Election Commission of India's stand that there is no legal mandate to share voter turnout figures negates the cause of free and fair elections, and needs immediate attention because of the gravity of the situation, writes S.N. Sahu.
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THE Election Commission of India (ECI) has informed the Supreme Court that it has no legal mandate to share voter turnout data with anyone other than the candidates and their agents. In effect, the ECI has told the court that a legal mandate to share election data with the general public does not exist.
The ECI has filed an affidavit to this effect before the Supreme Court. The affidavit comes as a response to a petition by the Association for Democratic Reforms (ADR), an apolitical and non-partisan non-profit organisation, seeking directions to the ECI to disclose the authenticated records of voter turnout by uploading on its website scanned legible copies of Form 17C Part-I (Account of Votes Recorded) of all polling stations after each phase of polling in the on-going 2024 Lok Sabha elections.
In its affidavit, the ECI claims that disclosure of voter turnout data could cause confusion among voters which could be exploited by malicious interests in closely contested elections.
“The ECI claims that disclosure of voter turnout data could cause confusion among voters which could be exploited by malicious interests in closely contested elections.
It means that the ECI has taken a stand negating transparency, which is so integral to the conduct of free and fair elections. The Supreme Court has held free and fair elections to be part of the basic structure of the Constitution.
The ECI is facing a huge credibility crisis because of its functioning on which sharp questions have been raised in several quarters including the Supreme Court which had observed in Anoop Baranwala versus Union of India in 2023 that it should not be a "servile commission".
Even earlier, on November 24, 2022, a five-judge Bench of the Supreme Court headed by Justice K.M. Joseph, while hearing pleas challenging the constitutionality of the present appointment process of the Chief Election Commissioner and other election commissioners, had contended that appointments were being done as per the whims of the executive and said "the country needs election commissioners who would not shirk from even taking on the Prime Minister if required, and not just weak-kneed yes-men."
However, in a sardonic turn, the ECI has acted as a group of "weak-kneed yes men" when on March 17, 2024 while addressing the media concerning the announcement of schedules for general elections, the Chief Election Commissioner (CEC) Rajiv Kumar said that the Election Commission of India has always been in favour of transparency, but there is a need to ensure that donors' privacy is protected.
He was referring to the electoral bonds judgment, whereby the Supreme Court has, on February 15, 2024, declared the 2018 electoral bonds scheme unconstitutional.
A Constitution Bench headed by Chief Justice of India Dr D.Y. Chandrachud and also comprising Justices Sanjiv Khanna, B.R. Gavai, J.B. Pardiwala and Manoj Misra has held that the non-disclosure of voluntary political contributions is violative of Article 19(1)(a) of the Indian Constitution.
Further, it has held that the unlimited political funding by corporates is violative of the fundamental right to free and fair elections and therefore manifestly arbitrary under Article 14.
Interestingly, the Union government had argued during the hearings of the electoral bonds case that donor privacy triumphs the citizens' right to know the source of funding of political parties. CEC Kumar was echoing this position a month after the judgment.
Why was the CEC taking a stand contrary to a Supreme Court judgment upholding the transparency of funding details and the right to information?
If voters or people in a democracy have the right to know the details of funding received by political parties, that logic extends directly to the voting data.
“Why was the CEC taking a stand contrary to a Supreme Court judgment upholding the transparency of funding details and the right to information?
How then can the ECI inform the Supreme Court that there is no legal provision mandating the disclosure of voter turnout during the current general elections?
In doing so, the ECI is asserting that people in a democracy have no right to know about the exact number of people who turned out to cast their votes.
It is an absurd position in the context of the percentage of voter turnout released by the ECI without letting people know about the absolute number of voters who cast their votes.
If the percentage of votes is shared by the ECI, it must be based on some absolute numbers which, sadly, the ECI is reluctant to share by citing the absence of a law requiring it to do so.
Leading senior advocate Kapil Sibal posted on X (formerly Twitter) about the ECI affidavit telling the Supreme Court that there is an absence of a legal mandate to upload Form 17C, which is the record of votes polled at a polling station.
He described the ECI's action as shocking and asked, "If the votes counted are uploaded, why not the votes polled?"
His next question was heavier, "How do we trust such a commission?"
In fact, people's trust in the ECI has declined considerably. In a survey recently conducted by the CSDS and Lok Niti, 58 percent of people surveyed said they had lost faith in the ECI.
It is a matter of serious concern that such a large section of people have lost trust in the body entrusted with holding free and fair elections in India.
“If voters or people in a democracy have the right to know the details of funding received by political parties, that logic extends directly to the voting data.
The fact that the ECI has not directly issued notice to the incumbent Prime Minister Narendra Modi for violating the Model Code of Conduct through his blatantly communal and divisive speeches, instead asking the Bharatiya Janata Party (BJP) president J.P. Nadda to rein in "star campaigners", one of whom is PM Modi himself, speaks volumes on the lack of courage of the poll body to hold Modi accountable.
Dr B.R. Ambedkar had warned in the Constituent Assembly on May 16, 1949 that there was no provision in the Constitution to prevent the government of the day from appointing incapable persons as election commissioners.
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He remarked that in case the government of the day appointed such people as election commissioners, they might, "Come under the thumb of the executive."
The utterances of the current CEC in favour of donors' privacy is in tune with the stand taken by the Modi regime in this regard and prove the apprehensions of Ambedkar true.
Now, the ECI's refusal to disclose the details of voter turnout to the people of the country clearly indicates that it is not willing to be transparent on such matters.
Such an opaque approach has raised apprehensions among people across the country that in the absence of disclosure of the actual numbers of voters who voted, the electoral process might be manipulated.
What the poll body is doing to perpetuate non-transparency on the matter is contrary to its earlier record of sharing the total numbers of voters who came to the polling booth to exercise their franchise.
In the judgment on the electoral bond scheme, the Supreme Court recalled that a free and fair election is one which is not "rigged and manipulated and the candidates and their agents are not able to resort to unfair means and malpractices".
Is not the suppression of the figures of voter turnout by the ECI an attempt to rig and manipulate the elections?
Today, the Supreme Court refused to grant interim relief in the matter, saying a 2019 petition seeking similar relief already exists.
“The opaque approach has raised apprehensions among people across the country that in the absence of disclosure of the actual numbers of voters who voted, the electoral process might be manipulated.
Since the matter is of great public importance, the Supreme Court's refusal to provide interim relief will probably mean that the 18th general elections will be done and dusted by the time a decision has been made, exposing the country to more electoral and constitutional vulnerabilities.
The Supreme Court's decision not to direct the ECI for disclosure of voter turnout data might have serious implications for the cause of free and fair elections and people's fundamental right to information to get access to all data concerning elections.
The nation is waiting with bated breath to see how the Supreme Court deals with the matter, which is of great significance for upholding the cause of free and fair elections.