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Election Commission misled Supreme Court on EVM, says Kapil Sibal

Will respond when court asks, says poll watchdog chief

Sanjay K. Jha New Delhi Published 27.04.19, 12:59 AM
Kapil Sibal

Kapil Sibal A file picture

The Opposition parties have over the last few years consistently expressed fears of the manipulation of electronic voting machines (EVMs) and petitioned both the Election Commission and the Supreme Court.

These parties have moved the apex court for a review of its last order on the VVPAT (voter-verifiable paper audit trail) slips, which mandates the counting of five machines in each Assembly segment.


Kapil Sibal, senior Congress leader and a top lawyer representing 21 parties in the apex court, feels the responses of the government, the EC and the Supreme Court so far have been disappointing and that these suggest that the convenience of declaring the results on the counting day itself is “more important for them than the assurance that the result is not tainted”.

Sibal spoke to The Telegraph on Thursday against the backdrop of allegations that a large number of EVMs had malfunctioned in the first three phases of the general election and that voters were reluctant to file complaints because of a clause that says the complainants can be jailed if their claim fails a test vote. Even someone as closely associated with the law-enforcement process as a former DGP has said his vote went to an unintended candidate but he did not formally complain because of this clause.

Excerpts from Sibal’s interview with The Telegraph:

Q: Why have the 21 parties again approached the Supreme Court?

Sibal: We are deeply worried and I must say the response of the Election Commission and the Supreme Court have not only been disappointing but suggests that the convenience of declaring results on the day the counting starts is more important for them than the assurance that the result is not tainted. The EC said that counting 50 per cent of the VVPAT slips would take five to six days and the court accepted it.

First of all, it can’t be true that counting will take six days. During the days of ballot papers, it was a cumbersome process. The ballots had to be folded, bundled and counted. Even then, the results came in two to three days. How can 50 per cent VVPAT counting take six days? Even if it takes six days, the nation can wait a few days for the correct results.

Q: Are you saying the EC misled the court?

Sibal: The EC presented a study by the Indian Statistical Institute (headquartered in Calcutta) that suggested that drawing one VVPAT from a random sample of 479 machines would ensure a tamper-proof election. While the logic is weird, what is shocking is that the ISI has disowned the study. I challenge the EC to prove that the ISI conducted the study. They (the EC) misled the court.

Q: You are making a very serious charge.

Sibal: Find out from the ISI. The EC requested the head of the Delhi Centre, who is one of the members of the ISI, to conduct the study. The Delhi Centre head, instead of requesting the ISI, chose some people for the exercise. An RTI query on March 13, 2019, (replied to on April 3) revealed this was done without the knowledge of the ISI. The ISI couldn’t give a certified copy of the order constituting such a committee to conduct the study. The SC presumed the ISI did the calculation but that was not the case.

(Asked about Sibal’s statement on the report attributed to the ISI, chief election commissioner Sunil Arora told The Telegraph on Friday night: “When the Hon’ble court directs, the ECI shall file a response immediately.”)

Q: Are you saying the EC is not serious about EVM manipulation?

Sibal: The foundation of democracy rests on fair electoral verdicts. That has to be addressed. If a sufficient number of VVPAT slips were not to be counted, why were thousands of crores invested in this system?

Q: Prime Minister Narendra Modi says the Opposition is inventing an excuse for an impending defeat.

Sibal: It is the Prime Minister who should have been the one most concerned about the credibility of India’s democracy. He should have ensured the doubts are removed. The Opposition has been raising this issue for five years. Why is the sanctity of elections important for the Opposition alone?

Q: The EC has firmly and repeatedly declared that the EVMs cannot be manipulated. Why is the Opposition so suspicious?

Sibal: There are three reasons. One, every time there is a malfunction, the vote goes to the BJP. Have you heard of a single instance when the votes went to some other party owing to an EVM fault? This defies the law of probability.

Two, we have noticed the EVMs mostly stop functioning properly in booths where voters from a particular caste and a particular religion are in the majority. People wait for hours in the sun and return home without voting.

Three, in several cases, VVPAT slips were shown for three seconds instead of seven seconds. Does that show some machines were differently programmed?

It is illogical for the EC to say machines cannot be manipulated when technology has a way of manipulating any outcome. Global hackers have manipulated most sensitive machines. EVMs are simple machines available for thousands of rupees. The process of casting a vote in favour of one candidate may be transparent but counting is non-transparent. It is done by the machine without the scrutiny of the human eye.

Q: But EVMs were not introduced by Modi...

Sibal: If there is an attempt to manipulate, it can be done. I am only saying EVMs can be manipulated. If so many parties have doubts, why should everybody not be interested in removing those doubts? That is why, other than 18 countries, no country is using machines for elections. Europe, the US, most other developed countries… they must have a reason.

Q: So the Opposition parties feel EC has not done enough to remove the doubts.

Sibal: Yes. The EC says ‘show us how the machines can be manipulated but we won’t let you touch them’. If we know the software and the sources code, there are any number of ways to manipulate the outcome. The other day, Chandrababu Naidu’s nominee was willing to demonstrate but for some inexplicable reason, the EC didn’t allow him. We have tried very hard for two years for a remedy. It is unfortunate nobody listens.

Q: If the Opposition parties are so convinced that EVMs are being manipulated, what is the point in contesting the elections?

Sibal: What is the option? Elections are the only way to fight in a democracy. We hope all machines cannot be manipulated. We know the outcome can be different even if results of 40 seats are altered but we have exercised all the options -– petitioning the EC, going to the SC, raising the issue in the people’s court. Now we are trying to be vigilant and raise a hue and cry about every wrongdoing. There is no other way.

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