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EVMs are unconstitutional; that’s why they would go soon

Besides the technical and legal considerations, there are larger constitutional issues involved in the use of electronic voting machines in elections. Use of EVMs for voting in elections is unconstitutional because they store votes only on electronic memory devices and infringe the fundamental rights of the voters. Here is how.

Under our constitution, “right to vote” is a legal right and not a fundamental right. A fundamental right is one guaranteed under the Indian Constitution. A legal right is one given by law. Right to vote is given under the Representation of People (R.P) Act to all Indian citizens over 18 years of age.

Significantly, while the vote per se is only a legal right, how that vote should be exercised by a voter is his/ her individual expression and that is covered by Article 19 (1) (a) of the Constitution, which guarantees fundamental rights to the citizens of the country. It is this fundamental right, the human right of a voter which is required to be preserved and expanded, if we want to make democracy vibrant and live.

Disclosure of assets and the criminal background of candidates

Relevant in this regard is the 2002 judgment of the Supreme Court of India in the case pertaining to disclosure of assets and the criminal background of candidates. The Supreme Court emphasized that the voter has the right to know the antecedents of the candidates before making his choice so that the choice is not mechanical but an informed choice.

The Supreme Court reasoned:

Under our Constitution, Article 19(1) (a) provides for freedom of speech and expression. Voter’s speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Voter’s (little man-citizens’) right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy.”

Legal experts say that the emphasis should be on making this right absolutely free and transparent from all hurdles created by law and procedure. “A voter has the right to know that his vote which he exercised as a part of freedom of expression to sub-serve the democracy has really gone in favour of the candidate whom he/she has chosen. This right which is fundamental in nature and not merely a legal right is completely absent in the electronic voting system,” says Sanjay Parikh, Senior Lawyer, Supreme Court.

In the traditional paper ballot system, that fundamental right was preserved because a voter knew exactly how his/ her vote was recorded and counted. Seen in this light, the use of EVMs in Indian elections is liable to be held unconstitutional. There is a clear international precedent for this in the decision of the Federal Constitutional Court of Germany in March 2009 which held use of electronic voting machines as unconstitutional.

GERMAN JUDGMENT APPLIES TO INDIA

Here are some extracts from the landmark Judgment that led to the discontinuation of EVMs in German elections.

“……..the Federal Voting Machines Ordinance is unconstitutional because it infringes the principle of the public nature of elections….The Federal Voting Machines Ordinance does not ensure that only such voting machines are used which make it possible to reliably examine, when the vote is cast, whether the vote has been recorded in an unadulterated manner. The ordinance also does not place any concrete requirements as regards its content and procedure on a reliable later examination of the ascertainment of the result…It was not sufficient that the result of the calculation process carried out in the voting machine could be taken note of by means of a summarising printout or an electronic display.”

Read the summary of the Judgment at the Court’s official website here:

http://www.bundesverfassungsgericht.de/pressemitteilungen/bvg09-019en.html

The above observations and ruling also apply to the Indian context and constitution (or for that matter to any democracy in the world). The problems of lack of transparency, verifiability and traceability and in short, lack of public nature of and public control over elections are antithesis of a democracy. By inducting such EVMs and mindlessly insisting on their continuation, the Election Commission of India has greatly harmed the Indian democracy. It is for this reason that the continuation of Indian EVMs is untenable. They would be gone in less than two years either through legislation or a Court verdict. Efforts are afoot in all these directions and an exit-EVM order may be delivered much sooner.

And in the meanwhile, we seem to have become a role model for many dubious democracies of the world to follow our non-transparent, unverifiable, eminently “riggable” electronic voting system. This is a taunt that must make the mandarins of the Election Commission to squirm in discomfort.

I can be reached at nrao@indianEVM.com

This entry was posted on Friday, June 18th, 2010 at 10:20 AM and is filed under COUNTDOWN. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

4 Responses to “EVMs are unconstitutional; that’s why they would go soon”

  1. Satish O Nath Says:

    Now is the electronic age.Now Voting must be allowed on e-mail / SMS. when billions of Rupees transactions can be done by banks/ share traders on internet why can not v can make voting secure on net/ mobile phone.
    This move will save Rs.12000 million for INDIA, as v have multiple elections.
    With this convenience of voting from comforts of own home & even in pajamas , v can also make voting 100% compulsory for each citizen. This will remove corrupt practices also & bring good leaders to govern.
    Anybody who is not comfortable with this may sweat it out & go to polling booth jolly well.
    For illitrate , panchayats PC & cell phone may be allotted.

  2. lenin Says:

    Indian courts are more interested in considering PILs related to homosexuality,premarital sex ,living together….than key issues like transparent election which is life line to democracy.Black box voting machines are banned all over the world. Why indian courts are not even considering them to check constitutional validity. Indian constitution gave secret voting to its all citizens.Its is not the voting process that is secret to voter himself. This is like blind man’s voting where voting is done by machine (scribe in the case of blind man) not by voter himself.This machines failed to register large number of votes due to technical failure and/or ‘unknown’ reasons.But at the time of results declaration EC of Andhra declared all voters are valid and there are ‘Zero’ invalid votes!!! Then, where all that votes that were invalid on the day of voting has gone? Where they vanished?

  3. ravindra Says:

    Current EVM’s do not provide transparancy. Its not necessary to ban electronic voting altogether.

    Not sure how to convince apex court about this. But it is absolutely essential that system should be transparant. 1. Printing a confirmation and displaying a confirmation after vote, 2. Third party verification of evm software and hardware, 3. making it opensource are some of the good suggestions.

    And who doesn’t know the capability of BEL/ECIL guys. Nowadays those jobs are kind of last option for students, so we can easily guess their credentials.

    Indian politicians are evil. I have a feeling they might have already hijacked the current EVM’s.

  4. ashok Says:

    Congress/Election Commission of India has great FAITH YES FAITH IN EVMs .How dare one chalanges this faith

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