October 9, 2013 | By Jim Tyre

Supreme Court of India - Voter Verifiable Paper Audit Trails Must Be Used

Three years ago, I wrote of the controversy surrounding the use of Electronic Voting Machines (EVMs) in India. A study by 2010 EFF Pioneer Award winner Hari Prasad and others showed that the EVMs could be hacked. For his troubles, Prasad was charged criminally for alleged theft of the EVM that was studied.

The charges against Prasad have long since been dropped, but the controversy surrounding India's electronic voting machines continues. Some have advocated that the EVMs be abandoned completely, and that India should go back to using old fashioned paper ballots. Others have claimed that the EVMs can be made more secure, but only if a Voter Verifiable Paper Audit Trail (VVPAT) is added.

For a significant time, the Election Commission of India continued to maintain that the EVMs were tamper proof. However, a number of different lawsuits were brought challenging the use of EVMs without VVPATs. The most significant was a public interest litigation action brought by Dr. Subramanian Swamy. Yesterday, the Supreme Court of India ruled in favor of Dr. Swamy, reversing an earlier ruling by the High Court of Delhi.

The Court had issued a number of related orders to the Election Commission, directing it to explore the feasibility of using VVPATs with voting machines:

Pursuant to the same, the ECI contacted several expert bodies, technical advisers, etc. They also had various meetings with National and State level political parties, demonstrations were conducted at various places and finally after a thorough examination and full discussion, VVPAT was used successfully in all the 21 polling stations of 51-Noksen (ST) Assembly Constituency of Nagaland. The information furnished by the ECI, through the affidavit dated 01.10.2013, clearly shows that VVPAT system is a successful one. We have already highlighted that VVPAT is a system of printing paper trail when the voter casts his vote, in addition to the electronic record of the ballot, for the purpose of verification of his choice of candidate and also for manual counting of votes in case of dispute.

The Court continued:

From the materials placed by both the sides, we are satisfied that the “paper trail” is an indispensable 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 democratic system.

Finally, the Court ordered the government to provide the financial assistance necessary to cause VVPATs to be deployed. As the High Court of Delhi had noted in its ruling, cost cannot be a deterrent to the conduct of fair and free elections.

Yesterday’s ruling is a victory for more accountable voting in India, but it leaves some key questions unanswered.

First, though the Supreme Court clearly had in mind the forthcoming 2014 general elections, it did not set a timetable for the ECI to fully implement the ruling. Thus, for now, there is no way of knowing how widely EVMs equipped with VVPATs will be deployed before those elections.

Second, the Court did not address the question of what should be done in places where the new EVMs are not deployed. If the paper trail is an “indispensable requirement of free and fair elections,” does that mean that the current EVMs (without VVPAT) cannot be used in the general election? If so, then will old-style paper balloting be used? Will use of the unequipped EVMs be permitted one more time? Will something else be used? Will the Court clarify its Judgment to insure that EVMS with VVPATs are deployed throughout India in time for the elections?

Perhaps anticipating such questions, the Court provided that the parties may return to the Court for further directions, if the need arises. Yesterday’s ruling is a victory, but we anticipate that the parties will be seeking further direction from the Court, and will be doing so soon.


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