Finger with indelible ink mark (right to vote) and Supreme Court
Finger with indelible ink mark (right to vote) and Supreme Court  

Supreme Court refuses to direct ECI to publish info on total votes polled per booth

Debayan Roy

The Supreme Court on Friday refused to pass any interim order on a plea by NGO Association for Democratic Reforms (ADR) seeking directions to Election Commission of India (ECI) to disclose final authenticated data of voter turnout in all polling stations including the number of votes polled in the Lok Sabha Elections 2024 within 48 hours of polling.

A Vacation Bench of Justices Dipankar Datta and Satish Chandra Sharma told the petitioner that interim prayer raised in the present plea was the same as the prayer already raised in the main petition pending before the Court since 2019.

"See prayer B of 2019 plea and prayer A of the interim application of 2024 .. keep it side by side. Earlier decisions of Supreme Court stare at your face and say you cannot do this and one judgment of 1985 holds that it can be done but in very exceptional cases.. But in this case why you did not file this application on March 16," the Court asked.

"We could have filed only after there was disclosures by ECI," Senior Advocate Dushyant Dave replied on behalf of ADR.

But the Court refused to grant any interim relief saying a hands off approach is needed in the midst of polls.

"We are also responsible citizens and we must have a hands off approach," the bench remarked.

The Court, therefore, ordered that the matter be listed after the ongoing Lok Sabha polls.

"Prima facie we are not inclined to grant any interim relief since prayer A of the 2019 petition is similar to prayer B of the 2024 application. List the interim plea after (summer) vacation," the Court ordered.

No opinion expressed on merits apart from the prima facie view, the Court clarified.

Justice Dipankar Datta and Justice Satish Chandra Sharma

The Bench was hearing an application by NGO Association for Democratic Reforms (ADR) seeking disclosure of final authenticated data of voter turnout in all polling stations including the number of votes polled in the Lok Sabha Elections 2024 within 48 hours of polling.

The Election Commission of India (ECI) had on Wednesday told the Supreme Court that there is no legal right that can be claimed towards publishing final authenticated data of voter turnout in all polling stations.

In an affidavit filed before the apex court, the poll body stated that disclosure of voter turnout data based on Form 17C (votes polled in each polling station) will cause confusion among voters as it will also include postal ballot counts.

The application by ADR was filed in light of the recent controversy surrounding the substantial increase in the final voter turn out announced by the ECI for the first two phases of the ongoing Lok Sabha elections as compared to initial estimate announced on the voting day.

The application highlighted that the data published on April 30 showed a sharp increase (by about 5-6%) of final voter turn out as compared to the initial percentages announced by ECI on the day of polling.

This coupled with the delay in announcing the voter turn out has led to concerns among voters and political parties about the correctness of such data, the plea said.

The application was moved by the Association for Democratic Reforms (ADR) in a 2019 case.

The application has sought directions to the ECI to upload scanned, legible copies of Form 17C Part-I (Account of Votes Recorded), on its website.

The data should be uploaded after each phase of polling in the ongoing 2024 elections and must provide constituency and polling station-wise figures of voter turnout in absolute numbers and in percentage form, the application stated.

Additionally, ADR has sought disclosure of the Part- II of Form 17C which contains the candidate-wise result of counting after the compilation of results.

ADR alleged that there has been a dereliction of duty on the part of the ECI in declaring election results through Electronic Voting Machines (EVMs) based on accurate and indisputable data.

A Bench of Chief Justice of India (CJI) DY Chandrachud and Justices JB Pardiwala and Manoj Misra had earlier orally asked ECI counsel what the difficulty was in putting up the voter turnout details on its website within two days of polling.

The ECI in its reply affidavit attacked ADR and contended that certain "vested interests" keep on throwing false allegations at it to discredit its working.

"There is a consistent malafide campaign/design/efforts to keep on raising suspicion and doubt in every possible manner and by misleading assertions and baseless allegations regarding the conduct of elections by the Election Commission of India ... the design and pattern in play is to spread doubts and damage is done by the time the truth ... comes out," it was submitted.

The poll body stated that ADR has been claiming a legal entitlement where none exists, that too amidst the ongoing Lok Sabha elections.

During the hearing today Senior Advocate Maninder Singh alleged that the plea by ADR was based only on suspicion and apprehensions.

"This court has held that suspicion cannot be the foundation of such petitions when elections go on. They have relied on the press release of ECI to show voter turnout," Singh said.

He said that the issue was already settled by the top court in its judgment of April 26 and the present plea is barred by the principle of res judicata.

"It has been held that you cannot raise different issues once the judgment has been delivered and then casts aspersions on the integrity of the electoral process. This has been held in the aspect of constructive res judicata," Singh said.

The allegations are being raised in the midst of the elections to erode the credibility of the ECI, Singh alleged.

"Please see the maintainability and the conduct of the petitioner. When elections are going on these continuous petitions on the basis of just apprehension etc. This is a classic case of suspicion and erode the integrity of the Election Commission of India," he contended.

Singh also said that such petitions could be the reason for the low voter turnout in the ongoing Lok Sabha polls.

"These petitions also could be the reason why voter turnout is on the decline recently as these pleas create only confusion," he alleged.

Singh also said that the Supreme Court itself had raised questions about the bona fides of the petitioner-organisation in its April 26 judgment on EVMs.

"This Court had also cast aspersions on the bonafides of this association also (ADR). All this was observed by this court on April 26 with reference to this very petitioner. The same day the judgment was delivered the factory started churning out another application based on suspicion and thus should this Court work to allay apprehensions of the petitioners only," Singh submitted.

The Court asked the petitioner why the plea was brough as an interim prayer in the midst of the Lok Sabha polls when the same issue has already been raised in the 2019 plea which is pending.

"Supreme Court is yet to decide the Article 32 plea of 2019. You want same interim orders on what terms," the Court asked.

"This is issue of public interest in which procedural law does not strictly apply," Senior Counsel Dushyant Dave replied.

"Over the years in the PIL that we entertained, how many have been Paisa interest? Keep the 2019 pending. That case will be heard. Leave this application now in between elections. We cannot interrupt the polls and Ashok Kumar judgment stands in the way," the Court remarked.

The Court further highlighted the ECI's stand that there is no statutory mandate to maintain such data.

"I had asked Mr. Singh if they are statutorily asked to maintain voter turnout data and he said no," Justice Datta said.

"There are 543 constituencies and there are 10.37 lakh Form 17C in total and it is manageable (for ECI to put out the data)," Senior Counsel Abhishek Manu Singhvi who was appearing for petitioner Mahua Moitra said.

The Court, however, refused to interfere and pass any interim order.

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