Documents accessed by The Caravan show that in March this year, the Election Commission filed an affidavit before the Supreme Court that made blatantly false claims. The EC submitted the affidavit in response to a petition filed by 21 opposition parties, seeking instructions to the electoral watchdog to verify 50 percent of the Electronic Voting Machine results with the Voter Verified Paper Audit Trail slips. On 8 April, the court rejected the petition, relying heavily on the EC’s affidavit, which was filed by Sudeep Jain, the deputy election commissioner. Among other falsehoods, the affidavit claims that there had not been any mismatch in the VVPAT and EVM tallies conducted in the past two years, and that the EC had only received one complaint about a VVPAT recording an incorrect vote since 2013.
The EC states in its affidavit that since May 2017, “1500 polling stations over several General Elections to the State Legislatures as well as bye elections to the Lok Sabha and State Assemblies have undergone VVPAT slip count wherein the tally matched completely i.e no error was detected.” Yet, according to a Press Trust of India report published by News18, BB Swain, who was the chief electoral officer of Gujarat at the time, admitted that there were mismatches in one booth on four seats—Vagra, Dwarka, Ankleshwar and Bhavnagar Rural—during the assembly elections held in December 2017.
“There was a mismatch of some votes on one booth each of these four seats,” Swain said, according to the News18 report. “This occurred because the Returning Officer must have made the same mistake but it could not be detected earlier. So we took into account VVPAT slips for these booths during the counting and resolved the issue.” The report also notes that VVPAT slips were counted at “10 booths across seven constituencies as the presiding officers of these booths had failed to wipe out the votes from the EVMs during the mock poll ahead of the voting on December 9 and 14.” Curiously, despite mentioning these details, the News18 report is titled, “100% Match Between EVMs and Paper Trail Slips on Random Vote Count, Says EC Official.”
A similar incident took place during the Karnataka assembly polls, in May 2018. A press note published by ANI stated that the EVMs had not been cleared after the mock polls, due to which there was a difference of 54 votes in the final tally between the EVM and VVPAT in one polling booth of the Hubli Dharwad constituency. It added that the winning candidate had won by over 20,000 votes, whereas the affected VVPAT recorded only 459 votes, and that it had no effect on the final result.
The EC’s affidavit, however, does not mention either of these incidents. Instead, it later repeats, “No mismatch has been detected in mock polls or in verification of VVPAT slips carried out at 1500 polling stations till date.”
The EC prescribes the procedure for VVPAT verification in an official manual. For state elections, the VVPAT verification must be conducted in one polling station in each assembly constituency, and similarly in each assembly segment for the Lok Sabha elections. In its April order rejecting the demand for 50-percent verification, the Supreme Court also directed the EC to increase the verification to five booths per assembly segment. Among other reasons, the court noted that the EC’s affidavit states that 50-percent verification would delay the counting process by up to five or six days.
But the EC’s affidavit contains further submissions that obscure the truth, and thus mislead the court. For instance, the affidavit omits crucial details about the number of voters who have filed complaints that the paper slip generated by the VVPAT showed a different candidate or party than the one they selected.
In 2013, the EC added Rule 49MA to the Conduct of Election Rules, 1961, which prescribes the standard procedure in cases of complaints about incorrect VVPAT slips. It stipulates that if someone makes such a complaint, the polling booth’s presiding officer must obtain a written declaration from the elector about the allegation, after warning them of penal consequences if it is found to be false. The elector is then required to conduct a test vote in the presence of a polling officer, who must either stop the polling process, if the complaint is genuine, or record an entry for test votes that must be reduced from the total tally, if it is false.
The EC claims that there has only been one such complaint. “It is pertinent to point out here that till date VVPATs have been used by the Election Commission of India, since 2013, in 1628 Assembly constituencies and 21 Parliamentary Constituencies,” the affidavit states. “During this period, only once has any complaint been made by a voter alleging that his/her vote did not go to the candidate he had pressed in favour of.” But according to a document accessed by The Caravan, during the Telangana assembly elections in 2018, the Loyapally polling booth of Thungathurthy constituency alone recorded 50 complaints and subsequent test votes under Rule 49MA.
The Caravan is also in possession of a right-to-information response concerning a complaint under Rule 49MA about an incorrect VVPAT slip received in Gujarat’s Dwarka constituency during polling in the state assembly elections, held in December 2017. According to the RTI, the complaint was found to be false, and a first information report was registered against the complainant in the Kalyanpur police station. It is unclear whether the EC’s affidavit, which mentions only one complaint, refers to this case.
The Supreme Court’s April order rejecting the opposition parties’ petition specifically notes one key aspect of the EC’s affidavit—a report purportedly submitted by the Indian Statistical Institute. The affidavit notes, “It is pertinent to mention that the report recommends that undertaking slip verification for 479 EVMs and VVPATs out of all the 10.35 lakhs EVMs and VVPATs ... is sufficient to achieve a confidence level of 99.9936%.” The affidavit adds that in keeping with the EC’s guidelines, it would undertake verification for one polling booth in each assembly segment, which would amount to a total of 4,125 EVMs and VVPATs. Relying on the report, the EC states, “Any further increase in the sample size of verification will lead to negligible gain in the confidence level, which currently is way above 99.9936%.”
Media reports, however, have raised questions about the validity of the ISI report. The EC’s affidavit notes that a three-member committee comprising Abhay G Bhatt of the ISI, Rajeeva Karandikar of the Chennai Mathematical Institute and Onkar Prasad Ghosh of the Central Statistical Organisation authored the study. But according to an April NewsClick report, a right-to-information query revealed that the EC did not send a letter to the ISI seeking the constitution of a committee in this regard, but instead wrote to Bhatt, the head of the research institute’s Delhi centre. Later that month, the Congress leader Kapil Sibal told The Telegraph that the ISI had “disowned the study.” Indeed, it is not clear whether the EC, the ISI or Bhatt requested the other two members to be a part of the committee, and whether the ISI was involved in the process at all.
In June 2016, the ISI issued guidelines for all programmes with external agencies. It set up a twelve-member Cell for Cooperation with Academia, Industry and Research Labs, which would review all proposals for collaboration. Bhatt is not a listed member of this cell. Moreover, any proposal for cooperation must be sent to the chairperson or vice-chairperson of the cell, which will then make its recommendation to the director, whose sanction is necessary before any project can be undertaken. But the purported ISI report quoted by the EC in its affidavit does not appear to have followed this procedure. When I asked Bhatt whether the three-member committee was an official ISI committee that followed the mandated procedure, he said, “I will not discuss questions of procedure, I can only discuss the statistics of the report.”
The EC’s claims about the successful EVM verification also obscure the fact that there are complaints of procedural irregularities that are not borne out of the VVPAT verification process, but which could benefit from the same. The EC’s official procedure mandates that all returning officers must submit a report on the voter turnout, officially known as Report Number 22, and also fill a form on the number of votes received by each candidate, known as Form 20. In Telangana’s Thungathuruthy constituency, during the 2018 Telangana assembly polls, there appeared to be a significant difference between voter turnout recorded in the Report 22 and the votes recorded in the Form 20. The report recorded 1,98,770 voters, but the form counted 1,99,862 votes—a difference of 1,092 votes. In the constituency’s Adluru polling booth alone, there appeared to be a mismatch of 119 votes.
Pertinently, Gadari Kishore Kumar, the Telangana Rashtra Samiti candidate, won the seat by a margin of merely 1,847 votes. Moreover, Addanki Jayankar, the Congress candidate who was the runner-up in the constituency, filed a writ petition filed in the Telangana high court accusing the EC officials of violating electoral procedures. Jayankar noted, for instance, that the returning officers are mandated to issue a form to each candidate with the number of votes secured by them, but he did not receive this information. The case is still pending before the high court.
In the ongoing Lok Sabha elections, the Election Commission has been widely criticised for partisanship in favour of the ruling party and accused of failing to fulfil its mandate—conducting free and fair elections. The Caravan has been unable to speak to Jain, the deputy election commissioner, for a comment. This story will be updated if we receive a response.
Following the Supreme Court’s order, the opposition parties filed a review petition arguing that VVPAT verification at five polling booths was insufficient to ensure transparency in the process. The review petitioners sought to negotiate with the court, and bargained for a 33-percent verification of VVPAT slips. On 7 May, a three-judge bench of the Supreme Court declined to review its order.