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Tale of two commissions

Last week, the Delhi High Court struck down a right to information application filed at the Election Commission, bringing an unprecedented standoff between two of India’s most respected institutions to a temporary halt.

india Updated: Nov 22, 2009 22:30 IST
Aman Sethi

Last week, the Delhi High Court struck down a right to information application filed at the Election Commission, bringing an unprecedented standoff between two of India’s most respected institutions to a temporary halt.

In the case of the Election Commission of India (EC) versus Chief Information Commission & others, the decision came in favour of the EC, which is that a citizen has no right to ask for confirmation of the results of the assembly elections of 2007 in three constituencies of Manipur.

To understand the implications of the court’s order, imagine you suspect your ATM incorrectly displays the money available in your bank account. You could compare the printed account statement with the information displayed by the ATM, but what if your bank refuses to let you?

“All we wanted was to confirm that the information displayed by the control unit of the Electronic Voting Machine (EVM) continues to be consistent with the information recorded on form 17 c,” said Ali Naqvi, advocate, who filed the RTI application on behalf of Neelesh Misra, a journalist with Hindustan Times.

“This would ensure that the technology behind the EVM is solid and the information does not erode with the passage of time.”

Form 17c records all information pertaining to polling and counting for each constituency.

Despite the intervention of the Central Information Commissioner, the EC refused to part with the information on the plea that according to the Conduct of Election Rules, 1961, the information could be released only on the directions of a competent court.

The matter was taken up by the Delhi High Court, which upheld the EC’s position.

In his judgment, Justice Sanjiv Khanna presented three arguments: First, in prior cases, the Supreme Court has ruled that specific allegations must be made against elected candidates before a re-inspection of ballots may be allowed.

Second, while the right to information is enshrined in the RTI Act, 2005, it must be balanced against the Representation of People’s Act, 1951, which ensures the secrecy of voting — both at the time and after the votes are cast.

Finally, after the results have been declared, ballot boxes are considered to be in the custody of a competent court, not the EC. Hence, the EC cannot be asked to furnish information that it does not legally have.

But EVMs are not ballot boxes. “There are specific challenges to incorporating an electronic process in our elections,”
said Menaka Guruswamy, lawyer, Supreme Court. “The law does not consider the contemporary reality of EVMs.”

Guruswamy points out that all the Supreme Court precedents cited in the judgment are in the context of manual voting and predate the RTI Act.

Section 22 of the RTI Act states that it shall override all existing laws, and Section 6(2) states: “an applicant making a request for information shall not be required to give any reason for requesting the information”. This directly contradicts Justice Khanna’s first argument.

The argument concerning secrecy is also on shaky ground. “The EVM provides for complete voter secrecy,” said P.V. Indiresan, chairman of the expert committee for the technical evaluation of EVMs. “On pressing the ‘result’ button on the machine, the only information given is a candidate-wise tally of votes and the date and time of polling.” Thus, the EVM’s display does not compromise voter secrecy.

The third argument could cause the most long-term damage. By ruling that the EC has no legal access to information stored in EVMs after the results have been declared, the Delhi High Court has effectively barred the EC from conducting tests on its own voting machines.

The Indiresan Committee has recommended that the EC conduct a periodic recounting of votes at selected booths “to generate a climate of confidence about the infallible nature of (the) electoral process”.

With the high court ruling out the possibility of such recounts in the absence of a specific allegation of malpractices, the people’s confidence in electronic voting machines will be eroded. If the EC cannot test its own machines, who can?