And seeks Election Commission’s response, to this effect. The supreme Court on Monday March 25th 2019, directed the Election Commission of India to explain on affidavit by Thursday, its decision to cross-check the VOTER VERIFIABLE PAPER AUDIT TRAILS (VVPAT) of only one randomly selected booth in each constituency.

The bench headed by Chief Justice Ranjan Gogoi also required the Commission to reply whether it is possible to increase the VVPAT sample survey in every assembly segment.

On March 15th, 2019, the bench had issued notice on a petition filed by leaders from 21 political parties seeking a direction to the ECI, to randomly verify at least 50% votes using VVPATs in the polls to 17th Lok Sabha. The parties include the Congress, Nationalist Congress Party, Aam Aadmi Party, CPI (Marxist), CPI, Trinamool Congress, Samajwadi Party, Bahujan Samaj Party, Rashtriya Lok Dal, Loktantrik Janata Dal and the Dravida Munnetra Kazhagam (DMK).

It has been contended, that the verification of only one will account for merely 0.44% of the votes polled and that the same would defeat the entire purpose of VVPAT, making it “ornamental” without actual substance.

Reference is made to the decision in Dr. Subramanian Swamy vs ECI (2013) 10 SCC 500) which held that the VVPAT is an “indispensable requirement of free and fair elections”.  The whole case reference as under:

In a landmark judgment, the Supreme Court today directed the Election Commission of India (ECI) to introduce Vote Verifiable Paper Audit Trial (VVPAT) in Electronic Voting Machines (EVMS) for the upcoming general elections in 2014.

Delivering the judgment on a PIL filed by Dr. Subramanian Swamy, [SLP (Civil) 13735/2012], a Bench of Chief Justice P Sathasivam and Justice Ranjan Gogoi said that, “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.”

While Dr. Swamy was appearing in person, Election Commission of India was represented by Senior Counsels Ashok Desai and Meenakshi Arora.

Dr. Swamy contended that, “The present system of EVMs, as utilized in the last few general elections in India, does not meet all the requirements of the international standards and though the ECI maintains that the EVMs cannot be tampered with, but the fact is that EVMs, like all electronic equipment’s, are open to hacking.”

Dr. Swamy also argued that the 'paper trail' system is to supplement the procedure of voting as in this procedure, after recording a vote in the EVM, a printout will come out which will appraise the voter that his vote has been rightly registered and the same will be deposited in a box which can only be used by the ECI in case of election dispute.

Senior Counsel Ashok Desai submitted that the apprehension that EVMs could be tampered with is baseless. The ECI had also filed a counter affidavit stating that the EVMs provided by the Commission are of such a high end technology that it cannot be hacked.

The two judge Bench held that, “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’.”

The Court directed the ECI to implement VVPAT in a phased manner for the upcoming general elections in 2014 and also directed the government of India to provide required financial assistance for procurement of units of VVPAT.

In a separate matter, Central Government in an affidavit told the Supreme Court that the job of electoral amelioration lies to the central government, not on the part of judiciary. In an affidavit filed by the Law ministry, it was submitted that, "The issue agitated through this petition are policy matters and come under the exclusive jurisdiction of the legislature and as a matter of fact, the areas relating to the issue agitated in the petition is covered by suitable statutory provisions in the concerned laws relating to election matter."

Additional Solicitor General Paras Kuhad on behalf of the Law Ministry submitted the affidavit to the bench of Justices R M Lodha and S K Singh. The Bench then directed the ECI to respond to the Centre’s stand within six weeks.

It was also submitted in the affidavit that, "It is also a settled position that the courts do not interfere in policy matters of the state unless the policy violates the mandate of the Constitution or any statutory provision or is otherwise actuated by mala fides.” 

NOW, in pursuance of the previous order of the court, a deputy Election Commissioner was personally present on Monday to assist the Court. When the Bench seemed to favour an increase in number of VVPAT’s, inquiring from the official if it was feasible, he replied that the ECI had not deemed it necessary.

“Then why didn’t you bring in the VVPAT by yourself without the intervention of the court? Why had the ECI objected to the VVPAT arrangement then? No institution, including the courts, can consider itself to be over and above suggestions, or that it is beyond the scope of improvement” observed the Chief Justice.