EVMs.
The duties of the ECI as set out in Article 324 of the Constitution include ensuring that elections conducted by it are free and fair, and reflect the will of the voters.
To be considered free and fair, the international standards an election has to meet are:
individuals have to be accurately identified as eligible voters who have not already voted;
voters are allowed only one anonymous ballot each, which they can mark in privacy;
the ballot box is secure, observed and, during the election, only able to have votes added to it by voters: votes cannot be removed;
when the election ends, the ballot box is opened and counted in the presence of observers from all competing parties. The counting process cannot reveal how individual voters cast their ballots;
if the results are in doubt, the ballots can be checked and counted again by different people;
as far as the individual voter is concerned, he must be assured that the candidate he casts his vote for, actually gets that vote.
Over the last few centuries, the system of paper ballots was developed that could meet all these six requirements. But the pattern of use of EVMs in the last few general elections in India does not meet the fifth and sixth requirements set out here.
In correspondence with the ECI, I suggested that it incorporate in EVMs the safeguard of a “paper backup” or “paper trail” as is done in some countries. This will easily and in an inexpensive manner meet the last two requirements mentioned above.
As suggested and developed by many experts, this “paper trail” procedure is meant to supplement the procedure of voting, as follows:
“Once approved, the voter views the ballot and makes the desired selections … If the voter confirms that the choices displayed are correct, the machine records the vote on some storage medium.
“The EVM then prints out a readable receipt, much like in automated teller machines (ATM), which is confirmed by the voter, who then deposits it in a ballot box on the way out of the booth, and which poll workers are monitoring.
“If the election is later disputed, officials can optically scan these paper ballots or hand-count them.”
If the EVM is linked to the Unique Identity system being developed, and the EVM can check voters' biometric details before allowing them to vote, that will eliminate bogus voting as well.
But the ECI reacted as if I had violated its electoral chastity. It demanded that I go to the Commission's premises and demonstrate that EVMs can be rigged — although I had not made such an accusation but had only wanted the machine to be safeguarded.
The demonstration
On September 3, 2009, I went to Nirvachan Bhavan along with Vemuru Hari Prasad, a software specialist from Hyderabad, to demonstrate that EVMs can indeed be tampered with. (Dr. Prasad has since been arrested.)
The proceedings at Nirvachan Bhavan were videotaped by the ECI, in the presence of officials of the Electronics Corporation of India Limited (ECIL) and Bharat Electronics Limited (BEL), which manufacture EVMs. But the ECI has refused to provide me a copy of the recording made.
Dr. Hari Prasad was given an EVM and asked to give a demonstration. He efficiently went about seeking to prove that it could be tampered with. When he was in the final stage of his work, suddenly the ECIL and BEL representatives began to protest, and claimed that he was violating the companies' ‘intellectual property rights'.
I have obtained documents from the World Intellectual Property Organisation, with its headquarters in Paris, to show that ECIL and BEL had applied for a patent for the EVM in 2002. But in 2006 they withdrew their applications when it became clear that the applications would be rejected. The two outfits do not hold an international patent.
The ECI aborted the meeting despite our protests — all recorded on tape. Now, much like Richard Nixon, it does not want to part with the tapes. No further meetings have been scheduled; only Dr. Hari Prasad was called to the Commission to wear him down. His recent arrest in Mumbai was a desperate act motivated by the ECI to terrorise him, on the charge of theft of an EVM. It was much like the Manipur government issuing an arrest warrant in 1978 against Indira Gandhi for stealing chickens from the State.
It thus became necessary for me to file a writ petition before the Delhi High Court. When such an obvious safeguard as the paper trail is easily and relatively cheaply available, the ECI refuses to even consider it. Hence it is unreasonable and smacks of mala fide. The next hearing of my writ petition is scheduled for November 24. The ECI will then have to explain the patent fiasco and why it lied about it in public.
Doubts about e-elections
There is worldwide acceptance of the need for a paper trail in conjunction with EVMs. Electronic voting was introduced in many countries. But serious doubts were soon raised about the security, accuracy, reliability and verifiability of electronic elections. In October 2006, the Netherlands banned the use of EVMs. In 2009, the Republic of Ireland declared a moratorium on their use. Italy has followed suit. In March 2009, the Supreme Court of Germany ruled that voting through EVMs was unconstitutional, holding that transparency is a constitutional right but efficiency is not a constitutionally protected value.
The official stand of the ECI is that EVMs are 100 per cent reliable and tamper-proof, that the functioning chips have their instructions indelibly burnt into them at the time of manufacture; that these chips are then “mother-sealed” into the EVM; and that this can never be altered. This claim is presented as an immaculate premise, a mantra requiring no proof thereof.
The field of hacking is continually developing, and ECIL's and BEL's advisers belong to an era of soldering two wires together (the “diode and triode era”). They are in no position to counter the averment of international scholars that no electronic machine has been devised that cannot be rigged or hacked.
The ECI must cut its losses and agree to a paper receipt. If it cannot arrange that, we should return to ballot papers. Ballot papers are riggable at a ‘retail' level; but with EVMs, an entire election can be stolen with a chip.
( Dr. Subramanian Swamy is a former Union Minister for Law and Justice .)
