Please take few minutes to read this comprehensive PIL by Dr. Subramanian challenging the phony EVMs in Supreme Court. Dr. Swamy has done a wonderful job standing up for 1.2 billion Indians.Looks like there is only one man with a spine in the country whether it is Corruption, Rama Sethu, EVM and even the case of juvenile who brutally tortured the Delhi girl who was raped. Let us pray for his safety and well being in a country where anything happens.
IN THE SUPREME COURT OF INDIA
(Order XVI Rule 4 (1)(a))
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (CIVIL) NO. OF 2012
(Against the impugned (final)Judgment and Order dated 17.1.2012passed by the Delhi High Court in W.P.(C ) No.11879/2009 APPEALED FROM whereby the Division Bench of the Hon'ble Delhi High Court dismissed the aforesaid Writ Petition)
IN THE MATTER OF:
Dr. Subramanian Swamy Petitioner
Vs.
Election Commission of India Respondent
PAPER BOOK
WITH
I.A. NO Of 2012: Application for leave to file/appear as Petitioner in Person, with affidavit in support thereof
I.A. No. Of 2012 Application U/Order 16 Rule 4(d)(ii) of the Supreme Court Rules for Leave to Adduce Additional facts and Documents
(FOR INDEX PLEASE SEE INSIDE)
PETITIONER IN PERSON: Dr. Subramanian Swamy
INDEX
S No
Document
Pages
1.
Office Report on imitation
A
2.
Listing Proforma
A1-A2
3.
Synopsis and list of dates
4.
Certified Copy of Judgment dated 17.1.2012passed by the Delhi High Court in W.P.© No.11879/2009
5.
Special Leave Petition
6.
Certificate
7.
Affidavit in Support of SLP and I.A.
8.
Annexure P-1 being the letter dated 18.12.2010, from ECIL in response to the Petitioner's RTI Application
9.
Annexure P-2, being letter dated 28.5.2010 from ECIL to the Election Commission showing that its EVMs do not have a WIPO patent
10
Annexure P-3 being Application dated 16.9.2003 made by BEL to WIPO , for patenting of its EVM
11.
Annexure P-4, being relevant portions of the Constitution and the Representation of the People Act 1951 as amended
12.
Annexure P-5 being Judgment dated 3.3.2009 of the Supreme Court of
the Federal Republic of Germany (the German Federal Constitutional Court)
80-154
13
Annexure P-6 being Letter dated 29.5.2009, from Petitioner to Election Commission
155-158
14
Annexure P-7, being Letter dated 27.7.2009 from Election Commission to Petitioner
159-167
15.
Annexure P-8 being Relevant Sections of the Information Technology Act 2000
168-169
16.
Annexure P-9 being Excerpt from Order dated 28.8.2010 of the Metropolitan Magistrate Mumbai granting bail to Hari Prasad of Election Watch.
170
17
Annexure P-10 being CMP No.12029 of 2011 , dated 18.8.2011 in W.P. (C ) No. 11879 of 2009
171-179
18
Annexure P-11 being Affidavit dated 12.4. 2010 of the Petitioner in W.P.(C ) 11879/ 2009 with two Annexures
180-188
(i)Annexure P-11 being Letter No. 51/8/1956-58 dated 25.9.1980 from the Election Commission to the Controller General Patents , Design Trade, Chennai
189-191
(ii) Annexure P-12 being Reply thereto dated 6.10.1980 from the Deputy Controller of patents and Designs, to the Election Commission
192-194
19
Annexure P-12 being Order dated 17.8.2011 passed by the Delhi High Court in W.P.(C ) No. 11879/2009
195-196
20
I.A. of 2012 being Application for Leave to file/argue as Petitioner in Person.
197-198
21.
I.A. of 2012 being Application u/Order 16 Rule 4 (d) (ii) ) of the Supreme Court Rules for leave to adduce additional facts and documents
199-200
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO. OF 2012
IN THE MATTER OF:
Dr. Subramanian Swamy Petitioner
Vs
Election Commission of India Respondent
OFFICE REPORT ON LIMITATION
1.The petition is/are within time.
2.The petition is barred by time and there is delay of -----
days in filing the same against order dated 17.1.2012 and petition for condonation of -----days delay has been filed.
3.There is a delay of ------days in refiling the petition and petition for condonation of -----days in refiling has been filed.
BRANCH OFFICER
New Delhi
Dated April 2012
LIST OF DATES AND EVENTS
This is a Petition seeking Special Leave to Appeal against the impugned (final) Judgment and Order dated 17.1.2012 passed by the Hon'ble Division Bench of the Delhi High Court in W.P. (C ) No.11879/2009 , whereby the Division Bench of the Hon'ble High Court disposed of the aforesaid Writ Petition, by disallowing the Petitioner's prayers therein,(the relief prayed for was that the Hon'ble High Court direct the Respondent ,the Election Commission of India, in any future election , if it desires to use Electronic Voting Machines (hereinafter for brevity/convenience referred to as EVMs), to utilize only such machines which incorporate a paper trail, and to issue a paper receipt to each voter that may be required to be deposited, after verification by the voter, in a ballot box before exiting the booth).
It is submitted that the duties of the Election Commission of India as set out in Article 324 of the Constitution of India, also include an obligation to ensure that such elections conducted by it, are free and fair, and reflect the will of the voters. It is significant that the Hon'ble Delhi High Court had upheld this Petitioner's view that the EVMs as used presently in India are tamperable and directed the respondent Election Commission to hold "wide consultation which should allow ample and meaningful opportunity to all the stake holders to achieve full understanding of both the issues and the technology."
The Petitioner herein had prayed that the Election Commission perform its constitutionally mandated duty in respect of the conduct of elections, with utmost diligence, where it uses Electronic Voting Machines.
It is submitted that the performance of its duty has been vitiated by the Commission's complacency about the integrity of the EVM's, and that the Commission is unreasonably opposed to considering the below stated alternative.
The international standards that an election has to meet, to be considered free and fair, comprehend:
(i)individuals have to be accurately identified as eligible voters who have not already voted;
(ii)voters are allowed only one anonymous ballot each, which they can mark in privacy;
(iii)the ballot box is secure, observed and, during the election, only able to have votes added to it by voters: votes cannot be removed;
(iv)when the election ends, the ballot box is opened and counted in the presence of observers from all competing parties. The counting process cannot reveal how individual voters cast their ballots;
(v)if the results are in doubt, the ballots can be checked and counted again by a different set of people/machines;
(vi) as far as the individual voter is concerned ,he must be assured that the candidate he casts his vote for, actually gets that vote.
Over the last few centuries, the system of paper ballots has been developed which can meet all six requirements. But, it is submitted, the present system of EVM's as utilized in the last few general elections in India,(though admittedly it gives results very fast and dispenses with the labour of hand counting) does not meet requirements (v) and (vi).
The Election Commission has adamantly and unreasonably stuck to the stance (which it reiterates as an immaculate premise that needs no proof, despite the Hon'ble High Court's direction to hold wide consultations) that its EVMs cannot be tampered with; but the fact is that EVMs, like all electronic equipment, are open to hacking.
Each step in the cycle of an EVM--from the time it is developed and installed to when the votes are recorded, and the data transferred to a central repository for tallying—involves different people getting access to the machine, often installing a new software.
The instant matter arises out of the refusal of the Respondent, over at least the past decade, to incorporate in its Electronic Voting Machines a certain obvious safeguard (called the" paper backup" ,"paper receipt" or "paper trail') — presently in use and mandated in some countries such as the U.S.A.,—which would easily and cheaply meet the requirements of (v) and (vi) .
When such an obvious safeguard –the paper trail, is easily available, it is submitted that the Election Commission's refusal to induct it , is arbitrary and unreasonable and prima facie smacks of malafide. It is submitted that it is failing in its duty to conduct elections in a free and fair manner, that is not only free and fair, but is seen to be so.
As suggested and developed by many experts, this "paper trail" procedure is to supplement the procedure of voting ,as follows:
"Once approved, the voter views the ballot and makes the desired selections …..If the voter confirms that the choices displayed are correct ,the machine records the vote on some storage medium such as a CD-ROM or flash memory and overwrites the smart card with random numbers to prevent its reuse …….The voting machine then prints out a human readable ballot ,which is confirmed by the voter, who then deposits it in the ballot box , which poll workers are monitoring. If the election is later disputed, officials can optically scan these paper ballots or hand-count them."(See May 2009 issue of the IEEE Computer Society, pages 23 to 29, Article by Nathanael Paul and Andrew S. Tannenbaum:"Trustworthy Voting: From Machine to System").
A further safeguard to the above procedure, has also been developed, the EVM also issues to the voter, a printout receipt indicating exactly who he voted for.
The reason why this receipt is a good precaution, is as follows: presently, if an election is challenged by an agent of the candidate on the ground that some particular identified voter's vote or the vote of a group of voters has been suppressed/not been correctly assigned by the EVMs, the accepted current procedure is for a re-run of the same impugned EVMs for a re-count.
Under the new procedure a recount will be of the receipts in the ballot box containing the printout receipt the EVM had issued to the voter.
To summarise, when a voter votes, such an EVM, with a paper trail, does two things:
1. It records the vote electronically;
2. It prints a receipt for the voter to read, and verify before depositing in a separate ballot box kept, before exiting from the booth.
Thus in the event that any group of voters look at their receipts and detects an anomaly with the electronic result, they have due cause to require an election audit, and the ballot box containing the paper ballots, also provides the audit trail that can actually be counted.
With the above set-up in place, in order to rig this election, the intending fraudster would need to identically rig:
(a) the electronic counter;
(b) the paper ballot boxes;
which together is virtually impossible or of near zero probability.
If further in the future, the EVM is synchronized with recognition of the UID (the Universal Identification presently being worked out for all Indians) and have it check the voters' fingerprints—biometric details—-before allowing them to vote, this will eliminate bogus voters as well.
No.
Date
Event
1.
1970-
The Election Commission, with the idea of introducing EVM's in the election process, induced two government companies, producers of defence equipment,—Electronics Corporation of India Ltd, Hyderabad (ECIL) and Bharat Electronics Corporation Ltd. ,Bangalore (BEL)—to design and develop suitable machines.
As evidenced by the ECIL letter dated 18.12.2010, in response to the Petitioner's RTI Application,(Annexure P-1 (pages
)hereto), all such machines presently in use in India have an indigenously developed software; but this software is sent abroad ,to the U.S.A. and Japan, for the software to be "mother-sealed"(irretrievably sealed) into the chip(presently the chip used in an Indian EVM is manufactured in these two countries), which is then incorporated in the EVM.
It is significant that neither of the two countries where the chips are manufactured, permit the use of EVM's without paper trails, as these countries consider EVMs as eminently tamperable.
Furthermore despite its tall claims of non-tamperability of the EVM's used by the Election Commission, the indubitable fact (evidenced by its letter dated 28.6.2010 sent to the Election Commission Annexure P-2 (pages )hereto) is that these EVMs have not been found fit to be granted a patent by WIPO (the World Intellectual Property Organisation, International Bureau), nor did their application dated 16.9.2003 for patenting (Annexure P-3 (pages
) hereto)claim that their EVM could not be hacked.
2.
1982
EVM's were introduced in 11 constituencies; they were reported to work satisfactorily. However in its judgment in A.C. Jose VS. Sivam Pillai (1984(3)SCR 74) the Hon'ble Supreme Court held that such machines could be used in elections only if Parliament had made suitable laws.
3.
15.3.1989
Accordingly, the Representation of People Act 1951 was amended and Section61A was incorporated therein to permit the use of EVM's in elections conducted by the Election Commission; and corresponding changes were made in the Rules made thereunder. Appended hereto as Annexure P-4(pages
are the relevant portions of the Constitution and the Representation of the People Act 1951 as amended.
4.
1990
At the instance of the Electoral Reforms Committee, which desired the evaluation of the functioning of these EVM's ,with special reference to the possibility that they could be tampered with, the Department of Electronics constituted an Expert Committee. This Expert Committee recommended accepting the EVM's provided certain precautions were put in place. But all these precautions were not in place when the EVM's were used in a limited number of constituencies, for the 1994, the 1997 and the 1998 general elections to the Lok Sabha
5.
Meanwhile technology, particularly hacking
technology, and the use of "Trojans "(a
Trojan is a code that sits silently in the
original software, which goes undetected
and can be activated through a key code
and which is known only to the developer
who inserts it) had advanced all over the world.
6.
Novem
ber1999
The Petitioner, who had fought the October
1999 General Elections from the Madurai
Constituency,(which he had won by over
20,000 votes in 1997) lost in the same
constituency, securing a total of only about
20,000 votes out of more than 7,00,000
votes cast.
Since he had a full scale election
staff, including at least five volunteer local
voters to oversee each polling booth, he
was amazed to find that in almost all
booths, he had secured less than five votes.
Working in the belief that he should at least
have secured the five votes of his five voters
in that polling booth (if not the votes of their
family members), the Petitioner approached
two of his family members (one an
acknowledged expert in the field of
artificial intelligence holding a patent for
the software for RFID;
and the other with a doctoral dissertation,
from the University of California at Berkeley
, precisely on this subject of verification
i.e. how to ensure that machines are
actually doing the work they were
intended to do).
They demonstrated before
the then three Election Commissioners,
that it was very possible for some one
or more of the various persons having
access to the EVM's at different points
of time, to plant a software program,
that would have the effect of producing
an election result in favor of a particular
candidate/political party.
7.
However, at the time, the then
Chief Election Commissioner, Mr. Gill
had opined that such a fraudulent
collusion would require the cooperation
of too many persons and therefore would
leak out; and hence he felt it was quite
unfeasible in practice.
8.
Even then, the Petitioner had demanded
that some sort of a paper trail should always
be maintained, so that in case of dispute or
material doubt, this paper trail would be
available to substantiate/ repudiate the results
as declared by the EVM's. But this was not done.
9.
Post 1999
In the following decade, electronic voting
was introduced in many countries worldwide;
but after they had been in use for a
short while, serious doubts were raised
about the security, accuracy ,reliability and
verifiability of electronic elections.
In October 2006 the Netherlands banned
the use in elections, of all EVM's.
In 2009,the Republic of Ireland declared
a moratorium on their use. As did Italy.
In 2007, after conducting a top-to-bottom
review of many of the voting systems
certified for use in California, its Secretary
of State strengthened the security
requirements and use conditions ,requiring
all EVM's to have paper backups. Thereafter
, till today more than half the states
of the USA have followed suit. Japan
has never permitted the use of EVM's
for elections.
On 3.3.2009, by its Judgment
(Annexure P-5, pages ).the
Supreme Court of the Federal Republic
of Germany (the German Federal
Constitutional Court) held that the
use of their EVMs was unconstitutional
in that they lacked transparency:"the
voter himself or herself must be able to
verify whether his or her vote as cast
is recorded truthfully as a basis for counting"
10.
2004
After the Lok Sabha General Elections of April-
May 2004,Professor Satinath Choudhary
approached first the Kerala High Court; and
later the Supreme Court of India, explaining
how very possible it is to rig EVM's. Both courts
directed the Election Commission to consider
his suggestions seeking changes in the
EVM's. But , the Election Commission,
continuing to reiterate the "100%
impossibility" of tampering with its
machines, did not do so.
11
29.5.2009
The Petitioner sent a legal notice to the
Election Commission demanding that
a paper trail ,as indicated be put in place.
(Annexure P-6, pages )
12.
13
27.7.2009
27.7.2009
The Hon'ble Supreme Court disposed
of W.P.(C )No.292 of 2009, (a P.I.L.filed
by an Andhra based NGO called Election
Watch which itemized in detail the manner
in which such EVM's can be manipulated)
by a direction to approach the Election Commission
By its letter , Annexure P-7 hereto
(pages ),the
Election Commission replied to the
Petitioner's legal notice, denying all need
for a paper trail. It also challenged
the Petitioner to demonstrate that
their EVMs could be tampered with.
of
14.
17.8.2009,3.9.2009
At the invitation of the Election Commission,
the Election Watch and its experts
appeared before the Election Commission
to demonstrate how their EVMs could
be tampered with; and the Petitioner
accompanied them. But on the first
occasion, the Election Commission
failed to present its EVMs and the
manufacturers' engineers who
serviced them, so the matter had to be adjourned.
15.
1.9.2009
Before the next hearing, Election Watch
was served with a legal notice from ECIL,
threatening them with a suit for defamation,
and demanding an apology
16.
3.9.2009
Accordingly, at the second hearing, Election
Watch requested the Election Commission
representative there to assure them that
they would be ensured/indemnified against
such a consequence. This assurance, the
Election Commission representative stated
that he was not authorised to give; so it
was agreed that as a first stage, only
ECIL's employees would open the
actual machines and then Election Watch
experts would handle the parts and
make notes thereon. However, when the
Election Watch experts began to make
notes about the parts, the manufacturers'
engineers objectedand demanded that
the notes be confiscated. The Election
Commission representative stated that
he was not authorized to let the inspection
go on under these circumstances. The matter
was adjourned so that the Election
Commission could get orders thereon
from the Election Commissioners. The whole
proceeding has been recorded on
video tape. Till today this has not progressed
any further.
17
3.9.2009
Meanwhile, the Petitioner, who had
merely asked for the videos of the
demonstrations, was e-mailed a letter
from the Election Commission challenging
him to prove that the EVMs could be
tampered with. Since at no stage had
the Petitioner averred that these EVMs
were tampered with (at this stage,
he is only demanding a paper trail
to be put in place) at the hearing ,
the Petitioner demanded that the letter
be withdrawn. The Petitioner also sent
a letter reiterating his stand
18
September 2009
The Petitioner filed in the Delhi High Court , the instant Writ Petition praying that the Election Commission be directed to use EVMs only with a paper trail provision.
19
20.11.2009
The Election Commissions filed a counteraffidavit incorporating as its immaculate premise that its EVMs are of such superb technology that they are unhackable.
20
21
22.
December 2009
12.4.20910
August 2010
The Petitioner filed its Rejoinder reiterating its stand, and invoking the requirements of the Information Technology Act 2000(Annexure P-8
(pages 168-169 )
The Petitioner filed an affidavit challenging the patentability of EVMs(Annexure P-11,
pages 180-194)
In an effort to awaken the public to the hackability of the EVMs, Election Watch procured one of the Election Commission's EVMs, and demonstrated on Television that it could be hacked. Thereupon the Election Commission had the demonstrator arrested for theft and housebreaking; but by his Order dated 28.8.2010, (Excerpts from which form Annexure P-9 (page 170 ) the Metropolitan Magistrate , Mumbai released him on bail.
23
24
25.
22.11.2010
16.8.2012
17.8.2011
The Election Commission started to work on a Voter Verifiable Paper Trail(VVPAT)
In his CMP No. 12029 of 2011,(Annexure P-10 (pages 171-179 hereto ))the Petitioner put on record all his unanswered queries regarding the credibility of the field trials.
The High Court passed an Order recording that field trials were being carried out on EVMs with a paper trail.
(Annexure P-12, pages 195-196)
26
9.12.2012
A year after it announced field trials of the EVMs with a VVPAT , during the course of hearings before the Hon'ble High Court, the Election Commission informed the High Court that though it had tried to set up a Voter Verifiable Paper Trail(VVPAT)
their field trials had not been successful, and had been discontinued.
27
17.1.2012
By its Judgment , the Hon'ble Division Bench disallowed the Petitioner's prayers for a paper trail.
28
3 April 2012
The instant SLP was filed
IN THE SUPREME COURT OF INDIA
(Order XVI Rule 4 (1)(a))
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (CIVIL) NO. OF 2012
(Against the impugned (final)Judgment and Order dated 17.1.2012passed by the Delhi High Court in W.P.(C ) No.11879/2009 APPEALED FROM whereby the Division Bench of the Hon'ble Delhi High Court disposed of the aforesaid Writ Petition with certain observations)
IN THE MATTER OF:
BETWEEN POSITION OF THE PARTIES
Before the High Court
Before this Hon'ble Court
Dr Subramanian Swamy
A 77 Nizamuddin East,
New Delhi 110013
Petitioner
Petitioner
AND
Election Commission of India
Through its Secretary,
Ashoka Road,
New Delhi 110001
Respondent
Respondent
To
The Hon'ble the Chief Justice of the Supreme Court
And his Companion Judges of the Supreme Court
The humble Petition of the Petitioner abovenamed MOST RESPECTFULLY STATES THAT:
1.This is a Petition seeking Special Leave to Appeal against the impugned (final) Judgment and Order dated 17.1.2012 passed by the Hon'ble Division Bench of the Delhi High Court in W.P. (C ) No.11879/2009 , whereby the Division Bench of the Hon'ble High Court disposed of the aforesaid Writ Petition, by disallowing the Petitioner's prayers therein that the Hon'ble High Court direct the Respondent , in any future election , if it desires to use Electronic Voting Machines (hereinafter for brevity referred to as EVM's), to utilize only such machines as incorporate a paper trail, and to issue a paper receipt to each voter.
2. QUESTION OF LAW
The following substantial questions of law of general importance to be decided by the Hon'ble Supreme Court of India arise for consideration in the Special Leave Petition:
(a) Whether a paper trail is an indispensable requirement of free and fair elections when they are conducted with EVMs.
(b) Whether the confidence of the voter in the EVMs can be achieved only with the introduction of a paper trail.
(c) Whether confidentiality of the vote (so that the choice of each voter remains secret) is more important than transparency in the method of voting.
(d) Whether the Hon'ble Division Bench rightly held that even though there were admittedly lacunae in the EVM system, yet these defects can be cured only by the legislature.
(e) Whether considerations of cost and likelihood of mechanical problems resulting from the introduction of a paper trail, can be a major consideration, to be weighed when the transparency (and therefore the credibility) of the EVM system is under serious question of considerable gravity and consequences.
(f) Whether the Petitioner's apprehension that any electronic machine can be hacked and rigged is so remote a possibility that further safeguards are not required.
(g) Whether the mandatory requirements Sections 11 and 12 of the Information Technology Act,2000 have no application in the case of EVMs (which after all are devices utilizing information technology).
(h) Whether the Hon'ble High Court was right in holding that it had no power to issue a mandamus to the Election Commission to introduce the system of paper trail.
3. DECLARATION IN TERMS OF RULE 4(2)
The Petitioner states that no other Petition seeking leave to appeal has been filed by him against the impugned Order.
4. DECLARATION IN TERMS OF RULE 6
The Annexures produced along with Special Leave Petition are true copies of the documents, which formed part of the record of the case in the High Court against whose Judgment and order, the leave to appeal is sought for in this Petition.
5.GROUNDS:
A. The Hon'ble Division Bench erred in that while it conceded,"Dr. Swamy is right to the extent that it cannot be ruled out that EVM's may be vulnerable to frauds", nevertheless , it was not inclined to prescribe adequate safeguards to meet the possibility of such hacking, largely on the ground that secrecy of the ballot is paramount and that in any case , this is for the Legislature to determine. At this juncture it may be pointed out that all the major and long standing democracies such as USA, and European nations such as UK, Germany, Netherlands, Scandinavian countries do not use the EVMs. In fact even Japan, from whose private company ECIL and BEL purchase the micro-controller for the Indian EVMs, does not use the EVMs, holding these to be tamperable and against the fundamental right to know how one's vote is actually recorded.
B. It is submitted that:
(1) secrecy of the ballot can never be of more importance than transparency, : the right of the voter to be assured that his vote has been properly recorded inside the EVM, must have a higher priority than the right of a voter to keep secret the manner in which he voted.
(2) In the contemporary technology, hacking into machines is a reality; and the Election Commission cannot work on the immaculate premise that its EVM's simply cannot be hacked into. The Petitioner has put forward enough objections to this immaculate premise:
(a) There is no corroboration of the Election Commission claim that its EVMs are un-riggable. Even the Hon'ble Delhi High Court in its impugned judgment has held that EVMs can be rigged. The two contractors who provide the EVMs, ECIL and BEL have made no presentation of their claim in any international conference; so its claim has not stood the test of scrutiny by acknowledged world experts. Furthermore all such attempted scrutinies have been attended with threats of defamation suits, and in one case of a false criminal complaint leading to the arrest of a leading software engineer who had accompanied this petitioner for a demonstration of rigging of EVMs in the Election Commission on September 3, 2009 .
(b) The Petitioner has sought advice from and received it from two of the foremost contemporary and up to date scholars in this field, Professor David L. Dill of Stanford University, and Dr. Ulrich Wiesner of Germany, (who spearheaded the case which led to the use of EVM's being struck down by the German Federal Supreme Court).It must be remembered that the field of hacking is a continually developing field and that no electronic machine has been devised that cannot be rigged or hacked, and that only safeguards can minimize the hacking, or more accurately, its detection. The paper trail is the very least such safeguard.
(c) Furthermore despite its tall claims of non-tamperability of the EVM's used by the Election Commission, the indubitable fact is that their EVMs have not been found fit to be granted a patent by WIPO (the World Intellectual Property Organisation, International Bureau) and the Applications made by the ECIL and BEL were subsequently withdrawn faced with the prospect of rejection.
B. It is the duty—indeed the raison d'etre--- of the Election Commission to ensure free and fair elections. International standards which an election has to meet, to be considered free and fair, comprehend the following:
(i) individuals have to be accurately identified as eligible voters who have not already voted;
(ii) voters are allowed only one anonymous ballot each, which they can mark in privacy;
(iii) the ballot box is secure, observed and, during the election, only able to have votes added to it by voters: votes cannot be removed;
(iv) when the election ends, the ballot box is opened and counted in the presence of observers from all competing parties. The counting process cannot reveal how individual voters cast their ballots;
(v) if the results are in doubt, the ballots can be checked and counted again by different people;
(vi) as far as the individual voter is concerned ,he must be assured that the candidate he casts his vote for, actually gets that vote.
With the present EVM's used by the Election Commission, if anyone doubts the election result and demands a recount , all that can be done is that the EVM can go through its stored electronic data once more: it cannot check whether someone's vote has been properly recorded and stored because it has just the one record.. So all that happens is that the EVM goes through the same record and gets exactly the same result i.e. a recount is not a fresh operation, but merely the same operation carried out again on the same (perhaps flawed) data. Thus the requirement of (v) and (vi) are not met.
On the other hand , with a paper ballot, a different set of officials can re-sort the vote bundles by hand and recount by hand and ,in case a person's vote has been put (whether deliberately or by accident) into the wrong candidate's bundle, this can be corrected and a fresh correct result obtained.
C. In para 4 of its Judgment, the Hon'ble Division Bench accepts the above six point international standard that an election must meet to be considered free and fair . however it fails to meet the above criticism set out in ground B above, which shows that the present EVMs without paper trail, do not meet criteria (v) and (vi).
D. In case a voter notices an anomaly in the vote results, e.g. a group of persons who have voted in the same polling booth and who have voted for one candidate, discover on publication of the voter's tally, that their candidate was credited with less votes than they know to have been polled by his supporters, there is no relief they can get from an EVM recount. On the other hand ,if these persons all present to the Returning Officer/designated official their vote receipts ,the malfeasance becomes indubitable and evident. In such a case , there can be a fresh recount by hand of the paper ballots placed in the Ballot box; and this and only this recount can be declared as the correct tally.
D. Judging by its letters and pleadings ,the Election Commission has not even understood how the paper trail works. E.g. The letter dated 27.7.2009(Annexure P-7 hereto) states:
" As regards your suggestion for introduction of the paper trail in the ECI-EVMs, it is stated that when vote is recorded, light glows against the name and symbol of the candidate, which is electronic equivalent of a paper output. The Commission, therefore, does not consider that a parallel maintenance of paper trail is necessary since the person who is bent on doubting would ever doubt the paper output by the machines. Moreover, the ECI-EVMs have the facility of paper trail in the form of a device called the 'decoder' which when attached to the EVM can print out statements of voting data showing the order in which the voters voted and to whom (i.e. the serial number pertaining to the particular candidate in the ballot paper) they voted "(emphasis supplied)
In fact ,it is precisely the voter's apprehension that the glowing light may reflect his choice, but the record inside the EVM may be quite different: he has nothing to assure him that his vote has been properly recorded inside the EVM.
On the other hand ,if when he votes he gets a paper ballot and a paper receipt with the print out of his choice, and he then checks it and assures himself that it is correct, and then he places this paper ballot himself in the ballot box and takes away the paper receipt with him, then he is sure that in case of a malfeasance,(which he can prove by displaying his paper receipt) he can demand a count of the ballot box paper ballots. He would not "ever doubt the paper output by the machine",: because he has himself read it and confirmed his vote at the time he votes.
As to the decoder, it will only tell you what the machine states is the vote cast at a particular time. But ,in case it is the voter's contention that the vote the EVM states was cast at a particular time is wrongly recorded, there is no proof in his hand to give the lie to the EVM.
E. As to the Election Commission's plea of sacredness of the secrecy of the voter's choice, which plea is the basis of the Hon'ble Division Bench's judgment, it is pointed out that :
(i)admittedly the decoder has a printout facility; but this printout only repeats what is recorded in the EVM (which may or may not be the voter's actual choice);
(ii)the proposed printed receipt in the hand of the voter is totally under his control; and if he does not choose to make it public, no one can force him to. On the other hand, if suspecting malfeasance ,he takes it to the Returning Officer/concerned authority, to prove the malfeasance, that also is his choice. In neither case is his right to secrecy of his vote violated.
(iii) the contents of the paper ballot box can be counted without in any way revealing any particular voter/locality's preference, so again there is no violation of the secrecy of a voter's/locality's vote.
(iv)if, as the Election Commissioners have averred in meetings, the problem arises because a voter who walks out of the polling booth carrying his printed receipt may be suborned by some party supporter standing outside the booth who terrorizes him into revealing what is on the receipt, and then proceeds to manhandle the voter if his vote proves to have been for some rival candidate, it is submitted that the correct solution is simply to provide better protection to this voter, so that no one can forcibly get to know how he voted. It can never be an argument that a vital safeguard like the Paper Trail, must not be followed because there are party goondas who cannot be controlled by the Government and the forces of law and order. Nor should the Election Commission encourage a practice like a voter being bound to show his receipt to prove his bonafide voting to someone who has paid him to vote in a particular fashion, and who demands the printed receipt as proof that he has carried out what he was bribed to carry out.
(v) The voter's right to be assured that his vote has actually been credited to the candidate of his choice, far outweighs the personal difficulties and hardship ,and exposure to
harassment that he or someone else may suffer because some goondas force him to show his receipt.
(vi) In any event, nothing prevents a reluctant voter from destroying his paper receipt if he so wishes: the paper ballot in the ballot box is all that is required in the case a recount is demanded.
F. The best retort to the Election Commission's stand that its EVMs are infallible and the material is correctly recorded therein, and there is no need for a paper receipt for the voter is to ask any voter the parallel question,
"Would you put your money in a bank with an ATM facility, where the machine neither gives you a receipt, nor does the bank ever give you an accounting/proof of your transaction?"
G. The Hon'ble Division Bench, like the Election Commission has failed to deal with these:
(1) the meat of the criticism is that when the voter presses the button of his choice, a light certainly shines on the symbol of the candidate of his choice, but there is nothing to assure this voter that the vote recorded inside the EVM is according to his indicated choice(Requirement (vi) above); and
(2) The EVM can certainly recount the totals; but if anyone doubts the election result and demands a recount , all that can be done is that the EVM can go through its stored electronic data (which may not, right from the recording, have reflected the voter's actual choice) once more: it cannot check whether someone's vote has been properly recorded and stored because it has just the one record.. …So all that happens is that the EVM goes through the same record and gets exactly the same result i.e. a recount is not a fresh operation, but merely the same operation carried out again on the same (perhaps flawed) data. Also, the recount is not carried out by a different set of persons.
Thus the requirements of (v) and (vi) noted earlier are not met
(3) the Petitioner's analysis of the advantage of an EVM with a paper trail, viz. that when a voter votes, such an EVM ,with a paper trail ,does three things:
(i)It records the vote electronically;
(ii)It prints a paper vote that the voter can read, and verify before depositing in a separate ballot box;
(iii)It prints a receipt for the voter that he can take home as proof whom he voted for.
Thus in the event that any group of voters look at their receipts and detects an anomaly with the electronic result, they have due cause to require an election audit, and the ballot box containing the paper ballots, provides the audit trail that can actually be counted.
With the above set-up in place, in order to rig this election, the intending fraudster would need to identically rig:
(a)the electronic counter;
(b)the paper ballot boxes;
(c )the distributed receipts.
which is virtually impossible.
G. Much has been made of the fact that if the voter is allowed to take out, or even to handle the paper ballot, this can be misused by parties intent on terrorizing or buying up the voter's vote. For this, there are certain modifications of procedure available, which have been tried abroad. For example, in one suggested procedure, the voter does not actually handle the printed ballot paper, but he sees it behind a glass cover, and he confirms it correctly reflects his choice and then he actually sees this ballot paper peeled off and mechanically deposited in the designated ballot box. That would confirm his confidence that his vote has actually been recorded in favour of the candidate of his choice.
H. The Election Commission claims that EVM's in India are not networked while those outside India are networked and claims that because of non-networking of Indian EVM's they are not riggable. On this the foremost German expert ,Dr. Ulrich Weisner, who had spearheaded the case leading to the ban by the German Federal Supreme Court, and who has been consulted by the Petitioner, states:
"The Nedap voting computers now banned in the Netherlands, Ireland and Germany are not networked either. Similar to the Indian EVMs, they need to be connected to a configuration device before the election, but work stand alone with no connection to internet or other networks during the election and counting phase. The lack of the missing network connection was one of the (invalid) reasons given by the vendor and by authorities in the three countries why the machines could not be hacked. The vendor also claimed that his devices were no real computers but special purpose devices which were designed to only count votes and could not be used for any other purpose.
Rop and his team have proven that someone with access to the machines can replace the implemented software with any software, including vote stealing software and a chess program.
When the Indian election commission claims the machines are not riggable, this can only refer to "by user operation via keys".It is common sense that someone who has sufficient access to open the
machines and replace soft- or hardware can implement virtually any functionality, including vote stealing functionality that is only activated under certain circumstances and would not bespotted in tests.
In neither of the three countries security concerns have been the main driver for banning e-voting. In all three countries the main reason for the removal of the EVMs was their negative impact on the transparency of the election process, and the fact that any malfunction of the devices due to malfunction or manipulation would remain undetected."It is submitted that the fact of the matter is not-networking will only prevent those vulnerabilities related to networking but it still is as vulnerable as any EVM's outside India on the aspects of malicious code, Trojans, malfunctioning etc.all of which can be compromised wirelessly.
I.The Petitioner has also approached Professor David L. Dill of Stanford University in regard to the Respondent's claim that its EVM's are tamper proof. Thereon Professor Dill had to state as under:
"At this time ,there is no reliable way to detect the presence of malicious changes to software or hardware in a computer system, even a simple computer system. Although many discussions of "hacking" electronic voting systems focus on corruption of the machines by third parties, the greatest threat comes from changes made by someone with legitimate access to the hardware or software design or manufacturing process. Malicious changes to computer systems create a greater threat of undetected election fraud than conventional paper ballot systems because a relatively small team of individuals, perhaps just one, could change systems that could affect thousands or millions of votes.
Since the legitimacy of elections depends on whether the populace can trust the results, I believe that the burden of proof should be on the advocates of an election system to show that it is difficult to commit undetected election fraud. It is difficult to find any significant number of computer scientists who say there are effective ways to find malicious changes to computer systems. No such claims should be accepted unless the methods are disclosed and debated openly with experts on the other side."
J. As to the administrative precautions, set out in the Conduct of Election Rules and relied on by the Election Commission, it is accepted that these are all salutary precautions; but they also highlight how very many officers have legitimate access to the EVMs: and therefore the number of points at which a very few officers, if suborned or part of a conspiracy, can mal-inject material in the EVMs.
K. As to the Election Commission's contention, re cost, and practical difficulties, it is submitted that these considerations can never be paramount when the very fate of the country could be at stake , with a bogus result obtained from mal-fixed EVM's. If, in fact, there are insurmountable practical difficulties, then it is better to return to the paper ballot system: but on the grounds of expense and technical difficulties, the EVMs cannot be imposed on a democracy when the same endangers free and fair elections.
6. GROUNDS FOR INTERIM RELIEF:
No interim Relief is sought.
7. MAIN PRAYER
It is therefore most respectfully prayed that this Hon'ble Court may be pleased to:
(i) grant Special Leave to Appeal against the Judgment and Order dated 17.1.2009 of the Delhi High Court in W.P.(C) No.11879 of 2009,(APPEALED FROM).
(ii) pass such other orders as this Hon'ble Court deems fit and proper in the interest of justice.8. 8.INTERIM PRAYER:
No interim relief is sought
PETITIONER IN PERSON
Dr.Subramanian Swamy
New Delhi
Drawn by Dr, Roxna S. Swamy
Drawn on 29 March 2012
Filed on: 3rd April 2012
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SLP(C) NO. OF 2009
IN THE MATTER OF:
Dr. Subramanian Swamy Petitioner
Vs
Election Commission of India Respondent
CERTIFICATE
Certified that the Special Leave Petition is confined only to the pleadings before the Court whose order is challenged and the other documents relied upon in those proceedings. No additional facts, documents or grounds have been taken therein or relied upon in the Special Leave Petition., except Annexure P-9 and the facts arising therefrom, for both of which an Application for Leave to Adduce has been filed. It is further certified that the copies of the documents/annexures attached to the Special Leave Petition are necessary to answer the question of law raised in the petition or to make out grounds urged in the Special Leave Petition for consideration of this Hon'ble Court. This Certificate is given by me and an affidavit, filed by me as the petitioner-in-person is filed in support of the Special Leave Petition.
Petitioner-in-Person
New Delhi,
April 2012
IN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTION
SLP(C) NO. OF 2012
IN THE MATTER OF:
Dr. Subramanian Swamy Petitioner
Vs
Election Commission of India Respondent
AFFIDAVIT
I, Subramanian Swamy, son of Sitarama Subramanian aged about 72 years,resident of A 77 Nizamuddin East, New Delhi 110013, do hereby solemnly affirm and state as under:
1 That I am the Petitioner in the instant Special Leave Petition and fully acquainted with the matter conversant and fully competent to swear thereto.
2. The facts and law in the instant Special Leave Petition in paras 1 to 8(pages 25-45) and in the List of Dates (pages B to V)are true to my personal knowledge. Paras 7 and 8 (page 45) are prayers.
3. The facts stated in paras 1 to 3 (page 197-198) of the accompanying I.A. for Leave to File/Appear as Petitioner in Person , are true to my knowledge .Para 4 (page 198) is a prayer.
4. The facts stated in paras 1 to 4 (page 199-200) of the accompanying I.A. , Application U/Order 16 Rule 4(d)(ii) of the Supreme Court Rules for Leave to Adduce Additional facts and Documents ,are true to my knowledge .Para 5 (page 200) is a prayer.
5. The Annexures (pages 50-196) are true copies; and were all before the Hon'ble High Court, except Annexure P-9 for which an Application for Leave to Adduce has been filed.
DEPONENT
VERIFICATION
I , the above named deponent , do hereby solemnly affirm and declare that the contents of the above affidavit are true to my knowledge as per record, no part of this affidavit is false and nothing material is concealed therefrom.
Verified at Delhi on this day of April 2012
DEPONENT
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. No. of 2012
In
SLP(C) NO. of 2012
IN THE MATTER OF:
Dr. Subramanian Swamy Applicant/Petitioner
Vs
Election Commission of India Respondent
APPLICATION FOR LEAVE TO FILE/APPEAR AS PETITIONER IN PERSON.
To the Hon'ble the Chief Justice of the Supreme Court
And his Companion Judges of the Supreme Court
The humble Petition of the Applicant/Petitioner abovenamed MOST RESPECTFULLY STATES THAT:
1. Along with the instant I.A., the Applicant has filed an S.L.P. against the judgment and order dated 17.1.2012 passed by the Hon'ble High Court of Delhi in WP©. No.11879 of 2009, whereby the Hon'ble High Court disposed of the aforesaid Writ Petition .The facts are stated therein and the Petitioner craves to rely thereon hereunder as if they form part and parcel of the instant Application.
2. The Applicant is well conversant with the matter and desires to personally file/argue in the instant S.L.P. He has done so in the High Court.
3. It will be in the interest of justice for this Hon'ble Court to permit the Applicant to so file/argue the matter.
4.PRAYER: It is therefore prayed that this Hon'ble Court ;
(a) Grant leave for the Applicant to so file/argue the matter as Petitioner in Person;
(b) pass such other orders thereon as this Hon'ble Court deems fit and proper in the interest of justice.
AND FOR THIS ACT OF KINDNESS,THE PETITIONER SHALL,AS IN DUTY BOUND,EVER PRAY.
(Subramanian Swamy,
Applicant in Person)
Delhi
April 2012
` IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. .No. of 2012
In
SLP© NO. of 2012
IN THE MATTER OF:
Dr. Subramanian Swamy Applicant
Vs
Election Commission of India Respondent
APPLICATION U/ORDER XVI Rule 4(d)(ii) OF THE SUPREME COURT RULES, FOR LEAVE TO ADDUCE ADDITIONAL FACTS/ DOCUMENTS/ GROUNDS
To the Hon'ble the Chief Justice of the Supreme Court
And his Companion Judges of the Supreme Court
The humble Petition of the Applicant abovenamed MOST RESPECTFULLY STATES THAT:
1. Along with the instant I.A., the Applicant has filed an S.L.P. against the judgment and order dated 17.1.2012 passed by passed by the Hon'ble High Court of Delhi in WP©. No.11879 of 2009, whereby the Hon'ble High Court disposed of the aforesaid Writ Petition .The facts are stated therein and the Petitioner craves to rely thereon hereunder as if they form part and parcel of the instant Application.
2. Therein the Petitioner believes it is relevant to include as Annexure P-9, an Order dated 28.8.2010 passed by the Metropolitan Magistrate Mumbai granting bail to Hari Prasad of Election Watch, who had demonstrated the hackability of an EVM ; and to include the same in the List of Dates.
3. Although the same was referred to in the course of arguments before the Hon'ble High Court, it was not actually put on record before the Hon'ble High Court.
4. It will be in the interest of justice for this Hon'ble Court to permit the Applicant to set out in the instant SLP, these additional facts/documents .
5. PRAYER: It is therefore prayed that this Hon'ble Court (a) Grant leave for the Applicant to adduce/setout in the instant SLP , the aforesaid Annexure P-9 and the pleadings based thereon, as set out already in the body of the SLP;
(b) pass such other orders thereon as this Hon'ble Court deems fit and proper in the interest of justice.
(Subramanian Swamy,
Applicant in Person)
Delhi, 16.4.2012
15th April 2012
Secretary,
Election Commission of India,
Ashoka Road,
N. Delhi 110001
Sir,
Your Reference No.51/8/16/9/2009-EMS/193 dated 13.4.2012
Thank you for your aforesaid letter. I am happy to know that you are continuing to work on a reliable VVPAT System, which is all that we have been demanding for several years now. I have not yet heard from you in reply to my queries raised in connection with the system.
As you may recall , in response to your Letter No. 51/8/16/VVPAT/2011-EMOPS 1565 dated 11.6.2011 I had raised a list of queries about the VVPAT system you were then in process of developing.. The same were incorporated in para 4 of my Application , CMP No. 12029 of 2011 dated 16.8.2011, in W.P. (C ) No. 11879 of 2009. A copy of the Application is enclosed herewith for your ready reference. At that time, while replying to my Application, the queries were not replied to by the Election Commission; but as they continue to be relevant and pertinent today, I would be grateful if you could respond to them now.
I should mention that the same forms part of my Special Leave Petition , filed on 3.4.3012, in the Hon'ble Supreme Court of India, against the Judgment dated 17.1. 2012 passed by the Hon'ble High Court of Delhi in W.P. (C) No.11879 of 2009.
Thanking You,
Yours Faithfully,
(Subramanian Swamy)
Registry,
Supreme Court of India
Sir,
Re objections raised at the filing stage in the matter of:
SLP© NO. of 2012
IN THE MATTER OF:
Dr. Subramanian Swamy Petitioner
Vs
Election Commission of India Respondent
1. Two Annexures Annexures P-11 and P-12, were filed subsequently, at the instance of the Registry; and therefore they could not be numbered and placed in order of their chronology, as appearing in the List of Dates. They therefore do not satisfy your requirement set out in Check List Item 15 .In the facts and circumstances aforesaid, it is submitted that they be permitted to stand in the fashion presently indicated in the Paper Book.
2. Annexure P-11 (pages 180-194 )is an affidavit dated 12.4.2010,originally filed in the Delhi High Court with annexures. When it was so filed in the Delhi High Court , the affidavit had annexed to it certain Annexures which in the High Court were numbered as Annexure P-11 and P-12 . Now in the Supreme Court, where these High Court Annexures are filed as part of the affidavit dated 12.4.2011, I have necessarily to show them as they appeared in the High Court affidavit dated 12.4.2011,and therefore as in that affidavit , they are herein also superscribed as Annexure P-11 and Annexure P-12. To prevent any confusion ,it is emphasized that what is superscribed as Annexure P-11 (on pages 189-191 ), and Annexure P-12 (on pages 192-194) are here appended in the Supreme Court as part of Annexure P-11 of the Supreme Court Paper Book, and this Annexure P-11 extends from pages 180 to 194 .
I request that my instant letter be placed before the Hon'ble Court; and if the Hon'ble Court is not agreeable to allow these two Annexures to be placed and superscribed as I have done presently, I undertake to resubmit them according to the Hon'ble Supreme Court's direction.
Subramanian Swamy
Petitioner in Person
Registry,
Supreme Court of India
Sir,
Re SLP© NO. of 2012
IN THE MATTER OF:
Dr. Subramanian Swamy Petitioner
Vs
Election Commission of India Respondent
The above SLP has been refiled today; and will be numbered and sent for listing. I am praying that I be personally intimated the date of listing in accordance with the normal Computor Listing, without giving the one month's notice normally availed of by Petitioners in Person.
Subramanian Swamy
Petitioner in Person
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