ECI’s Affidavit Before SC Misleading, Legally Untenable: NAJAR

New Delhi: Ahead of the Supreme Court hearing on May 24 of the plea by Association of Democratic Reforms on full voter numbers of the five phases of polling already held, a legal professionals’ collective, NAJAR, has termed the Election Commission of India’s (ECI) affidavit as “legally and logically untenable.”

“By denying credible and true information, ECI is denying the voters objective information and raises doubt on intentions of ECI.  Why does ECI want to keep voters in hiding about poll data, is a question that merits urgent and clear answers,” the National Alliance for Justice, Accountability & Rights (NAJAR) said in a statement.

Last week, the apex court had issued a notice to the ECI on ADR’s plea seeking the absolute number of votes of all polling stations in the Lok Sabha elections. Five phases of the seven-phase elections are already over. ADR has also demanded that ECI should disclose on its website the number of votes polled within 48 hours of polling.

The NAJAR statement appealed to SC to ensure that ECI performs its constitutional duty to conduct free and fair elections in a transparent manner.

“As the sentinel qui vive, we hope the Apex Court will protect the independence of ECI and thus, defend the Constitution, principles of constitutionalism and democratic rights of millions of citizens,” the statement read.

Read the full statement and list of signatories below:

*ECI’s Affidavit before the Apex Court is misleading, legally untenable and violative of democratic principles!*

*NAJAR appeals for full and fair disclosure of voter turnout data by ECI and an end to secrecy, detrimental to our democracy!*

23rd May, 2024: The National Alliance for Justice, Accountability & Rights (NAJAR), as a collective of concerned legal professionals across India, strongly disagrees with and disapproves the Affidavit filed by Election Commission of India (ECI), in the ongoing case before the Supreme Court, regarding disclosure of voter turnout data. ECI has taken a stand that publication of absolute number of polled votes should remain secret till declaration of results. The affidavit, we earnestly feel, is logically flawed, inherently inconsistent and contrary to the manner in which persons representing the constitutional body are expected to uphold the law. The arguments put forth by ECI are antithetical to the right to information of citizens, as upheld by the Hon’ble Supreme Court in multiple instances._

In their affidavit before the Court, the ECI has claimed that ‘secrecy protects democracy’, without dealing with the right of the petitioner to claim data on polled votes. ECI cites Article 329 (b) of the Constitution to say that publication of poll data as demanded by the Petitioner will interfere with elections underway and will affect consistency of the election process. However, there is no connection shown as to how publication of poll data will affect the poll process and how non-publication will not affect the poll process. We find this stand of ECI legally and logically untenable. We wish to state that 'Transparency' is an essential element of democracy, not 'secrecy' as claimed by ECI in its affidavit. 

The premise of the argument is that such disclosure is likely to ‘influence voters’. ECI needs to show as to how publication of poll data is going to ‘influence’ voters and non-publication is not going to influence voters. Secondly, in their own affidavit, they have stated that the form 17-C containing the polled data for each polling centre/booth is signed by the polling agents of the candidates; therefore, the data is already revealed to public, albeit in a consolidated form thus, what purpose would hiding data already known to public fulfill? Further, in the absence of credible official figures, there remains every chance of rumour-mongering and vitiating the atmosphere. By denying credible and true information, ECI is denying the voters objective information and raises doubt on intentions of ECI.  Why does ECI want to keep voters in hiding about poll data, is a question that merits urgent and clear answers. 

In the absence of any logical and legally consistent argument, ECI has stooped down to ad-hominem making allegations against and castigating the Petitioner. ECI cries foul that negative perception is being peddled about ECI. The Election Commission of India has concealed before the Apex Court that such data has been published by ECI in previous elections, including the 2014 and 2019 elections. This tantamounts to suppression of facts known to the ECI before the Apex Court.

Both the delay in publishing polled voters data and increased percentage of the polled data (in provisional and final counts) is unprecedented in the 2024 Parliamentary elections. Previously ECI has taken the stand that data is collected in real time and that is why it is dynamic in nature. It is, therefore, obvious that ECI collects data and there is no way ECI could have calculated the percentage without total tally of polled votes, as against total votes. Journalist Poonam Agarwal has also filed an RTI before ECI regarding this and ECI has not yet responded to it, as far as we know.

It has been widely reported in the media that there has been an increase of 1.7 crore polled votes and this could potentially affect the results. In the absence of credible and transparent information, the whole process of free and fair elections is vitiated and credibility of ECI is highly suspect. This untenable stand of ECI to maintain ‘secrecy’ smells foul and is inconsistent with the previous conduct of the ECI. The reasons cited in the Affidavit to deny information are fatal to logic, inconsistent, and delusional.

We feel that the conduct of ECI before the Apex Court has been far from fair to cry ‘unclean hands’ of the petitioner, Association for Democratic Rights (ADR). We have seen that SBI tried to delay the publication of data on electoral bonds, but subsequently had to, after clear directions from the Supreme Court.  Institutions coming to aid the ruling dispensation in subverting democracy and aiding outright loot of popular vote and public exchequer is not a new phenomenon, however, constitutional bodies like ECI coming to aid of the Govt. casts serious doubts on the impartiality of the body entrusted with crucial elections.

It is clear before the nation now that ECI has been unquestionably loyal to the govt. and has given the PM Modi and Govt. a free hand while ignoring numerous complaints regarding violations from the opposition parties and civil society. ECI took no action in the cases of Indore and Surat, wherein the ruling govt. influenced the electoral prospects, with brute power. ECI took a rather mechanical stand that ‘everything has been done as per procedure’. In the recently concluded Chandigarh Mayor elections, tampering with polled votes was caught on camera and the candidate of BJP was declared ‘winner’ by the Returning Officer. 

In their much-delayed and weak letter to Mr. JP Nadda, the BJP President, while ECI agrees that BJP's star campaigners are indulging in hate speeches & that such speeches will cause far-reaching damage to society beyond the elections, the absence of reference to the Prime Minister who has also indulged in hate speeches is conspicuous by its absence.

There has been wide-spread concern by citizens across India regarding the fluctuation in figures of voter turnout in the previous phases of the ongoing general elections. The Election Commission of India must immediately disclose through its website the authenticated record of voter turnout as contained in Part-I of Form 17-C, to ensure transparency and citizen’s trust in the electoral process. ECI, self-imposing fetters on its powers and duties, is severely jeopardizing our democracy. The actions of the ECI must be consistent with their constitutional duty to ensure free and fair elections, which is awfully absent in the conduct of the ECI.

We appeal to the Hon’ble Supreme Court, as the last resort of justice to ensure that the ECI performs its constitutional duty to conduct free and fair elections, in a transparent and fair manner. As the sentinel qui vive, we hope the Apex Court will protect the independence of ECI and thus, defend the Constitution, principles of constitutionalism and democratic rights of millions of citizens. 

*Endorsed by:*

Adv Ritesh Dhar Dubey (Lawyer, New Delhi)

Adv Jaha Aara (Lawyer, Visakhapatnam, Andhra Pradesh)

Adv Purbayan Chakraborty (Lawyer, Kolkata, West Bengal)

Adv Priyanka Singh (Lucknow, Uttar Pradesh)

Adv Muskan (Lawyer, New Delhi)

Adv Naveen Gautam (Law Researcher, New Delhi) 

Krithika Dinesh (Law Researcher, New Delhi)

Bhargav Oza (Law Student, Ahmedabad, Gujarat)

Vinay Kumar (Activist and Law student, Bengaluru, Karnataka)

Meera Sanghamitra (Activist, Law Researcher, Hyderabad, Telangana)

Khalil ur Rehaman (Law student, Hubli-Dharwad, Karnataka)

Nisha Biswas (Law Researcher, Activist, Kolkata, West Bengal)

(Issued by NAJAR: National Alliance for Justice, Accountability & Rights)