SC declines directive to ECI on voter turnout disclosure | Latest News India - Hindustan Times

SC declines directive to ECI on voter turnout disclosure

May 24, 2024 02:28 PM IST

A vacation bench of justices Dipankar Datta and Satish Chandra Sharma highlighted the potential implications of judicial interference in the electoral process

The Supreme Court on Friday declined to issue any directives to the Election Commission of India (ECI) regarding a plea demanding the immediate disclosure of authenticated voter turnout records, emphasising the necessity of a “hands-off approach” given that the Lok Sabha elections are currently underway.

Voters queue up to cast their ballots at a polling station during the fifth phase of voting in India's general election in Uluberia of Howrah district on May 20, 2024. (AFP)
Voters queue up to cast their ballots at a polling station during the fifth phase of voting in India's general election in Uluberia of Howrah district on May 20, 2024. (AFP)

A vacation bench of justices Dipankar Datta and Satish Chandra Sharma highlighted the potential implications of judicial interference in the electoral process during an active election period, stressing that such actions could disrupt the ongoing procedures.

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“We can’t interrupt something that’s already underway... In between elections, hands-off approach has to be taken. Let the application be heard along with the main writ petition. We cannot interrupt the process. Let us have some trust in the authority,” the bench remarked while deferring the plea by non-profit Association for Democratic Reforms (ADR) for immediate publication of booth-wise absolute number of voter turnout on the ECI website. A similar petition by former Trinamool Congress parliamentarian Mahua Moitra, who is a candidate from the Krishnanagar seat in West Bengal, was also listed along with ADR’s plea.

Also Read | Congress questions ECI on disclosing polling data through Form 17C

The bench, taking note of submissions by senior counsel Maninder Singh, who appeared for ECI, said that plea was moved after the election process had already begun, and therefore it would not be prudent, especially in the light of settled judicial precedents, to address such concerns during the election process.

“It’s an election spread over seven phases. Tomorrow is the sixth phase. This particular compliance that you are asking for will require manpower and regulatory compliance,” the bench told senior counsel Dushyant Dave, appearing for ADR, and senior counsel Abhishek Manu Singhvi, who represented Moitra.

In its order, the Supreme Court noted that the 2019 petition by ADR asked for a final relief that was akin to the interim application currently under consideration. “How can you ask for an interim relief which is prayed by you as a final relief in the petition? You filed this petition in 2019. What steps did you take to get it listed earlier? Why did you file it in April only after the process began,” the bench asked Dave.

Also Read | Disclosing vote records could disrupt polls, EC tells Supreme Court

The senior advocate responded that ADR approached the court in public interest and that delay by ECI in publishing authenticated data on the voter turnout has created anxiety among the citizens.

But the bench said that it must be circumspect about the nature of public interest litigations (PIL) and the procedure being followed. “How many PILs we see public interest, publicity interest or paise interest litigations... It is for us to keep a check. We are not saying you don’t have a case on merits, what we are telling you is, you may not have approached at the appropriate stage with a proper prayer,” it observed.

It also commented that ECI seemed to have invited trouble for itself by putting out provisional information through the Voter Turnout App.

“We recall that when we were hearing another petition by the same party (ADR) last month, we specifically asked Mr Singh if there is a statutory requirement to share data on the Voter Turnout App. He said ‘No, we are doing it only for merit and transparency.’ We will have to say that it’s like ‘aa bail mujhe maar’ for them. They are doing something to further transparency and being questioned because of that,” quipped the bench.

With the writing on the wall, Dave and Singhvi agreed to have the hearing adjourned to a date after the completion of the ongoing polls.

The bench then proceeded to record in its order: “The arguments on the interim application were heard. Prima facie we are not inclined to grant any relief on the interim application at this stage in view of similarities of the prayer (a) of the interim application with prayer (b) of the writ petition out of which the interim application arises. The grant of relief in the interim application would amount to the grant of final relief. Re-list the application together with the writ petitions before the appropriate bench after vacations. We have not expressed any opinion on merits except the prima facie view indicated above.”

Also Read | Slow pace dogs Mumbai polling, Uddhav cries foul, Fadnavis asks EC to intervene

During the hearing, Singh raised preliminary objections to ADR’s plea, demanding its dismissal straightaway. He contended that false allegations and unfounded suspicions were the foundation for the ADR’s application, adding that the May 9 application suppressed the top court’s April 26 ruling in the EVM-VVPAT issue which not only covered the issue regarding Form 17C but also condemned the NGO for attempts to create doubts over the electoral process.

Form 17C is a documentation of votes cast at polling booths across the country. Its first part consists of data such as electors assigned to each polling station, total number of registered voters in an area, number of electors who decided not to cast votes, those who were not allowed to cast votes, total number of votes recorded on the Electronic Voting Machines (EVMs) and information about ballot papers and paper seals. The second part of Form 17C includes the name of the candidate and the total votes they received. It also has data about whether the votes recorded at a booth are the same as the total votes polled. While the presiding officer puts together an account of votes recorded in Part-I of Form 17C and provides it to every polling agent, Part II of Form 17C is filled in by the counting station supervisor and is signed by each candidate or their representative. It is then checked by the returning officer.

ADR’s plea asked ECI to upload scanned copies of voters’ entries for all polling stations after each phase of polling and to provide detailed constituency and polling station-wise turnout data in both absolute numbers and percentage form. ADR also sought the disclosure of candidate-wise results contained in a separate form, prescribed by ECI after the compilation of results.

ADR’s plea followed ECI’s April 30 announcement of the final voter turnout percentages for the first two phases of the general elections. Phase one saw a turnout of 66.14%, while phase two recorded 66.71%. However, ECI did not disclose the total number of voters per constituency, ADR said. These final figures were significantly higher than the provisional estimates previously released by the ECI, which were published over 10 days after the first phase and four days post the second phase of polling.

Citing these publications, ADR filed an application in the court urging ECI to release the absolute vote counts immediately and upload Form 17C on the ECI website. The plea highlighted a discrepancy exceeding 5% between the final turnout figures and the initial data released on polling days, suggesting an unusual increase of 5-6%.

Opposition parties have also raised alarms over the alleged delay in the release of final voter turnout data, demanding the immediate publication of authenticated data by ECI.

To be sure, voting percentages typically increase in the days following the release of the provisional turnout since it takes time for the poll workers to return from remote polling places located in difficult-to-reach geographic areas, depending on a variety of factors, including the weather. Re-polling in any constituency may also be the cause of the data update delay. The third phase of the ongoing polls addressed the longer lag experienced this time around.

In its affidavit filed in response to the ADR’s plea, ECI on Wednesday submitted that such a request is not maintainable at this stage of the election process and would potentially disrupt the orderly conduct of the elections. The polling body cited a series of Supreme Court rulings stating that any petition that may have the impact of either creating a suspicion or impeding the conduct of the process and conclusion of elections would deserve to be rejected at the threshold itself.

The affidavit claimed there were logistical and practical challenges in complying with one of the petitioner’s demands -- that turnout figures recorded by the polling agents at the close of polling in Form 17C, which is then used to declare results, be uploaded online.

“The legal regime with regard to Form 17C is peculiar that while it authorises 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,” ECI said, arguing that the current procedures and disclosures are sufficient and legally mandated. It added that Form 17C is never uploaded immediately after polling.

ECI also said that a wholesome disclosure of Form 17C is amenable to mischief and vitiation of entire electoral space, adding the original Form 17C is only available in the strong room and a copy only with the polling agents whose signature it bears. “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,” its affidavit claimed.

Addressing allegations of delays and discrepancies in publishing voter turnout data, ECI stated that the data available on the “Voter Turnout App” is provisional and non-statutory, intended for transparency and public facilitation. “The voter turnout data, as available on the ‘Voter Turnout App’ (non-statutory), is only tentative or provisional in nature and through the secondary source. On the other hand, the votes counted are reported as per the statutorily created mechanisms,” the affidavit said.

The tentative figures from secondary source, it added, can never be the final turnout figure as the final figures are on the basis of the statutory forms and the figures contained therein and are dealt according to the procedure laid down.

ECI said out that the final voter turnout figures are recorded in Form 17C at the close of polling, which is then used to declare results. “The recorded data is statutory in nature. The results of the election are only declared by the Returning Officer (RO) thereafter as per Rule 64 of the Conduct of Election Rules 1961,” its affidavit stated.

The poll body also criticised ADR for allegedly creating a false narrative and baseless suspicion regarding the election process. “There is a consistent malafide campaign/design/efforts to keep on raising suspicion and doubt in every possible manner and by misleading assertions and baseless allegations regarding the conduct of Election Commission of India,” it said.

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