The opposition parties aggrieved by the exit poll results are raking up an issue with the EC regarding what needs to be done when there is a mismatch between the VVPAT counting and the EVM records.
The Supreme Court which did not have the appropriate vision to take a view on this when the matter was before it just ruled that in 5 booths in every constituency, VVPAT has to be counted. This means that about 8000 VVPAT slips may be counted in every booth. If there is a counting error then there could be a difference of one or two vote numbers with the EVM count. This may be insignificant but is enough for the political parties to cry that there is some thing wrong with the EVMs and the election should be repeated with ballots.
The EC has internal dissensions which may actually complicate the issue.
I therefore provide here what I think is a legal position to be taken into account.
The Indian Elections have adopted the EVM system for which there is sufficient legal backing. As per this, election is conducted by the voter expressing his choice by pressing the button on the EVM. The process of voting is therefore completed when the button is pressed. The count of this is in the EVM. There ends the election process.
The VVPAT is a system that provides an acknowledgement to the voter. The acknowledgements are preserved for verification in case of large scale malpractice as evidence. But the VVPAT slips are not votes. They are secondary confirmation to the electronic signal generated by the depression of the voting button.
The VVPAT is generated not by a voter’s action but by the action of the EVM after the vote is recorded. Hence it is a subsequent event.
Hence if there is a mismatch between the EVM count and the VVPAT, the EVM count should prevail. In case there appears to be a large scale malfunctioning where the difference is statistically significant, then the matter becomes an issue of the post poll legal challenge. What is a “Significant” difference for a 1600 or so votes is what a statistician can determine. In my view it could be some where like 2% or about 30 votes.
I hope the EC and the Courts will consider this view when they have to consider the objections.