Through the plea, the petitioners have highlighted the inordinate delays in uploading data as well as a mismatch in the final voter turnout data from the initial data

On May 17, the Supreme Court of India took up the issue of uploading of scanned copies of Form 17-C (which records the number of votes polled) on the Election Commission of India (ECI) within 48 hours after the polling is done and granted ECI one week’s time to file a reply on the plea. This came after the Supreme Court agreed to grant an urgent hearing on a plea by two non-profit organisations, namely Association for Democratic Reforms (ADR) and Common Cause, which sought for court’s direction to the Election Commission (EC) to upload polling station-wise voter turnout data on its website within 48 hours of conclusion of polling for each phase of the Lok Sabha elections. As per the live reporting by LiveLawa bench led by Chief Justice of India (CJI) D Y Chandrachud asked the counsel appearing for the ECI to take instructions from the authority regarding the matter. The bench, which also comprises of Justices J B Pardiwala and Manoj Misra, stated that once these instructions are undertaken, the said matter will be heard by the bench at the end of the board. Towards the evening, around 6 pm, this matter was taken up for hearing. 

It is essential to note that the urgent mentioning of the matter was done by advocate Prashant Bhushan after moving an Interlocutory Application in their 2019 Public Interest Litigation (PIL). The said 2019 PIL had also sought for investigation into alleged discrepancies on voter turnout data during the 2019 General elections. In the present IA, the petitioners have urged the Court to issue directions to the poll panel to upload “scanned legible copies of Form 17C Part-I (Account of Votes Recorded)” of all polling stations immediately after the polls.

A copy of Form 17C can be viewed here.

Arguments in the Court

During the hearing, CJI Chandrachud had asked Maninder Singh, the legal counsel representing the ECI, to state whether the percentage of votes disclosed at first is on the basis of Form 17C as well as the reservation that the ECI might have in disclosing Form 17 C data. Responding to the same, Singh had provided that the first percentage of votes is not given on the basis of Form 17C. Additionally, Singh had stated that there is no difficulty in making the data of Form 17 C available, it just took time. 

The bench then directed the ECI to file a response to the IA filed in the 2019 case by stating that “why don’t you file a reply to the IA. If the need arises, we will sit through the night.”

As Advocate Bhushan stated that the ECI had been supplied with the application 8 days ago, the Bench emphasised upon the requirement of giving them a minimum one-week time to respond to the IA. 

With this, the Supreme Court bench granted the ECI one week time to file their response. The matter will now be listed on May 24, 2024.

Details about the IA:

The said Interlocutory Application had been moved before the Supreme Court on May 10. In their plea, the petitioners have stated that in the ongoing Lok Sabha elections, the ECI published voter turnout data after several days. As per the details provided, the data regarding the first phase of polling held on April 19 was published after eleven days while the second phase of polling held on April 26 was published after four days. in addition to this, the petition highlights that there was a variation of over 5% in the final voter turnout data from the initial data released on the polling day.

The plea states “The voter turnout data for the first two phases of the ongoing 2024 Lok Sabha elections published by ECI on April 30 has been published after 11 days of the first phase of polling… on April 19 and four days after second phase of polling… on April 26. The data, as published by the ECI in its press release dated April 30, 2024 shows a sharp increase (by about 5-6 per cent) as compared to the initial percentages announced by ECI as of 7 pm on the day of polling.”

The plea has pointed to the “inordinate” delay in the release of final voter turnout data. The same is coupled with the unusually high revision of over 5 per cent in the voter turnout, specified in the poll panel’s press note of April 30, 2024, which has raised concerns and public suspicion regarding the correctness of the said data. As specified in the plea, the non-release of the absolute number of votes polled coupled with the “unreasonable delay” in the release of votes polled data has led to apprehensions in the mind of the electorate about the sharp increase between initial data and data released on April 30. Thus, citing upholding of the democratic process of election as well as ensuring that electoral irregularities do not subvert the same, the present IA was moved before the Court.

After emphasising the growing suspicion and lack of trust on the current ECI and the increasing opaqueness regarding electoral processes, the plea has urged the Court to direct the ECI to address the apprehensions being raised, disclose Form 17 C forms within 48 hours and provided a tabulated station-wise data in absolute figures of the number of votes polled.

The plea stated “These apprehensions must be addressed and put to rest. That in order to uphold the voter’s confidence it is necessary that the ECI be directed to disclose on its website scanned legible copies of Form 17C Part- I (Account of Votes Recorded) of all polling stations which contains the authenticated figures for votes polled, within 48 hours of the close of polling.”

The plea further prays to the Court to “Direct the Election Commission to provide tabulated polling station-wise data in absolute figures of the number of votes polled as recorded in Form 17C Part- I after each phase of polling in the ongoing 2024 Lok Sabha elections and also a tabulation of constituency-wise figures of voter turnout in absolute numbers in the ongoing 2024 Lok Sabha elections.”

Doubts and apprehensions on electoral process?

The aforementioned occasion, where two citizen’s organisations have approached the Court citing inordinate delays, discrepancies and lack of transparency, is just the latest instance of people being apprehensive of the current ECI and their (wishfully independent) functioning. It is important to state here that the constituency-data for all seats which have completed polling has also not been given by the ECI. Apart from approaching the court, many have been taking to express their suspicions and anger through social media. Journalist Raju Parulekar, through ‘X’ (formerly Twitter) had been raising questions regarding the inordinate delays and the distorted tallies. In one such post, Parulekar urged the ECI to answer four questions raised by him, which includes the unavailability of any explanation explaining the delays in voter turnout and the revision of percentages of electors. 

Even the opposition political parties, including Trinamool Congress, the Communist Party of India (Marxist) and the Indian National Congress, had questioned the ECI for the delay in releasing the final voter turnout data for the first two phases of the Lok Sabha polls and the alleged discrepancy in the figures as compared to what was reported on the voting days. the parties had deemed such acts of the ECI to be “unusual and worrying”.

In a letter sent to INDIA block alliance partners, Congress president Mallikarjun Kharge wrote that “On earlier occasions, the Commission has published voter turnout data within 24 hours of polling. What has changed this time? Why has the Commission failed to issue any clarification to justify the delay, despite being repeatedly questioned by political parties and political activists?” He also expressed his concern over the polling data for the third phase of the election, saying, “it is extremely disconcerting to know, through various media reports, that even the final registered voters’ list from the third phase onwards is also not released. All these developments cast a dark shadow on the functioning of the Election Commission of India.”

It is crucial to highlight here that while the ECI has not provided any explanation for the delays, they specifically rebutted the allegations put forth by the INC president Mallikarjun Kharge regarding the discrepancy in voter turnout data and the delay in the release of the updated polling data. The Election Commission hit back at the Congress noting that the “it is discernible that under the guise of need to seek clarifications from the Election Commission of India, in effect, you have articulated statements which are actually verifiable and thus within knowledge to be incorrect, aimed at pushing a biased narrative…”.

Other than this, on May 13, a report of the ‘The AIDEM’, a new people-oriented media venture, had highlighted serious concerns regarding the overall conduct of the ECI and its poll-management. By quoting the work of Manoranjan S Roy, Mumbai-based Right to Information (RTI) activist who has consistently followed and studied the use of electronic voting machines (EVMs) in India, the report had pointed out to some glaring mismatches in the whole process. Roy, who specifically works on the systems adopted by the ECI in terms of tabulation and deployment of these machines, had provided to The AIDEM that the ECI’s tabulation of the receipt and deployment of EVMs from the two designated manufacturing companies – namely the Electronics Corporation of India Ltd (ECIL), Hyderabad, and Bharat Electronics Ltd (BEL), Bengaluru- had always been problematic. 

In addition to the issues highlighted by ADR and CC in the present plea, Roy also brought forth the confusion regarding proportional increase in the number of EVMs as has been in the voter turnout. As per the report, Roy compared the ECI press releases issued in connection with the 2019 and 2024 Lok Sabha elections to bring out a number of mismatches. Referring to the same, Roy stated that the ECI press releases show that there has been an increase of 7.2 crore voters between 2019 and 2024. According to him, the aforementioned rise seems to have been factored into the addition of polling booths for the 2024 polls. Additionally, a total of 15000 polling stations have also been added across the country raising the number of actual polling stations to 10.50 lakhs from 10.35 lakhs. However, there is no proportional increase in the number of EVMs being deployed in these polling stations, instead a decrease in the same had been recorded. To substantiate this, Roy provided that the total number of EVMs deployed in the 2019 elections was 57.05 lakhs. On the other hand, the 2024 press release of the ECI merely stated that 55 lakh EVMs are being used in the 2024 elections. 

Based on the aforementioned data, Roy raises the need for increasing transparency on the functioning and working of ECI, a constitutional authority, which is currently under fire for being biased and unethical. One should not forget that only on May 11, citizens and civil society organisations from across the country led a joint campaign where they sent postcards to the constitutional authority with the slogan “Grow a Spine or Resign”. Through these postcards, the citizenry has expressed their anger over the lack of action taken against the ruling pollical party Bharatiya Janata Party even after the party’s star campaigners have been openly indulging in electoral malpractices.

It is also essential to highlight here that not a month has passed since the Supreme Court bench comprising Justices Sanjiv Khanna and Dipankar Dutta had rejected a batch of petitions seeking mandatory cross-verification of the votes cast with Voter-Verifiable Paper Audit Trail (VVPAT) slips. ADR, which was one of the petitioners in the VVPAT case had argued during the hearings that there is an increasing distrust that citizens of India have over the ECI. The PIL litigants had contended that there exists a possibility of manipulating the EVMs and, therefore, the apex court should step in to instil confidence in the voters as they have the right to know that their franchise has been correctly recorded and counted. While the Supreme Court had issued certain guidelines for strengthening the electoral process, the bench had rejected the petition. But, as is evident from the present petition, the distrust of the citizens over the functioning of the ECI continues as does the opaque (mis)functioning of the ECI. 

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