EVM-VVPAT verification case: 'Can't control elections or issue directions on suspicion,' says Supreme Court as it reserves verdict

New Delhi: The Supreme Court on Wednesday said it can't control election or be a controlling authority of another constitutional body, Election Commission and it can't act only on the basis of suspicion as not a single instance of mismatch between EVM and VVPAT data has been shown.

A bench of Justices Sanjiv Khanna and Dipankar Datta reserved its judgment, after seeking answer from Deputy Election Commissioner Nitesh Kumar Vyas on a plea filed by NGO Association for Democratic Reforms for complete cross verification of EVMs counts with VVPAT slips.

"Till date there has been no incident of hacking identified. If there is some incident, law provides what is to be done. We cannot control the election... we are not the controlling authority of another constitutional authority," the bench told advocate Prashant Bhushan, appearing for NGO ADR.

The court also said any candidate can show if there was any mismatch in the 5 per cent VVPATs counted.

Giving an instance of mobile phone which can be hacked or accessed even when switched off, senior advocate Santhosh Paul, also for a petitioner, claimed EVMs can also rigged.

The bench said it cannot issue mandamus on the basis of suspicion.

"Consequences exist if somebody does something wrong," the bench said.

"If there is something to improve, we will do it. But your response is go back to ballot papers," the bench told advocate Bhushan.

The bench also noted the Supreme Court earlier intervened into the matter first in Subramanian Swamy case by making it mandatory to use VVPATs and secondly by raising VVPAT count from one to five randomly selected machines.

Answering the queries by the court, EC officer Vyas said control Unit, ballot unit, VVPAT, have their own microcontrollers and their own one-time programmes are burnt into the memory of the microcontrollers, which cannot be accessed physically. He also said after the polls, the EVMs are secured for 45 days as such a time period has been fixed for filing election petition.

During the hearing, as a counsel submitted the source code of EVMs are not disclosed, the bench said it should never be disclosed or it can be misused.

At the outset, the court said it needs clarifications on certain aspects as there was some confusion over the answers given by the EC to 'frequently asked questions' (FAQs) about EVMs.

"We have some doubts and need clarification and that's why we have listed the matter for directions," the bench said, adding "we don't want to be factually wrong but doubly sure in our findings".

The court has kept the matter for Wednesday for issuing directions in the matter related to pleas for raising VVPAT (Voter Verifiable Paper Audit Trail) counts to 100 per cent with votes cast through Electronic Voting Machines during the elections.

The petitions have been filed by NGO Association for Democratic Reforms and others.

During the previous hearing, the EC had said that EVMs are standalone machines and they cannot be tampered with, and also the VVPAT cannot be tampered with. 

Concurring with the submission, the bench said paper ballots have huge drawbacks and “we do not want to even think about it”.

The petitioners had contended the voter has right under Article 19 and 21 of the Constitution to cross verify vote as cast by him and counted by paper vote of VVPAT in accordance with the purport and object of directions of this Court in Subramanian Swamy case (2013).