Use of EVMs ultra vires; Jayaraman Rajah Iyer’s letter to CEC (March 4, 2012) Full text of the letter to CEC.

Note of Jayaraman Rajah Iyer dated March 3, 2012:
EVM an ultra vires act?
Synopsis of my letter to Dr. Quraishi
Sub: EVM – My observation on Reply of the Commission on Issues raised by Shri V.V. Rao – vide letter No. 51/8/16/9/2009-EMS (Vol-IX) Dated: 29th March, 2010, from ELECTION COMMISSION OF INDIA, Nirvachan Sadan, Ashoka Road, New Delhi 110 001 from Shri K.N.BHAR.
• Like the 2G sale to Etisalat construed as security threat, IMHO outsourcing EVM and chips manufacture is a security threat.
• Besides both the vendors ECIL and BEL do not function under ECI. Quote from the letter to Quraishi: “Furthermore ECI does not have any control over ECIL, BEL as well as the manufacturers of microchips other than a contractual obligation written and signed between the four (see IMO:1.3) parties.” The four parties are i. ECI, ii.BEL & ECIL, iii. Chips manufacturer and iv. distributor of iii.
• In case of 2G case of Etisalat Shivraj Patil has clearly given a negative report.
Whereas no such report was ever undertaken on Chips manufacturers as well as ECIL & BEL as vendors.
• The need for such a report is warranted by UNCAC, both on the chips manufacturer as well as ECIL & BEL complying with the provisions of UNCAC: quote from 2.14:
“Has ECI, per Article 8. UNCAC Codes of conduct for public officials “(5) establish measures and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials”, established polices and procedures of all personnel including the highest authority of the concerned reputed public sector undertakings on which ECI has full confidence as well as the chips manufacturer/distributor?”
• In order to bring UNCAC into the picture I have quoted the ratification of UNCAC as below:
• UNCAC Signature and Ratification Status as of 06 January 2012i, India signatory on 9 Dec 2005 and ratification dated 1 May 2011 Source: United Nations Office On Drugs and Crime (UNODC)
• UNCAC becomes part and parcel of my argument to prove the precautions ECI were to take, in order to set the procedures for outsourcing of EVM manufacture to vendors on whom ECI has no control whatsoever.
• UNCAC although was ratified on 1 May 2011 (married but not consummated status) India a signatory as from 9 Dec 2005 is a significant factor. as ECI was aware of the strict provisions of UNCAC that should have been complied with before contracts were signed by ECI on account of EVM.
• Since ECIL & BEL report to a minister in the central govt. any contravention of UNCAC provisions ECI would never come to know. It ECI were to know of such incident reporting such procedures as were written and signed as a contractual obligation ought to have been made public by Article 10 Public Reporting of UNCAC.
• When ECI replies to VV Rao stating: “It is clear .. that in spite of many opportunities given to you by the Election Commission of India you have not been able to demonstrate and prove your allegation of tamperability in ECI-EVMs.” my contention is that: a. no one can demonstrate on a machine that was supposed to be available only for ECI and even the looted EVMs would be dismissed as stolen property and b. there is no need to demonstrate and prove allegation of tampering as policies that were to be in place are absent i.e. procurement procedures and code of conduct for public officials as well as chips manufacturer.
• Object codes or encryptions are not in the know of ECI as they have no expertise in this field and ECI therefore is dependant on expertise of ECIL, BEL, distributor of Chips and chips manufacturer. This particular aspect of handing over the codes to outsiders on whom ECI has no control is the most significant factor of my argument to prove that it is an ultra vires act. By doing so ECI has breached the official secrets act.
• Hence my observation, EVM – from chips manufacturing to finished product with inhouse software development directly under the supervision and control of ECI is a plausible alternative to paper ballots. Not till then.
• My request to Quraishi is to address the various issues raised by me before 6th March so that fait accompli does not become an excuse. Furthermore if ruling could be obtained from the court in favour of paper ballot then elections held under EVM, as is now for UP, can be countermanded and a fresh election be called for all such governments, including local bodies, elected with the use of EVM, that I argue an ultra vires act.
I have indicated the above and also a number of points from the policies and practices angle rather than the technical angle of EVM which IMHO is not necessary. If we get into the technical aspects of EVM as it is very evident from the replies to VV Rao, ECI has taken refuge of secrecy and confidentiality clauses. ECI replies are curt and dismissive of VV Rao’s contentions that I felt must be squarely treated with equal contempt by highlighting breach of official secrets act by ECI. IMHO courts would also understand the ultra vires argument than the technicalities of an instrument alien to most of them.
EVM must altogether be thrown out lest the trojan warfare continues for ever.
Jayaraman Rajah Iyer
3rd March 2012.

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