E-Paper
The machine that hides how your booth voted: Why India’s ‘totaliser’ election reform has been stuck for 18 years
The Supreme Court has asked the Centre why EVM votes cannot be pooled before counting. The device that does this has existed since 2007.
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On counting day, the control unit of each electronic voting machine (EVM) is opened one at a time and its numbers are entered against the polling station it came from. By the time the last machine has been read, a candidate knows not only whether they won but which of the 200-odd localities in an assembly constituency backed them and which did not. This granularity is a by-product of how the Conduct of Elections Rules, 1961, require EVM votes to be counted, and for 18 years the Election Commission of India (ECI) has been asking the government to give it the option to switch off this granularity.
The device that would do this is called a totaliser.
On Tuesday, the Supreme Court asked the central government to explain why the law should not make room for it.
A bench of Chief Justice of India Surya Kant and justices Joymalya Bagchi and V Mohana observed that the mechanism “might be an enabler and good for anonymisation of voters”, and directed the Centre to file a specific affidavit on why a provision similar to Rule 59A of the election rules — which already permits paper ballots to be mixed before counting — cannot be written for EVMs.
The proposal that the court was asking about has been demonstrated, endorsed by the Law Commission, rejected by a group of ministers, and litigated for more than a decade.
Also Read: EVM glitches, absence of VVPAT create confusion among voters in Pune civic polls
What a totaliser does
The Election Commission’s description, according to its Proposed Electoral Reforms paper of December 2016, says a totaliser is connected to EVMs by cable and adds up all the votes recorded for each candidate across 14 machines at once, so that the result for a group of polling stations can be taken out without the result of any single machine being read. The counting table would still produce a candidate-wise tally; the totaliser would simply produce one tally for 14 booths instead of 14 separate ones.
The number 14 is a hardware limit rather than a policy choice. The Law Commission of India, in Chapter XIII of its 255th report on electoral reforms in March 2015, recorded that the ECI’s proposal grouped 14 machines together and noted that this “is based on technological constraints”. Then chief election commissioner VS Sampath, writing to law minister Kapil Sibal in August 2013, put the range slightly wider, telling him that EVMs from a group of 12 to 15 polling stations could be counted together “without revealing the votes polled in individual EVMs”.
Bharat Electronics Ltd and Electronics Corporation of India Ltd, the two public sector firms that build the country’s voting machines, demonstrated a working totaliser to the commission in 2007. Neither company has published a technical specification for it, but the manufacturing timeline is on record. When the law ministry asked in November 2011 whether totalisers could be deployed at the assembly elections due in five states the following year, the ECI replied that the two firms would need a lead time of four months, and that it would place firm orders as soon as the rule change was assured and funds released.
Also Read: EC flouting SC guidelines on EVM inspection, says Naseem Khan
Why EC wanted it
The Background Paper on Electoral Reforms published in December 2010 by the law ministry’s core committee records, in paragraph 6.15, that counting votes machine by machine “exposes the trend of voting in a particular voting station, making the electorate of that area vulnerable to backlash by candidates or elected officials in retribution”.
Sampath’s 2013 letter also referred to this. He said the voting pattern of individual pockets becomes known to parties and candidates, so booth-wise counting “could contribute to malpractices such as bribing of voters, undue influence, intimidation”, and there were complaints of “likely victimization and reprisal as a post poll threat” against people living in areas where a party had done badly. He told Sibal that the ECI was convinced a totaliser “can play a very important role in aiding free and fair elections”.
One remedy already exists.
Rule 59A of the 1961 rules lets ECI, in cases where it apprehends intimidation and victimisation of electors, specify that constituency by notification in the official gazette, after which ballot papers from all the boxes are mixed and counted together instead of polling station by polling station.
Appearing before the Supreme Court in January 2018, then attorney general KK Venugopal told the bench that before Rule 59A was inserted, EC used to mix all ballot papers for counting as a matter of course. The shift to EVMs removed a protection that the paper system had carried.
The Law Commission’s fix was to mirror Rule 59A for machines. Paragraph 13.7 of its report recommended inserting a new sub-rule 2A into Rule 66A, which governs counting where EVMs are used. “In the appropriate case, where the Election Commission apprehends intimidation and victimisation of electors in any constituency, and it is of the opinion that the votes recorded in the voting machines should be mixed before counting, it may by notification in the Official Gazette, specify such constituency where the returning officer shall use a totaliser for the counting of votes recorded in a group of electronic voting machines,” it said.
But the fix was meant as an exception, not a default, and the discretion to invoke it would lie with ECI.
The case against
An on-record objection to totalisers also came from ECI. In a counter affidavit filed on August 31 by its secretary BC Patra, it argued about verification rather than secrecy.
At the close of polling, every candidate’s agent receives Part I of Form 17C, which records the number of votes cast at that polling station. At the counting table the next day, Part II is filled in with the votes read off that machine, and the two halves can be matched. Under Rule 56D a candidate can ask for the VVPAT slips of any polling station to be counted, and if the slip count differs from the control unit, the result sheet in Form 20 must be amended to follow the slips. Rule 63 allows a recount.
Pool 14 machines and, the ECI argued, that chain breaks. Candidates and their agents “would be deprived of the elementary and long-standing safeguard” of matching booth-wise totals across the two parts of Form 17C, and any discrepancy — from a technical fault, a human error or anything else — affecting any one of the machines clubbed together “would stand concealed within the aggregate figure, and would become incapable of being identified, or independently verified by any party to the election”.
The affidavit’s summary was that the character of counting would move from something booth-wise transparent, verifiable at the time through Form 17C and self-correcting at the table, to something aggregated and opaque.
The ECI also took the position that no enabling provision for using a totaliser exists in the Constitution, the Representation of the People Acts of 1950 and 1951, or the 1961 rules. It also said that under Section 169, the poll panel can only recommend while the power to amend the rules rests with the central government.
Still, there is a passage in the affidavit that also acknowledges the argument for a totaliser.
Booth-level knowledge, it said, may be used by some parties to strengthen their outreach in areas where they underperformed, and by others “in some vexatious manner”. But, it added, “the mere possibility of vexatious use of information may not be a sufficient justification” for withholding it.
This view is close to the reasoning that a group of ministers used in 2016 when it turned the proposal down.
The ECI’s 2016 reform paper had identified what would need fixing. Alongside the rule change, it proposed that Form 20, the result sheet, “should be suitably amended so as to suit the requirements of counting using Totaliser”.
Also Read: How EVMs came into being: A brief history
History of the fight
The ECI first wrote to the law secretary on November 21, 2008, recommending an amendment to the rules. The proposal went to a parliamentary committee in 2009 and nothing came of it. The law ministry’s background paper endorsed it in December 2010. In August 2011 the Madras high court, hearing writ petition 11919 of 2011, directed the Union government to consider the recommendation and take a decision on the necessary amendments as expeditiously as possible.
The ministry's query about deployment followed in November 2011, and a month later it wrote again to say the proposal was one item on the agenda for a meeting of political parties and that a decision would be conveyed.
Sampath’s letter of August 2013 recorded what happened next, “There has been no further information on this since then.”
The ECI moved the ministry again in August 2014. In September that year, the Supreme Court, hearing a public interest petition filed by Yogesh Gupta, asked the government what concrete steps it had taken. In January 2015, it recorded the government's undertaking to seek the Law Commission’s views. The 255th report, endorsing the totaliser, followed in March 2015.
The proposal was then put to political parties. Three of the six national parties and 18 of the 29 state parties opposed it. A team of ministers constituted in 2016 took the view that revealing booth-wise votes was more useful, because it let candidates and parties identify where they had done badly and direct development work there.
On September 7, 2016, the group decided against introduction — a decision additional solicitor general Maninder Singh conveyed to the Supreme Court in January 2018, at a hearing where counsel for the Election Commission told the same bench that “a time has come for introduction of totaliser for counting of the votes”.
Two months later, arguing before a bench headed by then CJI Dipak Misra, the Centre added a fresh objection. It argued that installing a totaliser meant de-sealing the machines, which carried a risk of data leaking out before counting began.
The case now
The bench on Tuesday noted the limits of what a court can order. Introducing the totaliser requires the Centre to amend the rules, and the petitioners were effectively asking for a direction to compel it. But it pressed ECI to consider a narrower route than the one that has not been used for 18 years. “Why don’t you approach the government and Parliament again for a reconsideration? Even an incidental approach can be taken, if not totaliser as a whole,” it said.
The court also asked attorney general R Venkataramani to examine what the impediments are. The last time a law officer addressed the question in this court, in 2018, it was to point out that mixing votes before counting is how India used to do it.
