Issues relating to the “vulnerability” and “unreliability” of electronic voting machines (EVMs) have come up regularly in the context of the 2019 general election. Complaints filed by opposition parties on specific instances of malfunctioning of EVMs as well as the demand, raised jointly by 21 opposition parties, to match 50 per cent of VVPATs (Voter Verifiable Paper Audit Trails) in each Assembly segment of a parliamentary constituency with the EVM results highlighted these issues. The Election Commission of India’s (ECI) response to a large number of these issues has been characterised as ambiguous and specious by political observers, opposition politicians and retired senior civil servants. The ECI’s resistance to the demand to match 50 per cent of VVPATs with the EVM results has come in for severe criticism from all these sections.

Many opposition leaders, including Andhra Pradesh Chief Minister N. Chandrababu Naidu of the Telugu Desam Party and Delhi Chief Minister Arvind Kejriwal of the Aam Aadmi Party, have even termed some of the responses of the ECI as “arbitrary” and “dubious”. In a joint letter addressed to President Ram Nath Kovind, 66 retired civil servants, including Bala Bhaskar, S.P. Ambrose and Salahuddin Ahmed of the Indian Administrative Service and Vappala Balachandran of the Indian Police Service and former Special Secretary in the Cabinet Secretariat, characterised the ECI’s conduct as “obdurate”. The “reluctance to undertake a proper VVPAT audit when its present sample size fails to detect a ‘defective EVM’ (i.e. a malfunctioning or manipulated EVM) 99% of the time raises serious questions about its [ECI’s] motives”, they said in the letter. They pointed out that the institution was going through a “crisis of credibility”. It seemed as though the ECI was trying to hide something in the EVM matter, said a senior retired ECI official who had worked closely with former Chief Election Commissioners T.N. Seshan and M.S. Gill.

RTI queries

The ECI’s responses to a public interest litigation (PIL) petition on EVMs in the Bombay High Court over the past 13 months are perhaps illustrative of its approach to the issue. The PIL filed on March 27, 2018, by Manoranjan Roy, a right to information (RTI) activist in Mumbai, was about the processes involved in the procurement, storage and deployment of EVMs and VVPATs by the ECI and State Election Commissions (SECs). It sought directions to the ECI, the Maharashtra State Election Commission (MSEC), the Union Home Ministry and two public sector EVM manufacturing companies—Electronics Corporation of India Ltd (ECIL), Hyderabad, and Bharat Electronics Ltd (BEL), Bengaluru—to furnish details regarding the order, supply and delivery of EVMs. The PIL was founded entirely on data collected through the RTI Act.

The RTI documents highlighted glaring discrepancies in all three operations—procurement, storage and deployment—and also pointed to grave financial irregularities to the tune of Rs.116.55 crore. The documents, submitted as “exhibits” to substantiate the arguments of the PIL, brought out huge disparities between the accounting of the number of EVMs the ECI had received over a period of time and the supply records of the manufacturers. They show that nearly 20 lakh EVMs that the manufacturers affirm to have delivered to the ECI are apparently not in the latter’s possession. Neither the ECI nor the SECs have been able to throw light on the issue of the missing EVMs despite seven hearings of the PIL over the past one year.

According to the ECI’s response on June 21, 2017, to Roy’s RTI query, it received 10,05,662 EVMs from BEL between 1989-90 and 2014-15. The ECI also stated that it received 10,14,644 EVMs from ECIL between 1989-90 and 2016-17. However, BEL said, on January 2, 2018, in response to Roy’s RTI query, that it had supplied 19,69,932 EVMs to the ECI between 1989-90 and 2014-15. The ECIL’s RTI response dated September 16, 2017, stated that it had supplied 19,44,593 EVMs to the ECI. Thus, in a span of around 15 years the ECI has not received 9,64,270 EVMs that BEL states to have delivered and 9,29,949 EVMs that ECIL affirms to have delivered to it. Roy had, in RTI queries to the two companies, sought a year-wise break-up of the order-supply chart; the records for almost every year are replete with gross disparities.

For instance, in 2003-04, BEL states that it supplied 1,93,475 EVMs, while the ECI asserts that it received only 1,67,850 (a shortfall of 25,625). In 2004-05, the ECI stated that it received 36,395 EVMs, but BEL’s statement said it had supplied only 2,070 pieces. The 2008-09 period has the most glaring shortfall in supply from BEL, a whopping 9,62,000 EVMs. In 2010-1, the shortfall was of 13,490 EVMs, but in 2013-14, the ECI received an excess of 51,713 EVMs against BEL’s supply of 1,39,725. In 2014-15, the first year of the Modi regime, BEL claims it supplied 62,183 EVMs, but the ECI states that it received none. Indeed, the order and supply chart as presented in the Bombay High Court is a bewildering document.

Appalling mismatches

The appalling mismatches spread to payments too. A cumulative assessment of payment statements obtained for transactions between the ECI and BEL for the 10-year period from 2006-07 to 2016-17 shows that the ECI’s “actual expenditure” on EVMs is Rs.536,01,75,485, while BEL’s RTI reply dated September 20, 2017, claims it received a payment of Rs.652,56,44,000 from the ECI for the corresponding period. That is an excess payment of Rs.116.55 crore.

The ECI did not respond to RTI queries on expenditure on acquiring EVMs from ECIL. Interestingly, ECIL stated that it had not supplied a single EVM to any State between 2006-07 and 2013-14. Yet, an RTI response from ECIL showed that between March and October it got Rs.50.64 crore from the Maharashtra government, through the ECI, as the money for supplying EVMs.

In the marathon RTI exercise that Roy undertook before filing the PIL in March 2018, he sought State-wise information from the ECI from 1989 to 2017 about unique ID numbers of EVMs (including that of the ballot unit (B.U.), the control unit (C.U.) and the VVPAT) supplied to various States along with the challan copy of transport and the name and mode of the transporter. All that he got in response from the ECI was a statement showing year-wise budget provision and expenditure. This response was dated September 21, 2017. The primary question that the PIL sought to put forward was the huge discrepancies in the figures of EVMs received by the ECI from the two public sector companies and a plea to investigate them thoroughly.

Where are the machines?

“Where have the excess machines supplied by BEL and ECIL actually gone and what is the secret behind the excess money received by BEL? The fact of the matter is that neither the ECI nor the SECs have a robust system to procure, store, deploy EVMs as also destroy malfunctioning and unwanted EVMs,” Roy told Frontline. The PIL cites responses from the SECs of Uttar Pradesh and Maharashtra, laying bare the colossal absence of systems and infrastructure. When the SEC of Maharashtra was asked to provide the audit report of the period 2014-17, the SEC, in a letter dated May 2, 2017, said no audit had taken place in those years. The Uttar Pradesh SEC’s response dated May 8, 2017, to an RTI query was as follows: “Audit Report is not available with them and it would be available with the Election Commission of India.”

Roy’s petition also raised grave doubts about the movement of EVMs from one State to another without proper records such as their number, serial number, model number and mode of transportation. It pointed out that the absence of proper systems and infrastructure too could lead to misplacement of EVMs along with misappropriation of funds. Even on the question of destroying old EVMs, there is no clarity, it stated.

The petition pointed out that in response to an RTI query, the ECI stated, on July 21, 2017, that it had not sold any EVMs as scrap. The EVMs procured in 1989-90 were said to have been destroyed by the manufacturers themselves. However, the ECI said that for EVMs received between 2000 and 2005, the process of destroying old or outdated or irreparable ones was still under consideration. Roy said that this implied that these EVMs were still in the ECI’s possession. “All that I am trying to do is get some clarity on these goings-on,” he said.

Beyond the pointed questions relating to the “missing EVMs and the excess money that has been reportedly paid to BEL”, Roy said his PIL also sought answers to the following questions: “Does the Commission maintain a record of the machines purchased from BEL and ECIL? Is there any number coding or series to the machines? Does the Commission have the receipts of the machines purchased from these companies? What is the mechanism or protocol the Commission followed in the purchase of the machines? Does the Commission purchase extra machines and, if so, what happens to the extra machines? What happens to the machines which turn out to be faulty? Are they returned or discarded? Does the Commission have the records of the number of machines ordered or purchased and the count of machines that are used, discarded, stored or destroyed?”

But, the course of the ECI’s engagement with the PIL in the Bombay High Court, as per the court’s records, could well be a case study on how not to impart clarity on an issue before its consideration. The first hearing in the case was listed for September 19, 2018. The ECI was not represented, and it was stated in court that it had not been possible even to serve a copy of the petition to the constitutional body. Roy’s lawyers presented before the court that they would serve the petition themselves to the ECI’s counsel. This was done, and the next hearing was scheduled for October 3, 2018, but there were no court procedures on account of “paucity of time”. There were no procedures in the next two hearings—October 29, 2018, and January 17, 2019—either.

In the subsequent hearing on February 15, 2019, the court stated that the ECI’s counsel was “to take instructions” but none was specified. Finally, on March 8, 2019, the ECI came up with what it called a “para-wise” reply, but there were no references to the specific discrepancies pointed out in the PIL in terms of the number of EVMs supplied or the excess money reportedly paid as per the RTI response from BEL. Instead, the reply was full of generalisations such as “every EVM (B.C./C.U.) and VVPAT has a unique serial number of identification” and that “the EVM and VVPAT are purchased by the Commission as per sanction received from [the] Ministry of Law and Justice”.

It also added that “the machines found defective during first level checking, commissioning, or during poll are being sent to the factories for repair”. The court stated in its observation that “it has no doubt that [the] Election Commission would maintain the proper record of the machines purchased including the record of the machines which are not in use or machines which are found to be defective”.

Roy’s lawyers pointed out the inadequacies in this reply in the following hearing, on April 5, 2019, and the court asked the ECI’s counsel to submit a reply on or before the next hearing, which was scheduled for April 23. No reply was filed before that date. The court stayed proceedings on the petition for two weeks. However, the next hearing has been scheduled for July 17. Against this background, Roy has filed a special leave petition in the Supreme Court seeking its intervention and direction to the Bombay High Court to take up the case expeditiously. The Supreme Court is yet to take up the plea.