Transparency of Election Papers: Who’s Afraid of the Big Bad Wolf?

Last week, during the debate on our constitution in the Rajya Sabha, Union home minister Amit Shah attacked the Congress for its track record of treating the foundational law of the land as the private fiefdom of ‘one family’. Listing out the seven score-plus constitutional amendments the Congress piloted when it was in power since 1950, he remarked that those were made for ‘political gain’.

In comparison, the constitutional amendments mooted by the BJP after it came to power in recent decades, focused on empowering citizens and enhancing governance, he said.

Constitutional experts may examine the soundness of these claims over time. But three days later, the National Democratic Alliance (NDA) government incorporated a tiny amendment in the election-related law to restrict access to crucial documents and papers related to parliamentary and state assembly polls.

Less than ten days before this fiddling with the pro-transparency rule, the Punjab and Haryana high court had passed a two-page order directing the Election Commission (EC) to furnish certain election papers and records to lawyer Mehmood Pracha, a vocal proponent of free and fair elections.

The court brushed aside the EC’s plea that the petitioner was seeking copies of videography recordings, CCTV camera footage and documents relating to the voter turnout at polling stations during the Haryana assembly elections for malicious intent and purposes as he was not a resident of the state.

Several media houses and opposition leaders have criticised this amendment. It may look innocent at first glance. A deeper analysis reveals its potential for empowering the EC and the election-related bureaucracy in the states and Union territories (UTs) to deny citizens access to a host of information that is not being voluntarily published or is being formally requested.

In this writeup, while analysing the purport and the likely impact of the amendment, I present basic information about:

• the kinds of papers and documents that are mentioned by the election-related laws and rules;
• the kinds of records and documents that are mentioned only in the EC’s handbooks and manuals that are crucial for establishing whether or not elections are conducted in a free and fair manner; and
• the election bureaucracy’s resistance to the transparency of election-related papers even when requests are made under the Right to Information Act, 2005.

What is amended?

The Representation of the People Act, 1951 (RPA-1951) is the basic law that governs the conduct of elections to both houses of parliament and the state legislatures. The Conduct of Elections Rules, 1961 (CoER) detail the systems, processes and procedures that must be put in place and the proforma of various reports and returns that must be created during various stages of the elections.

Parliament has delegated the power to make rules under the RPA-1951 to the Union government solely, even though the EC is the apex body vested with powers of superintendence, direction and control for the preparation of electoral rolls (voter lists) and the conduct of elections under Article 324 of the constitution.

Rule 93(1) of the CoER provides for the maintenance of secrecy of the following papers and documents created during the elections to parliament and the state legislatures which lie in the custody of the returning officer (RO) of the constituency or the district election officer (DEO):

1. Packets containing unused ballot papers with counterfoils attached;
2. Packets of used ballot papers whether valid, tendered or rejected;
3. Packets of the counterfoils of used ballot papers;
4. Packets containing the marked copy of the electoral rolls which is used to identify electors who go to polling stations to vote;
5. Packets containing registers of voters in form 17-A on which electors sign or put their thumbprint before entering the polling booth; and
6. Packets containing declarations by electors and the attestation of their signatures (for example when an elector refuses to cast the vote despite signing the register or when a voter disputes the information printed on the VVPAT [voter-verifiable paper audit trail] slip after he/she has pressed the ballot button); and
7. The control unit of the electronic voting machine (EVM) which is sealed and kept in the custody of the DEO.

Readers will appreciate that these categories of records must be kept under wraps in order to protect the secrecy of the ballot – a foundational principle of free and fair elections.

Also read: All We Need from the Election Commission Is Full Transparency

Prior to the amendment, Rule 93(2) stated: “other papers relating to the elections shall be open to public inspection”, implying that all records not on the negative list mentioned above would be open for people to see.

This rule also facilitated the supply of copies of these ‘other papers’ to any person who submits an application, subject to such terms and conditions and the payment of fees that the EC determines.

Rule 93(3) provides for the furnishing of copies of the returns of election (detailed statistics about votes cast and candidate-wise tally of the votes counted) prepared by the RO/DEO and the chief electoral officer (CEO) of the state/UT.

The amendment notified via the official gazette on December 20, 2024 inserts the phrase “as specified in these rules” in Rule 93(2). The amended Rule 93(2) now reads as follows:

“(2) Subject to such conditions and to the payment of such fees as the Election Commission may direct,–

1. 1. 1. all other papers as specified in these rules relating to the election shall be open to public inspection; and
      2. copies thereof shall on application be furnished.” (emphasis supplied)

Why is this amendment problematic?

When viewed within the context of the recent order of the Punjab and Haryana high court, it looks like the NDA government intends to limit the public inspection and supply of copies to only such documents and papers that are specified in the CoER and no other.

Readers may ask: ‘How does the amendment restrict access? Does it not make it clearer that inspection will be permitted and copies will be furnished with regard to all documents mentioned in the Rules?’

That is the initial reaction when one reads the amendment in isolation without looking at all other handbooks and manuals used by the election bureaucracy that require the creation of reports, registers, certificates and updates during and after elections, none of which are mentioned anywhere in the CoER.

Access to such documents was not barred before the amendment, but now there is every likelihood of refusal when a request is placed for access to the election-related records which are not specified in the CoER.

Strangely, most of the analytical media reportage about this amendment has focused on the limitation it may place on:

1. access to videography done at various stages of the electoral process; and
2. CCTV camera footage that is created in relation to elections, for example, the strong rooms where EVMs are stored.

Unnamed officials within the EC are also being quoted in some media reports as justifying the amendments on the grounds that they are intended to restrict access to election-related records to persons who are not electoral candidates.

This justification is akin to the EC’s response to Pracha’s petition that the Punjab and Haryana high court allowed. This argument ignores the very basic principle that ‘democracy’ is first and foremost the business of the people. Voters are the primary stakeholders in elections – a constitutional imperative which the Supreme Court of India has emphasised time and again. Political parties and candidates are only incidental to constituting a representative democracy.

However, the EC seems to have got its priorities topsy-turvy by opposing Pracha’s petition in court. Now with this amendment, the NDA government has only reinforced its well-recognised programme of emasculating the citizens’ right to know. To what extent the EC is complicit in this latest endeavour remains to be probed.

The EC seems to have got its priorities topsy-turvy by opposing Pracha’s petition in court. File photo of incumbent election commissioners courtesy of EC website.

What documents and papers are listed in the CoER?

But what is the information about elections that people ought to know above and beyond what is permissible under the CoER?

First and foremost, it is important to appreciate what kinds of records and papers related to elections are created under the CoER. Rule 93 mentions only a short negative list of documents which we have seen above. Open access to these records is barred except on the orders of a competent court (which invariably is the concerned high court acting as the election tribunal under Article 323B(f) of the constitution and the Supreme Court as the highest court).

Many other papers and documents are created before, during and soon after the completion of elections. These can only be gleaned out of the CoER as it does not contain a positive list. So, I have attempted a compilation of such documents and papers which are mentioned in the CoER but not covered by the negative list specified in Rule 93. Click here to open the compilation.

To the best of my knowledge there are at least 34 types of notifications, documents, reports, certificates and returns created before, during and after the elections which are identifiable upon a plain reading of the CoER.

There are at least 26 forms in which many of these categories of information are required to be recorded and/or reported or submitted to the concerned authorities. These include the public notice of the upcoming elections which the RO of a constituency issues; the nomination papers and affidavits filed by candidates; the final list of contesting candidates; the appointment of election agents, polling agents and counting agents by candidates/political parties; papers relating to the issue and use of postal ballots; the declaration of results and the election returns submitted to the EC by the RO etc.

See pages 1-4 of the compilation, as in the interests of brevity I do not mention them all here.

Prior to the amendment, not only contesting candidates but also voters could seek and obtain access to all these records as they are not specifically barred under Rule 93(1).

Which documents and papers are not listed in the CoER?

There are more than 60 prescribed formats for other documents and papers which are created before, during and after the elections which are not mentioned in the CoER but are traceable to (see pages 5-15 of the compilation):

1. Handbooks of the Presiding Officer and Returning Officer (27 documents);
2. Handbook for Sector Officers (17 documents);
3. Handbook for General, Police and Counting Observers (21 documents);
4. Compendium of Instructions on Election Expenditure Monitoring (17 documents); and
5. Documents mentioned in the Manual on Electronic Voting Machine.

Election experts might be able to identify many more documents and papers from these publications available on the EC’s website, but this is what I have been able to pinpoint based on my limited understanding. Clearly, the recent amendment to the CoER seeks to keep all these documents insulated from public inspection and copies may be denied to any person for the reason that they are not mentioned in the Rules.

Here is a sampler of these documents, access to which is crucial for verifying the legitimacy of the electoral process. Along with the explanation of the significance of the following categories of documents, I have also narrated my own experiences of trying to get hold of some of them in relation to the Lok Sabha and assembly elections conducted since 2019.

EVMs

Elections to the Lok Sabha and the assemblies have been conducted through EVMs for several years now. Doubts have been raised about their efficacy time and again. The EC has steadfastly vouched for their reliability, and winners at the hustings have pooh-poohed those who doubt their performance as sore losers or busybodies.

I am not contributing to this debate as that is not the purpose of this article. However, several of these claims intended to demonstrate the ‘infallibility’ of EVMs are not backed up by supporting documents (as I have shown in these columns between February and April this year) and now, more and more information has become scarce.

Bharat Electronics Limited (BEL) and the Electronics Corporation of India Limited (ECIL), which manufacture the EVMs and VVPATs, begin the exercise of dusting and cleaning up these machines stored in strong rooms in all districts across the country, at least six months before general elections to the Lok Sabha or the concerned assembly are due.

Thousands of engineers appointed by these companies visit the districts and conduct what is called first-level-checking (FLC) to ascertain the working condition of each unit of the machine – its ballot unit, control unit and VVPAT unit. Representatives of political parties are invited to witness this exercise, from a respectable distance of course. The FLC exercise is videographed as well.

The companies submit daily progress reports online to the DEO and the EC about the number of machines that have been found “FLC OK” and those which are “FLC Not OK” because of some defect or error. These matters are described in the FLC Instructions issued by the EC to the CEOs and the manufacturing companies from 2017 to 2022 (see the EC’s communication of No. 51/8/INST/2022-EMS dated September 13, 2022), the RO’s Handbook (see next section for details) and the Manual on Electronic Voting Machine (2023 edition). 

The CoER makes no mention of this FLC process, so the amended Rule 93 may be used to deny access to these documents which are created during the ‘conduct of elections’.

Also read: In Publishing Percentage and Not Vote Count, the EC Flouts the Basic Rules of Data Science

RTI interventions on EVM first-level checking reports and details of component suppliers

BEL and ECIL have always denied access to these reports. In 2019 and more recently in 2023, I was able to get access to these reports from the EC through the RTI with some difficulty. But in 2024, a lid has been put on these documents.

Strangely, the EC’s central public information officer (CPIO) told me last year that it is the responsibility of the CEOs and the DEOs to collect and review these reports. The EC itself may or may not get these reports and even if they get some, they may not print them for making them available to nosy RTI applicants (like me who have nothing better to do in life).

While I was able to get the FLC reports in 2019 and for some assembly elections conducted in 2023, access has been denied for the elections conducted in 2024. In response to my RTI application filed after the recent Lok Sabha elections, both BEL and ECIL claimed that they do not have the FLC reports which their own engineers had prepared.

BEL advised me to contact the CEOs for these reports. As for the nature of errors discovered in the machines during the FLC, BEL claimed the commercial confidence exemption under Section 8(1)(d) of the RTI Act.

That is not all. When I sought the names of the suppliers and the purchase orders of various components that are put together to make the EVMs, both companies claimed the same exemption to reject the RTI applications and the appeals.

These purchase documents are not covered by the CoER, so the amended Rule 93 may be invoked to keep this information hidden as well, even if candidates were to make an application.

Absolute voter turnout figures

A major complaint that opposition parties and election watchers have raised publicly about the EC’s manner of functioning is about the non-availability of voter turnout data in absolute numbers until long after polling is completed. The EC has also given up the earlier practice of publishing copies of Form 17C, which contain these figures for each polling station, for reasons best known to itself. Only percentages are published during the course of polling day and even these are ‘not final’ until the EC releases the final figures much later.

Readers are aware of this controversy, so I will not go into the details except to point out that such data is captured in at least three reports, none of which are even hinted at in the CoER.

First, according to the Presiding Officer’s Handbook (2023 edition), the presiding officer of every polling station has to maintain a diary recording in it details about the polling station, materials and machines supplied and used there, polling agents present there, how many electors were allowed to cast ‘tendered votes’, the number of challenged votes, any significant event that may have occurred and that may impact the conduct of free and fair elections, and most importantly, the number of votes cast in the polling station between 7:00-9:00 am, 9:00-11:00 am, 11:00 am-1:00 pm, 1:00-3:00 pm and 3:00-5:00 pm.

Para 4.5.4 of this handbook instructs the presiding officer to push the ‘total’ button on the control unit every two hours to ascertain the total number of votes cast until that moment for the purpose of recording it in the diary. I will explain what happens if the polling goes on beyond 5:00 pm in the next section.

This Presiding Officer’s Diary is used during the scrutiny of documents conducted by the RO on the day after polling, in the presence of the EC-appointed election observer, after which it is sent to the strong room.

Where does it lie after the completion of this process? The handbook is silent on this point.

The RO also records information for the entire constituency under his/her charge about the number of votes cast in all polling stations between 7:00-9:00 am, 9:00-11:00 am, 11:00 am-1:00 pm, 1:00-3:00 pm and 3:00-5:00 pm in the report that is required to be sent to the EC.

This report also contains a wealth of other information about the conduct of elections in the constituency. The format for this reporting is contained in Annexure 44 of the RO’s Handbook (2023 edition).

Neither the Presiding Officer’s Diary nor the RO’s report or its format is mentioned in the CoER. So, the amended Rule 93(2) can be used to frustrate anyone who would like to get a copy of this report to find out the voter turnout figures recorded every two-hours.

Tokens distributed towards the close of polling

Another major controversy that has arisen this year is the alleged jump in the final voter turnout figures that the EC has announced after every election.

Election watchers have released report after report showing major hikes in the voter turnout data when the provisional percentages released by the EC are compared with the final figures. I am not getting into this debate either as that is not the purpose of this article.

One of the explanations given for this discrepancy is that a large number of voters cast their vote just around the time stipulated for the close of polls. This claim can be verified on the basis of two documents. As explained in an earlier section, the absolute voter turnout figures are available for the 3:00-5:00 pm slot in the Presiding Officer’s Diary for every polling station and the RO’s report for every constituency.

But voting is permitted even after 5:00 pm if electors have queued up at the polling station up to that hour.

The Presiding Officer’s Handbook advises him/her to distribute pre-numbered slips or tokens with his/her signature on them to the electors standing in the queue just a short while before 5:00 pm to enable them to cast their vote. This data about the number of tokens distributed is recorded in the Presiding Officer’s Diary along with the actual time at which polling ended.

The presiding officer is also required to mention in the diary the time at which the ‘close button’ on the control unit is pressed to prevent the further use of the machine until counting day.

Election watchers have released report after report showing major hikes in the voter turnout data when the provisional percentages released by the EC are compared with the final figures. File image of voters from EC website.

The EVMs are then sealed in the presence of polling agents and taken to the reception centre for depositing in the strong rooms. All this happens under the watchful gaze of the polling agents, sector officers and micro-observers appointed to monitor polling stations.

That is not all. The number of tokens issued towards the stipulated time for the close of polls is also recorded in two other documents.

First, this data is recorded in the report of the sector officer appointed for each polling station, which is filed independent of the Presiding Officer’s Diary. The format of this report is given in Annexure VI of the Sector Officer’s Handbook (2023 edition). We will revisit the role of the sector officer in the section on vulnerability mapping below.

Second, data about the tokens issued just before 5:00 pm is also available in the constituency report that the ROs send to the EC (which we discussed in the earlier section). All that the EC has to do is disclose this data along with the two-hourly voter turnout data to dispel all doubt about possible inflation of voter turnout figures.

But none of these reports are mentioned in the CoER. So, the amended Rule 93(2) can be used to deny access to this information also.

This is the biggest irony today – the EC allows for controversies to rage on when it has the information readily available to bring them to an end. I filed an RTI application a few days ago seeking the constituency-wise number of tokens distributed to last-minute voters in the recently concluded Maharashtra assembly elections. The EC’s reply is awaited.

Presence of polling agents at polling stations

The EC has faced a lot of criticism for not supplying copies of Form 17C containing voter turnout figures from every polling station to several candidates of opposition parties. It seems to have relied on a restrictive interpretation of Rule 49S of the CoER, which says that such copies will be supplied to “polling agents present at the polling station at the close of poll”.

It is common knowledge that many independent candidates and even opposition parties big and small are unable to depute polling agents at every polling station due to resource constraints. The reasons behind these constraints are well-known and this is not the place to enter into that debate.

However, the EC has established a mechanism to collect data about the number of polling stations where only one polling agent was present on polling day or none were in attendance at all.

First, the sector officer mentioned above makes a record of this data in Annexure VI for the polling station under him/her.

Second, this data is also included in the report which the ROs send to the CEO and EC after scrutinising all documents created on polling day. This scrutiny requirement is mentioned in paragraph nos. 13.88.6-8 of the RO’s handbook. A proforma for reporting is also provided in it.

As mentioned above, none of these reports are mentioned in the CoER. So, the amended Rule 93(2) can be used to deny access to this information.

RTI interventions on polling station scrutiny reports

This year I was able to get copies of ROs’ scrutiny reports from only a handful of constituencies in Karnataka for the Lok Sabha elections despite filing RTI applications for all 28 constituencies. For example, no polling agent was present in 210 polling stations in the Chitradurga constituency. Four-hundred-and-eighty-eight polling stations in Uttara Kannada constituency reported the presence of only one polling agent each.

However, when I filed four RTI applications with the EC for the phase-wise proactive disclosure of this information from all 543 Lok Sabha constituencies and the assemblies to which elections were held simultaneously, the EC replied to a couple of them saying that my request was vague and unclear. It simply did not respond to others.

I had also sought a similar disclosure of scrutiny reports for the assembly elections that were held simultaneously. One of the RTIs reached the EC’s desk that monitored the assembly elections in Odisha. The officer denied access citing Section 8(1)(g) of the RTI Act, which exempts information that may endanger the life of any person!

Vulnerability mapping of constituencies to prevent the influence of money and muscle power

It is common knowledge that elections in our country are not insulated from the pernicious influence of money and muscle power. Some election watchers have published ginormous estimates of unaccounted money flows that reach down to the ward level of the constituency. These figures are not included in the official election expenditure reports of the contesting candidate or the party he/she represents.

Rule 88 of the CoER provides for the inspection of the accounts of election expenditure, submitted by contesting candidates, and the supply of attested copies to any person, on payment of fees fixed by the EC.

The EC and the CEOs also publish data about the cash, liquor, drugs and narcotics and other articles such as laptops, pressure cookers, sarees, dhotis etc. meant for distribution to voters that are seized from constituencies during the campaign period. All such expenditure is illegal.

In addition to resorting to punitive action, the EC has established an elaborate mechanism for taking preventive action to deter inducements i.e. the distribution of bribes for votes and the intimidation of voters.

Non-uniformed sector officers are appointed along with police sector officers to map every polling station for its vulnerability quotient. The DEO is required to supply a wealth of information about polling stations so that sector officers may determine vulnerability at the household level several months in advance of the next elections. Not only are the names of the members of such households reported to the DEO, but the names of intimidators must also be indicated so that preventive action may be taken against them under criminal law.

Sector officers send at least three reports to the DEOs about the action taken to deter inducement and intimidation at different points of time. Reporting formats are provided in the Sector Officer’s Handbook (2023 edition).

Further, expenditure-sensitive constituencies and expenditure-sensitive pockets in each constituency must be identified and reported to the CEO along with details of preventive action taken. Reports from the districts are compiled by the CEO and sent to the EC (see pages 8-9 of the compilation).

Additionally, there is a mechanism for reporting the daily seizures of cash and other materials circulating in the constituency for the purpose of voter inducement. These reports are compiled by nodal officers at the district level from the daily activity reports filed by flying squads, static surveillance teams and Income Tax officials belonging to the Directorate of Investigation as well as officials of the police and excise departments which conduct search and seizure operations.

Expenditure observers appointed by the EC send four mandatory reports from every constituency at different points of time. General and police observers appointed similarly send four constituency-specific reports each, at different points of time after the elections’ schedule is announced (see pages 9-15 of the compilation).

These reports cover a large variety of topics, including paid news and the use of social media to unduly and illegally influence voters. These reports are also mandatory in nature.

Mechanisms have also been put in place for banks to report ‘suspicious transactions’, namely large-sized cash withdrawals. Apart from the Income Tax Department and the secretive Financial Intelligence Unit, the EC also has access to such reports as admitted by the current chief election commissioner at the press conference held soon after the Lok Sabha election schedule was announced in March 2024.

All these systems are intended to ensure effective implementation of the Model Code of Conduct.

None of these reports or the underlying formats are mentioned in the CoER. So, the amended Rule 93(2) can be used to deny access to this information.

Also read | Review: Why Criminals Enter Politics in India

RTI interventions on sector officer and election expenditure reports

Earlier this year, I sought copies of the sector officers’ vulnerability mapping reports from more than 20 DEOs related to the Lok Sabha elections held in Karnataka. A handful of them supplied the information, which contained details of action taken to identify households vulnerable to intimidation. Names of intimidators and the action taken to deter them were also mentioned. 

But most of the other DEOs either did not reply or simply rejected the RTI application, saying that the ‘sensitive information’ cannot be given.

Karnataka’s chief electoral officer collected Rs 2,902 to supply a big bundle of papers containing the names and contact numbers of the appointed sector officers in every constituency. However, the state public information officer refused access to the list of expenditure-sensitive constituencies and expenditure-sensitive pockets by citing the notoriously retrograde ‘one subject matter’ RTI rule applicable in Karnataka.

The EC denied that they have copies of the compiled vulnerability mapping reports that CEOs are required to send and suggested that I contact them with separate RTI applications. As for the expenditure-sensitive constituencies and expenditure-sensitive pockets, the EC said the information was too voluminous and denied access applying Section 7(9) of the RTI Act, which is not even an exemption clause.

The EC denied access to the expenditure observers’ reports claiming possible endangerment to a person’s life (whose life they are protecting the CPIO did not clarify).

Two circulars the EC issued in 2022 and 2024 were cited to claim that the entire category of observer reports is exempt under Section 8(1)(g) of the RTI Act, which covers not only the endangerment of life but also protects the identity of persons who give information for law enforcement purposes.

So, the IAS officers appointed as general observers, the IPS officers appointed as police observers and the IRS officers appointed as expenditure observers are reduced to the status of ‘mukhbirs’ and ‘khabris’ i.e., ‘intelligence informers’ hired by the local police thanas, during elections.

The latest RTI reply came from the EC a couple of days before I began writing this piece. The CPIO said that the EC does not have any suspicious transaction reports with them or details of action taken on them. The CPIO advised me to contact the DEOs individually as these reports are sent to them directly.

Two letters on the subject which the EC sent to the CEOs in 2012 and 2024 were attached as proof of its “we have nothing to do with it” approach to such reports. Readers may recall this familiar phrase used during a certain debate in parliament a couple of years ago, which has become a meme to lampoon certain ministers of the NDA government.

I am not making any comment on the efficacy of the systems that exist on paper for preventing intimidation and the undue influencing of voters because I do not have enough data. But the stonewalling of transparency under the RTI Act is unmistakably stark. The amended Rule 93(2) is only likely to make this wall of resistance thicker.

Election index cards

The RO’s Handbook also mentions the requirement of sending basic election data to the EC for the purpose of preparing statistical reports for every general and by-election it conducts to the Lok Sabha and the assemblies. The format for sending these ‘index cards’ is given in Annexure 46 of the RO’s Handbook.

Until 2014, the ROs were required to send this data within 14 days of the declaration of the election results. Subsequently, the time limit has been reduced to seven days.

The index cards contain information filled out on the basis of poll-related documents collected from every polling station. They include fields such as data about nominations received, rejected and withdrawn; the names of contesting candidates; the gender-wise number of electors in the constituency; the gender-wise number of persons who actually turned up for voting; NRI electors and voters; the details of votes polled via EVMs and postal ballots; and the candidate-wise tally of votes, including EVM votes and postal ballots recorded assembly segment-wise in the case of Lok Sabha constituencies.

A comparison of the format given in Annexure 46 of the RO’s Handbook with the return of election which the RO fills out in Form 21E as required in Rule 64 of the CoER shows that the former – i.e. the index cards – contain much more detailed information than the latter.

These index cards are not mentioned in the CoER. The amended Rule 93(2) may be used to deny access to this document as well.

RTI interventions on index cards

Perplexed by the ongoing controversy about voter turnout figures, I first filed an RTI application with Karnataka’s chief electoral officer for the index cards submitted by ROs for the 2024 Lok Sabha elections. This information was sent free of cost as it was dispatched after the 30-day deadline.

The strangest discovery from an examination of these reports is that for several constituencies, the final voter turnout figures did not match with the phase-wise absolute voter turnout figures that the EC released reluctantly after much badgering from opposition parties and the mass media.

This is a topic for another write-up and I am not delving into the details here.

However, the EC’s response to a similar RTI application for the disclosure of index cards for all Lok Sabha constituencies and assembly constituencies of Haryana and Jammu and Kashmir where elections were held earlier this year was even more surprising.

The CPIO replied that more than 700 index cards are received for the 543 Lok Sabha constituencies as they span more than one administrative district each across the country. So, access was denied under Section 7(9) of the RTI Act saying that supplying copies would disproportionately divert the EC’s resources!

As for the index cards from the assembly constituencies, the CPIO said that the EC has not received them even two months after the completion of the elections!

I have not been able to decide whether I should spend more money on sending an RTI application for the index cards relating to the Maharashtra and Jharkhand assembly elections by post, because the EC’s online RTI facility has stopped accepting my RTI applications for more than two months!

Conclusion

Unlike new laws or amendments to existing laws which require the prior tabling of Bills to receive the approval of parliament or the state legislatures as the case may be, a different procedure is followed for Rules made by governments.

Laws give the rule-making power to the Union or the state government or both (as in the case of laws made on subjects covered by the concurrent list or the fundamental rights enshrined in the constitution) to fill out the details required for implementing them.

This is called ‘delegated power of legislation’ and the rules and/or regulations made by the delegatee under a law are called ‘subordinate legislation’. The delegatee makes the rules first with or without prior public consultation and tables them in the concerned legislature after their notification in the official gazette.

In effect, the Rules become enforceable from the moment of notification.

Legislators have the power to move motions when the house is convened, within 30 days of the tabling to either amend or annul the Rules. The Union government invoked this rule-making power to amend Rule 93(2) of the CoER. For all purposes, the amended rule has become enforceable.

Both houses of parliament have a standing committee each to vet rules and regulations notified by the Union government. This is called the Committee on Subordinate Legislation (CoSL). Similar committees exist in the state legislatures as well.

The CoSL’s specific mandate is to scrutinise the Rules to see whether or not they are within the four corners of the powers granted by the parent law to the delegatee.

Government does not have the power to make rules which are contrary to the provisions of the parent law or which violate the constitution. While the Rajya Sabha CoSL was constituted in October 2024, its counterpart in the Lok Sabha is yet to be constituted. Two parliament sessions have come and gone, but the Lok Sabha’s CoSL remains empty.

It is strange that the Congress has elected not to go to the Rajya Sabha CoSL to demand the vetting of Rule 93(2). Instead, it has mounted a challenge in the Supreme Court.

There is a strong possibility that the chairpersons of either house of parliament might not allow the tabling of amendment or annulment motions against Rule 93(2) or refer its scrutiny to the Rajya Sabha CoSL by holding that the matter is sub-judice.

Readers may examine whether or not this hurried manner of approaching the apex court will foreclose legislative options for examining and correcting the retrograde amendment of Rule 93(2).

I hope the Supreme Court will apply the principle of ‘complete transparency’ which it espoused in the electoral bonds case to this matter as well. If elections are to be truly free and fair, only the vote cast by every citizen deserves secrecy and consequently all election papers that may reveal that choice must be kept confidential. Other poll-related papers and documents must be available for public access proactively or on formal request to ascertain whether everything was done to ensure that the elections were truly free and fair.

If not, the citizenry and the opposition parties will continue to suspect that there is a ‘big bad wolf’ that the government and the EC fear may be let loose by toeing the path towards greater transparency.

Venkatesh Nayak is Director, Commonwealth Human Rights Initiative, New Delhi. Views expressed are personal.