INTRODUCTION

Recently, the Election Commission of India (ECI) has been embroiled in several controversies that have cast doubts on its credibility and authenticity in exercising its powers. Sharing the same concerns, an Interim Application (IA) was filed by a non-governmental organization named Association for Democratic Reforms seeking the highest court’s direction to the ECI for uploading the Form 17C data and Voter Turnout Data booth-wise on the ECI’s website. This IA Follows a writ petition filed in 2019 by the All India Trinamool Congress leader Mahua Moitra, who sought the same final relief in the petition. In 2019 the ECI released the data of votes cast on its website which were later removed due to discrepancies between the provisional number of vote count and those counted.

The Petitioner has also previously filed cases against the ECI on issues about defects in the mechanism of declaration of election results, the validity of the appointment of Chief Election Commissioner, and other Election Commissioners Act, 2023.

WHAT IS FORM 17C?

As per Rule 49 S (1) The Conduct of Election Rules 1961, at the close of the poll the presiding officer is required to prepare an account of votes recorded in Form 17C and enclose it in a separate cover with the words ‘Account of Votes Recorded’ superscribed thereon. As per Rule 49 S (2) a true copy of the same Form 17C shall be furnished by the presiding officer to every polling agent at the close of the poll and a receipt from the said polling agent must be received therefor and it shall be attested as a true copy.4

CONTENTION OF THE PETITIONER

The Petitioner raised concerns over the inordinate delay in the disclosure of the Voter Turnout Data during the First Phase by eleven days and four days each for the subsequent phases. Later, the data was released, reflecting only the percentage of Voter Turnout and not the absolute numbers. It also raised doubts about the disparity in the percentage, indicating a sharp increase in the percentage from the initial announcement made on the polling date.

ECI’S STAND AT THE SUPREME COURT

During the proceedings of the IA at the highest court, the ECI asserted that there was no statutory obligation to release the Voter Turnout Data under the Conduct of Election Rules 1961, the only requirement other than Rule 49 S (2) is under Rule 49 V, which entails the delivery of the Form 17C to the returning officer by the presiding officer.

During the arguments, ECI laid down the difference between statutory disclosure of the Voter Turnout Data, i.e. under Rule 49 S (1), which is shared with the agents of the candidates, and non-statutory disclosure through the Voter Turnout app of the ECI, its website and in the form of press releases, by making this argument, the ECI sought to clarify that the data was never concealed, even if the press release was delayed due to administrative reasons. It raised concerns that the release of the wholesome Form 17C data can potentially lead to mischief and compromise the integrity of the entire process. The logical conclusion of this argument can be deduced by examining the structure of Form 17C given under The Conduct of Election Rules 1961, which is divided into two parts, Part I records the Account of the Votes Recorded, and Part II contains the result of the counting, this data, if released, can be fabricated and morphed easily considering the sprawl of the deepfake technologies and its incessant use during the elections to misguide the citizens.

OBSERVATIONS OF THE HON’BLE SUPREME COURT

After the Court carefully heard both sides, it held that prima facie it was not inclined to grant interim relief at this stage, keeping in view the similarity in the prayers of the application with the prayer of the Writ Petition filed in 2019. Secondly, the top court observed that it ought to take a hands-off approach when dealing with ECI during the elections and emphasized the importance of trusting the constitutional authority. The court also reprimanded the timing of the Petitioner’s application and suggested that this application could have been made before the commencement of elections or at an earlier stage, during the pendency of the Writ Petition of 2019.

This observation by the Supreme Court raises concerns about the Petitioner’s intention to undermine the trust of the voters and challenge the authority of the constitutional body and its independent functioning.

Legal Reasoning for this Observation

In the light of the criticism surrounding the Supreme Court’s order for taking such a lenient view of the issue, it becomes important to highlight the legal principles. Supreme Court in several cases like the State of U.P. And Ors vs Ram Sukhi Devi on 5 October 2004 has observed that no interim relief at the initial stage which amounts to the final relief should be granted. This clarifies that the court could not have granted the interim relief until the Writ Petition of 2019 was heard, as both share similar prayers.

Granting such relief would imply granting of final relief under the mentioned Writ Petition which is against the principles of natural justice.

DOES THE ECI’S DELAY IN RELEASING VOTER TURNOUT DATA NEGATES TRANSPARENCY?

ECI is a permanent constitutional body and its functions of the body are entailed under the Representation of the People Act, 1951, The Conduct of Election Rules, 1961, and Article 324 of the Constitution of India but the ECI also engages in performing non-statutory functions such as the Commission runs a flagship program Systematic Voters' Education and Electoral Participation for the voter awareness, education and encourage the voter participation in the election process. Election data released by the ECI is also one such non-statutory function that it performs to instill the voter’s trust in the process. Non-statutory actions of the ECI are a reflection of its commitment to consistently work towards protecting the interest of the voters and maintaining their trust in the electoral process.

A delay in the process of releasing such data cannot be perceived as an indication or an accusation against the constitutional body’s intent to undermine transparency. ECI in its press release clarified its position by stating that the Voter Turnout Data was always available to the candidates as well as to the citizens at large through the Voter Turnout App. It heavily condemned the false narrative and mischievous designs to vitiate the electoral process.

On May 25th this year following a favourable order by the Supreme Court the ECI released the absolute numbers of voter Turnout. This action of ECI can be seen as a strong rebuttal, reflecting that it will not succumb to the unfounded allegations questioning its integrity.

WILL UPLOADING FORM 17C DATA BE EFFECTIVE?

As per the ECI, there are over 10.5 lakh polling stations and at every polling station the presiding officer has to fill the Form 17C i.e. prepare and record the account for the votes after the close of the poll. Uploading each of these Form 17C on the ECI’s website will not make much sense since the data in a scattered form cannot be used for analysis until it is compiled properly.

CONCLUSION

The ongoing accusations on the ECI persist, ranging from opposition parties to independent NGOs. However, the timing of these accusations is still questionable. The case highlights the need to amend the framework for releasing the Voter Turnout Data under The Conduct of Election Results, 1961, and underscores the need for transparency in maintaining the citizen’s trust in the democratic electoral process. But it must be done by respecting the Constitutional Authority of the independent body established under the Constitution of India. Advocating for a more transparent data-sharing process under The Conduct of Election Rules is one aspect, but doing so by way of accusing an independent Constitutional Authority responsible for executing the electoral process is another aspect. A more sensitive approach is needed, or else the entire electoral exercise seems futile.

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References: 

1. Ananthakrishnan G, ‘Polls on, cannot interrupt: Supreme Court declines to direct Election Commission to upload Form 17C copies’ The Indian Express (New Delhi, 25 May 2024)
2. Legal Correspondent, ‘Supreme Court issues notice to Election Commission on ‘discrepancies’’ The Hindu (New Delhi, 13 December 2019)
3. ‘Judgment and Petition’ (Association for Democratic Reforms, 15 May 2023) https://adrindia.org/content/judgment-and-petition - The Conduct of Election Rules 1961
4. News Desk, ‘Why is EC against disclosing voter turnout data under Form 17C? Why was a petition filed in the matter?’ News18 (New Delhi 23 May 2024)
5. Handbook for Presiding Officers (Election Commission of India) 2008 
6. Mahua Moitra V Election Commission of India [2024], Supreme Court of India
7. Ashmit Kumar, ‘Supreme Court refuses to direct disclosure of polling data under Form 17C’ CNBCTV18 (24 May 2024)
8. State Of U.P. And Ors v Ram Sukhi Devi [2004] Supreme Court of India, (Indian Kanoon) 
9. Systematic Voters’ Education and Electoral Participation (SVEEP, 16 April 2019) < https://ecisveep.nic.in/>
10. Election Commission of India, ‘EC releases absolute number of voters for all completed phases’ (ECI, 25 May 2024) < WYKXFehhEH.pdf (eci.gov.in)>
    
11. Express Web Desk, ‘Election Commission releases absolute number of voters for five phases of Lok Sabha elections’ Indian Express (25 May 2024)
12. PTI, ‘When 17C is with candidates & EVMs in strong rooms, how can turnout data be fudged: EC sources’ The Economic Times (24 May 2024)