Image courtesy: https://www.news18.
Sept 04, 2019
By: Venkatesh Nayak
Readers may remember the bold declaration that the Union Minister of State for Personnel, Public Grievances and Pensions made about the NDA-III Government's commitment to transparency while replying to the debate on the Bill to amend The Right to Information Act, 2005 (RTI Act) in the Lok Sabha. On 22/07/2019 the Minister said:
"Now, coming straight to RTI, as far as RTI is concerned, let me first make it clear this Government has been absolutely committed, as in other wings of governance, to ensure full transparency and full accountability." [Click here for the full text of the uncorrected debate of the day and scroll down to page 369 of the text/or page 128 of the pdf file for this part of the Minister's statement]
Sadly, this governance philosophy does not seem to have percolated downwards beyond the corridors of the Prime Minister's Office (PMO) with which the Union Minister is associated.
In June, 2019 I had sought detailed information about Electronic Voting Machines (EVMs), Voter Verified Paper Trail (VVPAT) Units and Symbol Loading Units (SLUs), from Bharat Electronics Ltd (BEL) and Electronics Corporation of India Ltd. (ECIL) by filing identical requests under the RTI Act.
BEL, a Navaratna Public Sector Enterprise (PSE) under the Union Ministry of Defence, initially agreed to supply some information about and demanded Rs. 1,434/- as additional fees. However, a month later, BEL revised its earlier reply. This time the CPIO claimed that BEL did not hold most of the information and also rejected one of the queries stating that disclosure would endanger the life of its Engineers and returned the Bank Draft that I sent them for fee payment.
Earlier, ECIL uploaded some of this information on the RTI Online Facility but rejected access to some crucial bits of information sought in my RTI application. I have not received a formal reply from the ECIL's under its Central Public Information Officer's signature, via email or in hard copy till date.
These RTI replies when compared with the ECI's claims about the maximum capacity of VVPAT Units to print votes cast through EVMs and contrasted against the Polling Station Level voter turnout data as compared with the number of voters registered on the Electoral Rolls (all of these are public documents), throw open more disturbing questions about the entire electoral process.
The April-May 2019 General Elections returned the National Democratic Alliance Government to power with a thumping majority. Dissatisfied with the scanty information about the manner in which polls were conducted across the country, several private citizens and mediapersons have used the RTI Act to seek information about voter turnout data mismatch, complaints about EVMs malfunctioning, complaints about mismatch of EVMs and VVPAT printouts, movement of EVMs and VVPATs to the electoral constituencies from the manufacturing companies and details of action taken on complaints received against high profile politicians for violating the Model Code of Conduct. Many of these requests have been turned down by the relevant public authorities.
In May, 2019, shortly before counting day, this author had placed in the public domain a set of papers and reports obtained under the RTI Act about EVMs and the micro-controllers used in them questioning the oft-repeated claim of the Election Commission of India (ECI) as to whether or not they are indeed "one-time programmable" (OTP). The resultant country-wide debate has ranged from the manufacturers swearing by their non-tamperability to civil society groups and political activists launching a country-wise campaign to return to paper ballot. Strangely, the Opposition Parties which had vociferously doubted the infallibility claims about EVMs and VVPATs fell silent after the election results revealed the extent of drubbing they had suffered at the hustings. It is not known how many election petitions have been filed across the country doubting the performance and results of EVMs and VVPATs. Some media reports highlighted the mismatch between the voter turnout figures and the final results that the ECI announced a few weeks later. The ECI explained, the initial voter turnout figures were "tentative and not final" in nature.
The RTI Intervention
After closely scrutinising some of the information and statistics published by the ECI, on 17th June, 2019, I filed two identical RTI applications seeking the following information from BEL and ECIL. Neither these companies nor the ECI have placed this information in the public domain:
"I would like to obtain the following information pertaining to the Electronic Voting Machines (EVMs), Voter Verified Paper Audit Trails (VVPATs) and Symbol Loading Units (SLUs) supplied by your company for use during the recently concluded General Elections to the Lok Sabha, under the RTI Act:
1) The maximum number of votes recordable on each EVM supplied for use in the 2019 Lok Sabha Elections,
2) The maximum number of votes printable on each VVPAT Machine supplied for use in the 2019 Lok Sabha Elections,
3) The district-wise number of Control Units of EVMs transported across India for use in the 2019 Lok Sabha Elections,
4) The district-wise number of Ballot Units of EVMs transported across India for use in the 2019 Lok Sabha Elections,
5) The district-wise number of VVPATs transported across India for use in the 2019 Lok Sabha Elections,
6) The district-wise number of thermal paper rolls used in VVPATs transported across India for use in the 2019 Lok Sabha Elections,
7) A clear photocopy of the List of Engineers with name and designation, deputed for carrying out tasks relating to the preparation of EVMs and VVPATs that was sent to every District Election Officer in India for the purpose of the 2019 Lok Sabha Elections,
8) A clear photocopy of the List of Senior Level Engineers with name and designation, deputed for supervision and coordination during the preparation of EVMs and VVPATs that was sent to every District Election Officer in India for the purpose of the 2019 Lok Sabha Elections,
9) The total number of SLUs used by your Team(s) of Engineers during the 2019 Lok Sabha Elections,
10) A clear photocopy of the official document handed over to every District Election Officer during the 2019 Lok Sabha Elections containing details of every SLU allocated to your team(s) of Engineers,
11) A clear photocopy of the User Manual prepared by your company, pertaining to the VVPAT machines used during the 2019 Lok Sabha Elections, if any,
12) A clear photocopy of the User Manual prepared by your company, pertaining to the SLUs used during the 2019 Lok Sabha Elections, if any,
13) A clear photocopy of the application filed with the Office of the Patent Controller for securing a patent on VVPAT, if any, along with the postal address of such office, and
14) A clear photocopy of the application filed with the Office of the Patent Controller for securing a patent on SLU, if any, along with the postal address of such office."
BEL's RTI Replies
The CPIO of BEL sent a fee intimation letter for INR 1,434/- for a total of 717 pages, after almost a month had passed since the submission of my RTI application. He agreed to supply most of the information but denied access to the VVPAT patent application filed with the Office of the Controller General of Patents, citing Section 8(1)(d) of the RTI Act. Readers will recognise, Section 8(1)(d) of the RTI Act exempts from disclosure, information that is in the nature of a trade secret or commercial confidence or intellectual property rights whose disclosure may harm the competitive position of a third party. That under Sections 11A and 145 of The Patents Act, 1970, read with Rules 24 and 27 of The Patents Rules, 2008, the patent application along with complete specifications of the invention sought to be patented are publicly accessible information is an issue which the CPIO completely ignored while formulating his reply. However, accessing this information under the patents regime is very difficult unless one knows the patent application number.
Nevertheless, I promptly sent the CPIO, BEL a Bank Draft for Rs. 1,434/- while reserving my right to appeal against his refusal to part with the VVPAT patent application. (Click here for the BEL-related RTI application, the CPIO's fee letter and a copy of my reply and Bank Draft sent to him.)
Then I waited for more than a month for this information thinking that the delay might be because of the time taken to copy 700+ pages of records. After 40 days had lapsed, on 28/08/2019 I filed a first appeal under Section 19(1) of the RTI Act challenging the non-supply of information.
Believe it or not, the CPIO who was silent until then, sent a reply returning the Bank Draft and claimed that BEL did not have most of the information sought which he had agreed to supply in his first reply. Interestingly, the CPIO's revised reply is dated 27/08/2019- a day before I filed my first appeal. However, the letter seems to have been handed over to the local post office only the next day, i.e., the 28th of August (the day I filed my first appeal). Has he backdated his revised reply? An inquiry by the Central Information Commission alone can reveal. (Click here for the CPIO's revised reply and the consignment tracking report.)
ECIL's RTI Reply
Although ECIL's CPIO had disposed of my RTI application earlier, in August, 2019, I decided to wait for the BEL CPIO's reply before going public with these RTI interventions. ECIL's CPIO merely uploaded some text on the RTI Online Facility without any signature (I am still waiting for a hard copy of this reply or a scanned copy by email) which states as follows:
1) RTI Queries 4, 5 & 6: ECIL's CPIO claimed that information about EVMs and VVPATs despatched to the Lok Sabha constituencies and the number of thermal paper rolls used for printing the ballots is not readily available and they will be sent as soon as they are received.
2) RTI Queries 7 & 8: The CPIO denied access to the list of Engineers who were stationed in the constituencies to do prepare the EVMs and VVPATs for polling and their superiors who supervised the whole exercise claiming that it was personal information exempt under Section 8(1)(j) of the RTI Act.
3) RTI Queries 10 & 12: The CPIO rejected access to the User Manual of the Symbol Loading Units and the official document related to them, handed over to the district administration after the candidate information is loaded on the EVMs and VVPATs. The CPIO says that it is classified information and attracts Section 8(1)(a) and 8(1)(d) of the RTI Act. Section 8(1)(a) exempts information which will prejudicially affect security and strategic interests of the State. (Click here for the ECIL-related RTI application and the CPIO's reply.)
What is problematic with these RTI replies?
BEL's CPIO had initially agreed to supply information about the number of EVMs (Control and Ballot Units) and VVPATs manufactured by the company, and the thermal paper rolls used in the VVPATs all of which were sent to the districts for use during the 2019 Lok Sabha elections. He had also agreed to supply the list of Engineers who took part in and coordinated and supervised the preparation of these machines for the elections. He had physically counted the number of pages relatable to each RTI query and demanded fees accordingly. In his revised reply, however, he states that BEL does not hold most of the requested information. So which papers did he count before sending the first reply? Only one of these replies, not both, can be true. Perhaps the latest reply is an afterthought arising out of pressure exerted- probably by an external agency against making this information public. I hope the identity of this external agency is revealed during the appeal proceedings in the coming months.
Even more surprising is the CPIO's latest claim that revealing the names of Engineers who helped with the technological aspects of polling would put their lives and physical safety in danger. If the 2019 Lok Sabha Polls were indeed free and fair without any element of foul play whatsoever, how could transparency endanger the lives and safety of these Engineers? These companies, the ECI and the Government have a lot to explain.
Next, ECIL's CPIO claimed that they do not have readily available information about the number of EVMs, VVPATs and Thermal Paper Rolls that were sent by their own company to the districts. This is very strange indeed because ECIL was responsible for manufacturing at least 50% of these machines deployed during the 2019 Elections. The Elections were conducted without encountering the problem of non-availability of an adequate number of EVMs and VVPATs. So this part of the reply is also difficult to digest. ECIL's CPIO denied access to the List of their Engineers claiming that their personal privacy would be violated. The CPIO seems to think that disclosure of such information either has no public interest element in it or it would cause unwarranted invasion of the privacy of those Engineers! As for the EVM/VVPAT Manual, he has pointed to the ECI's Manual on the subject instead of supplying a copy of the company's own manual. Is it too much to expect that a manufacturing company ought to have and publicly share a User Manual for its machines?
The comparative picture arising from the RTI replies sent by BEL and ECIL's CPIOs
a) Both CPIOs have confirmed that their EVMs can record a maximum of 2,000 votes per machine.
b) However, BEL's VVPAT Unit can record a maximum of 1,300 votes while ECIL's VVPAT can record 1,400 votes per thermal paper roll.
c) Interestingly, BEL says they used 1,400 Symbol Loading Units (SLUs) to load candidate information in the EVMs and VVPATs. But ECIL says they used 3,299 SLUs for loading candidate information on their machines in different parts of the country.
What do these replies reveal when compared with ECI's Manuals?
1) The total number of votes cast in an Assembly or Parliamentary constituency is recorded on Form 20 (called Final Result Sheet) by its Presiding Officer and submitted to the ECI. This Form 20 information for every constituency is usually uploaded on ECI's website for the Lok Sabha elections and State Assembly Elections up to 2018. However, similar data is not available for the 2019 Lok Sabha Elections on the ECI's website. An interested person is now compelled to visit the websites of the Chief Electoral Officers (CEOs) of every State/UT, separately, to access this information. Even here, there is no uniformity. While many CEOs have uploaded Part 1 of Form 20 which contains Polling Station-wise data of the number of votes cast (for example see Delhi CEO's website), a few have published only Part 2 of Form 20 which contains aggregate data for each Assembly segment of the Parliamentary Constituency (for example see Bihar CEO's website). It is Polling-Station-wise data that throws up some crucial questions when compared with the ECI’s claims and the RTI replies of BEL and ECIL.
Regarding the number of votes that can be printed on one thermal paper roll in a VVPAT Unit, para 1.2.3 of the ECI's Handbook for Presiding Officers of Polling Stations states as follows:
"1.2.3. VVPAT operates on 22.5-volt battery and is now being used in all elections at every polling station. The thermal paper used in the VVPATs for printing of VVPAT paper slips can print approximately 1500 paper slips only, out of which approximately 100 paper slips are got printed during the commissioning of VVPATs and mock poll at polling station on poll day. So, the maximum number of electors assigned to any Polling station is 1400." [emphasis supplied]
This statement will have to be treated as inaccurate in view of the RTI replies from BEL and ECIL. After accounting for 100 VVPAT slips used up during First Level Checking (FLC) and during mock poll prior to the start of actual polling, only 1,200 slips would be available on a BEL manufactured VVPAT Unit during elections. On ECIL manufactured VVPAT Unit this will be only 1,300 slips available on the thermal paper roll.
Let us take Polling Station-wise data from Kerala as an example to do further checking of the veracity of ECI's claims. According to Form No. 20: Part 1 data published by Kerala's CEO for the Wayanad Lok Sabha Constituency, a total of 1,204 votes were cast in the 2019 Lok Sabha Polls at Polling Station No. 190 housed in the South-West Building Right Wing of the Government High School of Aanappara in Sulthanbathery Assembly Segment. So, it is obvious that the BEL VVPAT might not have been used here as one thermal paper roll would not have been adequate for the purpose of recording all these votes.
Perhaps ECIL's VVPAT was used at this Polling Station, instead. However, the Electoral Rolls published on the CEO's website reveals a total of 1,326 voters who are registered to vote at Polling Station No. 190. So ECIL's VVPAT will also not be able to record the votes in excess of 1,300 unless a fresh thermal paper roll is loaded. Readers might say, this is indeed the solution.
However, para 33.2.25 of ECI's Handbook for Presiding Officers (see page 117) clearly states, they must ensure that the paper roll compartment is sealed with the Returning Officer's seal prior to the election. To the best of my knowledge, this Handbook does not contain any instructions for replenishing a thermal paper roll by breaking this VVPAT seal on polling day. Further, paras 18.104.22.168 and 22.214.171.124 of this Handbook mention the placement of one thermal paper roll only in the carrying case for each VVPAT Unit of M2 and M3 generation. So if all 1,326 voters turned out to cast their vote on polling day at Polling Station No. 190 in Sulthanbathery, how would the VVPATs record their votes in print is a billion Rupee question that the ECI must answer. A random checking revealed similar incompatibility between registered voter figures, the total number of votes actually polled and the capacity of VVPATs to print votes in Kasargod and Kannur Lok Sabha constituencies in Kerala.
Lest readers accuse me of limiting my illustrations to one State, let us take Polling Station No. 16 located in the Nauhazari Muslimpara Primary School located in the Satgachia Assembly Constituency of Diamond Harbour Lok Sabha Constituency in West Bengal. According to Form 20: Part 1 Data published by the CEO 1,248 voters cast their votes at this Polling Station in the 2019 Lok Sabha Elections. According to the Electoral Rolls published on the CEO's website for this Polling Station, there are 1,443 voters registered as on 01 January, 2019. So even if one were to go by para 1.2.3 of the ECI's Handbook for Presiding Officers the thermal paper roll of 1,400 printing capacity would not be adequate. So also their claim that not more than 1,400 voters may be assigned to one Polling Station seems to fall flat.
Here also, the thermal paper roll would have to be replenished after breaking the RO's seal on the VVPAT used. To the best of my knowledge, the ECI's Manuals published on its website do not contain any instructions for replenishing thermal paper rolls. I will be happy to stand corrected if readers can show me otherwise.
So what is the ECI's plan if all registered voters turned up at this Polling Station remains a mystery. Readers might like to access Form 20: Part 1 data for other Parliamentary Constituencies to make an assessment for themselves.
2) According to ECIL, it used 3,299 Symbol Loading Units to load candidate data such as name, serial number and election symbol on to the EVMs/VVPATs. BEL used only 1,400. If according to data publicly available, ECI placed orders for roughly similar numbers of EVMs and VVPATs by dividing up the total requirement between the two companies, why did ECIL use more than double the number of SLUs than BEL for loading candidate data on their machines? ECI has not clarified this matter either.
Can randomisation of EVM/VVPATs be a credible a basis for the non-tamperability claim?
Two-stage randomisation of EVMs and VVPATs, once before their allotment to each constituency and next before sending them to each Polling Station, is one of the two pillars on which the ECI, the manufacturing companies and technical experts rest their arguments for the non-tamperability of these machines. If the capacities of the VVPATs produced by BEL and ECIL vary, can there ever be a true randomisation, given the lack of uniformity in the number of voters registered for each Polling Station? This is a seminal question that the ECI as the owner of the EVMs and VVPATs must answer urgently.
For example, according to the Electoral Rolls for Polling Station No. 1, Pashchim Vihar located in Govt. Co-Ed. Sr. Secondary School, A-6, Pashchim Vihar in the Shakur Basti Assembly Constituency which forms part of the Chandni Chowk Lok Sabha Constituency has 1,229 registered voters. So if all of them turned up on polling day, a BEL manufactured VVPAT which permits only 1,200 votes to be recorded after 100 slips are used during FLC and mock poll would be inadequate for that Polling Station. Only an ECIL VVPAT can be used there to cover all voters. Or take Polling Station No. 8 situated in Urdu Madhya Vidyalay, Narkat Ghat, Eastern Block (Bhawan No.1) Northern Portion in the Patna Sahib Assembly and Lok Sabha Constituency in Bihar which has 1,297 voters. BEL VVPATs cannot be used there unless the ECI Manual permits breaking of the RO's seal on the paper roll compartment of the VVPAT to replenish the thermal paper roll. If paper rolls cannot be replenished, then an ECIL VVPAT will have to be sent there. So it is difficult to accept the argument that all EVMs and VVPATs will be randomised twice for every constituency. Randominsation will be subject to the maximum capacity of VVPATs to print votes. This is not true anc complete randomisation as any mathematical expert would tell us. In my humble opinion, the ECI has a lot more explaining to do than it has so far, in order to clear up this mystery.
The one-time programmable (OTP) nature of the micro-controller embedded in the EVMs/VVPATs is the other pillar on which the non-tamperability claim of EVMs and VVPATs rested so far. In my May 2019 despatch I had shown how official records obtained under the RTI Act do not bear out these OTP claims. Additionally, the ECI's Handbook for Presiding Officers (see para 1.2.2 on page 2) also states that the polling data gets recorded on the micro-controller and remains there even when the battery is removed from the EVM. How can an OTP micro-chip record data more than once and still be labelled "OTP" is a question that the ECI, its technical experts and the manufacturing companies have not yet answered.
I would like to end this piece with a caveat. I am not alleging any wrongdoing by any authority through this research and analysis. All that I am pointing out is that the ECI and the manufacturing companies are reluctant to place detailed information about the working of EVMs and VVPATs beyond what they decide that the citizenry must know. This is just not acceptable.
I will be filing the usual appeals against BEL and ECIL for the very simple reason, that all information about elections to Parliament and State Legislatures, except for voter choice must be accessible to the public. This is the principle of "public examinability" that the Federal Constitutional Court upheld in 2009, while striking down the law permitting the use of EVMs in the elections in Germany. The Court said that all essential steps in the conduct of elections must be publicly examinable because this is a constitutional guarantee of free and fair elections under their Constitution.
Although the Indian Constitution does not make a reference to the principle of “public examinability” of all steps taken during elections, the Supreme Court of India implied this principle as the basis of the people’s right to know everything that the Government does in a public way, almost three and a half decades before the German Constitutional Court. In the matter of State of U.P. vs Raj Narain [AIR 1975 SC 865]. Justice Mathew’s opinion echoed this very principle:
“74. In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can but few secrets. The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing.” [emphasis supplied]
These RTI interventions are aimed at placing as much information as possible in the public domain about EVMs, VVPATs and other related matters which the ECI or other public authorities are reluctant to publish voluntarily. In the context of elections, I firmly believe voters' choices- individually and at the community level, are the limited set of matters that deserve confidentiality, legally and legitimately. All other matters must be amenable to “public examination” in order to facilitate informed public debate about EVMs and VVPATs.
More detailed information in such matters will not harm but strengthen confidence in voters’ minds about the infallibility of EVMs and VVPATs.
All facts narrated above are in the public domain. Views are personal.