SC judge sees 'concerted efforts to weaken progress of great nation' in EVM petition

The Supreme Court cannot allow the entire process of the ongoing general elections to be called into question and upended on mere apprehension and speculation of the petitioners regarding the efficacy of EVMs, justice Dipankar Datta said on Friday, 26 April, adding that "there seems to be a concerted effort to discredit, diminish, and weaken the progress of this great nation on every possible frontier", apparently in an oblique reference to the petitioners.

Justice Datta was part of the apex court bench which rejected pleas seeking complete cross-verification of votes cast using electronic voting machines (EVMs) with a voter verifiable paper audit trail (VVPAT).

Writing his views in a separate verdict while concurring with the opinion of justice Sanjiv Khanna, who was heading the bench, justice Datta said EVMs have stood the test of time and the increased voting percentage was sufficient reason to hold that the voters have reposed faith in the current system.

The court delivered its verdict on a batch of petitions, including one filed by the NGO Association for Democratic Reforms (ADR), which also sought a direction to return to the paper ballot system in elections.

Justice Datta noted that the petitioning association has also attempted to highlight a public trust deficit with respect to the current voting system by citing a survey conducted by the Centre for the Study of Developing Societies–Lokniti, which concluded that a majority of the Indian population did not trust EVMs.

"It is a private report and I find little reason to trust such a report. Over the years, more and more voters have participated in the election process. Had the voters any doubt regarding the efficacy of the EVMs, I wonder whether the voting percentage would have seen such increase," he said.

"EVMs have stood the test of time and the increased voting percentage is sufficient reason for us to hold that the voters have reposed faith in the current system and that the report to the contrary, which has been relied on, merits outright rejection," justice Datta said.

"It is of immediate relevance to note that in recent years, a trend has been fast developing of certain vested interest groups endeavouring to undermine the achievements and accomplishments of the nation, earned through the hard work and dedication of its sincere workforce," he said. "There seems to be a concerted effort to discredit, diminish, and weaken the progress of this great nation on every possible frontier. Any such effort, or rather attempt, has to be nipped in the bud," Justice Datta said.

He said no Constitutional court would allow such attempt to succeed as long as the court has a say in the matter.

He noted the petitioners' had submitted that the right to be informed under Article 19(1)(a) vis-a-vis the electoral process has two facets — first, a voter has a right to know that the vote is recorded as cast and secondly, that the vote as cast is counted.

He said a citizen's right to 'freedom of speech and expression' under article 19(1) of the Constitution is not absolute and the State by virtue of article 19(2) can place reasonable restrictions on these rights.

He added that the country has prided itself in conducting free and fair elections for the past 70 years, the credit for which can largely be attributed to the ECI (Election Commission of India) and the trust reposed in it by the public.

"While rational scepticism of the status quo is desirable in a healthy democracy, this court cannot allow the entire process of the underway General elections to be called into question and upended on mere apprehension and speculation of the petitioners," justice Datta said.

The seven-phase Lok Sabha polls began on 19 April and will conclude with the counting of votes on 4 June.

Justice Datta said the petitioners have neither been able to demonstrate how the use of EVMs in elections violates the principle of free and fair elections, nor have they been able to establish a fundamental right to 100 per cent VVPAT slips tallying with the votes cast.

Terming the petitioners' apprehensions as "misplaced", he said reverting to the paper ballot system, rejecting the inevitable march of technological advancement, and burdening the ECI with the onerous task of 100 per cent VVPAT tallying would be a folly when the challenges faced in conducting the polls are of such a gargantuan scale.

"There can be no doubt that the electorate has a right to be informed if the votes, as cast, are accurately recorded. The dispute, in the present writ proceedings, centres around the modality of delivering the information," he said.

"Going forward, unless substantial evidence is presented against the EVMs, the current system will have to persist with enhancements," he added.

Justice Datta observed that while maintaining a balanced perspective is crucial in evaluating systems or institutions, "blindly distrusting any aspect of the system can breed unwarranted scepticism and impede progress".

He said a critical yet constructive approach, guided by evidence and reason, should be followed to make room for meaningful improvements and to ensure the system's credibility and effectiveness.

Justice Datta noted the petitioners have characterised the present procedure, wherein the voter after pressing the 'blue button' and casting the vote can see the VVPAT slip for seven seconds through an illuminated glass window, as inadequate for the voter to verify if the vote as cast is recorded.

"Recording of the vote cast signifying the choice of the voter and its projection on the VVPAT slip, albeit for 7 (seven) seconds, is fulfilment of the voter's right of being informed that his/her vote has been duly recorded," he noted.

He said as long as there is no allegation of statutory breach, there can be no substitution of the court's view for the view of the EC that the light in VVPAT would be on for seven seconds and not more.

Justice Datta also addressed the second facet of the argument based on the right guaranteed by article 19(1)(a) — the voter's right to know that his or her vote, as recorded, has been counted.

"To deal with this contention, a question comes to my mind – did this right not exist when the 'paper ballot system', which the petitioning association wishes to be reverted to, was in vogue?" he said.

Justice Datta observed there is in place a stringent system of checks and balances to prevent any possibility of a miscount of votes and for the voter to know that his or her vote has been counted.

With inputs from agencies