'Hands-Off Approach Amidst Elections': Supreme Court Refuses To Direct ECI To Disclose Form 17C Records Of Votes Polled, Adjourns Plea
Expressing reluctance to interfere in the middle of the election process, the Supreme Court on Friday (May 24) adjourned an application seeking directions to the Election Commission of India to publish the booth-wise absolute numbers of voter turnout and upload the Form 17C records of votes polled on its website.A vacation bench of Justices Dipankar Datta and Satish Chandra Sharma said that...
Expressing reluctance to interfere in the middle of the election process, the Supreme Court on Friday (May 24) adjourned an application seeking directions to the Election Commission of India to publish the booth-wise absolute numbers of voter turnout and upload the Form 17C records of votes polled on its website.
A vacation bench of Justices Dipankar Datta and Satish Chandra Sharma said that a "hands-off approach" has to be taken by the Court regarding the election process and that there cannot be any interruptions in the process.
The bench also pointed out that the prayers in the interlocutory application are the same as the prayers in the main writ petition filed in 2019. The bench stated that the main relief cannot be sought in an interim application and suggested that the application be heard along with the main petition.
"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," Justice Datta orally said.
After hearing arguments for over one hour, the bench dictated the following 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. Relist the application together with the writ petitions before the appropriate bench after vacations. We have not expressed any opinion on merits except he prima facie view indicated above."
The interim application was filed by NGO Association for Democratic Reforms (ADR) in a writ petiton filed by it in 2019. A writ petition filed by TMC leader Mahua Moitra in 2019 alleging discrepancies in the voter turnout data of the 2019 General Elections is also listed today along with it.
Senior Advocate Dr Abhishek Manu Singhvi appeared for Mitra. Senior Advocate Dushyant Dave appeared for ADR and Senior Advocate Maninder Singh appeared for the ECI.
ECI raises preliminary objections
At the outset, Singh questioned the maintainability of the petition filed by ADR on the ground that the issues were covered in the judgment in the EVM-VVPAT case. Refuting the submission, Dave said that the EVM-VVPAT case covered a totally different aspect; it pertains to the post-counting situation, while the present application is regarding the pre-counting stage.
Singh contended that the ADR's application was based on "unfounded suspicions" and "false allegations." He added that the application, filed on May 9, suppressed the judgment in the EVM-VVPAT case delivered on April 26. Citing Article 329 of the Constitution, Singh contended that the provision bars judicial interference in the middle of the election process.
He stated that the figures in the Voter Turnout App are tentative as they are based on secondary sources. He also refuted the ADR's argument that there was a variance of 6% in the final data from the figures published; the variance is only 1-2%, he said.
Pointing out that the Supreme Court had questioned the bona fides of the ADR in the VVPAt case, Singh said that on the same day the judgment was delivered, the present application "was churned out by the factory", suppressing the judgment in EVM-VVPAT since it had adverse remarks against the petitioner. Singh also claimed that petitions like these are responsible for reducing the voter turnout because of the "continous questioning of the process."
ADR's response
When Dave took stage, Justice Datta said, "We have some questions." Firstly, Justice Datta stated that the prayer sought in the application is the same as the prayers in the main writ petition. Therefore, Justice Datta asked if the main relief can be sought in the interim application.
Justice Datta next pointed out that the interim application was filed based on certain press releases of the ECI. He asked if the subsequent developments can be taken note of in a pending writ petition. "What is the nexus between the 2019 petition and the 2024 application? Why didn't you file a separate WP?," Justice Datta asked.
Justice Datta also asked why did the petitioner not bring the issue before March 16(date of notification of election) and filed the application only after April 26 when the process was on. He asked why the petitioner did not take any steps to get the matter heard for five years.
In reply, Dave said that the cause of election for the application arose only when the Election Commission made the disclosures regarding the voter turnout.
"In between election, 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 trust some authority," Justice Datta said.
Appearing for Mitra, Singhvi said that in PIL matters, the Courts ought not to adopt a technical approach and entertain arugments of constructive res judicata, interim prayer covered by final prayers etc.
"Tomorrow is the 6th phase, 5 phases are over....this particular compliance that you are insisting upon would require manpower, it is not possible during this period. We have to be very conscious of the ground reality, we feel this could be heard after the vacations," Justice Datta told Singhvi.
In response, Singhvi said that there are nearly 10.37 lakh Form 17C records in all 543 constituencies. If the total forms are divided by the number of constituencies, the number per Returning Officer per constituency, the figure will come to 1911 forms. "It is manageable," he said.
However, the bench expressed its reluctance to interfere at this stage and dictated the order.
Disclosure of Form 17C can lead to mischief: ECI says
In its couter-affidavit, the ECI has opposed the application stating that there is no legal mandate for the general public to access Form 17C. The ECI stated that as per the Conduct of Election Rules, Form 17C can be given only to the polling agent of the candidate. The ECI also said the uploading of Form 17C on the website can lead to "mischief" and confuse the voters leading to mistrust in the process.
The ECI in its affidavit has opposed the plea for public disclosure of the copies of Form 17C (the statutory record of votes polled in a polling station).
Opposing the application filed by ADR and Common Cause seeking immediate publication of voter turnout data with respect to the ongoing Lok Sabha Elections, the Election Commission told the Supreme Court that indiscriminate disclosure of Form 17C data would increase the possibility of images being morphed, including counting results, which can create widespread public discomfort and mistrust in the electoral process.
"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."
The ECI also stated that as per Rules, Form 17C needs to be given only to the polling agent. The Rules do not permit the giving of Form 17C to any other entity. General disclosure of Form 17C to public is not contemplated by the rules.
"The legal regime with regard to Form 17C is peculiar that while it authorizes 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. The Rules do not permit giving of the copy of Form 17C to any other entity. The contention of the petitioner creates a situation where any member of the public or the elector at the Polling Station can demand a copy of Form 17C on the argument that it partakes into a character of a public document."
The detailed report on the the contents of ECI's affidavit can be read here.
Background
Non-profits ADR and Common Cause filed an interlocutory application in a 2019 writ petition alleging discrepancies in the voter turn out data regarding the 2019 General Elections.
It stated that in the ongoing Lok Sabha elections, the ECI published voter turnout data after several days. The data regarding the first phase of polling held on April 19 was published after 11 days and the second phase of polling held on April 26 was published after 4 days. Also, there was a variation of over 5% in the final voter turnout data from the initial data released on the polling day.
The petitioners seek direction to the ECI to :
(i) Immediately upload on its website scanned legible copies of Form 17C Part-I (Account of Votes Recorded)of all polling stations after close of polling of each phase in the on-going 2024 Lok Sabha elections;
(ii) Provide tabulated polling station-wise data in absolute figures of the number of votes polled as recorded in Form 17C Part- I after each phase of polling in the on-going 2024 Lok Sabha elections and also a tabulation of constituency-wise figures of voter turnout in absolute numbers in the on-going 2024 Lok Sabha election;
(iii) To upload on its website scanned legible copies of Form 17C Part- II which contains the candidate-wise Result of Counting after the compilation of results of the 2024 Lok Sabha elections.
On May 17, a bench of Chief Justice of India DY Chandrachud and Justices JB Pardiwala, Manoj Misra directed listing of the matter on May 24 before a vacation bench, calling on the ECI to file its reply as to why Form 17C data could not be disclosed.
Details Case : Association for Democratic Reforms v. Union of India | WP(C) 1382 of 2019