Was the EC Waiting for the SC to Remind it of the Seriousness of its Responsibility?

The Election Commission of India has released the “absolute number of voters for all completed phases” in a press note issued on May 25, 2024.

The opening paragraph of the press note says:

“The Commission feels duly strengthened by the Hon’ble Supreme Court’s observations and verdict on the process of release of turnout data by the Election Commission of India. This brings upon the Commission, a higher responsibility to serve the cause of electoral democracy with undeterred resolution.”

The reference to the “Hon’ble Supreme Court’s observations and verdict on the process of release of turnout data by the Election Commission of India” presumably refers to the order issued by the Supreme Court on May 24. The applications adjudicated on May 24 had asked for the release of the absolute number of votes cast in each of the phases completed so far and for making Form 17C available to voters at large by posting a copy of it on the ECI’s website. These applications were filed in continuation of petitions which had been filed as far back as 2019 – immediately after the 2019 Lok Sabha elections – but had not come up for hearing till now.

In its 225-page affidavit filed in the SC, the ECI had given many reasons why it could not give the requested information. The court, however, refused to entertain the applications on the technical ground that the “grant of relief, as claimed, would amount to grant of final relief claimed in the writ petition”.

What the operative part of the court’s order says is:

“Prima facie, we are not inclined to grant any relief on IA No. 115592 of 2024 at this stage in view of similarity of prayer (a) of such application with prayer (b) of W.P.(C) No. 1382/2019, in which this application has been filed. Grant of relief, as claimed, would amount to grant of final relief claimed in the writ petition.”

Be that as it may, the first paragraph of the ECI’s press note raises a couple of important issues.

• When it was possible for the ECI to provide the absolute number of voters within a day of the SC’s order, why did it go through the exercise of filing a 225-page affidavit, on oath, to the SC saying that it would take a lot of time and effort to provide these figures?
• What exactly does the ECI mean when it says, in the opening paragraph of its press note, that the SC’s order “brings upon the Commission, a higher responsibility to serve the cause of electoral democracy with undeterred resolution”? This is a really serious issue. Does it mean that before the SC expressed its “observations and verdict on the process of release of turnout data by the Election Commission of India”, the responsibility felt by the ECI was less? To put it another way, was the ECI waiting for the SC to remind it of the seriousness of its responsibility?

This is serious because its indicates that all the commentaries on Article 324 of the constitution of India, the numerous judgments (too many to be counted) of the constitutional courts elaborating the scope of the powers and responsibilities of the ECI under Article 324, and innumerable comments and commentaries in the media over the last several months and years, either did not come to the attention of the ECI or were not enough to clarify to the ECI the enormity of its responsibility.

The second paragraph of the ECI’s press note also raises another interesting issue. The paragraph reads:

“The Commission has therefore decided to further expand the format of release of turnout data to include the absolute number of voters in every parliamentary constituency, which of course is discernible Parliamentary Constituency wise by all citizens themselves by applying the turnout percentage to total electors, both already made available in public domain. The absolute number of voters for the first five phases is given in Annexure 1-5.”

The interesting part of this paragraph is “which of course is discernible Parliamentary Constituency wise by all citizens themselves by applying the turnout percentage to total electors, both already made available in public domain”. ECI had earlier made only the percentages available publicly and not the total number of voters. It had been repeatedly said in various articles and opinions that percentages can only be calculated after the total numbers are known, and therefore there should be no problem in the release of total numbers by the ECI.

This mystery now stands solved.

The ECI seemed to have been trying to assess the arithmetic capability of “all citizens” by checking if they can calculate the total number of voters “themselves by applying the turnout percentage to total electors, both already made available in public domain”.

It is now clear that the ECI had itself done this calculation but was holding back the total number of voters which it has now, after encouragement by the SC, magnanimously decided to disclose.

Also read: ECI Has Forgotten Elections Aren’t Just About Parties – They’re About the People

Random, inconsistent behaviour and trust

It is hard to believe that the ECI was just waiting to be given a word of encouragement and confidence by the SC.

In reality, both the actions of the ECI, in first not releasing the data that it clearly had in its possession and which used to be released in all prior elections, and now releasing it within a day of the SC’s order which did not ask the ECI to release it, are equally inexplicable.

The author is unable to identify any rational reason for both these actions and no reason, other than SC’s encouragement, has been given by the ECI. Of course, the SC had not asked the ECI not to release this data in the first instance, nor had it asked the ECI to release it now.

One of the characteristics of inexplicable behaviours is inconsistency which is clearly visible here. Such inexplicable and inconsistent actions usually lead to doubts.

It is in this background that one is forced to wonder about the SC’s exhortation to have complete faith and trust in the ECI.

What next?

One is tempted to say this election is almost over but it is not. It is really impossible to say what else may we have to see before the curtain finally comes down on this election. But one lesson that emerges is that all that has been learnt about what all is possible during the election process should result in appropriate corrective action well before we are faced with the next election, not necessarily in 2029 but in the next state assembly election.

Jagdeep S. Chhokar is a concerned citizen.