The Election Commission of India cannot erase the poll results data from electronic voting machines during checking and verification of microcontrollers of EVMs, the Supreme Court said on Tuesday.
A bench of Chief Justice of India Sanjiv Khanna and Justice Dipankar Datta was hearing a bunch of petitions challenging the technical standard operating procedure (SOP) issued by ECI in June last year on the checking and verification of EVMs.
The SOP was issued on the direction of an earlier SC judgement in which the apex court had said that candidates who came second or third were permitted to verify data on voting on five percent of EVMs if they filed a written request to do so within seven days of the results being declared. Issued in April last year, the judgment further said that runner-up and second runner-up could choose five percent of EVMs in one assembly or parliamentary constituency.
But the technical SOP listed holding a mock poll for the verification process which made way for deletion of poll data, including votes polled by parties and the time when each vote was cast from the EVMs, the petitioners alleged in their plea to the apex court.
A mock poll entails the demonstration of the working of an EVM. A mock poll usually happens just before the voting day in the presence of representatives of candidates. During the exercise, around 50 votes are cast in each machine and matched with voter verifiable paper audit trail or VVPAT to check if the EVMs are working fine.
Representing Congress’ leader Sarv Mitter, one of the petitioners, Devadutt Kamat told the court that during the mock poll the “poll data was destroyed” from the micro-controller and micro chip. “The entire purpose (of SC’s earlier judgment) was to understand the integrity of (the polled data),” said Kamat.
‘Don’t erase data’
Hearing the petition, Chief Justice Khanna said that the purpose of the April judgement was to get engineers to check if there was any tampering with the EVMs. “What we wanted was not that EVMs should be tampered with or should be made non-functional. What we meant was if engineers can say whether there was any tampering,” he said.
“Don’t erase the data (from EVM). Don’t reload the data,” the CJI told ECI counsel Maninder Singh.
The bench was hearing three petitions, filed by Haryana Congress leaders Sarv Mitter and Karan Singh Dalal, and Association for Democratic Reforms.
Mitter had lost Rania seat in Sira by just 4,191 votes to Arjun Chautala of the Indian National Lok Dal in the Haryana assembly elections last year. A five-time MLA, Dalal lost to BJP’s Gaurav Gautam.
Representing ADR, which was also a petitioner in the matter related to the April 2024 judgement, Parshant Bhushan informed the bench that ECI was undertaking only mock polls to check the working of microcontrollers. “What we want is that somebody should examine the software and hardware of EVM to see whether they have any element of manipulations or not,” he told the court.
ECI counsellor objected to petitions by ADR and Dalal, arguing that their petitions were earlier disposed of by a different bench of the court.
The bench dismissed Dalal’s petition and said it would decide on ADR’s petition in the next 15 days.
The bench also said that the cost of verification of each EVM, fixed around Rs 40,000, was too high and should be reduced.
Sarv Mitter’s case
A week after the Haryana election results, Mitter had filed an application with the election commission to check and verify nine EVMs from nine booths. He had to pay Rs 47,200 per EVM to do so – a total of Rs 4,24,800.
But what followed was, to Mitter, a disappointing sequence of events that finally led him to the Supreme Court.
Mitter said he was called for a verification process by district election officer Shantanu Sharma on January 9 for the verification process. He said the “original polling data” from one of the EVMs had been “deleted” for a “mock poll” during the exercise.
Mitter then asked to see the actual data from EVMs and VVPATs. However, the DEO told him that analysing actual poll data, which can be done by checking burnt memory (polling data stored in the EVM) and matching the votes in the control unit with VVPATs, was beyond the scope of technical SOP issued by the election commission, he claimed.
The process was then stopped on Mitter’s request.
Mitter’s contention is that substituting the verification of the EVM’s burnt memory with a mock poll goes against the spirit of the SC’s April 2024 directive. “Can a mock poll ensure checking and verification of the microcontroller in which polled data is stored?” he asked. Microcontroller or integrated circuit is the brain of EVM and is inside the ballot unit, VVPAT and control unit. On the microcontroller, a programme (a set of instructions in programming language) is run that decides the functioning of the EVMs.
Mitter’s version of events is that while analysing the first EVM, the officials erased its burnt memory. This made it “impossible to cross-check the actual number of votes polled in Rania”, he said. He then asked them to halt the exercise and keep the voting data on the other EVMs intact.
“What should I do with this mock poll?” he asked. “ Mock polls happen before the elections in the presence of polling agents of candidates. Why would I pay to see the same process?”
Challenging the election commission’s SOP, Mitter filed a petition in the Supreme Court in December 2024.
The next hearing on the matter is scheduled for March 3.
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