# Association For Democratic Reforms v. Election Commission of India and Another

- **Citation:** 2024 INSC 341
- **Court:** Supreme Court of India
- **Decided:** 2024-04-26
- **Bench:** Sanjiv Khanna, Dipankar Datta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/association-for-democratic-reforms-v-election-commission-of-india-and-another-37830
- **Pages:** 47

## Headnote

Petitioners sought directions for re-introduction of the paper ballot
system; or that the printed slip from the Voter Verifiable Paper Audit
Trail (VVPAT) machine be given to the voter to verify, and put in
the ballot box, for counting; and/or that there should be 100%
counting of the VVPAT slips in addition to electronic counting by
the control unit.
Headnotes
Elections - Electoral Process - Representation of the
People Act, 1951 - Conduct of Election Rules, 1961 - Use of
Electronic Voting Machines (EVMs) - EVM-VVPAT mechanism
- Writ petitions filed on the suspicion of the possibility of
manipulation of the EVMs and mismatch in votes cast through
EVMs - Directions sought for returning to the paper ballot
system; or that the printed slip from the VVPAT machine be
given to the voter to verify; and/or for 100% counting of the
VVPAT paper trails in addition to electronic counting:
Held: Per Sanjiv Khanna, J. (for himself and Dipankar Datta,
J.) EVM consists of three units, namely, the ballot unit, the control
unit, and the VVPAT - EVM setup is designed in a rudimentary
fashion and the EVM units are standalone and non-networked, i.e.,
they are unconnectable to any other third-party machine or input
source - In case any unauthorised attempt is made to access the
microcontroller or memory of the EVM, the Unauthorised Access
Detection Mechanism disables it permanently - Advanced encryption
techniques and strong mutual authentication or reception capability
rules out the deciphering of communication between the EVM units
and any unauthorised interaction with the EVM - The programme
loaded in the EVM is key hashed and burnt into a One Time
Programmable microcontroller chip at the time of manufacturing,
thus dispelling any possibility of tampering - All the three units of
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the EVM have microcontrollers in which the respective firmware is
burnt - The burnt programme/code is unalterable and cannot be
modified after the EVM is delivered/supplied to Election Commission
of India (ECI) - Every key press of the control unit is dynamically
coded, making it impossible to decode the signal flowing among the
units of the EVM inter se - Firmware of the control unit is agnostic
to any candidate name or political party symbol - The possibility to
hack or tamper with the agnostic firmware in the burnt memory to
tutor/favour results is unfounded - The suspicion that EVMs can be
manipulated for repeated or wrong recording of vote(s) to favour a
particular candidate, rejected - ECI has conducted random VVPAT
verification of 5 polling booths per assembly segment/constituency
for 41,629 EVMs-VVPATs - More than 4 crore VVPAT slips have
been tallied with the electronic counts of their control units - Not
even a single case of mismatch (except one which arose on account
of failure of the presiding officer to delete the mock poll data) or
wrong recording of votes was detected - EVMs subjected to test by
technical experts committee from time to time wherein no fault was
found - The M3 EVMs currently in use are designed by engineers of
BHEL and ECIL and vetted by the aforesaid committee - A number
of safeguards and protocols with stringent checks have been put
in place, as elucidated - Administrative and technical safeguards
of the EVM reviewed in detail - Data and figures do not indicate
artifice and deceit - Imagination and suppositions should not lead
to hypothesize a wrong doing without any basis or facts - Credibility
of the ECI and integrity of the electoral process earned over years
cannot be over-ridden by contemplations and speculations - In N.
Chandrababu Naidu v. Union of India, the direction for counting the
VVPAT paper trail in 5 EVMs per assembly constituency or assembly
segment in a parliamentary constituency was issued to ensure the
highest level of confidence in the accuracy of election results -
Giving physical access to VVPAT slips to voters is problematic and
impractical and will lead to misus

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* Authors
[2024] 5 S.C.R. 415 : 2024 INSC 341
Association For Democratic Reforms
v.
Election Commission of India and Another
(Writ Petition (Civil) No. 434 of 2023)
26 April 2024
[Sanjiv Khanna* and Dipankar Datta,* JJ.]
Issue for Consideration
Petitioners sought directions for re-introduction of the paper ballot
system; or that the printed slip from the Voter Verifiable Paper Audit
Trail (VVPAT) machine be given to the voter to verify, and put in
the ballot box, for counting; and/or that there should be 100%
counting of the VVPAT slips in addition to electronic counting by
the control unit.
Headnotes
Elections - Electoral Process - Representation of the
People Act, 1951 - Conduct of Election Rules, 1961 - Use of
Electronic Voting Machines (EVMs) - EVM-VVPAT mechanism
- Writ petitions filed on the suspicion of the possibility of
manipulation of the EVMs and mismatch in votes cast through
EVMs - Directions sought for returning to the paper ballot
system; or that the printed slip from the VVPAT machine be
given to the voter to verify; and/or for 100% counting of the
VVPAT paper trails in addition to electronic counting:
Held: Per Sanjiv Khanna, J. (for himself and Dipankar Datta,
J.) EVM consists of three units, namely, the ballot unit, the control
unit, and the VVPAT - EVM setup is designed in a rudimentary
fashion and the EVM units are standalone and non-networked, i.e.,
they are unconnectable to any other third-party machine or input
source - In case any unauthorised attempt is made to access the
microcontroller or memory of the EVM, the Unauthorised Access
Detection Mechanism disables it permanently - Advanced encryption
techniques and strong mutual authentication or reception capability
rules out the deciphering of communication between the EVM units
and any unauthorised interaction with the EVM - The programme
loaded in the EVM is key hashed and burnt into a One Time
Programmable microcontroller chip at the time of manufacturing,
thus dispelling any possibility of tampering - All the three units of
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the EVM have microcontrollers in which the respective firmware is
burnt - The burnt programme/code is unalterable and cannot be
modified after the EVM is delivered/supplied to Election Commission
of India (ECI) - Every key press of the control unit is dynamically
coded, making it impossible to decode the signal flowing among the
units of the EVM inter se - Firmware of the control unit is agnostic
to any candidate name or political party symbol - The possibility to
hack or tamper with the agnostic firmware in the burnt memory to
tutor/favour results is unfounded - The suspicion that EVMs can be
manipulated for repeated or wrong recording of vote(s) to favour a
particular candidate, rejected - ECI has conducted random VVPAT
verification of 5 polling booths per assembly segment/constituency
for 41,629 EVMs-VVPATs - More than 4 crore VVPAT slips have
been tallied with the electronic counts of their control units - Not
even a single case of mismatch (except one which arose on account
of failure of the presiding officer to delete the mock poll data) or
wrong recording of votes was detected - EVMs subjected to test by
technical experts committee from time to time wherein no fault was
found - The M3 EVMs currently in use are designed by engineers of
BHEL and ECIL and vetted by the aforesaid committee - A number
of safeguards and protocols with stringent checks have been put
in place, as elucidated - Administrative and technical safeguards
of the EVM reviewed in detail - Data and figures do not indicate
artifice and deceit - Imagination and suppositions should not lead
to hypothesize a wrong doing without any basis or facts - Credibility
of the ECI and integrity of the electoral process earned over years
cannot be over-ridden by contemplations and speculations - In N.
Chandrababu Naidu v. Union of India, the direction for counting the
VVPAT paper trail in 5 EVMs per assembly constituency or assembly
segment in a parliamentary constituency was issued to ensure the
highest level of confidence in the accuracy of election results -
Giving physical access to VVPAT slips to voters is problematic and
impractical and will lead to misuse, malpractices and disputes - Not
inclined to modify the directions to increase the number of VVPAT
undergoing slip count - Data and the results do not indicate any
need to increase the number of VVPAT units subjected to manual
counting - EVMs are simple, secure and user-friendly - Moreover,
the incorporation of the VVPAT system fortifies the principle
of vote verifiability, enhancing the overall accountability of the
electoral process - Electoral reforms would be undone by directing
reintroduction of the ballot papers - Submission to return to the
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Association For Democratic Reforms v.
 Election Commission of India And Another
ballot paper system, rejected - Per Dipankar Datta, J. (Concurring)
Use of EVMs in elections in India are not without its checks and
balances - Reasonable measures to ensure transparency, such
as tallying VVPAT paper trail in 5 EVMs per assembly constituency
or assembly segment in a parliamentary constituency with votes
polled, are already in place after the decision in N. Chandrababu
Naidu v. Union of India - The aforesaid exercise of tallying has
till date not resulted in any mismatch - This assertion of ECI not
proved incorrect by petitioners - Grounds for the reliefs sought lie
in the realm of apprehension and suspicion - Petitioners neither
able to demonstrate how the use of EVMs in elections violates the
principle of free and fair elections; nor were they able to establish
a fundamental right to 100% VVPAT slips tallying with the votes
cast - Their apprehensions are misplaced - Reverting to the paper
ballot system and burdening the ECI with the onerous task of 100%
VVPAT slips tallying would be a folly. [Paras 17, 19-21, 42, 58, 62,
68-70, 72, 75 and 10-12, 19]
Elections - Electoral Process - Use of Electronic Voting
Machines (EVMs) - EVM-VVPAT (Voter Verifiable Paper Audit
Trail) mechanism - Constitution of India - Article 19(1)(a) -
Conduct of Election Rules, 1961 - r.49M - 'transparent window'
- Alleged modification of the VVPAT in 2017, whereby the glass
window on the VVPAT was made translucent/tinted instead of
transparent, depriving the voter from knowing whether the vote
cast by him was actually registered and counted - Petitioners
submitted that a voter's right to be informed u/Article 19(1)(a)
vis-à-vis the electoral process have two facets- right to know
that the vote is recorded as cast; and, secondly that the vote
as cast is counted:
Held: Per Sanjiv Khanna, J. (for himself and Dipankar Datta,
J.) The test for determining the scope of unenumerated rights
is based on tracing them to specific provision of Part III of the
Constitution or to the core values which the Constitution espouses
- Petitioners were neither able to demonstrate how the use of
EVMs in elections violates the principle of free and fair elections;
nor were they able to establish a fundamental right to 100% VVPAT
slips tallying with the votes cast - While the fundamental right of
voters to ensure their vote is accurately recorded and counted
is acknowledged, the same cannot be equated with the right to
100% counting of VVPAT slips, or a right to physical access to
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the VVPAT slips, which the voter should be permitted to put in
the drop box - These are two separate aspects - The former is
the right itself and the latter is a plea to protect or how to secure
the right - The voters' right can be protected and safeguarded by
adopting several measures - Direction in Subramanian Swamy v.
Election Commission of India for gradual introduction of VVPATs
to guarantee utmost transparency and integrity in the system has
been implemented - The voter can see the VVPAT slip through the
glass window and this assures the voter that his vote as cast has
been recorded and will be counted - Further, ECI was categoric
that the glass window on the VVPAT has not undergone any
change - The term used in r.49M is 'transparent window' - The
tinted glass used on the VVPAT printer is to maintain secrecy and
prevent anyone else from viewing the VVPAT slips - Voter in the
voting compartment who is viewing the glass from the top can
have clear view of the slip for 7 seconds - Marginal tint on the
VVPAT glass window, or the fact that the cutting and dropping of
the slip from the roll in to the drop box of the printer is not visible,
does not violate r.49M - The words 'before such slips get cut' in
the proviso to r.49M(3) indicate and require that the slip should be
cut from the roll after the elector has seen the print through the
glass window - Use of glass window prevents damage, smudging,
attempt to deface or physically access the VVPAT slip - The
rule ensures that the voter is able to see the slip along with the
serial number with name of the candidate and the symbol for
whom they have voted - Per Dipankar Datta, J. (Concurring)
A citizen's right 'to freedom of speech and expression' u/Article
19(1) is not absolute and the State by virtue of Article 19(2) can
place reasonable restrictions on these rights - The ordainment of
r. 49M (3) is that the VVPAT slip should be momentarily visible to
the voter; and it is not the requirement of the rule that the VVPAT
slip or its copy has to be handed over to the voter - Recording of
the vote cast signifying the choice of the voter and its projection
on the VVPAT slip, albeit for 7 seconds, is fulfilment of the voter's
right of being informed that his/her vote has been duly recorded
- 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 ECI that
the light in the VVPAT would be on for 7 seconds and not more
- There is in place a stringent system of checks and balances
(Form 17A, 17C, r.56D(4), 56-D), to prevent any possibility of a
miscount of votes, and for the voter to know that his/her vote has
[2024] 5 S.C.R.
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Association For Democratic Reforms v.
 Election Commission of India And Another
been counted - Such a system, which is distinctly more satisfactory
compared to the system of the yester-years, suitably satisfies the
voter's right under Article 19(1)(a) to know that his/her vote has
been counted as recorded. [Paras 69, 73, 16, 17]
Directions by Supreme Court - 2024 General Elections
underway for constituting the 18th Lok Sabha - Directions
issued to further strengthen the integrity of election process:
Held: On completion of the symbol loading process in the VVPATs
undertaken on or after 01.05.2024, the symbol loading units be
sealed and secured, as directed and be opened, examined and dealt
with as in the case of EVMs; the burnt memory/microcontroller in
5% of the EVMs, that is, the control unit, ballot unit and the VVPAT,
per assembly constituency/assembly segment of a parliamentary
constituency be checked and verified by the team of engineers
from the manufacturers of the EVMs, post the announcement of
the results, for any tampering or modification, on a written request
made by candidates at SI.No.2 or 3, behind the highest polled
candidate. [Para 76]
Conduct of Election Rules, 1961 - r.49MA - Petitioner pleaded
that r.49MA is draconian, arbitrary, and contrary to law as
reference to s.177, Penal Code, 1860 in the written declaration
u/r.49MA is wrong and misconceived:
Held: r.49MA permits the elector to raise a complaint if she/he is
of the view that the VVPAT paper slip did not depict the correct
candidate/political party she/he voted - However, whenever a
challenge is made, the voting process must be halted - An overly
liberal approach could cause confusion and delay hindering the
election process and dissuading others from casting their votes -
However, no comments made on the application of s.177, Penal
Code, 1860 - ECI stated that only 26 such requests in terms of
r.49MA were received, and in all cases, the allegation was found
to be incorrect - Plea that any elector should be liberally permitted
as a routine to ask for verification of vote, rejected. [Para 74]
Elections - Electoral Process - Use of Electronic Voting
Machines (EVMs) - Case laws affirming the efficacy and use
of EVMs in the elections, referred to.
Elections - Electoral Process - EVM-VVPAT (Voter Verifiable
Paper Audit Trail) mechanism - Suggestions as regards
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counting of the VVPAT slips that instead of physically counting
the VVPAT slips, they can be counted by a counting machine;
and barcoding of the symbols loaded in the VVPATs may be
helpful in machine counting:
Held: Suggestions made may be examined by the ECI - These
are technical aspects, which will require evaluation and study, and
hence no comment made either way. [Para 71]
Elections - Electoral Process - Conduct of Election Rules,
1961 - Voting by Electronic Voting Machines (EVMs) - EVMVVPAT (Voter Verifiable Paper Audit Trail) mechanism - Free
and fair elections - Procedure and safeguards adopted by
ECI to ensure free and fair elections and the integrity of the
electoral process; features of EVMs; checks and protocols
to ensure and ascertain the legitimacy and integrity of the
EVMs and the election process; data on the performance of
the EVMs; mechanics and safeguards embedded in the EVMs,
discussed.
Elections - Electoral Process - Use of Electronic Voting
Machines (EVMs) - EVM-VVPAT (Voter Verifiable Paper Audit
Trail) mechanism - Advantages - Enumerated.
Conduct of Election Rules, 1961 - Part IV, Chapter II - Voting
by EVMs - rr.49L, 49M (3), (6), 49(O), 49 (S), 56-D; Form 17A,
17C - Preparation of the voting machine by returning officer,
arrangements at the polling station, admission to the polling
stations, and preparation of voting machine for poll.
Constitution of India - Article 32/226 - Writ petitions -
Maintainability - Suspicion of infringement of a right, if
adequate ground to invoke the writ jurisdiction:
Held: Per Dipankar Datta, J. No - A writ petition ought not to be
entertained if the plea is based on the mere suspicion that a right
could be infringed - Suspicion that a right could be infringed and a
real threat of infringement of a right are distinct and different - To
succeed in a claim under Article 32 or 226, one must demonstrate
either mala fide, or arbitrariness, or breach of a law in the impugned
State action - Though a writ of right, it is not a writ of course - Writ
jurisdiction u/Article 32/226 being special and extraordinary, should not
be exercised casually or lightly on the mere asking of a litigant based
on suspicions and conjectures, unless there is credible/trustworthy
material on record to suggest that adverse action affecting a right
[2024] 5 S.C.R.
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Association For Democratic Reforms v.
 Election Commission of India And Another
is reasonably imminent or there is a real threat to the rule of law
being abrogated - It must be shown, at least prima facie, that there
is a real potential threat to a right guaranteed by law to the person
concerned - Mere suspicion that there may be a mismatch in votes
cast through EVMs, thereby giving rise to a demand for a 100%
VVPAT slips verification, is not a sufficient ground for the present set
of writ petitions to be considered maintainable. [Paras 22, 23, 28]
Doctrines - Doctrine of res judicata - Civil Procedure Code,
1908 - s.11 - "public right" in Explanation VI - Applicability
to public interest litigations:
Held: Per Dipankar Datta, J. Doctrine of res judicata is applicable
to writ petitions under Article 32 and Article 226 as well - The
inclusion of the term "public right" in Explanation VI of s.11 of
the Civil Procedure Code, 1908 aims to avoid redundant legal
disputes concerning public rights - Thus, there is no room for
debate regarding the application of s.11 to matters of public interest
litigation presented through writ petitions - Principle of res judicata
is not rigid in cases of substantial public interest and Constitutional
Courts are empowered to adopt a flexible approach in such cases,
acknowledging their far-reaching public interest ramifications -
However, this standard is applicable only when substantial evidence
is presented to validate the irreversible harm or detriment to the
public good resulting from the action impugned - Court must come
to the conclusion that the petition raises substantial grounds not
previously addressed in litigation - Only then it may consider such
a petition; otherwise, it is within its authority to dismiss it at the
threshold - This issue at hand of doubting the efficacy of the EVMs
has been previously raised before this Court and it is imperative
that such issue is concluded definitively now. [Paras 30, 33, 34]
Case Law Cited
In the judgment of Sanjiv Khanna, J. (for himself
and Dipankar Datta, J.)
A.C. Jose v. Sivan Pillai and Others [1984] 3 SCR 74 :
(1984) 2 SCC 656; Subramanian Swamy v. Election
Commission of India [2013] 14 SCR 565 : (2013) 10
SCC 500; N. Chandrababu Naidu and Others v. Union
of India and Another (2019) 15 SCC 377; Nyaya Bhoomi
and Another v. Election Commission of India, 2018 SCC
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OnLine SC 3919; Tech for All v. Election Commission
of India, 2019 SCC OnLine SC 2353; Prakash Joshi v.
Election Commission of India, 2017 SCC OnLine SC
1734; Madhya Pradesh Jan Vikash Party v. Election
Commission of India; Sunil Ahya v. Election Commission
of India; Kamal Nath v. Election Commission of India
and Others [2018] 12 SCR 842 : (2019) 2 SCC 260
- referred to.
In the judgment of Dipankar Datta, J. (Concurring)
Daryao and Others v. State of U.P. and Others [1962]
1 SCR 574 : AIR 1961 SC 1457; Direct Recruit
Class II Engineering Officers' Association. v. State of
Maharashtra and Others [1990] 2 SCR 900 : (1990) 2
SCC 715 - followed.
Election Commission of India v Ashok Kumar [2000]
Supp. 3 SCR 34 : (2000) 8 SCC 216; N. Chandrababu
Naidu v. Union of India (2019) 15 SCC 377; D.A.V.
College, Bhatinda v. State of Punjab [1971] Supp. 1
SCR 677 : (1971) 2 SCC 261; Adi Saiva Sivachariyargal
Nala Sangam v. State of Tamil Nadu [2015] 11 SCR
1110 : (2016) 2 SCC 725 - referred to.
Books and Periodicals Cited
Legal History of EVMs and VVPATs, Edition 1, January
2024, p.654 - referred to.
List of Acts
Representation of the People Act, 1951; Conduct of Election Rules,
1961; Constitution of India; Penal Code, 1860.
List of Keywords
Elections; 2024 General Elections; EVMs; Paper ballots; Paper
ballot system; Booth capturing; VVPAT; Ballot box; Ballot unit,
Control unit; Manipulation of EVMs; VVPAT slips; Hacking;
Tampering; Free and fair elections; First Level Check; Higher
mock poll; Two-stage randomization process; First randomization;
Second randomization; Strong rooms; Writ jurisdiction;
Infringement of right; Doctrine of res judicata; Suspicion of
infringement of right.
[2024] 5 S.C.R.
423
Association For Democratic Reforms v.
 Election Commission of India And Another
Case Arising From
EXTRA-ORDINARY ORIGINAL JURISDICTION: Writ Petition (Civil)
No. 434 of 2023
(Under article 32 of The Constitution of India)
With
Writ Petition (Civil) Nos. 184 and 277 of 2024
Appearances for Parties
Tushar Mehta, SG, Ms. Aishwarya Bhati, ASG, Gopal Sankaranarayanan,
Kapil Sibal, Sanjay R. Hegde, Maninder Singh, Anand Grover, Huzefa
Ahmadi, Ms. Haripriya Padmanabhan, Santosh Paul, Sr. Advs., Abhay
Anil Anturkar, Asim Sarode, Dhruv Tank, Aniruddha Awalgaonkar, Ms.
Surbhi Kapoor, Bhagwant Deshpande, Ms. Neha Rathi, Ms. Kajal
Giri, Kamal Kishore, Vishal Sinha, Prashant Bhushan, Nizamuddin
Pasha, Rahul Gupta, Ms. Ria Yadav, Ms. Alice Raj, Mrs. Suroor
Mandar, Rishabh Parikh, Ms. Aparajita Jamwal, Prateek Kumar,
Ruchir Ranjan Rai, Ms. Ashita Chawla, Ajay Sabharwal, Rangasaran
Mohan, Amarpal Singh Dua, Kanu Agrawal, Ms. Anupriya Srivastava,
Ms. Shivika Mehra, Praneet Pranav, Arvind Kumar Sharma, Pranav
Sachdeva, Zulfiker Ali P.S., Ms. Lakshmi Sree P., Augustine Peter, Ms.
Lebina Baby, Nizam Pasha, Lzafeer Ahmad B. F., Ms. Aayushi Mishra,
Ajay Marwah, Swaroopananda Mishra, Prabhu Ramasubramanian,
Navneet Dugar, Bharathi Mohan M., Manoj Kumar A., Santhosh K.,
Shrutanjay Bharadwaj, Sriharsh Nahush Bundela, Vedant Mishra,
Virendra Mohan, Varun K Chopra, Mehul Sharma, M/s. VKC Law
Offices, Ms. Tasneem Ahmadi, Mehmood Pracha, R.H.A. Sikander,
Ms. Mahima Rathi, Jatin Bhatt, Sanawar, Mohd. Shameem, Ms.
Nujhat Naseem, Advs. for the appearing parties.
Petitioner-in-person
Judgment / Order of the Supreme Court
Judgment
Sanjiv Khanna, J.
Delay in refiling is condoned.
2.
At the outset, we take on record that the counsel for the petitioners, in
unison, have stated that the petitioners do not attribute any motive or
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malice to the Election Commission of India1, or for that matter contend
that the Electronic Voting Machines2 have been tutored or configured
to favour or disfavour a candidate or political party. However, due to
possibility of manipulating the EVMs there is suspicion and, therefore,
this Court should step in to instil confidence in the voters3 and the
people. Voters have the right to know that the franchise exercised
by them has been correctly recorded and counted.
3.
On a pointed question put by the Court, it was argued, without
prejudice and in the alternative, on behalf of the petitioner -
Association for Democratic Reforms, that the Court should direct:
a)
return to the paper ballot system; or
b)
that the printed slip from the Voter Verifiable Paper Audit Trail
machine4 be given to the voter to verify, and put in the ballot
box, for counting; and/or
c)
that there should be 100% counting of the VVPAT slips in
addition to electronic counting by the control unit.
4.
Other arguments raised relate to - the alleged modification of the
VVPAT in the year 2017, whereby the glass window on the VVPAT
was made translucent/tinted instead of transparent, depriving the voter
from knowing whether the vote cast by him was actually registered
and counted; Rule 49MA of the Conduct of Election Rules, 19615
is draconian, arbitrary, and contrary to law as reference to Section
177 of the Indian Penal Code, 18606 in the written declaration under
Rule 49MA is wrong and misconceived; and lastly, the voters' right
to know that the vote as cast is duly registered, being a paramount
and indelible fundamental right, any administrative reason and ground
raised by the ECI objecting to 100% counting of the VVPAT paper
trail should be rejected.
5.
Paper ballots were the norm, till EVMs were projected as a viable
alternative in 1980s. EVMs were first used in an assembly bye1
For short, 'ECI'.
2
For short, 'EVMs'
3
'Voters' and 'Electors' is used interchangeably.
4
For short, 'VVPAT'.
5
For short, '1961 Rules'.
6
For short, 'IPC'.
[2024] 5 S.C.R.
425
Association For Democratic Reforms v.
 Election Commission of India And Another
election in Kerala in 1982. All through the 1980s and early 1990s,
the use of EVMs for elections was discussed and debated by
politicians and experts in the domain of technology and electoral
process, and after due deliberations and review, the EVMs were
accepted and embraced. In view of the legal challenge7 regarding
use of EVMs without legislative approval, the Parliament vide Act
1 of 1989 amended the Representation of the People Act, 19518
allowing the use of EVMs. They were used in the General Elections
in 2004 and have been used in each and every General and other
election thereafter.
6.
ECI maintains that the EVMs have been a huge success in ensuring
free, fair and transparent elections across the nation in all elections.
They restrict human intervention, checkmate electoral fraud and
malpractices like stuffing and smudging of votes, and deter the
errors and mischiefs faced in manual counting of ballot papers. While
earlier it was apprehended that the introduction of EVMs will lead
to hardship and disenfranchisement, independent studies showcase
that EVMs have led to increase in voter participation.9 Yet, it is also
true that time and again use of EVMs has been objected to and
questioned, not by one but by all political parties and others. There
have been several litigations in this Court and the High Courts, albeit
the challenge to the use of EVMs has been rejected recording good
grounds and reasons.
7.
We deem it appropriate to begin this decision by referring to some
of the earlier case laws and judgments of this Court on the efficacy
and use of EVMs in the elections in this country.
8.
This Court in Subramanian Swamy v. Election Commission of India,10
held that a paper trail was an indispensable requirement of free and
fair elections. The relevant portion of the judgment is reproduced
below:
"28. From the materials placed by both the sides, we
are satisfied that the 'paper trail' is an indispensable
7
See A.C. Jose v. Sivan Pillai and others [1984] 3 SCR 74 : (1984) 2 SCC 656
8
For short, 'RP Act'.
9
Legal History of EVMs and VVPATs, Edition 1, January 2024, p.654
10
[2013] 14 SCR 565 : (2013) 10 SCC 500
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requirement of free and fair elections. The confidence
of the voters in the EVMs can be achieved only with the
introduction of the "paper trail". EVMs with Vvpat system
ensure the accuracy of the voting system. With an intent
to have fullest transparency in the system and to restore
the confidence of the voters, it is necessary to set up
EVMs with Vvpat system because vote is nothing but an
act of expression which has immense importance in a
democratic system.
29. In the light of the above discussion and taking notice
of the pragmatic and reasonable approach of ECI and
considering the fact that in general elections all over India,
ECI has to handle one million (ten lakh) polling booths,
we permit ECI to introduce Vvpat in gradual stages or
geographical-wise in the ensuing general elections. The
area, State or actual booth(s) are to be decided by ECI and
ECI is free to implement the same in a phased manner.
We appreciate the efforts and good gesture made by ECI
in introducing the same. For implementation of such a
system (Vvpat) in a phased manner, the Government of
India is directed to provide required financial assistance
for procurement of units of Vvpat."
Accordingly, to ensure full transparency and confidence of voters, this
Court recommended that EVMs be set up with VVPATs. Amendment
to the 1961 Rules was notified on 14.08.2013 to introduce the VVPAT
mechanism.
9.
In N. Chandrababu Naidu and Others v. Union of India and
Another,11 the petitioners prayed that 50% randomised VVPAT slip
verification be conducted in every General and Bye Elections instead
of one EVM per assembly constituency or assembly segment in a
parliamentary constituency. This Court held as under:
"9. At the very outset the Court would like to observe
that neither the satisfaction of the Election Commission
nor the system in vogue today, as stated above, is being
doubted by the Court insofar as fairness and integrity
11
(2019) 15 SCC 377
[2024] 5 S.C.R.
427
Association For Democratic Reforms v.
 Election Commission of India And Another
is concerned. It is possible and we are certain that the
system ensures accurate electoral results. But that is not
all. If the number of machines which are subjected to
verification of paper trail can be increased to a reasonable
number, it would lead to greater satisfaction amongst not
only the political parties but the entire electorate of the
country. This is what the Court should endeavour and
the exercise, therefore, should be to find a viable number
of machines that should be subjected to the verification
of Vvpat paper trails keeping in mind the infrastructure
and the manpower difficulties pointed out by the Deputy
Election Commissioner. In this regard, the proximity to
the election schedule announced by the ECI must be
kept in mind.
10. Having considered the matter, we are of the view that
if the number of EVMs in respect of which Vvpat paper
slips is to be subjected to physical scrutiny is increased
from 1 to 5, the additional manpower that would be
required would not be difficult for the ECI to provide
nor would the declaration of the result be substantially
delayed. In fact, if the said number is increased to 5, the
process of verification can be done by the same team
of polling staff and supervisors/officials. It is, therefore,
our considered view that having regard to the totality of
the facts of the case and need to generate the greatest
degree of satisfaction in all with regard to the full accuracy
of the election results, the number of EVMs that would
now be subjected to verification so far as Vvpat paper
trail is concerned would be 5 per Assembly Constituency
or Assembly Segments in a Parliamentary Constituency
instead of what is provided by Guideline No. 16.6, namely,
one machine per Assembly Constituency or Assembly
Segment in a Parliamentary Constituency. We also direct
that the random selection of the machines that would be
subjected to the process of Vvpat paper trail verification
as explained to us by Mr Jain, Deputy Commissioner of
the Election Commission, in terms of the guidelines in
force, shall apply to the Vvpat paper trail verification of
the 5 EVMs covered by the present order."
428
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Accordingly, instead of one EVM per assembly constituency or
assembly segment in a parliamentary constituency, as stipulated
under the erstwhile Guideline 16.6 of the Manual on EVM and
VVPAT, it was held that five EVMs per assembly constituency or
assembly segment in a parliamentary constituency would be subject
to VVPAT verification.
10. This Court vide order dated 22.11.2018 dismissed Writ Petition
(Civil) No. 1332/2018 titled Nyaya Bhoomi and Another v. Election
Commission of India, seeking return to the ballot paper system
instead of EVMs.
11. This Court vide order dated 21.05.2019 dismissed Writ Petition (Civil)
No. 692/2019 titled Tech for All v. Election Commission of India,
seeking 100% verification of VVPATs against the EVM outcomes,
as the issue had already been decided in N. Chandrababu Naidu
(supra).
12. Even earlier, this Court vide order dated 30.10.2017 in Prakash
Joshi v. Election Commission of India12, had rejected a similar
prayer with regard to modification of the procedure for counting of
votes by use of EVMs, leaving it to the discretion of the ECI. It was
observed that this Court was not inclined to enter into the said arena.
13. This Court vide order dated 30.09.2022 dismissed Special Leave
Petition (Civil) No. 16870/2022 titled Madhya Pradesh Jan Vikash
Party v. Election Commission of India regarding use of EVMs with
costs. This Court observed that:
"The election process under the representation of the
People Act, 1951 is monitored by a Constitutional Authority
like Election Commission. Electronic Voting Machines
(EVM) process has been utilized in our Country for decades
now but periodically issues are sought to be raised. This
is one such endeavor in the abstract."
14. Recently, this Court vide order dated 22.09.2023 dismissed
Writ Petition (Civil) No. 826/2023 titled Sunil Ahya v. Election
Commission of India seeking independent audit of the source code
of EVMs. This Court observed that:
12
2017 SCC OnLine SC 1734
[2024] 5 S.C.R.
429
Association For Democratic Reforms v.
 Election Commission of India And Another
"The Election Commission is a constitutional entity entrusted
under Article 324 of the Constitution with superintendence
and control over the conduct of the elections. The petitioner
has placed no actionable material on the record of the
Court to indicate that the Election Commission has acted
in breach of its constitutional mandate. Ultimately, the
manner in which the source code should be audited and
the way the audit should be dealt with bears on sensitive
issues pertaining to the integrity of the elections which
are conducted under the superintendence of the Election
Commission. On such a policy issue, we are not inclined
to issue a direction as sought by the petitioner. There is
no material before this Court, at this stage, to indicate
that the Election Commission is not taking suitable steps
to fulfill its mandate."
15. This Court in Kamal Nath v. Election Commission of India and
Others13, observed that it was without doubt that over the last several
decades ECI has built the reputation of an impartial body and a
constitutional authority which strives to hold fair election in which
the people of this country participate with great trust and faith. The
challenge to the EVMs and prayer for conducting VVPAT verification
on random basis for 10% of the votes was rejected.
16. We could have dismissed the present writ petitions by merely relying
upon the past precedents and decisions of this Court which, in our
opinion, are clear and lucid, and as repeated challenges based on
suspicion and doubt, without any cogent material and data, are
execrable and undesirable. However, we would like to put on record
the procedure and safeguards adopted by the ECI to ensure free
and fair elections and the integrity of the electoral process. For
this purpose, we shall refer to and take on record the features of
EVMs.14 Lastly, we would give two directions, and take on record
suggestion(s) for consideration of the ECI.
17. The EVM consists of three units, namely, the ballot unit, the control
unit, and the VVPAT. The ballot unit acts as a keyboard or a keypad.
13
[2018] 12 SCR 842 : (2019) 2 SCC 260
14
In view of the issue raised, we are not dealing with the post counting handling of EVMs.
430
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The ballot unit consists of 16 keys/buttons one of which the voter has
to press when he exercises his choice to vote for any candidate. The
keys are political party and candidate agnostic. The serial numbers,
names of the candidates and the symbols of the political parties/
candidates are physically pasted on the ballot unit so as to enable the
voter to identify the corresponding key/button against the respective
candidate and the symbol. The control unit, which is also called the
master unit, remains with the polling/presiding officer. Before the
ballot unit can be used by a voter, the polling/presiding officer is
required to press the 'BALLOT' button on the control unit, thereby
enabling the voter to cast his vote on the ballot unit. As soon as the
voter presses the 'blue button' and casts his/her vote on the ballot
unit, an LED against the candidate button glows red and the control
unit sends the command to the VVPAT. The VVPAT then prints the
VVPAT slip comprising of the serial number, candidate name and the
symbol. The VVPAT slip, after being printed, is displayed through the
glass window which is illuminated for 7 seconds to enable the voter
to know and verify the serial number, the candidate and the symbol
for whom they have voted. The VVPAT slip then gets cut from the
roll and falls into the box/compartment attached to the VVPAT. The
fall sensor in the VVPAT then sends a confirmation to the control
unit. The control unit records the vote.
18. The control unit, as explained below in some detail, has burnt memory,
which is agnostic and does not have the names of the candidates and
symbols allotted to the candidates or political parties. As noted earlier,
the polling/presiding officer has to activate the EVM by pressing the
'BALLOT' button on the control unit. The data stored in the control
unit, upon the vote being cast, records and counts the button or the
key pressed on the ballot unit. The data, therefore, records the total
number of votes as cast by the voters, and the key or the button
number on the ballot unit pressed by the voters for casting their vote.
After the vote is cast and the control unit has recorded the vote, a
loud beep sound confirms the registration of the vote.
19. The EVMs are manufactured and supplied to the ECI by two
public sector undertakings, namely, Bharat Electronics Limited15
(which functions under the Ministry of Defence), and Electronic
15
For short, 'BEL'.
[2024] 5 S.C.R.
431
Association For Democratic Reforms v.
 Election Commission of India And Another
Corporation of India Limited16 (which functions under the Department
of Atomic Energy).17 The EVMs in use after 2013 are referred to as
'M3' EVMs. The EVM setup is designed in a rudimentary fashion
and the EVM units are standalone and non-networked, that is,
they are unconnectable to any other third-party machine or input
source. In case any unauthorised attempt is made to access the
microcontroller or memory of the EVM, the Unauthorised Access
Detection Mechanism (UADM) disables it permanently. The
advanced encryption techniques and strong mutual authentication
or reception capability rules out the deciphering of communication
between the EVM units and any unauthorised interaction with the
EVM.
20. The programme loaded in the EVM18 is key hashed and burnt
into a One Time Programmable microcontroller chip at the time
of manufacturing, thus dispelling any possibility of tampering. It is
pertinent to note that all the three units of the EVM - ballot unit,
control unit and VVPAT, have microcontrollers in which the respective
firmware is burnt. The burnt programme/code is unalterable and
cannot be modified after the EVM is delivered/supplied by the
manufacturer to ECI. Every key press of the control unit is dynamically
coded, thus making it impossible to decode the signal flowing among
the units of the EVM inter se. Further, each key press is recorded
with date and time stamp on a real time basis.
21. As mentioned earlier, the firmware of the control unit is agnostic to
any candidate name or political party symbol. The control unit only
recognises the button/key pressed on the ballot unit. The control
unit has a capacity to store up to 2000 vote entries.
22. Apart from the burnt one-time programmable memory, the VVPAT
has a flash memory of 4 megabytes. The flash memory of the VVPAT
is designed to solely store and recognise a bitmap format file. The
VVPAT can store a maximum of 1024 bitmap files containing the
symbol, the serial number and name of the candidate. One candidate's
name, symbol, and serial number is packed into a single bitmap file
16
For short, 'ECIL'.
17
Collectively referred to as the 'manufacturers'.
18
EVM here refers to the ballot unit, the control unit and the VVPAT unit.
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[2024] 5 S.C.R.
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of 4 kilobytes. The VVPAT does not store or read any other software
or firmware.19
23. The VVPAT flash memory is empty and does not contain any symbol
or name related details at the time of supply/delivery to the ECI.
VVPATs in this form/state are stored in warehouses. The control
units and ballot units are also stored and secured in the warehouses.
24. Five to six months before national or state elections are to be
held, the required quantity of the EVMs are taken out from the
warehouses and stored in the designated strong rooms. The EVMs,
after they are put in the strong room, are subjected to First Level
Check20 by engineers of the manufacturers in the presence of
the representatives of the recognised political parties. The FLC is
carried out at the district level under the supervision of the District
Election Officer.
25. During the FLC, 100% or all machines are checked by casting of
vote in each of the 16 buttons on the ballot unit 6 times. Further,
5% of the machines are randomly selected by the representatives
of the recognised political parties for a higher mock poll by them.
Out of the 5% EVMs; 1200 votes are cast in 1% EVMs, 1000 votes
are cast in 2% EVMs and 500 votes are cast in 2% EVMs. The
voting result indicated in the control unit is tallied with the VVPAT
slip count.