Hindustan Times
Aditi Agrawal

“This is not a matter of state security. Does this threaten the national security?” senior advocate Kapil Sibal said.

The Election Commission’s reluctance on immediate disclosure of authenticated polling figures on its website, for which it said there was “no legal mandate”, was criticised by lawyers, activists and smaller parties, who said the law does not prohibit the poll body from doing so either.

“What is the problem with revealing the number of votes cast? How is it a secret affair? This is not a matter of state security. Does this threaten the national security?” senior advocate and Rajya Sabha member Kapil Sibal said.

Dr Lubna Sarwath, who contested the May 13 Lok Sabha polls from Hyderabad constituency, wrote to Telangana chief electoral officer (CEO) and other state officials, requesting for a copy of Form 17C Part I —the account of votes recorded at the polling booth filled by the presiding officer of every polling station after the voting ends for the day.

“I did not have resources to set up polling agents... As such I urge you to give me scanned or physical copies of Form 17C Part I, ‘Accounts of Votes Recorded’, all of polling booths…” she wrote in the email dated May 21, seeking polling figures from all 1,944 booths in the constituency. “I undertake to bear the cost of copying/printing as billed.”

A copy of Form17C Part I is given to the polling agents (of political parties) by the presiding officer, detailing the number of eligible voters assigned to the booth, number of electors in the register of voters, the number of voters who decided not to exercise their franchise, and the number of voters not allowed to vote. It requires the presiding officer to specify the number of votes recorded as per the EVMs. Polling agents are mandated to give the officer a receipt under Section 49S of the Conduct of Election Rules (CoER), 1961.

Citing “total lack of resources”, Sarwath, who fought the election on a small regional party Vidhyarthula Rajakiya Party’s ticket, told HT: “If I hire polling agents, I need to dispatch them to the 1,994 booths across the constituency. I need to pay them an honorarium for staying at the booths for so long...”

Two hours after her email to the CEO, she also wrote to chief justice of India (CJI) Dhananjaya Y Chandrachud, seeking a copy of Form 17C Part I, and annexures to Form 17A where the returning officer of the constituency notes whether a repolling is required in any booth while scrutinising the papers a day after polling ends in the constituency.

Lack of resources for multiple parties is part of the reason why the petitioners — non-profit Association for Democratic Reforms (ADR) and watchdog Common Cause — filed an application in the Supreme Court seeking an order to the ECI to publish Form 17C Part I on its website.

The Supreme Court is likely to hear the matter on Friday.

The EC in its response submitted through an affidavit said there is “no legal mandate to provide the Form 17C to any person other than the candidate or his agent” and that the CoER “do not permit giving of the copy of Form 17C to any other entity”.

Senior advocate Sibal disagreed with the poll body’s response. “There is no prohibition under the law [about disclosing the Form 17C to the public at large]. It is an official form. It is not a private form. It records the number of votes cast. That is a public document,” he said.

Anjali Bhardwaj, a transparency activist and member of the governing board of Common Cause, too, disagreed. “What the EC is saying about the lack of legal mandate is inexplicable. It is problematic under the Right to Information Act as well because until and unless some information is explicitly exempted, it must be shared with the people,” she said.

The EC interprets that Part I and Part II (filled at the time of counting with details of number of votes recorded for each candidate) of Form 17C “are non-segregable from the perspective of Election Commission. The relationship between Part I and Part II completes the election process, and only thereafter, the electoral scheme makes the forms in its entirety available for public inspection.”

Bhardwaj countered this interpretation. “It is quite clear that Parts I and II of the form are segregable because a copy of Part I is shared with the polling agent of the candidate. What if the polling agent uploads it to a website? Mahua Moitra [TMC candidate] had uploaded the data last week on her X account by sourcing it from polling agents,” Bhardwaj argued.

The EC also said that the “wholesome disclosure of Form 17C is amenable to mischief and vitiation of entire electoral space” and that “indiscriminate disclosure, public posting on the website increases the possibility of the images being morphed, including the counting results which then can create widespread public discomfort and mistrust in the entire electoral processes”.

Dismissing this argument, Sibal said: “How can the data or the image be morphed when it is on the ECI’s official website? Every image can be morphed on social media today. So should we shut down social media then?”

The EC also argued that because Form 17C does not take into account the number of votes cast by postal ballot, publishing it in public domain can cause “confusion” in the “minds of the voters” who may not understand the difference. This “may be used by persons with motivated interests to cast aspersion on the whole electoral process”, it added.

To this, Sibal said, “How does it matter? We are not declaring anybody the winner at this stage. It is only about the total number of votes cast. You do not segregate votes according to the candidate at this stage. There is counting for that.”

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