Apar GuptaThis is the final and concluding part of my blogposts on Electronic Voting Machines. In the first part I commenced my discussion on the probability of vote fraud when elections are conducted by EVM’s and the refusal of the ECI to have an independent examination of the devices. I surveyed India’s experience with EVM’s in the field and the courts, and recent scientific studies which question its security. This part moves beyond this background to question the excuses to examination of EVM’s as well as reasons why it should be conducted. As per human nature, I will first start with the excuses (against examination) and then proceed to the reasons (for examination).
Excuse 1 : Shhhhh is the Security
The first part of this post alluded to the simple technological structure of the Indian EVM’s. The structure to a large part is due to a desire to avoid large lines of code which run encrypted programs usually prone to bugs and errors. Beyond directly burning a simple read only software onto the memory of the EVM there is no technological protection. The additional layers of protection are in the nature of social security. Here EVM’s are securely stored, access is restricted and an elaborate system of seals and stickers are pasted on them to ensure they have not been tampered with. An essential ingredient of this social security system is keeping the design, code and structure of the device secret. Hence, it cannot be supplied to a research scientist and ethical hacker for testing its vulnerability. Since there are no results to prove that the EVM is vulnerable the EVM is perfect. While we cannot thank such logic for inspiring voter confidence, we can thank it for inspiring great fiction such as Catch-22.
Excuse 2: Pirates without markets
Another excuse which is supplied by the Election Commission is that since the machines have been jointly developed by ECIL and Bharat Electronics Limited (BEL) providing them for vulnerability testing would involve reverse engineering and would violate the companies copyright and patents. Going beyond the hyper legal arguments I examine the effects of the violation of the Intellectual Property rights in EVM’s. The principal rationale behind the copyright and the patent enactments is economic remuneration to the author and the inventor. Here the market composes of a monopolistic consumer, i.e. the Election Commission which exclusively sources its demand (I am unaware whether it’s a licensing agreement or an outright sale) from the rights holders. Hence in the absence of a parallel market or another consumer there is no utility for the piracy of an EVM. I am not disregarding that the EVM technology developed may be used in union elections, etc. but then there are sufficient safeguards and remedies present in the enactment for the rights holders. In the absence of any economic harm the excuse of intellectual property protection is merely a thicket which has been created to resist demands for EVM examination.
Reason 1: onerous election laws
The first reason why I support examination of EVM’s are the electoral laws which impose onerous burdens on defeated candidates when they seek to question the election results. These challenges must be in the form of election petitions which should clearly specify the electoral malpractice with conclusive evidence. The reason behind this is that there should be determinacy in the election process and the pendency of a case should not clog up an election result.
However, this is not any standard of proof which a petitioner has to demonstrate to succeed in a election petition. It is an extremely high standard of proof. The Hon’ble Supreme Court has put it across clearly in Shiv Charan Singh’s Case (cited as (1988) 2 SCC 12), “The legislature has, as noted earlier, placed a difficult burden on the election petitioner to prove that the result of the election was materially affected by reason of improper acceptance of nomination paper of a candidate (other than the returned candidate) and if such burden is not discharged the election of the returned candidate must be allowed to stand as held by this court….. It is true that the burden placed on the election petitioner in such circumstances is almost impossible to discharge.” Now when an EVM is used the votes are entered electronically and then they are automatically tabulated by the machine. Any manipulation which happens, happens electronically and there is no paper trail or physical evidence, save catching the perpetrator during the commission of the manipulation. When the technology is combined with our electoral laws it becomes next to impossible for a candidate to challenge the result of an election when there has been technological manipulation of the EVM. This underscores the need for the device and the process to be certifiably secure and impenetrable.
Reason 2 : A Technological Precautionary Principle
Implementations of new technologies often result to be glitch prone and have security vulnerabilities. Even if they are not obvious and certain they may be latent and indeterminate. These latent and indeterminate risks are magnified once there is a considerable public harm in the eventuality of the occurrence of the of the glitch or security breach. This is not a novel argument. It has roots in the environmental jurisprudence and is termed as the precautionary principle and is applied to suspend activities which may cause a deleterious effect on environment. Recently even in the BT-Brijnal Decision Hon’ble Minister Jairam Ramesh when imposing a moratorium cited scientific indeterminacy and the precautionary principle as reasons. Despite the confident and unequivocal press releases and statements of the functionaries of the Election Commission recent impartial scientific studies point to vulnerabilities in EVM’s. Certainly there is a public interest involved, there is also an overarching risk of vote fraud, here it will be well placed to invoke the precautionary principle and at the least adopt policies for EVM examination and vulnerability testing.
Conclusion: the chastity of sita and the loaded dice
Often a creeper finds its way to the root of a tree. When it does, it intertwines itself from the tow to the tip, not leaving breathing space for the principal. The hapless farmer who enjoys the shade of the tee has two options, both which involve considerable pain to his shelter from the sun gods. Uproot the vine and damage the roots or slowly watch the creeper subsume the tree itself. Do we face a similar problem with Electronic Voting Machines? Some would have us believe that. With the last two elections being conducted by EVM’s questioning the security of the EVM would be the same as questioning the results of the elections! If you think the language above is hyperbolic sample this blurb in 2009 from the head of Election Commission’s experts, Professor PV Indiresan, “This is like asking Sita to prove her chastity by giving agni pariksha. That is all I can say,”. In the absence of transparency and vulnerability testing of EVM’s, I would put it that a character from another epic is closer to situation at hand. The character is Shakuni and the epic is Mahabharata.