Source: 
The Print
https://theprint.in/judiciary/ec-says-no-legal-mandate-to-make-voter-turnout-data-public-raps-petitioner-for-raising-settled-issue/2097700/
Author: 
BHADRA SINHA
Date: 
23.05.2024
City: 
New Delhi

India’s apex election body has taken exception to what it sees as the Association for Democratic Reforms' continual attempts to create doubt about India’s electoral process.

The Election Commission India (ECI) Wednesday took umbrage at the advocacy group Association for Democratic Reforms for reigniting a “settled” issue over the disclosure of the votes polled during an election saying it had no legal right to seek such information.

The poll panel also hit out at ADR’s continual attempts to create doubt about the electoral process as well as the commission, arguing that they “demotivate voters.”

The ECI’s assertions were made in an affidavit filed before the Supreme Court in which it opposed ADR’s plea asking the election body to direct the poll panel to disclose authenticated data of voter turnout in all polling stations 48 hours after polling ends and publication of data provided under form 17C.

Form 17C is the statutory record of votes polled in a polling station.  The Conduct of Election Rules, 1961, mandates that the presiding officer of a polling station prepare an account of votes recorded in Part I of the form, and the returning officer record the number of votes in favour of each candidate in Part II.

Apart from asking the ECI to immediately upload the total votes polled during an election, ADR also wanted the poll body to upload scanned copies of Form 17C.

On 17 May, a bench led by Chief Justice D.Y. Chandrachud asked ECI to respond to ADR’s application. A vacation bench is scheduled to hear the case on 24 May.

In its affidavit, ECI expressed reservations over both prayers. While its opposition to disclosing Form 17C data is on statutory grounds — given that the form is provided to the polling agents of candidates according to the Conduct of Election Rules, 1961 — its objection to the second prayer seeking the release of authenticated data of voter turnout within 48 hours was on the ground that it was a time-consuming process.

The commission rejected ADR’s concern that the mismatch between data released tentatively based on the Voter Turnout App while polling was on and the final figure released later raised apprehension in the minds of voters over the efficacy of EVMs. Data collected in the Voter Turnout App was a facilitative process and a non-statutory requirement, ECI told the court.

“There is no legal mandate to provide Form 17 to any person other than the candidate or his agent. The petitioner is trying to create an entitlement when none exists in the law by way of filing an application in the middle of (the) election period,” ECI contended in its affidavit.

‘Misleading’

Running into 66 pages, the document gave an insight into how data is recorded during polling and detailed the statutory framework involving Form 17.

ECI said voter turnout disclosures are made through a statutory mandate as well as voluntary non-statutory method. Form 17 provided to the candidate or his polling agent falls in the first category, while the data recorded in the Voter Turnout App and then released on its website and various press releases form part of the non-statutory framework. The data fed into the app, is continuously updated at an interval of two hours on polling day – the last being at 11:45 hours after waiting for the maximum number of parties to return, it said.

Scrutiny of polling station level records is conducted before candidates the next day. “Voter Turnout app continuously keeps reflecting data on a live basis. On the other hand, Form 17C is given to agents of candidates after the close of poll on polling day itself as per the statutory requirement and the information in Form 17C gets set in stone,” the affidavit added.

Talking about how ECI developed a broad method and framework for collating data at the national level, through the use of Information Technology platforms, the affidavit emphasised that the core framework of non-statutory disclosure was facilitative and was reflective of data capture, taking place through various non-statutory sources such as data operators.

As for Form 17C, ECI maintained that it cannot partake in the character of a public document till the counting day.

“Many polling parties from various polling stations return after close to poll quite late and, sometimes, on the next day depending upon the distance and inaccessibility of terrain. Many such parties trek long hours and get airlifted the next day. In many cases, re-polls also take place generally three days after the poll. Therefore, the escalatory variation, thus, is inbuilt in the situation,” the affidavit said, also giving reasons for the difference in data collected through the non-statutory and statutory frameworks.

“There always be a gap and will remain so in declaring the final data,” as the “entire disclosure framework comes with a rider of (the) possibility of human, logical and mathematical error”, the ECI added.

Indiscriminate disclosure of Form 17C data would increase the possibility of images being morphed, including the counting of results, which can create widespread public discomfort and mistrust in the electoral process, the ECI affidavit said. Moreover, Form 17C cannot be uploaded as there are no scanners available at the polling stations due to (the) absence of an internet facility there.

According to the ECI, in case of any discrepancy in the data, a statutory remedy is available to the candidate to file an election petition relating to any variance. ADR’s application fails to disclose an instance of such a variation or election petition filed after the 2019 polls on this ground, the election body said.

The ECI called ADR’s suggestion that there was an increase of 5-6 percent in the voter turnout data released on the day of polling and in the subsequent press releases for the first two phases of elections “misleading”.

It also objected to the application on the grounds it was not maintainable. It said the applicant had suppressed the fact that an SC judgment last month, which refused to order physical verification of each vote cast through EVM, had dealt with the issue on Form 17C and had upheld the procedure followed in it.

Further, it added that there is an express bar on the judiciary under Article 329(b) against any interference in the electoral process from the date of issue of notification of election till the date of declaration of results.

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