When complaints of tampering of electronic voting machines (EVMs) surfaced during the recent Assembly elections in Uttar Pradesh, Uttarakhand and Punjab, the Election Commission of India (ECI) dismissed the allegations as baseless, speculative and wild. To drive home, the point ECI challenged the complaining political parties to prove that the EVMs are tamper-able on 3 June 2017. This came to be known as the EVM “hackathon”.

In preparation, the ECI had armed itself the previous day with a stringent mandamus in favour of EVMs and a gag order against its criticism from the Uttarakhand High Court by converting its press release of 20.5.2017 (soon after the controversy arose) into a judicial pronouncement. This was what the ECI said after the “challenge”: “Honourable Uttarakhand High Court in its order yesterday said, prima facie, it is evident from a combined reading of the entire press release 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 most sophisticated technological features like One Time Programmable (OTP) 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, as further detailed in the press release.”

In the same judgement, the honourable judges—Justices Sharad Kumar Sharma and Rajiv Sharma—went to the extent of barring all political parties, individuals, media and even social media networks, like Facebook and Twitter, from criticising the use of EVMs in the recently conducted Assembly elections. According to the judges, it is the duty of the courts to preserve, promote, nurture and maintain the independence of constitutional bodies and to insulate them from unhealthy criticism, since otherwise the foundation of democracy would be weakened

Be that as it may, the integrity of EVMs has been challenged from the time they were introduced in 1999. It flared up in 2009 soon after UPA’s victory in the Parliamentary elections. The most articulated opposition to EVM came from G.V.L. Narasimha Rao, then psephologist and now a lead BJP spokesperson. The grounds on which he trashed EVMs were many: the whole world has discarded similar EVMs; use of EVM is unconstitutional and illegal; EVM software and hardware are not safe; EVMs are sitting ducks; insider fraud, storing and counting are concerns; ECI is clueless on technology and there is a trust deficit. He also published a book titled Democracy at Risk: Can we trust our EVM?, where the foreword was written by L.K. Advani. Dr Subramanian Swamy chipped in and challenged the use of EVMs in the Delhi High Court, echoing the same views as that of Rao. Later, the case went to the Supreme Court.

ECI responded to the court cases with the Voter Verifiable Paper Audit Trail (VVPAT) solution, which was to be tried out in state Assembly elections and then extended to the whole country. VVPAT facilitates a voter to see, physically, the printout of the vote cast by him/her, although this cannot be taken out of the polling booth. This could dispel doubts about the “tampering” of EVMs. With this assurance, the courts disposed of the case in 2012.

Despite the ECI’s posture, their core technical argument that EVMs cannot be hacked or tampered with because these are stand-alone equipments and not “networked”, is unconvincing. This argument has been nailed by Dr Ulrich Weisner, a German IT expert, who had taken the EVM case to the German Federal Supreme Court. According to him, the NEDAP (N.V. Nederlandsche Apparatenfabriek) voting machines, now banned in the Netherlands, Ireland and Germany, are not networked either. They are similar to the Indian EVMs and need to be connected to a configuration device before election, but work stand-alone, with no connection to internet or other networks during the election and counting.

Anyone with access to the machines can replace the implanted software with any software, including a vote stealing software and a chess program. Weisner also counters the ECI’s claim of “non-tamperable” by saying that this can only refer to “by-user-operation-via-keys”. But someone who has sufficient access to open the machines and replace the software or hardware, can implant virtually any functionality, including vote stealing functionality, which is only activated under certain circumstances and would not be spotted in tests.

Under the paper-ballot system, voters could examine and check the accuracy of the ballot-paper, candidate’s name and symbol and verify whether it has been correctly marked. In case of any electoral dispute, a physical reconstruction of the vote for authentication is possible. Vote counting was open and transparent. Under the electronic voting system, all that a voter does is to press a button and hear a sound. He/she has no idea whether the vote has been registered and if so to which candidate. During counting also there is no transparency, because EVMs are just plugged in and counted on computers.

There is another important democracy aspect—the control of ECI over the electoral process. Under the ballot-paper system, the ECI had full control and supervision over the manufacturing of ballot-boxes, printing of ballot-papers, its despatch and counting of votes. On EVMs, one crucial part that can be manipulated is micro-controllers in which the software is copied. Each EVM contains two EEPROMS (Electrically Erasable and Programable Memory) inside the control unit, in which the voting data is stored. The machines are completely unsecured and can be manipulated from an external source. Bharat Electronics Limited, Bengaluru, and the Electronic Corporation of India Limited, Hyderabad, manufacturers of EVMs are not under the control or supervision of ECI. These entities have shared the confidential software programme with Microchip of the US and Renesas of Japan to copy it on to micro-controllers used in the EVMs. When these foreign companies deliver micro-controllers fused with software code to the EVM manufacturers, neither the manufacturer nor the ECI officials can read back their contents because they are locked. 

Elections are not an exercise in technology display, but accurate recording of the democratic will of the electorate to their satisfaction. Now that the ECI and superior courts have made it a technology vs democracy issue, giving precedence to the former, it will be appropriate to draw attention to what the German Federal Supreme Court did in March 2009, when a similar issue came before them. As is known Germany is a technology super-power. Yet, the German court gave primacy to the democracy argument. It pointed out two major flaws in the EVM. First, these machines did not provide for recording the votes independent of the vote storage module, enabling the respective voter to check his or her ballot. Second, the essential steps in the ascertainment of the results by the voting machines also could not be verified by the public. The court laid down certain basic democracy principles against which EVMs were to be tested: (1) All essential steps in the elections are subject to public examinability; and (2) it must be possible for the ordinary citizen to check the essential steps in the election act and in the ascertainment of the results reliably and without special expert knowledge.

On all these counts, EVMs need further examination. Respecting democracy principles, advanced countries have stuck to paper-ballot. Instead of squabbles and challenges, it is time India learns from their example.

M.G. Devasahayam is a former IAS officer, who was close to Jayaprakash Narayan.

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