Source: 
Live Law
https://www.livelaw.in/top-stories/supreme-court-election-commission-reply-adr-application-for-immediate-disclosure-voter-turnout-258654
Author: 
Debby Jain
Date: 
22.05.2024
City: 

In the latest development, the Election Commission of India has opposed the plea for public disclosure of the copies of Form 17C (the statutory record of votes polled in a polling station).

Opposing the application filed by ADR and Common Cause seeking immediate publication of voter turnout data with respect to the ongoing Lok Sabha Elections, the Election Commission told the Supreme Court that indiscriminate disclosure of Form 17C data would increase the possibility of images being morphed, including counting results, which can create widespread public discomfort and mistrust in the electoral process.

"It is submitted that a wholesome disclosure of Form 17C is amenable to mischief and vitiation of entire electoral space. At the moment, the original Form 17C is only available in the Strong Room and a copy only with the polling agents whose signature it bears. Therefore, there is a one-to one relationship between each Form 17C and its possessor. It is submitted 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."

The ECI also stated that as per Rules, Form 17C needs to be given only to the polling agent. The Rules do not permit the giving of Form 17C to any other entity. General disclosure of Form 17C to public is not contemplated by the rules.

"The legal regime with regard to Form 17C is peculiar that while it authorizes the polling agent at the close of the poll to get a copy of Form 17C, a general disclosure of the nature as sought by the Petitioner is not provided in the statutory framework. The Rules do not permit giving of the copy of Form 17C to any other entity. The contention of the petitioner creates a situation where any member of the public or the elector at the Polling Station can demand a copy of Form 17C on the argument that it partakes into a character of a public document."

"The rule position w.r.t. Form 17C is very clear. After the end of poll, when the polling party submits the same to the RO, RO [under Rule 49V(2) of Conduct of Election Rules, 1961] has to ensure that along with the EVM and other materials, said Form 17C in original is safely stored in, Strong Room. Once again the legal framework has a direct and intelligent nexus to the end of poll process which concludes by depositing all the vital physical election vectors such as forms, envelopes, seals, EVMs and such like, as a complete priority. If an additional responsibility and wherewithal is to be created to scan any Form, before going to the Strong Room, the statutory priority would be at risk."

ECI raises preliminary objections

In its affidavit, ECI begins opposing the petitioners' plea by stating that out of a total of 7 election phases, 5 have already completed (as on May 20). The next two phases are scheduled for May 25 and June 1.

The poll agency cites the recent judgment in ADR v. ECI & Anr. (EVM-VVPAT case) to say that the top Court rejected the pleas of the same petitioner (Association for Democratic Reforms/ADR) after satisfying itself that there was no substance in any of its allegations. It seeks dismissal of the present plea on the ground that the judgment in the said case has been suppressed.

It is also claimed that the plea is not maintainable in view of the principle of res judicata, as the Court has already considered various aspects in relation to Section 49S and Form 17C in the EVM-VVPAT judgment, which "fully applies to the present writ petition".

The counter-affidavit adds that, "there is neither delay nor difference in percentages of voter turnout data, more than what is inbuilt into the process, scale and magnitude in play." The dismissal by the Supreme Court of another case ie Agnostos Theos v. Election Commission of India & Ors., which raised doubts over EVMs, has also been cited.

Speaking of legal remedies against variance in data, the ECI points out that candidates as well as voters can file an election petition if they have a cause of action relating to any variance in statutory forms. "However, no such consequence flows from a mismatch of information furnished in a voluntary non-statutory disclosure method such as that published in the Voter Turnout App".

It is also alleged by the poll agency that ADR had raised similar issue at the time of 2019 Lok Sabha elections, but failed to point out even a single instance where candidates or voters filed an election petition on the basis of allegations levelled by it.

Sharing Form 17C Data

ECI classifies Voter Turnout Disclosure into two categories - statutory (where Form 17C is given to polling agents), and non-statutory (where data is disclosed through ECI app, website and press releases).

It states that there is no legal mandate to provide Form 17C data to any person other than the candidate or his agent. So far as the data released through app at 2-hour intervals on polling day, it says the exercise is voluntary.

The non-statutory disclosure (through the Voter Turnout App), ECI says, comes with a disclaimer and is reflective of the data capture taking place through various non-statutory sources. It contemplates that wholesome disclosure of Form 17C "is amenable to mischief and vitiation of entire electoral space".

It is also the poll agency's case that under Article 329(b) of the Constitution, judicial interference in electoral process from the date of notification till declaration of results is barred.

"The purpose of Article 329(b) is to ensure that the election process remains consistent and is not interfered with while it is ongoing".

The counter adds that if it is assumed without prejudice that Form 17C is to be uploaded, the most critical aspect would be the location from which Form 17C should be scanned and uploaded.

"There are no scanners at the polling stations...If it is to be done centrally after aggregation by ARO or RO at Sub-Divisional or District head quarter, it violates the extant legal design of straight away keeping Form 17C in strong room after giving a copy to the agent of the candidate...there may be instances where the polling staff may not be so accustomed with technological aspects".

These aspects require advance planning and scheduling of training, ECI says. It also mentions that if Form 17C data is made available on website, polling agents may not remain at polling stations towards the close of poll to sign Form 17C.

"The absence of signature of any polling agent on Form 17C may itself become a ground to challenge the veracity of the Form 17C and create further doubt and suspicion".

Background

Non-profits ADR and Common Cause filed an interlocutory application in a 2019 writ petition alleging discrepancies in the voter turn out data regarding the 2019 General Elections.

It stated that in the ongoing Lok Sabha elections, the ECI published voter turnout data after several days. The data regarding the first phase of polling held on April 19 was published after 11 days and the second phase of polling held on April 26 was published after 4 days. Also, there was a variation of over 5% in the final voter turnout data from the initial data released on the polling day.

The petitioners seek direction to the ECI to :

(i) Immediately upload on its website scanned legible copies of Form 17C Part-I (Account of Votes Recorded)of all polling stations after close of polling of each phase in the on-going 2024 Lok Sabha elections;

(ii) 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 on-going 2024 Lok Sabha elections and also a tabulation of constituency-wise figures of voter turnout in absolute numbers in the on-going 2024 Lok Sabha election;

(iii) To upload on its website scanned legible copies of Form 17C Part- II which contains the candidate-wise Result of Counting after the compilation of results of the 2024 Lok Sabha elections.

On May 17, a bench of Chief Justice of India DY Chandrachud and Justices JB Pardiwala, Manoj Misra directed listing of the matter on May 24 before a vacation bench, calling on the ECI to file its reply as to why Form 17C data could not be disclosed.

For more details about the application, click here.

Case : Association for Democratic Reforms v. Union of India | WP(C) 1382 of 2019

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