Bend It Like EC

Within a day of the Court rejecting a plea seeking direction to the EC to share voter turnout data within 48 hours of polling, the Commission acceded to the request and shared the data. Why this sudden volte-face?  

By Vikram Kilpady

After fighting a plea in the Supreme Court which urged the revealing of the actual number of voters who exercised their ballot within 48 hours of polling instead of a percentage, the Election Commission of India (ECI) did a volte-face and ate humble pie. 

A day after the Court rejected the petition citing the need for a hands-off approach in the functioning of the Commission and that it was similar to another petition of 2019 being heard, the sudden decision of the ECI has given rise to speculation of all sorts. One theory holds that the legitimacy of the ruling party’s self-claimed victory, ahead of polling for the sixth and seventh phases, would have come under a shadow if the ECI had stayed intransigent. The other theory, predominantly among those seeking a new regime, was that the winds of change were, indeed, blowing across the Yamuna. 

So, the defiant ECI had to bend, but would this allay the fears of those alarmed at the increase in the actual number of voters per constituency, as revealed in the revised figures after a few days of voting? Diehard supporters of the ruling party are circumspect and whisper that there has been no wave this time unlike the tsunamis of 2014 and 2019. There is a simmering discontent, and who knows what June 4 will throw up, but the wise voter is reconciled to the possibility of a third term for the BJP, but with a reduced margin. It is against these fears that the ECI’s decision holds weight. 

The Opposition has been going hammer and tongs against the ruling party for defanging and neutering vital institutions over the last 10 years of its rule. Institutions also have an uncanny ability to survive by denying every charge until the very end and then conceding it.

Ruling on the plea filed by the Association for Democratic Reforms (ADR), the Supreme Court vacation bench of Justices Dipankar Datta and Satish Chandra Sharma said the interim prayer in the plea was the same as in the main petition pending since 2019. The Court wondered why the application was not filed on March 16, the date when the ECI declared the seven-phase poll schedule.

ADR’s counsel Senior Advocate Dushyant Dave replied that such an application could only have been made once the ECI began revising the number of voters. The NGO had moved Court after a row broke out over the increase in the final voter count declared by the ECI for the first two phases of the Lok Sabha election. The difference in numbers was substantial against the initial estimate on voting day.

The Court didn’t entertain ADR’s plea for interim relief, saying a hands-off approach is needed in the midst of polls. It then posted the matter after the elections while noting it didn’t have any views on the plea’s merits.

In its counter to ADR’s plea, the ECI denied any legal right in seeking the publication of authenticated voter turnout data. The Commission insisted such disclosure of voter turnout data, collated via Form 17C which lists the number of votes polled in each polling station, would confuse voters as it has postal ballots too in it.

The plea had said the data of April 30 showed an increase of 5-6% of final voter turnout as compared to EC’s polling day estimates. The veracity of the data was questioned by political parties and voters due to the delay in revealing the actual figures. ADR filed an application in the 2019 case seeking directions to the ECI to upload scanned, legible copies of Form 17C Part I on its website. The plea also sought constituency and polling station-wise figures of voter turnout in absolute numbers and in percentage. Part II of Form 17C, which contains the number of votes polled by respective candidates, was also sought. The graver charge against the ECI levelled by ADR was that it had been derelict in its duty in declaring election results through Electronic Voting Machines.

When the plea had been filed before the Supreme Court vacations began, a bench of Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra had orally asked the ECI counsel why it couldn’t put out voter turnout details on its website within 48 hours of polling. After all, the ECI, like most government departments, works on collating data before and after. 

As everyone who has voted knows, the reason why it takes an inordinate time is because there are three officials who have to tick their respective paper sheets with the hundreds of voter identifications given, before slips are cut using steel rulers, numbers assigned and then passed on to the polling officer who dabs ink on the voter’s finger and switches the machine on. The voter then presses the button against the party symbol of his choice and checks the VVPAT box (if the polling station has one). Senior citizens get priority, then women voters and then, men. With so much detail collated every hour, it looks like a walk in the park for the ECI, leading the Court to wonder aloud what exactly was the problem.

In its counter-affidavit, the ECI blamed ADR and claimed certain vested interests continued to level false allegations at it to discredit it. Such ad hominem attacks have been par for the course for any organisation questioning processes and the lacunae in sticking to them without introducing exceptions. Of late, contesting groups of citizens have been writing to the CJI about charges levelled by the other group. When questioners seek transparency, the defenders end up raising cliched images of attacks on the judiciary, the government, the State and national security. 

The Commission’s counsel, Senior Advocate Maninder Singh, said the ADR plea was based only on suspicion and fears. Singh quoted the apex court’s order on April 26 this year in the VVPAT case where it held that suspicion cannot be the foundation of such petitions when elections are on. The ECI counsel maintained that as the issue was already settled by the Supreme Court in its judgment of April 26, the current ADR plea was barred by the principle of res judicata.

On April 26, the bench of Justice Sanjiv Khanna and Justice Dipankar Datta had rejected ADR’s plea for 100% VVPAT verification of all votes compared to the current five random constituencies or segments. Justice Datta had strong views on ADR in the verdict and maintained the Court will not allow any “concerted effort to discredit, diminish, and weaken the progress of this great nation on every possible frontier”. 

Singh referred to the Court’s questions on ADR’s bona fides in its April 26 judgment on EVMs. The ECI counsel then sought to blame ADR and similar organisations for the low voter turnout, induced by ADR confusing the voter. This argument needs to be remembered and recalled in law colleges: Linking petitions questioning the ECI to the hurly-burly of voting in peak summer India and especially when the ruling government is in the throes of presumable anti-incumbency. 

Similar arguments were raised in the electoral bonds case too. The centre vehemently claimed that citizens had no right to know who bought electoral bonds and how many. The electoral bond scheme was a panacea, you see, for greater transparency in electoral funding, even if it was opaque to the citizen. When the Supreme Court struck down the electoral bond scheme as unconstitutional for violating the voter’s right to information, SBI, the electoral bond seller, came up with reasons on why it was difficult to reveal data. But when the Court demanded that the data be made public, most of this scheme’s skeletons tumbled out. Could this be a possible reason why the voter turnout was low?

Nonetheless, despite the ECI’s attacks on ADR and other aligned groups and the Supreme Court ruling in its favour not to reveal voter data, the Commission shared the data for the five phases the very next day. The ECI had said in Court that ADR had no legal entitlement to ask for such data in the middle of the ongoing elections, but within 25 hours of the verdict, Nirvachan Sadan was digging into humble pie.