Elections 2024: Critical Flaws – What’s Going Wrong This Election?

Elections 2024: Critical Flaws – What’s Going Wrong This Election?

Prema Sridevi: Today I'm joined by former IAS officer Kannan Gopinathan. He took a principled stand and resigned from service to protest against the restrictions imposed in Jammu and Kashmir following the abrogation of Article 370. He has been very vocal about the importance of raising questions in a democracy. Throughout his career as an activist and in government service, he has advocated for transparency in governance. Thank you, Kannan, for joining me.

Kannan Gopinathan: Thank you.

Prema Sridevi: During the 2019 general elections, you served as a Returning Officer. You have since seen and probably experienced first-hand the vulnerabilities of the EVM and VVPAT machines. Tomorrow, we will see the last phase of polling in elections 2024. We are just a few days away from counting. You've always said that with the addition of VVPAT machines, the voting process has become more vulnerable and suspicious. Can you explain this?

Kannan Gopinathan: The original EVM process was essentially based on a custody chain principle. A custody chain principle means that the devices we use have certain qualities and are protected throughout the process. If there are any issues, they are caught during the checks that are in place. The custody chain involved trust—trust in the Election Commission, the election machinery, the officials, etc., and also some part of the participatory process, which includes you can't open a strongroom unless political parties are present, or you can have mock polls in the presence of political parties. So, it was partly participatory but mostly based on the custody chain and the trust aspect of it.

Reason Why We Moved to EVMs

The reason we moved to EVMs was because the earlier ballot-based process had issues like a large number of invalid votes. Studies showed that in thousands of cases, the election margins were lower than the number of invalid votes itself. Another issue was massive ballot stuffing. For example, if 200 people have not come to the booth, someone with influence could cast those 200 votes fraudulently, which only takes a short time.

So, the EVMs addressed these issues by reducing invalid votes and limiting the possibility of ballot stuffing because each vote takes a certain amount of time to cast, making it hard to add many fraudulent votes quickly. 

“EVMs Surrendered on a Few Counts” 

However, EVMs did surrender on a few issues. One was the secrecy at the booth level. Previously, all ballots were mixed, so it was impossible to know which booth voted for which candidate. With EVMs, we could see booth-wise voting patterns, which can lead to discriminatory policies or revenge, as some politicians have threatened not to help areas that did not vote for them. That information for the politicians come from the lack of secrecy at the booth level. 

Another issue was the verification principle. In the ballot system, voters could verify their vote, and candidates could verify the count during counting. With EVMs, this verification was lost because the voter just presses a button without knowing where the vote goes, and the machine gives a result without a way to verify it. 

Through the EVMs, we surrendered the entire verification process. We were focused on the technical, physical, and procedural security of EVMs. Technically, it was said that the EVMs are rudimentary, one-time programmable devices acting as a standalone device just like calculators. Physically, they said that they are kept under heavy protection under CCTV watch and always opened in the presence of political parties. The third was about the administrative or procedural aspect of it, which again has three parts. One was the candidate agnostic nature. The EVMs did not know who the candidates were. It would only tell you candidate number 1 got these many votes, candidate number 2 got these many votes and so on. So, how can you intelligently manipulate when the EVM doesn’t know. The second part of it was the randomisation. For instance, the EVM’s did not only not know who are the candidates but it also did not know which assembly constituency it was going to go. It also doesn’t know which booth it is going to go because that is also randomised. The third aspect was the mockpolls. There are three levels of mockpolls. One happens even before the elections are announced. The second mock poll happens after the elections are announced and after the candidates are declared where the candidates' representatives themselves come and check. The third mock polls are done on the day of the polls. So, they believed the system was more or less transparent.  

“The Real Problem is the VVPAT Machine” 

The introduction of VVPAT machines around 2009 was due to concerns about the lack of transparency and the absence of verification in the existing system. Opposition had a lot of concerns. Multiple all party meetings were called by the Election Commission. Some people went to the Supreme Court saying the voters should be able to see what is being cast. So, that’s how the VVPAT came in.

The VVPAT allows voters to see a printed record of their vote, which is a good concept. However, the VVPAT was designed in such a way that when you are casting the vote, your vote is transferred from the Ballot Unit to the VVPAT first and then from the VVPAT physically it is transferred to the Control Unit. So, one device has come in between. The second thing is since it needs to print the name and symbol of the candidate, which means it needs to know the candidate details. The ECI has always said that the EVMs are standalone devices. It is one-time programmable and it is not connected to any external device. Then how is the EVM printing the name and symbol of the candidate? The candidate himself gets to know that he is the candidate 15 to 20 days before the election. How is it that this machine which has always been in this strongroom for all these many days, suddenly is able to print these details. The answer is it is connected to an external device called the Symbol Loading Unit (SLU). This device was there for the last eight years or so but we didn’t know anything about it. This external device SLU is brought in during the elections along with a laptop. And the laptop is used to create the software output and then that is transferred to the SLU. Now you consider the SLU as an USB. This SLU is connected to each of the VVPATs. Now this is a concern and this concern pales two arguments that the Election Commission has put forward. First, the ECI’s claims that the machines are not connected to an external device and it cannot be connected to an external device is wrong. Second, that it is a one-time programmable machine, is also wrong because it must have a programmable memory. Otherwise, how are we going to upload the symbols, etc.  

The machine is now candidate-aware unlike the previous one. It knows how many BJP symbols it printed or Congress symbols it printed. It also knows which booth it is going to. So, it has the information about the sequence of candidates. It has the information about which booth this EVM is going to. It also has information about when the election date is. So, with these three pieces of information, it can easily bypass all the erstwhile checks that were there in the EVMs. 

“There has been an Erosion of Trust in the Electoral Process”

Prema Sridevi: The Supreme Court recently refused to direct the Election Commission to disclose booth-wise voter turnout data under Form 17C. You have been a Returning Officer in the past. Can you please explain what Form 17C is, why it is important, and what citizens and candidates lose out on when the Election Commission refuses to make it public?

Kannan Gopinathan: Form 17C is essentially a summary of what has happened at the booth. It includes data at the end of the day on the total number of voters who came in, recorded in Form 17A, which is the register where they take down the sequence of voters as they come. In Form 17C, you mention how many people came to vote as recorded in 17A. 

So, then you finally say the total number of votes cast in the EVM is this much. This should tally with the number of people who came to vote, minus those who refused, etc. Form 17C also mentions the serial number of the EVM used, including the serial numbers of the control unit, ballot unit, and VVPAT machine. This ensures that the EVMs are not tampered with during their transfer from the booth to the strong room.

To keep the process transparent, one copy of Form 17C is given at the booth itself to the polling agency. A second copy is kept for data tallying and scrutiny at the Returning Officer's level, and a third copy is kept along with the EVM itself in the strong room. Ideally, it's a very participatory and transparent process at the booth level. If all polling agents have a copy of Form 17C, they know how many votes were cast at their booth, the serial numbers, and the seals used.

However, the reality is that some political parties are strong and some are weak, depending on the place. Not all polling agents collect Form 17C, and not all of them give it to the candidate due to weak organisational structures. In that case, this process fails. 

"Election Conduct Rules - 1993, States Form 17C Data Must be Made Public"

The point is that these are all public information. If you look at election conduct rules of 1993, it says that the Form 17 C data must be made public. If somebody asks for it, it must be given. There is nothing secretive about it. This issue all the more became flared up when the Election Commission delayed in publishing the voter turnout data and also the refusal to give the actual number of votes. This data is available with the Election Commission. At the Returning Officer level, all this data must be fed into a portal called ENCORE. The Commission can easily drill down to booth-level data, including the number of male and female voters. It’s that simple.

The refusal and delay by the Election Commission to provide this data cause significant concern. Traditionally, our elections have been trust-based, relying on the transparency and fairness of the Commission and the Returning Officers. However, over the last five to ten years, there has been an erosion of this trust. When trust is lost, people start focusing on verification, and for verification, you need data.

Prema Sridevi: Now, you've made a very important point about disclosing the absolute voter turnout figures. The Election Commission has been disclosing it in percentages. Why is the disclosure of the absolute count important, and why is it not enough to just disclose the turnout percentage?

Kannan Gopinathan: If you have the total number of electors and you do the percentage, you can get an approximate voter number. However, it is still not an accurate number. Let's say there are 20 lakh people, and with one or two decimal places, you can't get down to the last vote. That last voting figure still leaves ambiguity—maybe 100, maybe 1000, or 10. It can range depending on the scale of the constituency and the number of voters.

There is no ambiguity in how many votes were polled. It's either 57 or 58. And it's such a simple thing to disclose. It either shows the complete incompetence of the Election Commission. Or it is just that they don’t want to disclose it. This reluctance doesn't help build trust in the Commission.

To build trust, you need to be transparent. If you rely on obscurity, people will start suspecting you. 

Prema Sridevi: You have spoken about the problem of delay. The Association for Democratic Reforms has filed a petition before the Supreme Court flagging the five to six percent increase in the final voter turnout data compared to the initial percentages announced by the Election Commission. The main contention here is also about the delay of several days before the voter turnout data was published. The first phase data was published after 11 days. Now many believe… in fact ADR counsel Prashant Bhushan has said that citizens are the aggrieved party here and they doubt if the EVMs are being replaced as suddenly we have seen a rise of 6 per cent in voter turnout data. What are the main issues here, according to you, that violate the sanctity of the electoral process? 

Kannan Gopinathan: I don’t consider this as a huge concern because none of the concerns are coming from the constituency. To be very crude, the elections are not conducted by the Election Commission centrally; they are conducted at the constituency level by the concerned Returning Officer, ARO and at the booth level by the presiding officers. At that level, the data is shared with the candidates. If a candidate had raised this concern saying the Returning Officer had given them a certain number of votes and then revised it after 10 days, that would be a serious concern. If a candidate raises concerns at the constituency level, that is a serious issue. In any election, if any issue is brought up by the candidates at the constituency level, that is a very serious issue. If something is on an aggregate level, then it is a statistical issue. We need to definitely worry and study it. But we need not be worried about the malafide aspect of it. Ideally, the Election Commission should have routinely made all the data available at least within 2 days.   

Elections 2024: MCC Violations

Prema Sridevi: Never before has the Election Commission of India been criticised  as much as it has been now. It has drawn flak from various quarters over how the Commission has been selectively taking action regarding the violation of the Model Code of Conduct, especially concerning hate speeches. What is your take on how the ECI has handled Model Code of Conduct violations this election season?

Kannan Gopinathan: This is the first time in our history where two sitting Election Commissioners, who were supposed to be Chief Election Commissioners in due time, have resigned with no reason. This is unprecedented. It indicates something is drastically wrong within the Commission.

The lack of transparency and the combative nature of the current Election Commission is concerning. Historically, the Election Commission has worked with civil society, even though Indian laws never provided for it. When political parties raised concerns about EVMs in 2009, the Election Commission called all-party meetings thrice and took a participatory approach.

Elections are not just about the ruling party that wins; they are also about convincing the party that lost that they lost through an electoral process that was fair. If this happens, then democracy survives. 

Currently, the Commission is not even ready to have a conversation with political parties. One of the Election Commissioners earlier dared to dissent with Prime Minister Narendra Modi’s Model Code of Conduct violation in 2019. I am talking about Ashok Lavasa. Just for the fact that he dissented, you know what happened next. The entire family was hounded. Then the question is which Election Commissioner is going to have this much courage to be able to say that there is a MCC violation by the Prime Minister. Independence is only till the time you feel safe. 

The Election Commission's reluctance to take action on blatant violations and its tendency to balance out by giving notices to multiple parties is troubling. Institutions are only as strong as the individuals who manage them. If the individuals are weak, the institution cannot be strong.

Prema Sridevi: I was just reading a statement from the Election Commission. They said false narratives are being circulated regarding the turnout data. The Commission claims that near real-time information was always accessible to both the public and candidates through its voter turnout app, which provided hourly updates and final figures by midnight on each polling day. If this data was sufficient as is being said by the ECI, what is the controversy related to the voter turnout? What is your rebuttal to the ECI's claims?

Kannan Gopinathan: The Election Commission itself says the voter turnout app is not statutory or legal data; it is just for trends. The app doesn't provide exact numbers, only percentages. The Commission's press release contradicts itself by relying on the app data while also stating it is not statutory. The Commission needs to decide what data it relies on.

Publishing accurate data is very simple with the ENCORE portal. This reluctance to publish data transparently is problematic. Elections are a transparent exercise and are about making citizens feel decisive in their country. The Commission's reluctance to disclose data undermines this transparency and trust.

Prema Sridevi: You've also spoken about how the Election Commissioners resigned abruptly. The way the Election Commissioner resigned just weeks before the elections, the way the new Election Commissioners were appointed—the Chief Justice is not part of the selection committee. The Leader of the Opposition claims that he was shown the names of the new Election Commissioners just 15 minutes before the formal selection. Coupled with all of this, the way the ECI has been conducting the general elections in a non-transparent manner. Don't you think something is primarily wrong with the entire process here, starting with the selection of Election Commissioners to the conduct of the ECI?

Elections 2024: Has the Conduct of the Elections been Free and Fair?

Kannan Gopinathan: I don't think the selection or the appointment of Election Commissioners has ever been transparent. It has always been within the purview of the then government. But once appointed, they had surety of tenure, which meant they had independence. It was actually due to the recent resignation of an Election Commissioner that the case went to the Supreme Court. The Supreme Court said that the government-only appointment of Election Commissioners is not a very good scheme because the Election Commission is an independent constitutional institution.

So, we should have a committee, and then the Leader of the Opposition, the PM, and the Chief Justice became part of the selection process. The government then brought in an ordinance or bill to remove the Chief Justice and keep the Leader of the Opposition and one government member. The process has improved because now at least the Leader of the Opposition is part of the decision-making process.

Regarding the elections, they are still conducted at the constituency level. Many candidates generally say that elections are fair. What do the candidates need? They need permission to conduct rallies. They don't need to be harassed in a targeted manner. Local issues do arise, but on larger things like speech and conduct, the commission needs to act more decisively.

Also, if the PM gives a hate speech, it doesn't have to go to the ECI per say. The local returning officer can pull up the PM for an MCC violation like he would pull up any other candidate. The point is that the Election Commissioners are afraid to issue notices to powerful leaders. This fear trickles down to lower levels. If the commission cannot protect its officers who take the right decisions, it leads to taking the easier path instead of the right one. 

Prema Sridevi: Are you also for the seven-phase, long-drawn-out elections? If not, why do you think the election that spans out in such long phases is detrimental to the process of conducting free and fair elections?

Kannan Gopinathan: Seven-phase elections are nowhere near ideal, especially in the scorching summer. It is difficult on campaigners, officials, and the people. It's much easier to do it in fewer phases. The phasing of elections influences the outcome, one of the ways the Election Commission can influence elections. The phasing is often done in consultation with the Ministry of Home Affairs for security arrangements.

Long phases accommodate campaigning needs and allow key leaders to maximise their impact. This leads to extended periods of campaign rhetoric, which can take the conversation to a lower level as leaders feel compelled to make new and more sensational statements to keep attention.

This extended campaigning period impacts the discourse negatively and undermines the election process. The longer it drags on, the more the quality of conversation deteriorates, affecting the overall election environment.

Prema Sridevi: What, according to you, must be done to make the elections free and fair with respect to EVMs and VVPATs, transparency in releasing voter turnout figures, and taking stringent action against people who indulge in hate speech and violate the Model Code of Conduct?

Kannan Gopinathan: The introduction of VVPATs is in the right direction, though I don't agree with how it was introduced. Elections need to be verifiable. As a voter, I should be able to verify my vote at the time of voting. As a candidate, I should be able to verify the count at the time of counting. These two principles need to be adhered to.

Currently, we have a scenario where what is counted is not seen by the voter, and what is seen by the voter is not counted. You as a voter have gone and seen the paper slip but that was not counted. What is counted is an electronic record which is not seen by the voter. This is very confusing and it needs to change. We need a system where the vote cast is verified by the voter, recorded accurately, and counted transparently.

Regarding transparency, the data from the ENCORE portal should be made accessible to the public. After the polls, allow public access to verify the data. This transparency will build trust and ensure the integrity of the process.

For hate speech and Model Code of Conduct violations, the commission needs to take decisive action irrespective of the person's status. If someone violates the code, appropriate action should be taken immediately. The commission and lower-level officials need the strength to act impartially.

Elections 2024: "Elections Should not be Trust-based but Verification-based"

Overall, elections should not be trust-based but verification-based, requiring transparency and availability of data. We need to focus on correctness in elections, not just efficiency or speed. This will ensure that the right candidates are elected, maintaining the integrity of our democratic process.

Prema Sridevi: Thank you for your insights, Kannan. It was wonderful having you on the show.

Kannan Gopinathan: Thank you.

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