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The Impact of EVM VVPAT Verdict on Elections

The EVM VVPAT verdict has many implications for the conduct and integrity of elections. There is a growing chorus from various stakeholders for the ECI to hold itself accountable and for SC to uphold voter rights. (Unbreak the News | Elections 2024)

By Prema Sridevi
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Unbreak The News With Prema Sridevi

Here are the transcripts of the interview of Prema Sridevi, Editor in Chief of The Probe with Prasanna S, a lawyer turned coder and the Founder-Trustee of Article 21 Trust on the impact of the EVM VVPAT SC verdict on the elections.  

Prema Sridevi: The Supreme Court has rejected the plea for 100% verification of EVM votes with VVPAT slips. Way back in 2019, you, as a lawyer, had represented former IAS officer M.G Devasahayam, ex-diplomat Fabian, and retired banker Thomas Franco in the plea before the Supreme Court regarding the cross-verification of at least 30% of the EVM-VVPAT counts. Before we get into the details of the significance of this matter, first tell us, what are your thoughts on the latest decision by the Supreme Court to reject the plea for 100% verification of EVM votes with VVPAT slips?

Prasanna S: I must say it is an opportunity lost and a deeply disappointing decision. It is particularly concerning in the wake of the CSDS survey that indicated that almost 45% of those surveyed had lost trust in the electoral process itself, including the EVMs and VVPATs and the technology employed in realising India’s electoral democracy. The processes employed by the Election Commission of India (ECI) have been questioned several times over.

In fact, the question of EVMs have been before the courts at least six or seven times now. The most significant decision came in 2013, when the Supreme Court held in Subramanian Swamy's case that there has to be a voter-verifiable paper audit trail. The principle that was advanced there was that a voter should be able to verify and satisfy himself that the voting process has recorded his vote correctly and that his vote has been counted as recorded. Since then, there has been a steady erosion or derogation from the principle in the processes that the ECI has employed.

The only justification appears to come from the Election Commission is that they are an independent body and have no malice. The ECI's question is why people are not trusting their process, and they argue that there has been no incident of EVM tampering or voter fraud ever established. But are these justifications sufficient for an electoral democracy like ours? It is one thing to say there has been no known incident of EVM tampering or election rigging through these EVM processes, but another to say that the processes are robust enough for technical experts to be satisfied that not only has there been no incident, but also there can be none.

It is not enough for the process to be fair; it must also be seen to be fair. Now, we have a paper trail, a voter-verifiable paper trail, that voters can see. There are also issues with that. For instance, you are not able to get the slip in your hand; you are able to see it behind a screen. You don't know whether it is just a display or if there is actually a paper slip. All of those problems exist. To be able to have 100 percent count of the VVPAT, if it can give that additional sort of confidence to the voter regarding the credibility of this entire process, then why not?

Prema Sridevi: In the judgment, if you see, the Supreme Court has also given the option to get a proportion of the EVMs checked and verified by a team of engineers from the EVM manufacturers after the announcement of the results, on a written request made by the candidates who are in positions number two and number three. And it seems the expenses—the court has said very clearly that the expenses for this should be borne by the candidates making the request. Now, do you think that this will help? How many candidates at the end of the day are really going to come forward and do this exercise? And this is not going to serve the purpose of ensuring that the electoral process is fair and transparent because here the onus is on the candidates to prove that something went wrong, and not on the Election Commission to prove that the election conducted was free and fair.

Prasanna S: That’s correct. This is a reversal of burden. It has its origins in the thinking of the court that the ECI is an independent constitutional body, so by default, we have to trust them. Anybody who is beseeching that trust or questioning the trust has to bring forward evidence. The problem is that this premise is now seen across the board in our institutions. Institutional independence is not something that citizens bestow merely because you are an official. It needs to be earned. And the fact that you are in an official position gives you all the resources to earn that. Unfortunately, the ECI has failed to earn that trust. 

Prema Sridevi: The court has said - While maintaining a balanced perspective is crucial in evaluating systems or institutions, blindly mistrusting any aspect of the system can breed unwarranted skepticism and impede progress. But isn't it also true that we cannot blindly believe the system is functioning effectively, especially when there has been no tangible evidence placed by the Election Commission of India that the EVMs are foolproof and cannot be tampered with at all?

Prasanna S: Forget about tangibility. You are upholding a certain technological system. In computer science and cybersecurity, you will never come across the phrase "blind mistrust." You will always come across the phrase "blind trust." In fact, if you do a Google word comparison of "blind trust" versus "blind mistrust," you will find that "blind trust" is actually more common. Trust can be blind. Skepticism is often healthy. In divorcing that skepticism, the court has fallen into the trap of thinking that merely because the Election Commission is a constitutional institution, we must trust it by default. 

Prema Sridevi: Earlier, you deposed before the Citizens' Commission on Elections. In your deposition, you have said that without counting VVPAT paper slips, the objectives of verifiability and transparency in the democratic process would remain unrealised. Can you explain why you think it is necessary for the VVPAT slips to be counted?

Prasanna S: From the Subramanian Swamy's case onwards, the principle is now established that it needs to be voter-verifiable. This is not to say that the process is bad or that some malware has been introduced or that the Election Commission has some malicious actors. None of that is being suggested. When you assign EVMs to polling stations, there is a randomisation process. Who do you call? You call all the polling agents of all the candidates to witness that randomisation process. Why do you do that? You do that because it needs to be seen to be fair. You don't say, "No, I don't have to call anybody because the Election Commission is an independent body. We will do the randomisation ourselves." The trend has always been that whenever the Election Commission does something, if it can act in a manner that increases confidence, it always does that. It has been the tradition of the Election Commission to do that. It is a very healthy tradition. It's only when it comes to contemporary things like EVM and VVPAT, and in some cases also the enforcement of the Model Code of Conduct (MCC), that it places a premium on opacity and devalues transparency. Any additional measure that would increase the fairness of the process should be welcomed. Voter verifiability is a principle now recognised not just in India but across the world—most famously in the German constitutional court's case, which rejected electronic voting as a proper method to ascertain electoral processes.

Voter verifiability is critical. The ECI has actually spent some thousands of crores in manufacturing these machines, deploying them, and collecting those slips. If it takes an additional day or two, how does that really affect the polling schedule? They might as well take that time to strengthen the process. They’ve been very stubborn about it, inexplicably stubborn. Their stubbornness has increased questions on the credibility of the process.

Prema Sridevi: When a common person looks at these court proceedings and media reports, they think, "Are the EVMs foolproof? If not, why not?" Can you technically explain what the EVM and VVPAT systems are all about, how they operate, and what the inherent flaws in them are?

Prasanna S: There are people like Mr. Kannan Gopinathan, who have written extensively about this from their experience as returning officers while in the services. When you talk about voter verifiability, is it sufficient just to give a picture of the voter of his vote, is it just sufficient? The voter needs to be satisfied that the vote is recorded as they cast it and that it will also be counted as it is recorded.

Some petitions have asked for the slip to be handed to the voter, and the voter then places the slip in the ballot box themselves. This is a reasonable ask and may not require too much engineering or re-engineering of the system. You already have a printer and a cutter; instead of the printed slip falling into a box, it falls into the voter's hand, and the voter puts it in the box kept right next to them. They don’t have to run a mile to put the slip in.

Prema Sridevi: I read a copy of your 2019 petition where there was a mention of the possibilities of a cable fraud or hacking or mal-programming of the software in the EVMs to manipulate the counts and to introduce a Trojan to it. You have also spoke about other related technological compromises. You’ve been a coder in the past; you’re a technologist. Can you explain what these apprehensions are and where they stem from?

Prasanna S: When something is an electronic process, there is not one person, in fact, not any expert in the world, who can say that a machine has not been compromised. Even nuclear reactors, which are built with such high security factors, have all been compromised. We are living in an era where there are zero-day vulnerabilities in all systems. Given this, you have to build processes that account for both known and unforeseen flaws and vulnerabilities. This is not to say that merely because you have what is printed and kept, the elections are foolproof. There could still be local factors that influence the process. What if someone puts a gun to your head and says you must press a certain button? All of this can happen, but it will not compromise the election wholesale. However, if there is a problem in the technology that compromises the election wholesale, that is a serious issue.

I am particularly concerned about the placement of the VVPAT. The VVPAT registers the vote. If the VVPAT acts as the man in the middle, it gets the signal from the ballot unit and transmits that signal to the control unit for the registration of the vote. If that is the case, then the problem is if there is malware in the VVPAT itself, then it could send the wrong signal. This issue raises serious concerns. Mr. Kannan Gopinathan has gone to the extent of saying that the VVPAT is actually causing the trouble; otherwise, the process is robust. He suggests that without the VVPAT, the system may not be of so much of a concern. But then there is the question of voter verifiability. The best way to solve these concerns is to have the VVPAT slip given to the voter, have the voter put it in the ballot box, and tally the recorded vote as well as the printed vote. This would take care of many concerns. 

Prema Sridevi: After your deposition at the Citizens' Commission on Elections, in 2021, the CCE came out with a report stating that there were substantial discrepancies in voter turnout and votes polled data on EVMs across over 373 constituencies in the 2019 elections. Now, this is extremely serious if it’s true. What details do you have on this, and what are your views on it?

Prasanna S: We also need to know in which of these cases the discrepancy was substantial. Part of the reason I say this is that there are a lot of human actors. How does the Election Commission get this data? It is from the collection of the 17A and 17C forms at each polling station. Sometimes, what happens is that these forms are human-generated. If I say 13,717 is the votes polled, someone might write it as 18,317. If that is the case, a mismatch is possible. The Election Commission is not publishing the 17C data anymore. It is the Election Commission's stubborness that is deeply distressing. The Election Commission ought to have conducted enquiries to explain these discrepancies.

Prema Sridevi: The report also mentioned that EVMs went missing—20 lakh electronic voting machines have gone missing from the Election Commission's office. The ECI did not come out with a statement and could not justify how this happened. There was absolute silence. What about this case where so many EVMs went missing?

Prasanna S: That is a lingering issue. The lack of transparency in general—whether it is discrepancy in counts, missing EVMs, or defective and malfunctioning machines. If you see the number of malfunctioning reports, the ECI does not have any explanation to this. Several documented instances of malfunctioning exist. How is it that a simple electronic system, as they claim, cannot guarantee 99.99% accuracy? If it is such a simple system, how can there be so many malfunctions? The Election Commission has not been particularly transparent about why there has been so much malfunctioning.

Prema Sridevi: The ECI has invested about ₹5,000 crore of the taxpayers' money in procuring VVPAT machines. Now, as the election is progressing, taxpayers and the voters have every right to know if their votes have been properly registered and not tampered with. This is our democratic right. What are your final thoughts on what should be the way forward?

Prasanna S: The way forward is in many ways fairly simple. It doesn't require too much re-engineering of any of these systems that are there. You can have the voter use the ballot unit to register their vote, have the VVPAT print the slip, give the voter the possibility of satisfying themselves that the slip has indeed printed what they pressed, and have the voter place it in the ballot box. Then have a tally of 100% of the electronic counts with the voter-verified slips.

There are a few other tweaks that can be done. I was an accounting agent for an independent candidate in the February 2022 Delhi assembly elections, and I saw the VVPAT counting for the first time. It is not easy to count. The slips are very thin and they stick to each other. Every time the people in charge of counting actually counted the slips, they got different counts by 10 or 15. So, you need to be mindful of that. Maybe there is a technological upgrade required to print slips that can be easily counted. Those are the tweaks that can be made. But otherwise, the process is there. It’s just that a few tweaks are needed.

Prema Sridevi: I’m sure this should be the way forward, but I’m also pretty sure this is not going to happen any time soon, at least not in this election. Thank you, Prasanna, for all your insights. We really appreciate it.

Prasanna S: Thank you very much for having me here, Prema.

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