Dear voter, do you know how ‘secret’ is your ‘secret vote’?

June 19 was Shiv Sena’s 58th foundation day and Maharashtra chief minister Eknath Shinde made the customary speech as party chief. Only two weeks earlier, on June 4, the Sena had got a sub-par score in its Lok Sabha report card, so perhaps the CM was in a bitter mood.Midway through his speech, Shinde made some remarks that raised eyebrows. “Our candidate Yamini Jadhav in South Mumbai constituency got only four votes at Mohammed Umar Rajjab polling station and they got 542,” the CM said, with they referring to his rival Uddhav Thackeray’s Shiv Sena (UBT), whose candidate Arvind Sawant won the seat. Shinde continued: “At Mirza Ghalib Marg polling station she got only five votes and they got 797 votes. In the Mumbadevi area we got a total of 241 votes at different polling stations and they got 20,045 votes. Now, do I need to tell you who voted for them?” Coming from the CM, this us/them divide would have had a chilling effect on the 20,000-odd voters who had gone against his candidate. Beyond the ethics of Shinde’s remarks, the larger question on many minds was: how did he know voters at which polling station had gone against the Sena? What happened to that cornerstone of modern democracy, the ‘secret ballot’?While in the pre-electronic voting machine (EVM) days, political leaders could discern polling patterns through information gathered by party workers, EVMs have made their jobs easier. That’s because votes for each party and candidate are counted EVM by EVM. Since each EVM represents a specific polling booth, party agents know precisely how many votes they received at a specific location. They don’t even need to visit the counting centre anymore as this booth-level data is uploaded on the Election Commission’s website in ‘Form 20’.An Old ProblemFormer Chief Election Commissioner (CEC) N Gopalaswami had faced the same troubling questions 17 years ago during the 2007 Uttar Pradesh Assembly polls (read interview). The Election Commission had been urging voters to cast their votes without fear, but even the presence of paramilitary forces couldn’t persuade them. The voters knew that the ‘bahubali’ candidate in their constituency would come to know their choice.The problem of candidates finding out how specific neighbourhoods and localities voted is not new. It was fixed in the 1990s under then CEC TN Seshan, but came back with the introduction of EVMs starting in 2004.A notable example of voter harassment based on poll results occurred during the 2014 Lok Sabha campaign when Ajit Pawar, who was part of the undivided Nationalist Congress Party (NCP) and Maharashtra’s deputy CM at the time, threatened he would cut off the water supply to a village in Baramati if it didn’t vote for his cousin Supriya Sule. The first petition to stop the declaration of booth-level results and implement a ‘cluster counting system’ came up before the SC in May 2014, following his threat.medium nocaption111503492Your vote is secret, but…Does that mean EVMs reveal which party you have voted for? No, your vote as an individual is secret. But the broad voting trend of your village, mohalla or apartment block is easy to find out. And when neighbourhoods are defined by caste or religion – for instance, Mumbadevi, which Shinde singled out, is 51% Muslim – the repercussions can be serious.The EC started giving out booth-wise data to parties after introducing EVMs in the 2004 Lok Sabha elections. Typically, a polling station has 1,200 registered voters, many of whom don’t turn up. So, using the list of voters who cast their votes, and knowing which EVMs they cast their votes on, parties can draw clear voting patterns for every polling station.Also, using the booth-level data, parties can make an “educated guess” about individual voters. As London School of Economics associate professor Mukulika Banerjee wrote in The Indian Express in 2017: “After every election I witnessed between 1998 and 2013, party workers would analyse the booth-level data against the voters’ list after elections to see exactly how many people had not voted for them, discussing which individuals or groups had been ‘dissident’ in this way and devising strategies for ‘dealing’ with them in the future, whether through blandishments, social pressure or various forms of intimidation.”In the old days of ballot boxes, these details were outed at the counting tables. The problem then was that all the votes in a ballot box – representing a polling area – were counted together. Since polling agents knew which ballot box carried votes from which area, it was easy for them to figure out how specific neighbourhoods had voted. N Seshan realised this and ordered that paper votes from 240 polling stations should be mixed before counting. That way, parties and their candidates got the aggregated result, not the granular details.medium nocaption111485552How EVM votes can be mixedFormer CEC Gopalaswami found the answer to the EVM data problem in the shape of a machine called ‘totaliser’. It aggregates data from up to 14 EVMs at a time, and these EVMs are picked in random order: “polling stations 1, 40, 55, 31, for example,” he says. So, the totaliser does not reveal how many votes a candidate polled in a specific EVM at a specific polling station.Totaliser prototypes were made by Bharat Electronics (BEL) and Electronics Corporation of India (ECIL), the two public sector companies that make EVMs, and demonstrated to parties in early 2008. They “didn’t raise any major objection,” Gopalaswami says. In March 2009, the machines were used on a trial basis during Assembly byelections in Meghalaya and UP.The Law Commission’s 255th report, submitted to the Centre in March 2015, also says the EC had wanted to implement the technology for the first time as early as November 2008. So, why wasn’t it rolled out?Government unwillingThe short answer is that the government isn’t willing. Former CEC Gopalaswami told TOI+ that it’s a matter of political convenience: “They are very happy with finding out who voted for whom, who did not vote for whom.”Besides the Bharatiya Janata Party (BJP), Mamata Banerjee’s Trinamool Congress (TMC) has opposed the use of totalisers, but Congress, the undivided NCP, Bahujan Samaj Party (BSP) and Aam Admi Party (AAP) wanted to see these machines deployed.When the Supreme Court directed the Union government to take a decision on the issue, a team of ministers led by then Home minister Rajnath Singh said the use of totaliser “does not serve any larger public interest” and there was “no justification for its introduction at this juncture”. Accordingly, in March 2018, the Ministry of Law and Justice conveyed this decision to the SC.In an affidavit, the ministry said, “Revelation of booth-wise votes polled by a candidate would perhaps be more beneficial and useful since it would facilitate candidates and parties to find out the areas where they have shown better result and they have not shown good results, so as to work more for that area.”It also said large-scale intimidation or victimisation of voters was unlikely in the era of media activism: “If any such incident takes place then the same would be highlighted in the media which would adversely affect the performance of parties and candidates in future elections.” But as Mukulika Banerjee observed in her article, “The government’s argument for preserving ‘booth management’ conflates what is good for the party with what is good for democracy. What is clear is that preventing the totaliser from being introduced is certainly not good for the ‘secret ballot’.” medium nocaption111485573It was a U-turnThe government’s 2018 decision marked a shift from its initial response to the totaliser concept. Three years before this, it had told the SC that it would refer the issue to the Law Commission, which was looking into the larger point of “electoral reforms”. The Commission in its March 2015 report strongly recommended the use of totaliser machines. It said it “reiterates and endorses the ECI’s suggestion for introducing a totaliser for the counting of votes recorded in EVMs”. It also cited a case from Hoshangabad, Madhya Pradesh, where a totaliser could have preserved a vote’s secrecy in the 2014 Lok Sabha polls. On April 10, 2014, the EVM at Hoshangabad’s Mokalvada polling station malfunctioned minutes before the closing time of 6pm. As a result, the last vote was cast on a different EVM. There was no way to maintain the secrecy of this vote, but the EC said it would have to be counted. Had the EVM been connected to a totaliser with other EVMs, the voter’s choice would have remained secret.So, the Law Commission proposed an amendment to Rule 66A “to empower the EC to decide when, and in which constituency and polling booths, to employ a totaliser, after taking into consideration the context of the elections and any threats of intimidation or victimisation”.There is a historical precedent for such flexibility. Rule 59A of the Conduct of Election Rules (Counting of votes in specified constituencies), says, when the EC apprehends “intimidation and victimisation of electors” in a constituency, it may order the mixing of ballot papers from all boxes. In fact, former CEC Seshan had made use of this provision to make the mixing of votes the norm.EC’s shifting standThe government wasn’t alone in changing its mind on the totaliser. The EC, which had wanted to introduce it in 2008, now says, “The time has not yet come to implement the idea”. In March this year, CEC Rajiv Kumar told a press conference, “Here, people do not have faith in the result of one machine (EVM). Let the political system mature itself, the need is to introduce the totaliser. We are ready, the technology is ready, but one has to work in the entire landscape. Let that be matured further.” Ten years ago, the EC was keen on inducting these machines. It informed the SC that it had written to the Union government to amend the rules to allow the use of totalisers, but hadn’t heard back.“The Commission [EC], after receiving certain complaints from certain quarters with regard to threats received by the voters of certain areas, has entered into correspondence with the Union of India suggesting for amendment of the Rules so that adequate precautionary steps/measures can be taken in counting by recourse to a ‘cluster counting system’ but there has been no response from the Union of India,” says an order on the second hearing of the Ajit Pawar threat case from May 21, 2014. Case in deep-freezeAlthough voter secrecy is a pressing issue, the matter of introducing totalisers is in deep-freeze. The cases related to it – including one filed by BJP member Ashwini Kumar Upadhyay in 2017 – have not been heard after December 2019.Between August 2018 and December 2019, the EC sought time from the SC “to evaluate the concept of totaliser of votes and its eventual impact”. The last order in connection with these cases was passed by a three-judge bench headed by then Chief Justice of India SA Bobde on December 13, 2019. It directed the listing of these cases before the bench presided over by Justice Arun Mishra. The SC website has no further information on the cases.Lead illustration: Sajeev Kumarapuram/AI