The Quint Impact: ADR Approaches SC On Discrepancies in EVM Data

Declaration of election result before authentication is unconstitutional, illegal, arbitrary: ADR’s petition in SC

Updated
India
4 min read
Petition has been filed in the Supreme on EVM vote count mismatch in the 2019 Lok Sabha elections.
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Based on The Quint’s article EVM Vote Count Mismatch In 370+ Seats and EC Refuses to Explain” published on 31 May 2019, that had cited discrepancies between the number of votes polled and those that were counted in the 2019 Lok Sabha Elections, the Association For Democratic Reforms (ADR) filed a petition in the Supreme Court on 15 November 2019, demanding “a court order directing the Election Commission of India (EC) to conduct actual and accurate reconciliation of (votes) data before the declaration of the final result of any election”.

The petitioner has also demanded an investigation into all such discrepancies brought forth in the data related to the 2019 Lok Sabha Election results.

Raising serious concerns on the election process conducted by the EC, the petition says:

“The infirmities in the existing system of conducting elections, by declaring the election results even before the authenticated election data is released by the Election Commission, is far more serious and an alarming trend and therefore, cannot be disregarded.  That such a protocol is likely to create suspicion, confusion, conflict, and a very discredited electoral process...that declaration of the results by the Respondent No. 1 (EC) prior to receiving the actual data from all Returning Officers and its reconciliation in a systematic and transparent manner is unconstitutional, illegal, arbitrary and unjust.”
Excerpts from the petition filed by ADR

Petitioner Alleges Discrepancies in EC Data

On multiple occasions, the EC had changed the data for votes polled on its website as well as its app, named ‘My Voters Turnout App’, after declaring the 2019 Lok Sabha election results.

The petition raises questions on the EC by saying that multiple changes in the data could be an attempt to cover up discrepancies. The petition says:

“...the methodology of putting out actual numbers of votes polled was changed arbitrarily and without any explanation...The discontinuation of publication of actual number of votes polled at any booth/constituency and replacing it with a percentage figure abruptly in the seventh phase of the election was seemingly done, to cover up the large number of unexplained discrepancies being recorded in majority of the constituencies.”
Excerpts from the petition filed by ADR

A team of experts conducted research along with the petitioner on the discrepancies between the number of votes polled and the number of votes counted in different constituencies. The research was based on the data available on the EC’s website as well as ‘My Voters Turnout App’ on two days – 28 May and 30 June 2019.

Here are the petitioner’s findings on the two data as mentioned in the SC petition:

  • Of 542 constituencies, 347 seats had discrepancies in votes polled and counted.
  • The discrepancies range from 1 vote to 1,01,323 votes.
  • There are 6 seats where the discrepancy in votes is higher than the winning margin.
  • The total volume of discrepancies is in the nature of 7,39,104 votes put together.

ADR Reiterates Request to Access Form 17C

What is Form 17C?

The presiding officer, shall at the close of the poll, prepare an account of votes recorded in Form 17C and enclose it in a separate cover with the words ‘Account of Votes Recorded’ superscribed thereon. The presiding officer shall furnish to every polling agent, present at the close of the poll, a true copy of the entries made in Form 17C after obtaining a receipt from the said polling agent,  and therefore shall attest it as a true copy.

Since the Form 17C is prepared and signed by the Presiding Officer after voting is over on the polling day, it is considered to be the most authentic document related to the number of votes polled.

The petitioner mentions that the ADR requested for Form 17C under the RTI application which it hasn’t received yet. Moreover, a member of the ADR, was communicated orally by the EC that Form 17C is “sealed along with the EVM’s after counting (23 May 2019), and thus, cannot be shared”.

But the question is:

  • Why is Form 17C sealed along with the EVMs after the counting is over? What purpose does it serve?
  • Moreover, if Form 17C is not available with the EC, then how did they publish the reconciled final result of 2019 Lok Sabha elections in October?

The petition also cites examples of countries like United Kingdom, France, Peru, Brazil where election results are declared after being verified by the competent authority.

Petition Mentions About EVM-VVPAT Vulnerable To Manipulation

Citing another article by The Quint on EVM-VVPAT being vulnerable to manipulation along with the letter written by former IAS officer, Kannan Gopinathan, who had raised similar concerns about VVPAT, the petition states:

“It is not only sufficient that election results are accurate, the public must also know that the results are accurate. The entire electoral process is damaged if elections are not credible even in the absence of a demonstrable scam.” 

The petition further points out that “electronic voting machines (EVMs) are especially vulnerable to malicious changes by insiders such as designers, programmers, manufacturers, maintenance technicians etc”.

Quoting international technical experts on EVMs from the ‘Verified Voting Foundation’, the petition says:

“The voter cannot know that the vote eventually reported is the same as the vote cast, nor can candidates or others gain confidence in the accuracy of the election by observing the voting and vote counting processes. There is no reliable way to detect errors in recording votes or deliberate election rigging with these machines. Hence, the results of any election conducted using these machines are open to question.”
Excerpts from the petition by ADR

The petition raises the following vital issues urging the SC to address them:

  • Whether the acts of EC in cleaning up the discrepancy data, not resolving the same in an objective and satisfactory manner and refusing to sharing the same in public domain, is arbitrary and contrary to the mandate of the Constitution and the concerned statutes and against public policy.
  • On what basis should the EC declare the results? Actual or estimated?
  • Whether the EC is duty bound and it is necessary for it to dispel doubts among the public in relation to the discrepancies recorded in an election held by it.
  • Whether the EC can decline sharing with the public the statutory data under Form 17C (votes polled) and Form 20 (votes counted) captured by it during the election process.

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