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REPORTABLE        

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9093 OF 2013 (Arising out of SLP (Civil) No. 13735 of 2012)

Dr. Subramanian Swamy .... Appellant(s)

Versus

Election Commission of India            .... Respondent(s)

WITH

WRIT PETITION (C) NO. 406 OF 2012

J U D G M E N T  

P. Sathasivam, CJI.

1) Leave granted.

Civil Appeal @ SLP (C) No. 13735 of 2012

2) This appeal is directed against the judgment and order  

dated 17.01.2012 passed by the Division Bench of the High  

Court of Delhi  at  New Delhi  in W.P.(C) No. 11879 of 2009  

whereby  the  High  Court  disposed  of  the  petition  by  

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disallowing  the  prayer  made  by  the  appellant  herein  for  

issuance  of  a  writ  of  mandamus directing  the  Election  

Commission of India (ECI)-Respondent herein to incorporate  

a  system  of  “paper  trail/paper  receipt”  in  the  Electronic  

Voting Machines (EVMs) as a convincing proof that the EVM  

has rightly registered the vote cast by a voter in favour of a  

particular candidate.    

3) Being aggrieved of the above, the present appeal has  

been filed by way of special leave.

Writ Petition (Civil) No. 406 of 2012

4) One  Rajendra  Satyanarayan  Gilda  has  filed  this  Writ  

Petition, under Article 32 of the Constitution of India, praying  

for issuance of a writ of mandamus/direction(s) directing the  

Union  of  India,  the  Chief  Election  Commissioner  and  the  

Technical  Experts  Committee-Respondent  Nos.  1-3  herein  

respectively  to  effect  the  necessary  modifications  in  the  

EVMs so as to allow the voters to verify their respective votes  

and to attach the printers to the EVMs with a facility to print  

the running record of the votes for the purpose of verification  

by the voters in the process of voting.  He also prayed for a  

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direction  to  frame  guidelines  and  to  effect  necessary  

amendments in the Conduct of Election Rules, 1961.  

5) In  view  of  the  pendency  of  the  appeal  filed  by  Dr.  

Subramanian  Swamy,  this  Court  issued  notice  in  the  writ  

petition and tagged with the said appeal.

6) Heard Dr. Subramanian Swamy, appellant-in-person in  

the appeal, Dr. R.R. Deshpande, learned counsel for the writ  

petitioner, Mr. Ashok Desai and Ms. Meenakshi Arora, learned  

senior counsel for the ECI.

Contentions:

7) Dr.  Subramanian  Swamy,  the  appellant  herein  

contended  before  this  Court  that  the  present  system  of  

EVMs, as utilized in the last few general elections in India,  

does  not  meet  all  the  requirements  of  the  international  

standards  and  though  the  ECI  maintains  that  the  EVMs  

cannot be tampered with, but the fact is that EVMs, like all  

electronic equipments, are open to hacking.

8) The appellant has further highlighted that the instant  

matter arises out of the refusal of the ECI to incorporate a  

certain  obvious  safeguard  in  the  EVMs  called  “paper  

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backup”, “paper receipt” or “paper trail”,  presently in use  

and mandated in some countries like USA, which would easily  

and cheaply meet the requirement of proof that the EVM has  

rightly registered the vote cast by a voter.  The appellant has  

further  highlighted  that  the  “paper  trail”  system  is  to  

supplement  the  procedure  of  voting  as  in  this  procedure,  

after recording a vote in the EVM, a print out will come out  

which will appraise the voter that his vote has been rightly  

registered and the same will be deposited in a box which can  

only be used by the ECI in case of election dispute.   

9) It  is  the  categorical  stand  of  the  appellant  that  the  

above said system will bring more accuracy in the present  

system  and  if  a  particular  election  is  challenged  on  the  

ground that  some particular  identified voter’s voter or the  

votes of a group of voters have been suppressed/have not  

been correctly assigned by the EVMs, the accepted current  

procedure is for a re-run of the same EVMs for a re-count,  

however, under the new procedure, a re-count will be of the  

receipts in the ballot box containing the printouts the EVMs  

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had issued to the voter thereby ensuring more transparency  

in the process.

10) The writ petitioner has also raised similar contentions as  

those  of  Dr.  Swamy.   According  to  the  petitioner,  in  the  

present  system of  voting  through EVMs,  there  is  no such  

facility  by  which  a  voter  can  verify  and  confirm  his  own  

voting.  At present, a voter presses a button only but cannot  

ascertain the actual voting.  He is not sure whether his vote  

is  recorded  or  not,  if  recorded,  whether  it  is  recorded  in  

favour  of  the  person  to  whom  it  was  intended  or  not.  

Whether it is valid or invalid and whether it is counted or not.  

It is submitted by the petitioner that unless and until answers  

to these questions are personally seen by the voter, it cannot  

be  said  that  voting  is  made  by  him  because  “pressing  a  

button  of  choice  and  getting  flashed  the  red-light”  is  not  

actual voting in real sense unless the voter knows well that  

what has happened in consequence of pressing a button of  

his choice from the EVMs.  

Stand of the Election Commission of India:

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11) Mr.  Ashok  Desai,  learned  senior  counsel  for  the  ECI  

submitted  that  the  apprehension  that  EVMs  could  be  

tampered with is baseless.  It was also informed to this Court  

that  the  ECI  has  been  exploring  the  possibility  of  

incorporating  a  viable  Voter  Verifiable  Paper  Audit  Trail  

(VVPAT)  system as  a  part  of  the  presently  used  EVMs  to  

make the election system more transparent.  Further, it was  

brought to our notice that the ECI conducted field trials for  

VVPAT  system  earlier  also  but  the  same  had  not  been  

successful  and  were  discontinued.   The  ECI  also  filed  a  

counter  affidavit  stating  that  the  EVMs  provided  by  the  

Commission are of such a high end technology that it cannot  

be hacked.  

12)  Referring to Section 61A of the  Representation of the  

People  Act,  1951,  it  is  submitted  that  the  Statute  itself  

provides for recording of votes by EVMs and the ECI has been  

given the discretion to prescribe recording of votes by such  

EVMs as it may deem fit.  This discretion has to be exercised  

in a manner to preserve the sanctity of the election process  

and ensure that the election is conducted in a free and fair  

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manner.  The ECI has exercised due diligence to ensure that  

EVMs so used are “tamper proof” and it is also in the process  

of  exploring  to  incorporate  VVPAT  system  which  is  

compatible with the present EVMs used by it.  It is asserted  

that there is no instance of tampering with EVMs so far by  

anyone.   

13) It is further submitted that the EVMs used in India are  

unique and unlike the ones used in the elections in USA and  

other countries, which are personal computer based.  EVMs  

deployed by the ECI have been lauded not only in India but  

also abroad.  EVM’s Control Unit retains in the memory each  

vote recorded elector-wise.   The information stored in  the  

memory  of  the  Control  Unit  can  be  retrieved  by  using  a  

device  called  the  “decoder”  which,  when  attached  to  the  

Control Unit of EVM, can print out the statement of voting  

data showing the order in which each voter has voted and to  

whom he has voted.

14) Insofar as the transparency of the election process as  

well as the right of a voter to know whether his vote has  

actually been recorded for the candidate for  whom it  was  

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cast is concerned, it is submitted that as soon as a vote is  

recorded by a voter by pressing the “candidate’s” button on  

the Ballot Unit, a light glows against the name and symbol of  

the candidate, which the voter can see for himself/ herself.  

This is a visual (electronic) assurance to the voter that the  

candidate for whom he has cast his vote has actually got that  

vote.  Thereafter, the light goes off to protect the secrecy of  

voting.

15) It  is  further  submitted  that  the  feasibility  of  VVPAT  

system  was  sought  to  be  explored  to  by  various  political  

parties  and  they  were  explained  the  technical  and  

administrative  safeguards.   The  ECI  also  constituted  a  

Technical Experts Committee to examine the viability of the  

VVPAT  system.   On  27.05.2011,  the  Technical  Experts  

Committee,  after  discussion with  political  parties  and  civil  

society members and also after seeing the demonstration of  

the  prototype  VVPAT  system  developed  by  M/s.  Bharat  

Electronics  Ltd.  (BEL)  and  M/s.  Electronics  Corporation  of  

India  Ltd.  (ECIL),  recommended  that  a  field  test  of  the  

prototype VVPAT system should be carried out in a simulated  

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election  under  different  environmental  conditions  in  

Jaisalmer,  Thiruvananthapuram, Delhi,  Leh and Cherapunji.  

The ECI also held further meetings with the manufacturers of  

EVMs on various dates to fine tune the system and expedite  

the follow up action required.  Several meetings were also  

held with the Expert Committee on VVPAT system.

16) In wider fulfillment of the objectives of the field trial, the  

ECI has requested the National and State parties to extend  

necessary cooperation by getting involved in the trial process  

actively and also witness the trial  in order to have a first  

hand experience of the system.  The ECI has also requested  

the  individuals  including  the  appellant  –  Dr.  Subramanian  

Swamy and the groups, who have been engaged with the ECI  

on the issue of EVM-VVPAT, to witness the trial.

17)  We have carefully perused the relevant materials and  

considered the rival contentions.

Discussion

18) When  the  matter  was  listed  before  this  Court  for  

hearing on 27.09.2012, Mr. Ashok Desai had brought to our  

notice  that  the  ECI  is  contemplating  foolproof  method  in  

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EVMs for which they are taking various steps in consultation  

with the Technical Experts Committee and the views of all  

recognized  political  parties.   Mr.  Desai  also  promised  to  

appraise this Court about the deliberations and the ultimate  

decision to be taken by them in this regard.  Accordingly, this  

Court granted sufficient time to the ECI to file Status Report  

regarding introduction of VVPAT system in EVMs to be used  

in the elections.

19) Pursuant to the directions of this Court, the ECI filed a  

Status Report on the developments of VVPAT system.  In the  

said report, the ECI, citing various technicalities, prayed for  

further time to make the system more robust for the field  

conditions.   

20) On  15.12.2012,  M/s  BEL,  Bangalore  filed  a  report  

showing the status of development of VVPAT system which  

contains changes that have been carried out in VVPAT from  

September  to  December,  2012  and  also  furnished  

chronological changes made in VVPAT system after the field  

trial of the VVPAT system held in July and August, 2012.

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21) Pursuant to the directions of this Court, the Secretary,  

ECI,  filed  an  affidavit  highlighting  the  following  steps/  

information:

“(i) That  vide  its  Affidavit  dated  14.01.2013,  the  Commission  had  filed  the  status  report  regarding  introduction  of  the VVPAT system in the Electronic  Voting Machines (EVMs). (ii) That  subsequently,  in  the  Technical  Expert  Committee  meeting  held  on  04.02.2013,  the  Committee approved the design of  the VVPAT and  decided that software fine tuning will  be done and  completed  by  the  end  of  February,  2013,  and  modified  design specifications  will  be  submitted to  the Technical Expert Committee for approval. The  Committee  also  recommended  that  the  Commission may for using the VVPAT and that the  VVPAT should be tried in a bye-election. (iii) That  in  the  Technical  Expert  Committee  meeting  held  on  19.02.2013,  the  Committee  finalized the VVPAT design. The manufacturers, namely, M/s. Bharat Electronics  Limited  and  M/s.  Electronics  Corporation  of  India  Limited have quoted Rs. 16,200/- (excluding duties,  taxes and transport charges) per VVPAT system. The Commission has decided to purchase sufficient  units  of  VVPAT  for  trials  in  a  Bye-election,  at  an  approximate cost of Rs.72,90,000/- (Rupees seventy  two lakh ninety thousand) approximately. (iv) It  is  submitted  that  the  Commission  will  require  approximately  13  lakh  VVPAT  units  to  be  manufactures for  13 lakh EVMs presently  available  and roughly  about  Rs. 1690 crores (One Thousand  Six  Hundred  Ninety  Crores)(i.e.  13  lakh  units  x  Rs.13,000 per unit) are required for the purpose of  implementation  of  the  VVPAT  system  taking  into  account the possible reduction in the cost per unit  when produced in bulk. (v) It  is  further  submitted  that  in  order  to  implement the new system the Conduct of Election  Rules, 1961 will require certain amendments. In  this  connection,  vide  letter  No.  3/1/2013/Vol.II/SDR/86  dated  28.03.2013,  the  

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Commission  has  informed  the  Legislative  Department of the Ministry of Law and Justice  inter  alia the  various  amendments  required  to  the  relevant parts of Rules 49A to 49X, 66A, 55C, 56C,  57C and Form 17C of the Conduct of Elections Rules,  1961, as well as introduction of Rules 49MA and 56D  in the said Rules… (vi) That the Commission has called for a meeting  of all  the recognized National  and State Parties on  10th May, 2013 for the purpose of demonstration of  VVPAT unit to them and for discussion with them for  eliciting their views regarding use of VVPAT system  in  the elections.   The petitioner  herein  and others  interested in the matter would also be invited at the  meeting.”

22) It  is  seen  from  the  records  that  after  various  

deliberations with the experts and persons concerned with  

the technology, the Technical Experts Committee approved  

the  final  design  of  VVPAT  units  in  its  meeting  held  on  

19.01.2013.  In order to meet the directions of this Court and  

for proper execution of VVPAT system, as noticed above, the  

ECI in its letter dated 28.03.2013, addressed to the Secretary  

to the Government of India, Ministry of Law and Justice stated  

that necessary ground work for amendment to the Conduct  

of Election Rules, 1961 (in relevant parts in Rules 49A to 49X,  

66A, 55C, 56C, 57C and Form 17C) may be made so that the  

amendment to the Rules can be notified immediately which  

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will enable the ECI to use the VVPAT system in bye-elections  

in consultation with the political parties.  By placing all those  

materials, the ECI requested the Ministry of Law and Justice  

for drafting and notifying amendment Rules expeditiously.

23) From the materials placed by the ECI, it is noted that  

the purchase order has been placed with M/s BEL and M/s  

ECIL for supplying 150 and 300 VVPAT units respectively at  

Rs. 16,200/-  per  unit  excluding excise duty, sales tax and  

transportation etc. costing Rs. 72,90,000/- (approx.).  The ECI  

has also highlighted that if the VVPAT systems are ultimately  

to be used with all the 13 lakh EVMs available, the total cost  

in the purchase of VVPAT units may come to about Rs. 1,690  

crores, taking into account the possible reduction in the cost  

per unit due to bulk production the cost may come to Rs.  

13,000/- per unit approximately.

24) The affidavit  dated 21.08.2013, filed on behalf  of the  

ECI,  shows  that  the  Ministry  of  Law  and  Justice,  on  

24.07.2013,  referred  the  draft  notification  to  amend  the  

Conduct of Election Rules, 1961 to provide for use of VVPAT  

system of elections to the ECI for its views and comments.  

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The ECI suggested certain minor modifications in the draft  

notification and sent the same back to the Ministry of Law  

and  Justice  on  02.08.2013  with  a  request  to  notify  the  

amendment Rules at the earliest.  Accordingly, the Ministry  

of Law and Justice notified the amendments to the Conduct  

of  Election  Rules,  1961  in  the  Gazette  of  India  vide  

notification No. S.O. 2470(E) dated 14.08.2013 to enable use  

of VVPAT with EVMs.

25)    The aforesaid affidavit of the ECI also shows that the  

ECI  had  also  convened  a  meeting  of  all  the  recognized  

National  and  State  political  parties  on  10.05.2013  and  

demonstrated  before  their  representatives  the  working  of  

VVPAT system.  Separately, on the same day, the ECI also  

held  a  meeting  with  individuals  including  the  appellant  

herein who had been engaged with the ECI  over the past  

several  years  regarding  the  functioning  of  EVMs.   VVPAT  

system  was  demonstrated  before  them  as  well.  

Representatives  of  political  parties  and  other  individuals  

expressed  their  satisfaction  over  the  VVPAT  system.  

Thereafter, the ECI had decided to use the VVPAT system in  

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the bye-election from 51-Noksen (ST) Assembly Constituency  

in the State of Nagaland.  Instructions were issued to hold  

special  meetings  with  the  contesting  candidates  in  that  

constituency to brief them about the use of VVPAT system.  

The  ECI  also  organized  special  training  sessions  for  poll  

officers  for  the  use  of  VVPAT  and  steps  were  taken  to  

educate the electors for the same.

26) After various hearings, when the matter was heard on  

4.10.2013, an affidavit dated 01.10.2013 filed on behalf of  

the ECI was placed before this Court.  The said affidavit was  

filed  to  place  on  record  the  performance/result  of  the  

introduction of the VVPAT system in the bye-election from  

51-Noksen (ST) Assembly Constituency of Nagaland for which  

the poll was conducted on 04.09.2013 indicating the future  

course of action to be decided by the ECI on the basis of said  

performance.  By this affidavit, it was brought to our notice  

that since VVPAT system was being used for the first time,  

the ECI has decided that intensive training shall be given to  

the  polling  officers.   Members  of  the  Technical  Experts  

Committee of the ECI also went to supervise training and the  

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actual use of VVPAT in the bye-election.  It is further stated  

that the ECI also wrote letters to all the recognized political  

parties  and  other  persons,  including  the  appellant  herein,  

engaged with the ECI on this subject inviting them to witness  

the use of VVPAT.  It is also brought to our notice that VVPAT  

was successfully used in  all  the  21 polling stations of 51-

Noksen (ST) Assembly Constituency of Nagaland.  It was also  

stated that as per the Rules, the paper slips of VVPAT shall  

not be counted normally except in case the Returning Officer  

decides to count them on an application submitted by any of  

the  candidates.   However,  since VVPAT system was being  

used for the first time in any election, the ECI decided on its  

own to count paper slips of VVPAT in respect of all  polling  

stations.  According to the ECI,  no discrepancy was found  

between the electronic and paper count.

27) In the said affidavit, it is finally stated that the ECI has  

decided  to  increase  the  use  of  VVPAT  units  in  a  phased  

manner and for this purpose the ECI has already written to  

the Government of India, Ministry of Law and Justice to issue  

administrative  and  financial  sanction  for  procurement  of  

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20,000 units of VVPAT (10,000 each from M/s BEL and M/s  

ECIL) costing about Rs. 38.01 crore.

28) Though  initially  the  ECI  was  little  reluctant  in  

introducing “paper trail” by use of VVPAT, taking note of the  

advantage  in  the  system  as  demonstrated  by  Dr.  

Subramanian  Swamy,  we  issued  several  directions  to  the  

ECI .  Pursuant to the same, the ECI contacted several expert  

bodies,  technical  advisers,  etc.   They  also  had  various  

meetings  with  National  and  State  level  political  parties,  

demonstrations were conducted at various places and finally  

after a thorough examination and full discussion, VVPAT was  

used successfully in all the 21 polling stations of 51-Noksen  

(ST) Assembly Constituency of Nagaland.   The information  

furnished by the ECI, through the affidavit dated 01.10.2013,  

clearly shows that VVPAT system is a successful one.  We  

have already highlighted that VVPAT is a system of printing  

paper trail when the voter casts his vote, in addition to the  

electronic record of the ballot, for the purpose of verification  

of his choice of candidate and also for manual counting of  

votes in case of dispute.

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29) From the materials  placed by both the sides,  we are  

satisfied  that  the  “paper  trail”  is  an  indispensable  

requirement of free and fair elections.  The confidence of the  

voters  in  the  EVMs  can  be  achieved  only  with  the  

introduction of the “paper trail”.  EVMs with VVPAT system  

ensure the accuracy of the voting system.  With an intent to  

have fullest transparency in the system and to restore the  

confidence of the voters, it is necessary to set up EVMs with  

VVPAT  system  because  vote  is  nothing  but  an  act  of  

expression  which  has  immense  importance  in  democratic  

system.

30) In the light of the above discussion and taking notice of  

the  pragmatic  and  reasonable  approach  of  the  ECI  and  

considering the fact that in general elections all over India,  

the ECI has to handle one million (ten lakhs) polling booths,  

we permit the ECI to introduce the same in gradual stages or  

geographical-wise  in  the  ensuing  general  elections.   The  

area, State or actual booth(s) are to be decided by the ECI  

and  the  ECI  is  free  to  implement  the  same  in  a  phased  

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manner.  We appreciate the efforts and good gesture made  

by the ECI in introducing the same.

31) For  implementation  of  such  a  system  (VVPAT)  in  a  

phased  manner,  the  Government  of  India  is  directed  to  

provide required financial assistance for procurement of units  

of VVPAT.   

32) Before parting with the case, we record our appreciation  

for the efforts made by Dr. Subramanian Swamy as well as  

the  ECI,  in  particular  Mr.  Ashok Desai  and Ms.  Meenakshi  

Arora, learned senior counsel for the ECI.

33) With  the  above  directions,  the  appeal  and  the  writ  

petition are disposed of.  No separate order is required in the  

applications  for  intervention.   Both  sides  are  permitted  to  

approach this Court for further direction(s), if need arises.

...…………….…………………………CJI           (P. SATHASIVAM)                                  

 .…....…………………………………J.        (RANJAN GOGOI)                         

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NEW DELHI; OCTOBER 8, 2013.  

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