The Supreme Court on Tuesday asked the Union government to examine the introduction of totaliser machines for counting votes recorded in Electronic Voting Machines (EVMs) to protect the secrecy of voting patterns and prevent voters at individual polling booths from being identified and potentially victimised.
A Bench comprising Chief Justice of India (CJI) Surya Kant, Justice Joymalya Bagchi and Justice V Mohana was hearing a plea seeking the introduction of totalisers.
A totaliser combines the votes recorded in multiple EVMs before the results are disclosed, making it difficult to determine how a particular polling booth voted.
After hearing the submissions, CJI Kant directed,
"We would like to know what are the impediments, if any, and whether there would be any negative impact because of introduction of such a mechanism. The Election Commission may make a suitable proposal/representation to the Union of India. The Union of India shall take a call on the proposal."
The Election Commission of India (ECI), represented by Senior Advocate Dama Seshadri Naidu, said it supported the principle of anonymising voter choice but flagged practical difficulties with the proposal.
These included the need for a statutory amendment and the difficulty of allowing candidates to cross-check results in the manner currently provided for under Form 17C, the document which records the votes polled at each polling station.
Naidu said candidates and their agents currently receive a copy of Form 17C at the close of polling and can use it to verify the results during counting. With a totaliser aggregating votes from several booths, such booth-wise verification would not be possible.
He also told the Court that the proposal had earlier been recommended by the ECI but was opposed by an expert committee constituted by the government. An all-party consultation had seen opposition from 50% of national parties and 68% of state parties, he submitted.
Appearing for petitioner Yogesh Gupta, advocate Ashwini Upadhyay pointed to the ECI's earlier position before the Supreme Court. He relied on a 2018 order in which the Commission had said that “a time has come for introduction of totaliser for counting of the votes.”
Upadhyay argued that booth-wise disclosure of voting patterns could result in intimidation and post-poll violence. He said a totaliser could connect 14 EVMs and aggregate their results, so that a candidate could not determine the votes received from any particular booth.
After hearing the submissions, CJI Kant noted that the ECI's current position appeared to identify implementation difficulties rather than objections on principle.
“At one point of time, you (ECI) have also said in your affidavit that we do not approve of totalisation. You have indicated the roadblocks in totalisation, not a withdrawal of totalisation as an inadvisable step,” CJI Kant told Naidu.
Naidu responded that the Commission's concerns relate primarily to the opposition of political parties and the legal changes required to implement the proposal.
CJI Kant then suggested that the matter be placed before the Union government for a decision.
Senior advocate Gopal Sankaranarayanan, however, argued that the existing legal framework could permit the government to introduce totalisation through rules. He referred to Section 169 of the Representation of the People Act, which empowers the Central government, in consultation with the Election Commission, to make rules concerning the conduct of elections.
He said written submissions filed in the matter in 2018 had taken the position that the rule-making power under Section 169 extended to the procedure for counting votes. He argued that the mechanism could be introduced to strengthen voter protection, rather than allowing political parties' preference for booth-wise information to determine the issue.
Sankaranarayanan also pointed to instances of alleged threats to voters and submitted that the purpose of totalisation was to ensure that voters could not be identified by the voting pattern of their polling booth.
Justice Bagchi then turned to Rule 59A of the Conduct of Elections Rules, 1961, which provides for an exception to the ordinary system of counting votes polling-station-wise.
The provision allows the Election Commission to order votes to be counted in an aggregated manner in specified circumstances, including where there is a concern that voters could be identified and subjected to intimidation or victimisation. The petitioners argued that this existing safeguard could potentially be extended to EVM counting.
Justice Bagchi held that there was no reason why the principle of an exception to booth-wise counting could not also apply to EVMs.
Naidu, however, pointed to a separate difficulty involving Voter verifiable paper audit trail (VVPATs), the paper slips generated by EVMs which allow the electronic vote to be cross-checked against a physical record.
He referred to the Supreme Court's earlier decision in the N Chandrababu Naidu case, arguing that introducing totalisation could make such cross-verification difficult.
Justice Bagchi then clarified that the Court was not necessarily considering totalisation as a replacement for the existing booth-wise counting system. Instead, he pointed to Rule 59A as a possible exceptional mechanism that could be invoked in cases where there is a demonstrable risk of voter victimisation.
The Court ultimately sought the Union government's stand on the issue. It directed the Centre to examine whether the Conduct of Elections Rules could be amended to introduce totalisers for counting EVM votes.
The Court also specifically asked it to examine Rule 59A and the Law Commission's recommendation on totalisation in its 255th Report.
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