Dr Swamy fighting for us in EVM case-the biggest fraud ever in democracy
POINTS MADE IN EVM SLP No.13735 of 2012
In the Supreme Court on January 22, 2013
1. On two fundamental facts the ECI is always in denial:
[i] the possibility of tampering of the EVMs. In the status report
they have repeated the same untrue mantra.
The Hon’ble Delhi High Court while disposing off my Writ Petition
[para 25-27, on p. 21-22 of the SLP] wanted the EC to address [p.
22, para 26].
The issue of tamperability thus is crucial because an analysis of
the past election results show that on an average of 165 Lok
Sabha seats are won or lost by a mere 10, 000 votes in an
average voting population per constituency of 15 lakh voters.
There are about 1500 EVMs per constituency, and each EVM
records up to a 1000 votes.
The ECI agreed that they would conduct field trials. But to be
credible they must conform to certain internationally accepted
guidelines for transparency which I submitted to them. But they
failed to reply.
But they have not answered any of the queries I had raised for a
proper field trial, which I submitted after consulting world
renowned experts in computer science [p.173-177].
In fact when they had challenged me to prove tamperability by a
demonstration, I went with two associates on September 3, 2009
to the EC to show it. The demonstration was video-taped by the
ECI. When we were near completing the demonstration, they
aborted the meeting. Then never re-convened the said meeting.
Later, Dr. Prasad, my associate, demonstrated before the media
that it could be done. He was promptly arrested on trumped up
charges on a complaint filed by the ECI that he had stolen the
EVM from the ECI stock [p. 170].
Yet the ECI misleads the public by stating that no one has proved
that the EVMs can be tampered with. Or has been tampered in an
[ii] Four facts which have not been acknowledged:
[a] the Indian EVM is not indigenously produced, because its
crucial parts such as the EVM brain: the microcontroller, is
manufactured by foreign companies, thereby raising security
issues as the Hon’ble High Court had pointed out (p.50-53 at 52)
[b] the attempt by the ECIL and BEL to obtain a WIPO Patent for
EVMs failed due to their inability to meet the conditions for being
awarded the patent, and their Applications filed in 2002 were
withdrawn in 2006 (p.55-56)
[c] the established democratic countries of the world, such UK,
most democratic countries of Europe, and Japan, use paper
ballots and have rejected the EVMs in the conduct of elections.
Recently Germany, Netherlands and Ireland gave up EVMs on
direction of their Courts (p.80-154). Ireland just gave up EVMs
despite a heavy cost sunk in the necessary infrastructure.
[d] Finally, in any case the EVMs cannot handle more than 64
candidates. In a not so long ago Andhra byelections, 64+
candidates filed their nominations. Ballot papers had to be
Important Point of Law
2. Transparency, not efficiency, is a constitutional right under
Article 324, and a statutory right under Sections 11-12 of the IT
Act. is not.
3. The German Supreme Court held [p.80 at 144-54] that
transparency was a constitutional principle while efficiency is
not. Germany now has returned to ballot papers.
4. Following this so too Netherlands and Ireland. USA is slowly
doing away with EVMs. Today except India, no other democratic
country uses EVMs. Even Japan from which we buy the crucial
microcontroller has refused to consider the EVMs.
5. Section 61 A of the RPA 1951 permits the use of EVMs. EVMs
come under the purview of IT Act because of Sections 2 (r) and
(t), r/w Objects and Reasons for the Act.
6. Sections 11 and 12 of the IT Act therefore require that every
voter, if he or she wants, must receive an acknowledgement
7. Contrary to the claim made by the ECI, the plenary powers u/A
324 of the Constitution given to the ECI in the conduct of
elections, is not unfettered.
8. The scope of the plenary powers of the ECI under Art 324 is
limited to space unoccupied by statutes [(1983) SCR 74 at para
9. In fact, following this judgment [para 38], the ECI had to amend
the RPA w.e.f 15.3.89 to insert Section 61A to enable the use of
EVMs [Vol I p. 55].
10. Nor does the ECI have unfettered right to make “policy”
decisions to go electronic if it is against the Constitutional
principle of transparency, or is otherwise arbitrary, unreasonable
or malafide [(2011) 7 SCC 639 at 670-71, para 36].
11. I submit that the ECI is duty bound by the statutes to use
EVMs only if it can provide a receipt for every vote cast.
Otherwise, we must return to ballot papers.
12. I submit, that if at all EVMs are to be used, this voter
verifiable receipt is a constitutional and statutory requirement
for the Election Commission under Article 324 read with Sections
11 and 12 of the Information Technology Act.
13. The Hon’ble High Court did not accept that submission but
gave no indication as to why not [p.22, para 25]. The Hon’ble
Division Bench disposed off the prayer in a non-speaking order.
14. I humbly submit this non-speaking statement or opinion
requires re-consideration in view of the clear Parliament
intention that receipt must be given.
15. Otherwise, the EVMs deployment would have been placed
by Parliament in the exempted category in the Schedule of the
16. The Act instead was enacted to safeguard use of electronic
machines and data processing equipment in governance, which
1. That is why I am here before Your Lordships. Either we use
safeguarded EVMs or return to the ballot papers system as in
now the current international practice in established democratic
2. The secrecy of the vote can be safeguarded by requiring that the
printed voter received be deposited in a ballot box before exiting
3. If it cannot be done, then to return to ballot papers till it could be
done. Hence my case
4. Instead addressing these issues had made claims in this Hon’ble
Court about immaculate invincibility of the EVMs that they use.
Most of their claims are not supported by evidence.
5. First, they claimed it is a unique invention that had received a
Patent from WIPO and hence the nation can be proud about it.
This turned out be false.
6. Second, while it is not my case here before Your Lordships that
EVMs were for rigging the elections in India, the ECI falsely
claimed that no one has demonstrated that EVMs can be
tampered with or that it can be rigged.
7. This is deliberate or unwitting misinformation because on Sept 3,
2009, I did accompany two of my Software engineer associates
Hari Prasad and V.V. Rao to the Election Commission to
demonstrate precisely that this could be done.
8. Just as we were near demonstrating it, and which demonstration
was video-ed by the EC [It can be summoned and showed to Your
Lordships but the EC has denied me a copy], the ECI aborted the
meeting, never to re-convene the meeting as promised.
9. Later the EC sought an adjournment in the Hon’ble High Court on
23.3.2011 on an assurance that they would conduct field trials
for a voter verifiable printed receipt [p. 172].
Thanks to Dr.Pradeep