In the Supreme Court on January 22, 2013
Subramanian Swamy—Petitioner in Person
1. Your Lordships. The Hon’ble Delhi High Court while disposing off my Writ Petition [para 25-27, on p. 21-22 of the SLP] had wanted the EC to address the issue of tamperability [p. 22, para 26].
2. The issue of tamperability is crucial because at present, in an election dispute alleging vote fraud the same EVMs is re-run.
3. An analysis of the past election results show that on an average of 165 Lok Sabha seats are won or lost by a mere 10, 000 votes in an average voting population per constituency of 15 lakh voters.
4. There are about 1500 EVMs per constituency, and each EVM records up to a 1000 votes.
5. Hence, for vote verifiability, either we use only safeguarded EVMs which will require as per IT Act [2000] Section 12 a voter verifiable receipt, or return to the ballot papers system as in now the current international practice in established democratic countries.
6. The secrecy of the vote can be further safeguarded by requiring that the printed voter received be deposited in a ballot box before exiting the booth.
7. Some fundamental facts why present EVMs are insecure:
[a] the Indian EVM is not indigenously produced, because its crucial parts such as the EVM brain: the microcontroller, is manufactured by foreign companies, thereby raising security issues as the Hon’ble High Court had pointed out (p.50-53 at 52)
[b] the attempt by the ECIL and BEL to obtain a WIPO Patent for EVMs failed due to their inability to meet the conditions for being awarded the patent, and their Applications filed in 2002 were withdrawn in 2006 (p.55-56). IA No. of 2010
[c] Recently Germany, Netherlands and Ireland gave up EVMs on direction of their Courts (p.80-154). Ireland just gave up EVMs despite a heavy cost sunk in the necessary infrastructure. In fact, USA, UK, most democratic countries of Europe etc., use paper ballots. France requires voter verifiable receipts in its EVMs. Even Japan from which we buy the crucial microcontroller for EVMs refuses to consider the EVMs for Japanese elections.
[d] Finally, in any case the EVMs cannot handle more than 64 candidates. In a not so long ago Andhra byelections, 64+ candidates filed their nominations. Ballot papers had to be ordered.
Important Points of Law
1. Transparency, not efficiency, is a constitutional right under Article 324, and a statutory right under Sections 11-12 of the IT Act. See also German Supreme Court held [p.80 at 144-54]. Germany now has returned to ballot papers.
2. Section 61 A of the RPA 1951 permits the use of EVMs. EVMs come under the purview of IT Act because of Sections 2 (r) and (t), r/w Objects and Reasons for the Act.
3. Sections 11 and 12 of the IT Act therefore require that every voter, if he or she wants, must receive an acknowledgement receipt.
4. Contrary to the claim made by the ECI, the plenary powers u/A 324 of the Constitution given to the ECI in the conduct of elections, is not unfettered. The scope of the plenary powers of the ECI under Art 324 is limited to space unoccupied by statutes [(1983) SCR 74 at para 25].
5. In fact, following this judgment [para 38], the ECI had to amend the RPA w.e.f 15.3.89 to insert Section 61A to enable the use of EVMs [Vol I p. 55].
6. Nor does the ECI have unfettered right to make “policy” decisions to go electronic if it is against the Constitutional principle of transparency, or is otherwise arbitrary, unreasonable or malafide [(2011) 7 SCC 639 at 670-71, para 36].
7. I submit that the ECI is duty bound by the statutes to use EVMs if and only if it can provide a receipt for every vote cast. Otherwise, we must return to ballot papers.
8. I submit, that if at all EVMs are to be used, a voter verifiable receipt is a constitutional and statutory requirement for the Election Commission under Article 324 read with Sections 11 and 12 of the Information Technology Act.
9. The Hon’ble High Court did not accept that submission but gave no indication as to why not [p.22, para 25]. The Hon’ble Division Bench disposed off the prayer in a non-speaking order.
10. I humbly submit this non-speaking statement or opinion requires re-consideration in view of the clear Parliament intention that receipt must be given.
11. Had it been otherwise, the EVMs deployment would have been placed by Parliament in the exempted category in the Schedule of the Act.
12. The Act instead was enacted to safeguard use of electronic machines and data processing equipment in governance, which includes the use in elections.
PRAYER
8. Direct by Writ of Mandamus that either the ECI use safeguarded EVMs or return to the ballot papers system as in now the current international practice in established democratic countries.
9. The secrecy of the vote can be safeguarded by requiring that the printed voter received be deposited in a ballot box before exiting the booth.