New Delhi: The Election Commission on Wednesday (May 22) told the Supreme Court that there is no legal mandate for the commission to disclose voter turnout data based on Form 17C, or the record of votes polled in each polling station, and that such disclosure could be susceptible to misuse.
The elections body has filed the affidavit in response to an application filed by Association for Democratic Reforms (ADR) and Common Cause seeking immediate publication of voter turnout data in the ongoing Lok Sabha elections.
‘Absence of any legal duty’
While claiming that the EC had no legal duty to share authenticated voter turnout data based on Form 17C, the commission in its affidavit said:
It is submitted that there is no legal mandate to provide the Form 17C to any person other than the candidate or his agent. The Petitioner is trying to create an entitlement when none exists in the law by way of filing an application in the middle of the election period.
In its response, the commission distinguished between its legal obligation to collate voter data through form 17C and non-statutory, “voluntary disclosure” of voting data through its app, website and press conferences.
Extracts from the EC’s affidavit.
“The core framework of this general public disclosure, which was and is indisputably non-statutory, was facilitative,” the EC said, adding that the data published on its app was not “constitutive but simply reflective of the data capture taking place through various non-statutory sources”.
It is submitted that the aforementioned IT platform, therefore, is not constitutive of the data capture. It simply is reflective of the data capture taking place through various non-statutory sources, as is explained below, fed by data operators and then collated on the IT platform, to be publicly disclosed.
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The EC adopted an IT platform for release of voter turnout data in 2014, it said.
‘Sharing 17C data may lead to mischief’
In its affidavit, submitted to the court ahead of the hearing on May 24, the commission also said that the data is “amenable to mischief and vitiation of the entire electoral space”.
The commission maintained that Form 17C only needs to be given to the polling agent and no other entity as per its rules.
“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.”
Attacking the petitioners, the commission said that there are “certain elements with vested interests who keep on throwing baseless and false allegations, creating unwarranted atmosphere of suspicion – in the close proximity of time of conduct of every election by the Election Commission of India, to somehow discredit the same. It is most humbly submitted that 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.”
‘EC has forgotten that people have right to information’
“The affidavit filed by ECI to SC regarding disclosure of Form 17C is shocking. What does “one-to one relationship between each Form 17C and its possessor” even mean? If such creative excuses are used to deny disclosure of records, we can bid goodbye to RTI,” transparency rights activist Anjali Bhardwaj told The Wire.
“ECI seems to have forgotten that people have the right to information in our democracy! In fact Rule 93 of the Conduct of Election Rules allows people to inspect and seek copies of election papers including Form 17C. Perhaps we need a campaign to send copies of the RTI Act to the ECI,” she continued.
“ECI indulging in hyperbole – If the Commission is so concerned about being overwhelmed by people coming to seek copies of Form 17C, they should upload it on their website. A copy could also be pasted outside the polling station for interested citizens to access.”
“The most important stakeholders in an election are the voters. Strange to note that the commission is resisting disclosing details to voters. Transparency is key for public trust in the electoral process,” Bhardwaj concluded.
Former IAS office Kannan Gopinathan too questioned the EC’s actions, saying, “Secrecy sows the seeds of suspicion.”
Dear @ECISVEEP,
Why this reluctance to share 17C or PS-wise voter turnout data?
It is a simple click away on the ENCORE application!
Transparency is the foundation of trust.
Secrecy sows the seeds of suspicion. pic.twitter.com/6IkDeyZYZG— Kannan Gopinathan (@naukarshah) May 23, 2024
Background
The commission has been widely criticised for significant delays in publishing voter turnout data and for discrepancies between the final figures and those released initially on polling day.
For phase 1, it took the EC 11 days, and four days each for three subsequent phases, to publish the final numbers – but that too in the form of percentages as opposed to absolute numbers disclosed earlier.
“There is no reason for delays in getting voter data. This data is in the system in real time, within five minutes of the polling ending, all information is available. Now, in this situation, the Election Commission is accountable for why so much time is being taken to finalise the data,” former chief election commissioner S.Y. Quraishi said.
The turnout numbers given by the EC for the first four phases of 2024 Lok Sabha polls, analysed by the Times Insight Group “reveals a 1.07 crore vote difference.” Moreover, the average rise per constituency is “28,000 votes” of the 379 seats that have polled. The analysis has been carried out between numbers given by the EC on the same day as the polling in each phase and then the final numbers made available by the Commission.
“Voters are worried about the strange goings on in the Election Commission through the four phases of voting. First, the Election Commission takes 10-11 days to bring out the final figure of voting and then the difference between real-time data and final figure turns out to be 1.7 crore votes. This is truly unprecedented,” Congress leader Pawan Khera said on X.
Tamil Nadu Information Technology & Digital Services minister P. Thiaga Rajan on May 18, said, “Most candidates (especially smaller or non-tech-savvy parties and independents) will simply not have the capacity to collect, collate, tabulate, and re-sort (by counting table) the Form 17 Data – EVM Serial, Total Votes Polled – from 1,500 to 2,000 booths per MP Constituency, ahead of the vote counting process.”
Rajan underlined that publishing “this data (by booth) was the norm of the ECI till 2019 or so” and asked when they “mysteriously stopped” publishing it, “and took all old Form 17 data off their website”. “Within the ambit of a constitutional democracy, what possible motivation or justification can there be for this action?” the minister asked.
