ECI Opposes Totalizer Machine Usage Before Supreme Court, Cites Loss Of Form 17C Safeguards & Lowered Transparency [Read Affidavit]

The Election Commission of India (ECI) has urged the Supreme Court not to introduce the "Totaliser" system for Electronic Voting Machines (EVMs) at present, warning that aggregating booth-level counts would compromise key transparency mechanisms—specifically the cross-verification of Form 17C and paper audit trail (VVPAT) reconciliations.

The Court was hearing a plea seeking directions to the Central Government and the Election Commission to take appropriate steps to use the method of totaliser for counting the votes in Parliament, State Assembly and local body elections.

The Court has also asked the Union to file its response in the matter.

The Bench comprising Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice V Mohana ordered, "Let the Union of India file its response to as to why a suitable provision akin to Rule 59A be not incorporated for the purposes of counting of votes of EVMs as proposed by the Law Commission in its 255th Report Draft Rule 66A Sub-rule (2A) of the 1961 Rules."

Senior Advocate Gopal Sankarnarayanan and Advocate Ashwani Kumar Upadhyay appeared for the Petitioners, while Senior Advocate Dama Seshadri appeared for the ECI.

A Totalizer is a proposed machine, which will connect a cluster of 14 Control Units of EVMs used at 14 polling stations via a cable, which in turn will provide a consolidated result for each candidate in that group of EVMs.

During the hearing, Naidu submitted, "We have only pointed out the practical difficulties. First thing is that, it requires statutory amendment—not in our realm. The second one is that, when it comes to cross-verification by the candidates, that—it's not possible. There is a particular method: Form 17C would be given to every candidate and his agent on the closure of the polling. And the next day, it would be open for the purpose of counting, any other day. They'll have a corresponding list where they could compare whether there was any interpolation, etc. Now, with the Totalizer, that's not possible. But, initially we have recommended, we have pleaded with the Government, and then the Government has appointed an expert committee; they have disagreed. So these are the difficulties we have faced. At the end of the day, it's only a statutory mandate that is possible if Totalizer is to be introduced."

To which Upadhyay submitted that the benefits of the use of totalizer, to which the Bench has remarked, "See, the point is that the issue on which the Court wanted to examine is the introduction of Totalizer. Even while issuing notice, the Election Commission pointed out some apprehension that the Totalizer can lead to some kind of very negative consequences. Now, an expert committee has examined, those consequences are highlighted in the reply. Why should there be something which leads to... being detrimental to the interest of the voters or even to the fairness of the election that should be introduced?"

Upadhyay also added that many countries are using this Totalizer only to secure the right to privacy and to avoid the post-poll violence.

The Court also remarked that it should direct them only when they find that either in the public interest or in the best interest of democracy, there is some purity and transparency; therefore, some principles need to be followed for that purpose.

Upadhyay also added that this proposal was endorsed by the Election Commission, Parliamentary Panel, Ministry of Law, Law Commission of India, and many of the former Chief Election Commissioners and Election Commissioners.

It was also submitted that under Section 169(2)(gg) of the Representation of the People Act, the Central Government, in consultation with the Election Commission of India (ECI), was empowered to frame rules regarding the procedure for counting votes.

It was argued that Rule 59A of the Conduct of Elections Rules, 1961, enabled the ECI to order the mixing of paper ballot papers prior to counting in specified constituencies where intimidation or victimization of electors was apprehended.

ECI also clarified that under Section 169, the Commission could only submit recommendations, whereas the authority to amend the rules rested with the Central Government. ECI’s counsel raised procedural concerns, contending that introducing a Totalizer might hinder the cross-verification of Paper Audit Trails (VVPATs) and affect booth-level reconciliation under Form 17C.

The Bench observed that Rule 59A was designed as an emergency fallback provision to address ground realities of elector victimization. The Court remarked that if a totalization exception existed for paper ballots, there was no cogent reason why a similar discretionary power should not empower the ECI for EVM counting in grave cases.

Senior Advocate Sankarnarayan submitted, "We haven't placed it on record, but we have a compilation of every single political party, somebody or other, threatening voters, saying, "Electricity will be cut if you don't vote for us," things like that. Perhaps it's for them to exercise their discretion..."

To which Justice Bagchi remarked, "Ground reality is we consider vote as a consumer item. So it's a quid pro quo. Vote is not a faith item; it's a consumer item...Get the feedback from the Union of India."

The ECI, in its counter affidavit, has stated that the introduction of the Totalizer would necessarily require substantive amendments to the extant law, together with a corresponding revision of the statutory procedure governing the counting of votes. On the subject of election law, such an exercise is neither simple nor capable of being undertaken within a short span of time. The implementation of Totaliser, in the absence of a legal framework, without the underlying rules being first put in place would be premature and legally unsustainable.

It was stated that for the introduction of Totalizer for counting of votes in the EVM, necessary amendment in the Conduct of Election Rules, 1961 is required. However, certain aspects that need evaluation in this respect are being noted below for the consideration of this Hon'ble Court.

The Affidavit said, "Therefore, it can be seen that in the present scheme of the Representation of the People Act, 1951 the polling as well as counting is conducted in the presence of the candidates and their agents and they are provided an opportunity to confirm through the matching of Form 17 C Part I filled at the close of poll at the polling station with Form 17C Part II filled at the time of counting to see that there is no mismatch. Candidates have a right to ask for the counting of VVPAT slips in respect of any polling station or polling stations, under Rule 56-D of the 1961 Rules and in case of a discrepancy in the votes displayed in the Control Unit and the counting of the VVPAT paper slips, the Returning Officer shall amend the result sheet in Form 20 as per the paper slips count. Further, as per Rule 63 of the 1961 Rules, a candidate or his election agent or a counting agent may apply to the Returning Officer for recount of votes either wholly or in part, and if allowed by the Returning Officer, the result sheet is amended in Form 20 to the extent necessary after such recount."

It was stated that the knowledge of booth-level voting pattern may be utilized by some political parties to improve their outreach program in the booths where they have not performed up to their expectation and make organizational decisions accordingly and by others in some vexatious manner. However, the mere possibility of vexatious use of information may not be a sufficient justification to create a system where polling booth-wise information is not shared with candidates or their agents with respect to their performance, and they are not able to confirm the polling as well as counting process through the mechanism of Form 17C.

"That, as a direct consequence, the candidates and their polling/counting agents would be deprived of the elementary and long-standing safeguard of matching the booth-wise total in Part II with the corresponding booth-wise total already recorded in Part I of Form 17C for that very booth. Any discrepancy - whether arising from a technical malfunction, human error, or otherwise occurring in respect of any one of the EVMs so 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", it was added.

It was submitted that the effect of the Totaliser would work a substantive change in the very character of the counting process from one that is booth-wise transparent, contemporaneously verifiable through Form 17C, and self-correcting at the counting table itself, to one that is aggregated, opaque, and incapable of verification. Such a change would lower, rather than enhance, the overall transparency of the counting process and would render both verification and dispute resolution considerably more complicated than at present.

Accordingly, the Court listed the matter for a further date.

Click here to read/download the ECI's Counter Affidavit