Laws and problems related to E.V.M. in Indian Scenario
Preamble of Constitution of India says that;India is ‘Republic & Democratic’ country. Which makes elections in India an inherent part of politics and it have been conducted since Independence almost every year at block level, State level or at National level (General elections). In India, elections give no less enthusiasm to people than any festival. Hence, to celebrate this festival of Democracy the main instrument is the Ballot Paper through which the voters cast their votes and elect their representatives. But the greed of getting elected and have power by some election candidates gave rise to scenario like ‘Booth Capturing’ and ‘Stealing of Ballot Boxes’. Hence, to tackle this problem of ‘Booth Capturing’ the legislature started a more secure medium i.e.

Electronic Voting Machine (E.V.M).
What is Electronic Voting Machine?
Electronic Voting Machine (E.V.M) in India consist of a Ballot Unit, consists of buttons in front of the name of respective Candidates or Political Parties, for the voters and a Control Unit which is operated by the booth officer. M.B. Haneefa in 1980 made the first Indian Electronic Voting Machine, two PSU’s of India manufactures the EVM which are ‘Bharat Electronic Limited’ and ‘Electronics Corporation of India Limited’. In the By-elections of 1982 of North Paravur Assembly Constituency of Kerala EVMs were first time used for polling.

Problems of E.V.M.
Electronic Voting Machines in the recent times in India have become the topic of debate. As there have been various reports on EVM came up, that it can be tampered easily and the votes of one political party or candidate can be easily transferred to another. Although the Election Commission of India has denied from time to time the possibility of tampering of EVMs and also have given reports on EVM can’t be tampered and once challenged publicly to temper the EVM for a prize.

But besides all these efforts by Election Commission to maintain the public faith on EVM, many scenarios have aroused which made the public doubt the authenticity of EVMs. Like, Saurabh Bharadwaaj of Aam Admi Party a M.L.A from Greater Kailash Constituency has given a live presentation of E.V.M tampering at Delhi Legislative Assembly in May 2017.

Apart from India, countries like Germany, Ireland, U.S.A. and Italy have also have doubted the transparency of EVM machines from time to time and even banned the use of these machines in there elections. Mean while America decided to use the Paper Trail System with EVMs to bring transparency, which would be discussed later in this Article; according to the Indian Scenario.

Laws in India relating to Electronic Voting Machines
(Article 324 (1)vests in the Election Commission of India, the powers of superintendence, direction and control of the elections to both Houses of the State Legislature. Detailed provisions are made under the Representation of the People Act, 1951 and the rules made thereunder.)

Electronic Voting Machine was introduce India to solve the problem of Ballot Box capturing and casting of false vote, which was a common scenario in India while using the Ballot Paper, and to conduct fair election. Hence, the Indian Parliament Amended the Representation of the People Act, and introduced Section 61A in The Representation of the People Act, 1951,whichlays down the provisions for the use of Electronic Voting Machine by Election Commission of India to Conduct General and State election in India.

Which is read as under:
“61A. Voting machines at elections.—Notwithstanding anything contained in this Act or the rules made there under, the giving and recording of votes by voting machines in such manner as may be prescribed, may be adopted in such constituency or constituencies as the Election Commission may, having regard to the circumstances of each case, specify. Explanation.-For the purposes of this section, “voting machine” means any machine or apparatus whether operated electronically or otherwise used for giving or recording of votes and any reference to a ballot box or ballot paper in this Act or the rules made thereunder shall, save as otherwise provided, be construed as including a reference to such voting machine wherever such voting machine is used at any election.]”

Law Against Tampering of Evms/Ballot Papers

Sec 135 of the Representation of the People Act, 1951:If the Presiding officer of a polling station has reason to believe that any person has removed ballot paper or EVM out of polling station, such officer may arrest or direct a police officer to arrest such person and may search such person or cause him to be searched by a police officer. On the orders of the Presiding Officer, Police can arrest the offender. 1 year’s imprisonment or fine or both.

Sec 135A of the Representation of the People Act, 1951:Booth capturing is an offence. `Booth capturing’ includes – 1. seizure of a polling station or a place fixed for the poll by any person making polling authorities surrender the ballot papers or voting machines;
2. or allowing only his or their own supporters to exercise their right to vote and prevent/coerce others from free exercise of their right to vote6;

3. Seizure of a place for counting of votes. Cognizable offence 3-5 years imprisonment and fine, if offence committed by person in govt. service, and 1 to 3 yrs and fine for others.

Sec 136 of the Representation of the People Act, 1951: If any person fraudulently defaces or fraudulently destroys any ballot paper or EVM or the official mark on any ballot paper or EVM or puts into any ballot box anything other than the ballot paper, or pastes any paper, tapes etc. on the symbol/names/ballot button of EVM for the purpose of the election commits an offence. Cognizable 2 years imprisonment or fine or both, if offence committed by any officer or clerk employed on election duty, and 6 months imprisonment or fine, for others.

Now the question arises thatIn case of tampering of Electronic Voting Machine is proved during polls, will the election be declared as void or voidable?
The tampering of Electronic Voting Machine is considered to be corrupt practice and the election should be heldvoidas accordingtosection 100 ofthe Representation of the People Act, 1951.Which is read as underSection 100(1)(d) in The Representation of the People Act, 1951
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected—
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate 5[by an agent other than his election agent], or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, 2[the High Court] shall declare the election of the returned candidate to be void.] 6[(2)] If in the opinion of 2[the High Court], a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice 7[***] but 2[the High Court] is satisfied—
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and 8[without the consent], of the candidate or his election agent; 9[***]
(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt 10[***] practices at the election; and
(d) that in all other respects the election was free from any corrupt 11[***] practice on the part of the candidate or any of his agents, then 12[the High Court] may decide that the election of the returned candidate is not void.

Fresh Election Needs to Be Perform on Proving of Corrupt Practice During The Poll;

as according to the section 58 of theRepresentation of the People Act, 1951. Which is read as under:
Sec 58. Fresh poll in the case of destruction, etc., of ballot boxes.-
(1) If at any election,—
(a) any ballot box used at a polling station or at a place fixed for the poll is unlawfully taken out of the custody of the presiding officer or the returning officer, or is accidentally or intentionally destroyed or lost, or is damaged or tampered with, to such an extent, that the result of the poll at that polling station or place cannot be ascertained; or 2[(aa) any voting machine develops a mechanical failure during the course of the recording of votes; or]
(b) any such error or irregularly in procedure as is likely to vitiate the poll is committed at a polling station or at a place fixed for the poll, the returning officer shall forthwith report the matter to the Election Commission.
(2)Thereupon the Election Commission shall, after taking all material circumstances into account; either-
(a) declare the poll at that polling station or place to be void, appoint a day, and fix the hours, for taking a fresh poll at that polling station or place and notify the day so appointed and the hours so fixed in such manner as it may deem fit, or
(b) if satisfied that the result of a fresh poll at that polling station or place will not in any way, affect the result of the election or that 1[the mechanical failure of the voting machine or] the error or irregularity in procedure is not material, issue such directions to the returning officer as it may deem proper for the further conduct and completion of the election.
(3)The provisions of this Act and of any rules or orders made thereunder shall apply to every such fresh poll as they apply to the original poll.]

In case of Smt. Indira Nehru Gandhi v. Raj Narain Singh[1]:-
Free and fair elections necessarily postulate that if the success of a candidate is secured in elections by means which violate the principle of free and fair elections, the election should on that account be liable to be set aside and be declared to be void.

In case of All India Anna Dravida Munnetra Kazhagam vs The State Election Commissioner on 12 January, 2007,the Madras High Courtsaid that;
That on being proved that the Ballot Box was captured and the votes were tampered during the poll, in a particular election then, that particular election should be void...

Hence, according to Indian Laws, on proving that ‘tampering of E.V.M.’ was done during the poll, the election would be consider as void.
Till 2013, there was an immunity was given to MP’s and MLA’sunder section 8 clause 4of from being disqualified from their membership but the Supreme Court in one of its 2013 judgments had struck-down this controversial section.
Solution for E.V.M tempering
Use of Voter Verifiable Paper Audit Trail (VVPAT) machines; is the most effective solution to the problem of increasing distrust among the public and the Political Parties towards the E.V.M. In 2013

How VVPAT works?
Voter Verified Paper Audit Trail is machine used with E.V.M.; it is like a printer which shows, the person voting, a paperslip for 7 seconds which contains the following information:
1) Serial Number of the contesting candidate;
2)Name of the Candidate;
3)Election symbol of the Candidate’s Party.
This Paper Slip gets cut after 7 Seconds automatically and falls into a closed compartment, Hence, keeping the privacy of the vote intact.

In India, VVPAT machines werefirstused in by-elections of an Assembly Constituency of Nagaland in 2013 as a pilot project, which was termed as successful by Election commission.

The Hon’ble Supreme Court inits judgment of 2103;Dr. Subramanian Swamy vs. Election Commission of India[2],it was held that;
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.

Further the Hon’ble Court; Ordered the Election Commission of India to install VVPAT machines with EVMs by 2019 general elections and passed the direction to Government of India‘ to provide required financial assistance for procurement of units of VVPAT.’

Take of Government of India for transparency of election through VVPAT:
Following the order of Hon’ble Supreme Court and to bring transparency in the Indian election system; In April 2017; while representing the Cabinet decision Finance Minister of Government of India, Mr. Arun Jaitley has announced that the Cabinet has passed funds to Election Commission of India to by VVPAT machines for 2019 General Elections and also said that the VVPAT machine will be available by September 2018.

End Notes
[1]Manu/Sc/0304/1975
[2]Manu/Sc/1032/2013