Uploading Form 17C Records Of Votes Polled On Website Can Lead To Mischief; General Public Has No Legal Right To Access It: ECI Tells Supreme Court

In the latest development, the Election Commission of India 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 rule position w.r.t. Form 17C is very clear. After the end of poll, when the polling party submits the same to the RO, RO [under Rule 49V(2) of Conduct of Election Rules, 1961] has to ensure that along with the EVM and other materials, said Form 17C in original is safely stored in, Strong Room. Once again the legal framework has a direct and intelligent nexus to the end of poll process which concludes by depositing all the vital physical election vectors such as forms, envelopes, seals, EVMs and such like, as a complete priority. If an additional responsibility and wherewithal is to be created to scan any Form, before going to the Strong Room, the statutory priority would be at risk."ECI raises preliminary objectionsIn its affidavit, ECI begins opposing the petitioners' plea by stating that out of a total of 7 election phases, 5 have already completed (as on May 20). The next two phases are scheduled for May 25 and June 1.The poll agency cites the recent judgment in ADR v. ECI & Anr. (EVM-VVPAT case) to say that the top Court rejected the pleas of the same petitioner (Association for Democratic Reforms/ADR) after satisfying itself that there was no substance in any of its allegations. It seeks dismissal of the present plea on the ground that the judgment in the said case has been suppressed.It is also claimed that the plea is not maintainable in view of the principle of res judicata, as the Court has already considered various aspects in relation to Section 49S and Form 17C in the EVM-VVPAT judgment, which "fully applies to the present writ petition".The counter-affidavit adds that, "there is neither delay nor difference in percentages of voter turnout data, more than what is inbuilt into the process, scale and magnitude in play." The dismissal by the Supreme Court of another case ie Agnostos Theos v. Election Commission of India & Ors., which raised doubts over EVMs, has also been cited.Speaking of legal remedies against variance in data, the ECI points out that candidates as well as voters can file an election petition if they have a cause of action relating to any variance in statutory forms. "However, no such consequence flows from a mismatch of information furnished in a voluntary non-statutory disclosure method such as that published in the Voter Turnout App".It is also alleged by the poll agency that ADR had raised similar issue at the time of 2019 Lok Sabha elections, but failed to point out even a single instance where candidates or voters filed an election petition on the basis of allegations levelled by it.Sharing Form 17C DataECI classifies Voter Turnout Disclosure into two categories - statutory (where Form 17C is given to polling agents), and non-statutory (where data is disclosed through ECI app, website and press releases).It states that there is no legal mandate to provide Form 17C data to any person other than the candidate or his agent. So far as the data released through app at 2-hour intervals on polling day, ...

Uploading Form 17C Records Of Votes Polled On Website Can Lead To Mischief; General Public Has No Legal Right To Access It: ECI Tells Supreme Court

Debby Jain

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