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:
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