The Supreme Court’s refusal to issue directions has allowed the ECI to get away, for now, by offering multiple excuses, one of which is that it has no statutory mandate to make Form 17C publicly accessible.
The Supreme Court’s recent refusal to direct the publication of Form 17C data, which every Presiding Officer fills out as the record of the number of people who cast their vote at the allotted polling stations, is along expected lines. The apex court rarely interferes in an electoral process that is already underway, as a measure of respect for the powers and jurisdiction of another constitutional authority, namely the Election Commission of India (ECI). Any dispute with regard to any election to any public office under the Constitution is required to be dealt after the completion of the process within the terms of Article 323B, under Part XIVA of the Constitution, in the form of an election petition filed before the high court having territorial jurisdiction (the high court becomes the Election Tribunal for that case).
Readers will recall, this segment of the Constitution was inserted through the 42nd amendment which was tabled, debated, and passed in Parliament, ratified by a majority of State Legislative Assemblies, assented to by the President of India and published in the Official Gazette – all done and dusted in less than 10 days. Granville Austin’s monumental tome: Working a Democratic Constitution, amongst others, provides a ringside commentary of the haste with which these and several other changes to the Constitution were forced down the throats of the citizenry at a time when their fundamental right stood suspended because of the national emergency declared by the Indira Gandhi-led government. Then, the Supreme Court by a 4:1 majority was also not willing to issue any direction to the Executive to restore the fundamental right to life liberty which was being violated by the police day after day, as they continued to arrest Opposition leaders and activists in a bid to put all political dissidence behind bars.
With the deepest respect to its majesty and wisdom, it must be said, by refusing to direct the disclosure of the contents of Form 17C, the Hon’ble Supreme Court has failed to uphold another fundamental right, namely, the voter’s right to know, 47 years after the infamous ADM Jabalpur vs Shivkant Shukla judgment mentioned
The greatest irony is that earlier this year, another bench of the same court had upheld the fundamental right of citizens to know all information about the electoral bonds through which thousands of crores of rupees were funnelled into the coffers of political parties with the ruling Bharatiya Janata Party garnering the lion’s share. Nevertheless, 96.88 crore voters will not be able to find out how many of them actually voted until the apex court decides that they should know. The ECI has stubbornly refused to publish anything more than polling percentages, so far.
The second biggest irony is that such percentages (as a proportion of the total number of electors who are formally registered in the voter lists) cannot be calculated without referring to the absolute numbers of men, women, and transpersons, who voted in each of the 10.48 lakh polling stations across the country. This data contained in Part-1 of Form 17C, the ECI is already collating through feeds received on its mobile app- ENCORE, which is not open to the citizenry to access – a fact which the Supreme Court, unfortunately, did not take into account during the hearing.
If the ECI were to appear in school tests and exams, like I did more than four decades ago, any failure to show step by step, how the solution to a mathematical problem was arrived at, in the answer script, would earn it zero marks even if the answer was correct. The teacher would suspect that the answer might have been copied from someone else or from some hidden source. The disclosure of absolute voter turnout figures will work like an antidote to similar suspicions about possible fudging of data – which the apex court unfortunately failed to appreciate.
Form 17C data has unfortunately been allowed to slip down a blackhole. Blackholes have discernible event horizons, but we must remain satisfied with percentages until the court decides on the main petition filed by the Association for Democratic Reforms. That petition has languished for more than four years and the end is nowhere in sight.
The top court’s refusal to issue directions has allowed the ECI to get away, for now, by offering multiple excuses, one of which is that it has no statutory mandate to make Form 17C publicly accessible. This reasoning is not only annoyingly lame but also contrary to what is mentioned in the election laws. Rule 93(2) of the Conduct of Election Rules, 1961, empowers the ECI to permit the inspection of all papers relating to elections which do not require to be kept confidential (in order to protect the secrecy of the vote) by any person, subject to such conditions and fees as it may direct. Even form 17C data can be accessed in this manner.
Rather than wait for people to make formal requests, is it not a sensible step to make all this information proactively available to people through the ECI’s website? According to eminent persons who have served on the ECI, voter turnout data in terms of absolute numbers were published along with percentages always until 2019. However, five years down the line, the ECI has discovered the absence of a statutory mandate as a hindrance to continue with this good old practice of transparency.
The ECI’s website contains a wealth of materials relating to all kinds of elections that it is mandated to conduct – be it other kinds of forms and formats which voters and candidates may use, statistical data about final results in parliamentary and state assembly elections, handbooks, manuals, circulars, guidelines and press releases to name a few. A quick review of such categories of information shows they are being disclosed without any express statutory mandate.
For example, where is the statutory mandate to publish handbooks for Presiding Officers, Returning Officers, Sector Officers and Election Observers? The ECI has published them all, not only what will be used in the latest elections but older versions also. Then again, the ECI publishes on its website the audit reports and contribution reports containing the list of donors that political parties submit to it every year. To the best of my knowledge, this good practice has no statutory mandate either.
The power point presentations, manuals and FAQs (frequently asked questions) about EVMs and VVPATs are all available publicly on its website as well as those of the Chief Electoral Officers (CEOs) in the states in various versions going back to 2018 or even earlier. Which part of the Representation of the People Act, 1951 makes it compulsory to publish all this information about the EVM-VVPAT combo, pray tell? The very fact that these are disclosed proactively indicates the ECI’s responsiveness to the myriad doubts raised by citizens, civil society groups and the mass media about the efficacy of the electronic voting system in its current avatar. Why should voter turnout data be subject to a lesser standard of transparency when analytical news reports are pointing to the inexplicable surges in the voting percentages released by the ECI at different stages of the poll process – during and immediately after?
At the risk of being labelled childish and churlish, this ‘silly’ question must be asked – the Election Commissioners, senior officers and their staff, surely eat lunch and snacks and drink coffee, tea and other beverages at Nirvachan Sadan, every working day – where is the statutory mandate for filling their tummies in this manner? Of course, we the citizenry will not begrudge them of their fundamental right to life which includes the right to food. We do not expect them to work on a hungry stomach unless they are bound by some vrat that requires fasting 2 even that will be respected as it is guaranteed by the Constitution under the fundamental right to freedom of religion. So, please do not expect us to sit at home and be satisfied with polling percentages; tell us how many of us have voted. It is non-personal data about ourselves which we have the fundamental right to know because we are the primary stakeholders of our democracy.
Form 17C is not merely a record of the number of voters who cast their vote on polling day. It has another important use as well. Polling agents of contesting candidates present at the polling station must get copies of these filled out forms as a matter of right because their signatures have to be put on Part-I of this format. Later, the Presiding Officer and the RO both are instructed to make sufficient copies of these forms available to the polling agents in the respective handbooks published by the ECI. This is the only printed document apart from their IDs which counting agents are permitted to bring to the counting hall. The Counting Officers who also have a copy of this document have to ensure that the total number of votes polled as displayed on the Control Unit of the EVM tallies with the figure mentioned in Form 17C.
Part-II of Form 17C is filled up with the results after the counting is over and it is once again signed by all counting agents before copies are made and distributed to them as a matter of right. In fact, it is a crucial document without which one cannot make head or tail of the polling or the counting process either as a polling agent or as a counting agent.
Having acted as the counting agent for an independent candidate during the February 2020 elections to the Delhi Vidhan Sabha, I can vouch for its importance because a whole day was spent observing the counting without Form 17C as a reference document because the candidate had not collected them. Please take a look at the images below for all the information that a properly filled out Form 17C must contain.
Sheet-1 of Form 17C
Sheet-2 of Form 17C
Sheet-3 of Form 17C
Granted that all arguments presented above may be demolished by one major counterfactual point – the plea about the sheer volume of human resources required to publish the scanned copies of 10.48 lakh Form 17Cs or even collate the data and triple check it before publishing it from the digital database of ENCORE app. But what prevents the ECI from publishing the next best thing – Assembly Constituency-wise voter turnout numbers for every Lok Sabha Constituency which the Returning Officer (RO) sends them on just one sheet of paper at 7 am the day after polling is completed? This data providing the gender-wise number of electors who are on the voter lists along with similar breakups of those who actually voted is collated and filled out by the RO in Format-B and sent to the CEO and the ECI under her/his seal and signature, the morning after polling is completed. This requirement is mentioned in the checklist of Do’s and Don’ts for ROs which the ECI has published on its website 2 again without any express statutory mandate for such data reporting.
We did a quick review of the websites of CEOs looking for data filled out in Format-B. To our surprise, we found Assam had published gender-wise elector and voter turnout numbers for all three phases of polling along with percentages. Goa had published similar data for both Lok Sabha seats after polling was completed. They are available for anybody to look at without requiring any registration or password. Madhya Pradesh and Rajasthan published this data only for Phase-1 of the elections and then went silent about the remaining phases, for reasons best known to the respective CEOs. So, despite the ECI’s blanket ban on disclosure of absolute voter turnout figures, a handful of CEOs have adopted a more transparent approach. Why can’t the ECI publish the absolute numbers available in these formats?
As the number of sheets containing this data will be equal to the number of seats for which polling was held in each phase, uploading them will require only one person to actually do it and another to supervise the task. This is not a humongous task after all.
Before concluding, another example of good practice must be pointed out. Bihar’s CEO has published the unique identification numbers of 1.27 lakh Ballot Units, 1.01 lakh Control Units and 1.09 lakh VVPAT Units that will be deployed across the 38 districts where elections are being held. This kind of proactive transparency will allay any fears in the minds of candidates, their agents or other poll watchers that instead of these machines actually used during the elections, others which have been hacked to give results not determined by the voters might be brought into the counting hall. Hats off to Bihar’s CEO for doing something which is not statutorily mandated. Where there is a will, there is a way.
It is not enough if the ECI merely says elections are free and fair to a chorus of helicoptered foreign observers and the judiciary looks upon it approvingly. Such fairness must be perceptible to the voters also. Our Constitution clothes the ECI with enormous powers to ensure that the people’s mandate is accurately recorded and declared. The ECI must heed Benjamin Disraeli’s words from his debut novel Vivian Grey: “…all power is a trust – that we are accountable for its exercise – that from the people, and for the people, all springs and all must exist.” Enhanced transparency is a sine qua non for earning the trust of the electorate.
Venkatesh Nayak is Director, Commonwealth Human Rights Initiative. All views are personal. The author is grateful to Ms. Priyadarshini Singh for assistance with the web research.