For verification of this paper, please visit on http://www.socialresearchfoundation.com/innovation.php#8

The Constitution of India, 1950 incorporate high values such as Sovereign, Socialist, Secular, Democratic and Republic. In the Indian democracy has conducting the process of election each five years for the purpose of committing government. This liability is to impose upon the election commission by Constitution conducting to all process of election ought to be transparent, free and fair. We are living in the Digital era, every works have been depend and conducted through machines. Machines can change our vision and working pattern in every sectors of governmental and nongovernmental. One of the very vital sector of our country adopted machine and digital software as well as hardware known as Electronic Voting Machine (EVM). This machine use to be only in the conducting general election by the Election Commission of India. From the starting time use of EVMs have very disputed and ambiguity role player in election. Time to time arise voice against the EVMs use in election by politicians, bureaucrats and peoples. This paper described the issues of electronic voting machine and analyzed laws governing to the use of electronic voting machine in the general elections in India.

This paper described the issues of electronic voting machine and analyzed laws governing to the use of electronic voting machine in the general elections in India.

Composition of electronic voting machine-

The compositions of EVMs have involved four components such as Control Unit, Balloting Unit, VSDU and Printer (VVPAT).

An EVM consists of two units, namely, Control Unit (CU) and Balloting Unit (BU) with a cable (5 mt. long) for connecting the both. A Balloting Unit caters up to 16 candidates. There are number of variants available for the EVMs. Time-to-time, it has evolved and has become more robust. In case of pre-2006 (M1) and post-2006 EVMs (M2), 4 (Four) Balloting Units can be cascaded together to accommodate up to a maximum of 64 candidates (including NOTA), which can be used with one Control Unit. In case of upgraded post-2006 EVMs (M3), 24 (Twenty Four) Balloting Units can be cascaded together catering to 384 candidates (including NOTA) which can be used with one Control Unit. It runs on a power pack (Battery) having 7.5 volts. In case of M3 EVM, power packs are inserted in 5th, 9th, 13th, 17th& 21stBalloting Units, if more than 4 BUs are connected to a Control Unit. On the right side of the BU along the candidates’ vote button, digits 1 to 16 are embossed in Braille signage for guidance of visually impaired electors[6].

Ballot units have Programmable Logic Devices (PLD) which contains keyboard logic. When the keys on the ballot unit are pressed to choose a candidate at the time of polling, the logic sends key codes to the microchip inside the control unit which in turn redundantly writes it into two EEPROMs present in the control unit. EEPROMS are the chips where the voting data is stored[7].

Voter Verifiable Paper Audit Trail is an independent system attached with the Electronic Voting Machines that allows the voters to verify that their votes are cast as intended. When a vote is cast, a slip is printed on the VVPAT printer containing the serial number, name and symbol of the candidate and remains exposed through a transparent window for 7 seconds. Thereafter, this printed slip automatically gets cut and falls in sealed drop box of the VVPAT[8].

VVPAT consists of a Printer and a VVPAT Status Display Unit (VSDU). VVPAT runs on a power pack (Battery) of 22.5 volts. Control Unit and VSDU are kept with the Presiding Officer/Polling Officer and Balloting Unit and Printer are kept in the voting compartment9].

International legal aspect of relating to electronic voting machine:-

Electronic Voting Machines are known as Direct Recording Electronic (DRE) voting machines which record votes directly in the electronic memory. Such voting machines have, however, been banned in many countries such as Germany, the Netherlands, Ireland and Italy and the list is growing[10].

List of Countries Which Have Banned EVMs[11]

1. Netherlands (cited lack of transparency and risk of eavesdropping and securing cannot be guaranteed)

2. Ireland (after spending 51 million pounds for three years due to lack of transparency and trust)

3. Germany considered e-voting unconstitutional due to lack of transparency to a common voter.

4. Italy (because EVMs are easy to falsify)

5. US (California and other states banned EVMs without paper trail).

6. CIA security expert Mr. Stigall, monitoring use of Electronic Voting Systems in developing nations such as Venezuela, Macedonia and Ukraine reported abuse using Electronic Voting Machines.

7. When Chavez won in Venzuela, mathematicians challenged and found a “very subtle algorithm” that appeared to adjust vote in Chavez’s favour. Summarised at: http:// saveindiandemocracy.wordpress.com

8. The Supreme Court of Finland declared the result of pilot electronic voting machines invalid in the municipal corporation elections of 2009.

9. Election of the Pope takes place by paper ballot and not through the use of EVMs.

Italy, Ireland, Germany, United Kingdom, Japan and many other tech-savvy countries have reverted back to or stayed with the paper ballots, which can be traced to our ancient system of Parantakachola model[12].

National legal mechanism of electronic voting machine-

The several Acts in India which are relevant and applicable in the case of electronic voting are as under:

a. The Representation of the People Act, 1951

b. Conduct of election rules, 1961

c. Information Technology Act, 2002

d. Indian Evidence Act, 1872

The Representation of the People Act, 1951:

The Election Commission of India recommended to the Government of India to amend the law suitably to provide legal sanction for the use of EVMs[13].

In December, 1988 a new section 61A was inserted in the above Act, empowering the Election Commission of India to use Electronic Voting Machines in elections, which reads as under -

“61A. Voting machines at elections.—Notwithstanding anything contained in this Act or the rules made thereunder, the giving and recording of votes by voting machines in such manner as may be prescribed, may be adopted in such constituency or constituencies as the Election Commission may, having regard to the circumstances of each case, specify.”

Explanation.—For the purpose of this section, “voting machine” means any machine or apparatus whether operated electronically or otherwise used for giving or recording of votes and any reference to a ballot box or ballot paper in this Act or the rules made thereunder shall, save as otherwise provided, be construed as including a reference to such voting machine wherever such voting machine is used at any election.[14]

Section 135 A. Offence of booth capturing:[15]-

[(1)] Whoever commits an offence of booth capturing shall be punishable with imprisonment for a term which 6[shall not be less than one year but which may extend to three years and with fine, and where such offence is committed by a person in the service of the Government, he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine].

Explanation:-  For the purposes of 7[this sub-section and section 20B], “booth capturing” includes, among other things, all or any of the following activities, namely:-

(a) Seizure of a polling station or a place fixed for the poll by any person or persons, making polling authorities surrender the ballot papers or voting machines and doing of any other act which affects the orderly conduct of elections;

(b) Taking possession of a polling station or a place fixed for the poll by any person or persons and allowing only his or their own supporters to exercise their right to vote and 6[prevent others from free exercise of their right to vote];

(c) 8[coercing or intimidating or threatening directly or indirectly] any elector and preventing him from going to the polling station or a place fixed for the poll to cast his vote;

(d) Seizure of a place for counting of votes by any person or persons, making the counting authorities surrender the ballot papers or voting machines and the doing of anything which affects the orderly counting of votes;

(e) Doing by any person in the service of Government, of all or any of the aforesaid activities or aiding or conniving at, any such activity in the furtherance of the prospects of the election of a candidate.]

Section -169 Power to make rules[16]-

(1) The Central Government may, after consulting the Election Commission, by notification in the Official Gazette, make rules1 for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—

 [(ee) The manner of giving and recording of votes by means of voting machines and the procedure as to voting to be followed at polling stations where such machines are used;]

(f) The procedure as to voting to be followed at elections held in accordance with the system of proportional representation by means of the single transferable vote;

(g) The scrutiny and counting of votes including cases in which a recount of the votes may be made before the declaration of the result of the election;

[(gg) the procedure as to counting of votes recorded by means of voting machines;]

(h) The safe custody of 3[ballot boxes, voting machines], ballot papers and other election papers, the period for which such papers shall be preserved and the inspection and production of such papers;

[(hh) The material to be supplied by the Government to the candidates of recognised political parties at any election to be held for the purposes of constituting the House of the People or the Legislative Assembly of a State;]

(i) Any other matter required to be prescribed by this Act.

[(3) Every rule made under this Act shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or [in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made,] the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.].   

Conduct of election rules, 1961[17]:

1[18] [Chapter Ii Voting By Electronic Voting Machines-

Rule 49A- Design of Electronic Voting Machines:- Every electronic voting machine (hereinafter referred to as the voting machine) shall have a control unit and a balloting unit and shall be of such designs as may be approved by the Election Commission:

2 [19] [Provided that a printer with a drop box of such design, as may be approved by the Election Commission, may also be attached to a voting machine for printing a paper trail of the vote, in such constituency or constituencies or parts thereof as the Election Commission may direct.]

Conduct of Elections Rules, 1961 (Statutory Rules and Order) with Conduct of Elections (Amendment) Rules, 2013; Voting by Electronic Voting Machines & EVMs with VVPATs.

Information Technology Act, 2002: [20]

Section 2-  Definitions:-  (1)  (r) “electronic form”, with reference to information, means any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device;

Section  2-  Definitions:- (1)  (t) “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;

Section 7- Retention of electronic records:- (1) (b) the electronic record is retained in the format in which it was originally generated, sent or received or in a format which can be demonstrated to represent accurately the information originally generated, sent or received;

Section 11- Attribution of electronic records: - An electronic record shall be attributed to the originator,-

(a) If it was sent by the originator himself;

(b) By a person who had the authority to act on behalf of the originator in respect of that electronic record; or

(c) By an information system programmed by or on behalf of the originator to operate automatically.

Section 12- Acknowledgment of receipt: - (1) Where the originator has not [stipulated] that the acknowledgment of receipt of electronic record be given in a particular form or by a particular method, an acknowledgment may be given by-

(a) Any communication by the addressee, automated or otherwise;

Indian Evidence Act, 1872:[21]

Section 3- Interpretation-clause:-  In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:-

“Evidence”:- “Evidence” means and includes - (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

(2)[22] [all documents including electronic records produced for the inspection of the Court;] such documents are called documentary evidence.

Section 92- Exclusion of evidence of oral agreement: - When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:

 Proviso (1)- Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [23][want or failure] of consideration, or mistake in fact or law.

The several above mentioned provisions of various Acts and rules in India which are relevant and applicable for the purpose of electronic voting in election.

Indian judicial view on the electronic voting machine-

Indian Apex Court and also High Court of the states vital views on the issues relating to use, unconstitutional use of EVMs and possible tampering of EVM, routinely use of EVM in all the assembly and technological soundness and the administrative measures, process of detecting votes cast by impersonators and 100% use of VVPAT.

Some relevant case laws are given below-

In the case A C Jose Vs Sivan Pillai and Ors[24] Shri A C Jose filed an election petition before the Kerala High Court. The main plea of the petitioner was that the Electronic Voting Machines had been used in Parur Assembly Constituency in Kerala in May 1982 without the authority of law in the 1951 Act and the rules made there under.

The Kerala High Court dismissed the election petition on 12.10.1982, upholding the use of the machines by the Election Commission in exercise of its inherent powers under Article 324.

Shri A C Jose filed an appeal before the Hon’ble Supreme Court (A C Jose Vs Sivan Pillai and Ors[25]. The Supreme Court struck down the use of these machines in Parur Assembly Constituency in Kerala on 5th March, 1984. The Supreme Court held that the law provided for the conduct of election by using Ballot papers and Ballot boxes and the Election Commission could not use voting machines in the absence of statutory provisions providing for their use.

In the case of All India Anna Dravida Munnetra Kazhagam, etc. Vs Chief Election Commissioner of India and Ors[26], The issues of unconstitutional use of EVMs and possible tampering of EVM have been raised before the Madras High Court. The Madras High Court did not accept those allegations and contentions and dismissed all the writ petitions on 10.04.2001.

The Hon’ble Madras High Court also categorically ruled out any question of tampering of the EVMs and also made the following observations:

“There is also no question of introducing any virus or bugs for the reason that the EVMs cannot be compared to personal computers. The programming in computers, as suggested, has no bearing with the EVMs. The computer would have inherent limitations having connections through Internet and by their very design, they may allow the alteration of the programme but the EVMs are independent units and the programme in EVM is entirely a different system.”

The petitioners took the matter to the Hon’ble Supreme Court (All India Anna Dravida Munnetra Kazhagam, etc. Vs Chief Election Commissioner of India and Ors[27]). The Supreme Court dismissed the special leave petition on 23.04.2001, agreeing with the decision of the high court that the impugned Section 61A was valid.

In these cases Viplav Sharma Vs Union of India and Ors[28]; Kunwar GS Chahan Vs Union of India[29] , it was contended that the Election Commission could use electronic voting machines under Section 61A only in selected constituencies having regard to the circumstances of each case, and not routinely in all the assembly constituencies in a state. The above petitions were dismissed by the Delhi High Court on 23.5.2005.

 In the case of Michael Fernandes Vs C K Jafer Sharif and Ors[30] the issue of possible tampering of EVM has been raised before the Karnataka High Court. After going into all aspects of the technological soundness and the administrative measures involved in the use of EVMs at elections in India, have held that the EVMs in India are credible, reliable and totally tamperproof. The Hon’ble Karnataka High Court held that ‘This invention is undoubtedly a great achievement in the electronic and computer technology and a national pride’.

In the case of BanwarilalPurohit Vs Vilas Muttemwar and Ors [31] the issue of possible tampering of EVM has also been raised before the Bombay High Court (Nagpur Bench). The Hon’ble Bombay High Court (Nagpur Bench), examined the experts produced by the petitioner as witness before the High Court. The order of the Hon’ble High Court records that the two experts produced as witnesses admitted that the hardware and software used in the EVMs are matters not known to public at large, or even experts including the witnesses, and they admitted that the information or data in the EVMs is not made open unauthorisedly.

TA AhammedKabeer Vs AA Azeez and Ors[32] In one of the cases as directed by the Hon’ble High Court of Kerala in Election Petition No.4/2001, the process of detecting votes cast by impersonators was carried out before the Hon’ble Court in the case of General Election from 125-Evavipuram Assembly Constituency in Kerala in 2001. The High Court in its order dated 6.2.2002 had recorded its appreciation on the efficiency of the mechanism. The judgment of the Kerala High Court in the said Election Petition was upheld by the Hon’ble Supreme Court in Civil Appeal[33].

In the case Dr. Ramesh Pandey vs Election Commission Of India,[34] The Hon’ble Uttarakhand High Court in its judgement dated 2nd June, 2017:

“Prima facie, it is evident from a combined reading of the entire press release of ECI that this system is seal proof. The EVMs are not hackable. There cannot be any manipulation at manufacturing stage. The results cannot be altered by activating a Trojan Horse through a sequence of key presses. The ECI-EVMs cannot be physically tampered with. The EVMs use some of the microcontrollers, dynamic coding of key codes, date and time stamping of each and every key press etc. These EVMs also cannot be tampered with during the course of transportation or at the place of storage. There are checks and balances to ensure tamper-proofing of EVMs”.

On 9th August, 2017, Hon’ble Supreme Court of India while deciding the bunch of Petitions on 100% use of VVPAT, observed that[35]

“The above statement of the Election Commission of India contained in the counter affidavit acknowledges, that all prayers made in the group of petitions, stand fulfilled and satisfied. It is also apparent, that the Government of India has sanctioned funds for the purchase of the VVPAT units, needed during the course of the elections, which are to take place in the immediate future. The position expressed leaves no room for any doubt, that all future elections will be held by using VVPAT. The above stance is reiterated during the course of hearing by the learned counsel representing the Election Commission of India.

In view of the above, we are of the considered view that the present bunch of matters does not require any further adjudication at our hands. All the cases clubbed together, are accordingly disposed of in terms of the counter affidavit filed by the Election Commission of India, duly supported by the Government of India”.

Despite elaborate safeguards, India’s EVMs are vulnerable to serious attacks. Dishonest insiders or other criminals with physical access to the machines at any time before ballots are counted can insert malicious hardware that can steal votes for the lifetime of the machines. Attackers with physical access between voting and counting can arbitrarily change vote totals and can learn which candidate each voter selected. These problems are deep-rooted. The design of India’s EVMs relies entirely on the physical security of the machines and the integrity of election insiders. This seems to negate many of the security benefits of using electronic voting in the first place. The technology’s promise was that attacks on the ballot box and dishonesty in the counting process would be more difficult. Yet we find that such attacks remain possible, while being more difficult to detect. It is highly doubtful that these problems could be remedied by simple upgrades to the existing EVMs or election procedures. Merely making the attacks we have demonstrated more difficult will not fix the fundamental problem: India’s EVMs do not provide transparency, so voters and election officials have no reason for confidence that the machines are behaving honestly. India should carefully reconsider how to achieve a secure and transparent voting system that is suitable to its national values and requirements. One option that has been adopted in other countries is to use a 20 voter-verified paper audit trail (VVPAT), which combines an electronic record stored in a DRE with a paper vote record that can be audited by hand. Existing EVMs do not have updatable software, but it would be possible to add a VVPAT by interposing on the cable between the control unit and the ballot unit. Another option is precinct-count optical scan (PCOS) voting, where voters fill out paper ballots that are scanned by a voting machine at the polling station before being placed in a ballot box. Attacking either of these systems would require tampering with both the paper records and the electronic records, provided that routine audits are performed to make sure these redundant sets of records agree. A third option is to return to simple paper ballots. Despite all of their known weaknesses, simple paper ballots provide a high degree of transparency, so fraud that does occur will be more likely to be detected. Using EVMs in India may have seemed like a good idea when the machines were introduced in the 1980s, but science’ understands of electronic voting security -and of attacks against it -has progressed dramatically since then, and other technologically advanced countries have adopted and then abandoned EVM-style voting. Now that we understand what technology can and cannot do, any new solutions to the very real problems election officials face must address the problems, not merely hide them from sight.

Books 1. Subramaniam Swamy and S. Kalyanaraman, (eds.), Electronic Voting Machines Unconstitutional and Tamperable (Vision Books Pvt. Ltd., New Dehli, 2010). 2. GVL Narasimha Rao, Democracy at Risk! Can we trust our Electronic Voting Machines? 174 (Veta Books, New Dehli, 2010) Acts: 1. The Constitution of India, 1950 2. The Representation of the People Act, 1951 3. Information Technology Act, 2002 4. Indian Evidence Act, 1872 Case laws: 1. A C Jose Vs Sivan Pillai and Ors, AIR 1984 SC 921 2. A C Jose Vs Sivan Pillai and Ors, Kerala High Court ELR 23 3. All India Anna Dravida Munnetra Kazhagam, etc. Vs Chief Election Commissioner of India and Ors, Writ Petition Nos. 3346, 3633, 4417, 4945, etc of 2001 4. BanwarilalPurohit Vs Vilas Muttemwar and Ors, Election Petition No. 1 of 2004 5. Dr. Ramesh Pandey vs Election Commission Of India, Writ Petition (PIL) No.57 of 2017 6. Dravida Munnetra Kazhagam, etc. Vs Chief Election Commissioner of India and Ors, 2002 UJ (1) 387, 202 (TL/S) 36062 7. Kunwar GS Chahan Vs Union of India, CPW No. 5906 of 2004 8. Michael Fernandes Vs C K Jafer Sharif and Ors, Election Petition No. 29 of 1999 9. TA AhammedKabeer Vs AA Azeez and Ors, Election Petition No. 4 of 2001: AIR 2003 SC 2271 10. Viplav Sharma Vs Union of India and Ors, CWP No. 5521 of 2004 Web sites:- 1. http://legislative.gov.in/sites/default/files/A1872-01.pdf 2. http://www.bareactslive.com/ACA/ACT632.HTM 3. http://www.bareactslive.com/ACA/ACT949.HTM 4. https://eci.gov.in/voter/history-of-evm/ https://cdn.s3waas.gov.in/s301f78be6f7cad02658508fe4616098a9/ uploads/2019/02/2019020939.pdf 5. https://indiankanoon.org/doc/34664097/ 6.https://upload.indiacode.nic.in/showfile?actid=AC_CEN_3_81_00001_195143_1517807327542&type= rule&filename=2.conduct_of_election_rules,_1961.doc.pdf 7. https://www.thehindu.com/news/national/100-use-of-vvpat-for-lok-sabha-polls-ec/article26188246.ece News Paper: 1. The Hindu 2. Times of India

1. Subramaniam Swamy and S. Kalyanaraman, (eds.), Electronic Voting Machines Unconstitutional and
Tamperable, 199 (Vision Books Pvt. Ltd., New Dehli, 2010)
2. https://eci.gov.in/voter/history-of-evm/
3. Ibid.
4. Ibid.
5. https://cdn.s3waas.gov.in/s301f78be6f7cad02658508fe4616098a9/uploads/2019/02/
2019020939.
6. Ibid.
7. GVL Narasimha Rao, Democracy at Risk! Can we trust our Electronic
Voting Machines? 174 (Veta Books, New Dehli, 2010)
8. Supra note no 1
9. Ibid.
10. Supra note no 1 p 7
11. Supra note no 1p 8
12. Supra note no 1, p 9 & 294
13. Supra note no 1, p 195
14. Sec. 61 A of The Representation of the People Act, 1951
15. http://www.bareactslive.com/ACA/ACT949.HTM
16. Ibid.
17.https://upload.indiacode.nic.in/showfile?actid=AC_CEN_3_81_00001_195143_1517807327542&type=rule&filename=2.conduct_
of_election_rules,_1961.doc.pdf
18. 1 Ins. by Notifin. No. S.O. 230(E), dated the 24th March, 1992.
19. 2 Ins. by Notifin. No. S.O. 2470(E), dated the 14th August, 2013.
20. Information Technology Act, 2002 http://www.bareactslive.com/ACA/ACT632.HTM
21. Indian Evidence Act, 1872 http://legislative.gov.in/sites/default/files/A1872-01.pdf
22. 4. Subs. by Act 21 of 2000 s. 92 and the Second Schedule, for the words “all documents
produced for the inspection of the Court” (w.e.f. 17-10-2000).
23. 1 Subs. by Act 18 of 1872, s. 8, for “want of failure”.
24. Kerala High Court ELR 23
25. AIR 1984 SC 921
26. Writ Petition Nos. 3346, 3633, 4417, 4945, etc of 2001)
27. 2002 UJ (1) 387, 202 (TL/S) 36062
28. CWP No. 5521 of 2004
29. CPW No. 5906 of 2004
30. Election Petition No. 29 of 1999
31. Election Petition No. 1 of 2004
32. Election Petition No. 4 of 2001
33. AIR 2003 SC 2271
34. Writ Petition (PIL) No.57 of 2017 https://indiankanoon.org/doc/34664097/
35. https://www.thehindu.com/news/national/100-use-of-vvpat-for-lok-sabha-polls-ec/
article26188246.ece