Full Voting Numbers: What Does SC’s Refusal to Grant Interim Relief Mean?

In yet another setback to transparency in the electoral process, the Supreme Court on Friday refused to pass any Order on an application filed by the Association for Democratic Reforms (ADR), an apolitical and non-partisan non-profit organisation, seeking directions to the Election Commission of India (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.

A Bench comprising Justices Dipankar Datta and Satish Chandra Sharma observed that the relief sought by the ADR through an interlocutory application is similar to the relief sought by the association in a writ petition filed by it under Article 32 (remedies for enforcement of fundamental rights) in 2019 which is still pending before the Supreme Court.

This, in the opinion of the Bench, meant there was no question of granting interim relief at this stage since the main relief could not be sought as interim relief.

The Bench also said a “hands-off approach” must be taken amidst the election process.

It may be noted that the Bench has not rejected the application. It has simply adjourned the application by the ADR which will be heard after the elections.

The Bench also observed that uploading form 17C would require huge manpower and it was not possible to do so during this period.

During the hearing, the Bench also asked what steps were taken by the ADR to get the 2019 petition heard.

Justice Datta, heading the Bench, reiterated today that trust must be reposed in set authorities and institutions, alluding to the ECI.

ECI questions the maintainability of the application

During the hearing, senior advocate Maninder Singh, appearing on behalf of the ECI, argued with vigour that the application filed by the ADR is based merely on “suspicion” and “apprehension” and should be dismissed with exemplary costs.

Singh argued that such petitions and applications are causing great damage to the public interest. He claimed that perhaps due to these petitions, there is a distrust among voters and hence the low turnout. But he also added there has been an increase in voter turnout in the last two phases.

Singh argued that the figures in the ‘voter turnout app’ are tentative as they are based on secondary sources. He claimed that the averment made by the ADR in its application that there was a variance of 6 percent in the final data from the figures published was false. He asserted the variance was only 1–2 percent.

Singh also raised a legal argument that the application was barred by Article 329(b) (bar to interference by courts in electoral matters) of the Constitution which mandates that no election to either House of Parliament or to the House or either House of the legislature of a state shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature.

Singh also argued that the application was barred by the doctrine of res judicata (Latin for ‘a thing adjudged’). The doctrine of res judicata bars parties from re-litigating issues that have been conclusively settled.

However, this principle is not rigid and in cases of substantial public interest courts are empowered to adopt a flexible approach, acknowledging the far-reaching ramifications of such cases.

Singh submitted that the issue of Form 17C had already been settled by the Supreme Court in a recent judgment of April 26, 2024, in ADR versus Election Commission of India and Anr., where the petitioners had sought a direction to the ECI that counts from electronic voting machines (EVMs) and voter-verifiable paper audit trail units (VVPATS) should be tallied with each other.

Singh also referred to observations made by Justice Datta in his concurring opinion in the EVM case about the ADR. Justice Datta had doubted the intentions of the ADR in the EVM case.

“It is of immediate relevance to note that in recent years, a trend has been fast developing of certain vested interest groups endeavouring to undermine the achievements and accomplishments of the nation, earned through the hard work and dedication of its sincere workforce.

“There seems to be a concerted effort to discredit, diminish and weaken the progress of this great nation on every possible frontier. Any such effort, or rather attempt, has to be nipped in the bud.

“No constitutional court, far less this court, would allow such an attempt to succeed as long as it (the court) has a say in the matter. I have serious doubts as regards the bona fides of the petitioning association when it seeks a reversion to the old Order,” Justice Datta writes in his opinion in the EVM case.

Singh accused the ADR of not disclosing in their application the EVM judgment dated April 26, 2024, since it had questioned their intentions.

Singh also referred to the observations made by the Supreme Court in the EVM judgment to the effect that it was necessary to exercise care and caution when raising aspersions on the integrity of the electoral process.

“Repeated and persistent doubts and despair, even without supporting evidence, can have the contrarian impact of creating distrust. This can reduce citizen participation and confidence in elections, essential for a healthy and robust democracy.

“Unfounded challenges may actually reveal perceptions and predispositions, whereas this court, as an arbiter and adjudicator of disputes and challenges, must render decisions on facts based on evidence and data,” the Supreme Court had said in the EVM judgment.

After hearing senior advocate Singh, Justice Datta fired a barrage of questions on senior advocate Dushyant Dave, who was appearing for the ADR.

Justice Datta wanted to know how relief sought as the main relief in the 2019 petition could be claimed in an interlocutory application.

Justice Datta also asked why the ADR had not filed the application before March 16, the date of the notification of Lok Sabha elections. He also wanted to know what steps the ADR had taken in getting the 2019 petition listed for hearing.

Responding to Justice Datta’s query, Dave said the present application was not “adversarial”. He submitted that the cause of action for filing the present application arose when the ECI issued a press release on April 30.

In its application, the ADR argues that the data published in the press release of April 30 (Phase I voter turnout: 66.14 percent and Phase II voter turnout 66.71 percent), when compared with the initial data of April 19 and April 26 respectively, shows an increase in voting numbers of nearly 6 percent in the Phase I data and approximately 5.75 percent in Phase II.

Dave also submitted that the strict rules of pleadings are not applicable in public interest litigation. Dave asserted that the ADR has done an extraordinary job in making the electoral process more transparent.

Justice Datta responded that he had also appreciated the ADR in his judgment and it was only with regard to one instance that he had questioned the intentions of the ADR.

Senior advocate Abhishek Manu Singhvi, appearing for the All India Trinamool Congress (AITMC) leader Mahua Moitra submitted that in public interest litigation, the rule of interim or final reliefs is not strictly applied.

He also argued that the issue of form 17C had not been decided by the Supreme Court in the EVM case and thus constructive res judicata was not applicable. He opined that there was only a passing reference to the form 17C issue in the EVM judgment.

At this point, Justice Datta revealed that when his brother judge on the Bench Justice Sharma had asked him whether the issue of 17C was covered by the EVM judgment, he had responded in the negative.

Issue flagged by the ADR in its application

Rule 49S and Rule 56C (2) of the Conduct of Election Rules, 1961 provide that the presiding officer has to prepare an account of votes recorded in form 17C (Part I) and the returning officer has to record the number of votes polled in favour of each candidate (Part II of Form 17).

The said two provisions read:

Rule 49S. Account of votes recorded:

(1) The presiding officer shall at the close of the poll prepare an account of votes recorded in Form 17C and enclose it in a separate cover with the words ‘account of votes recorded’ superscribed thereon. 

(2) The presiding officer shall furnish to every polling agent present at the close of the poll a true copy of the entries made in Form 17C after obtaining a receipt from the said polling agent therefor and shall attest it as a true copy.

Rule 56C. Counting of votes:

(1) After the returning officer is satisfied that a voting machine has in fact not been tampered with, he shall have the votes recorded therein counted by pressing the appropriate button marked ‘result’ provided in the control unit whereby the total votes polled and votes polled by each candidate shall be displayed in respect of each such candidate on the display panel provided for the purpose in the unit. 

(2) As the votes polled by each candidate are displayed on the control unit, the returning officer shall have: 

(a) the number of such votes recorded separately in respect of each candidate in Part II on Form 17C; provided that the test vote recorded, if any, for a candidate, as per item 5 in Part I of Form 17C, shall be subtracted from the number of votes recorded for such candidate as displayed on the control unit. 

(b) Part II of Form 17C completed in other respects and signed by the counting supervisor and also by the candidates or their election agents or their counting agents present; and 

(c) corresponding entries made in a result sheet in Form 20 and the particulars so entered in the result sheet announced.

In its application, the ADR has stated that the voter turnout data for the first two phases of the ongoing 2024 Lok Sabha elections was published by the ECI on April 30, i.e., 11 days after the first phase of polling held on April 19, and four days after the second phase of polling held on April 26.

“The data as published by the ECI in its press release dated April 30, 2024 shows a sharp increase (by about 5-6 percent) as compared to the initial percentages announced by the ECI as of 7 p.m. on the day of polling,” the ADR stated.

The inordinate delay in the release of final voter turnout data, coupled with the unusually high revision (of over 5 percent) in the ECI’s press note of April 30, 2024, and the absence of disaggregated constituency and polling station figures in absolute numbers, has raised concerns and public suspicion regarding the correctness of the said data, the ADR asserted.

Initially, on April 19, after the first phase of polling, the ECI issued a press note stating that the tentative figure of voter turnout across 21 states and Union territories (UTs) was reported to be over 60 percent as of 7 p.m. Similarly, after the second phase on April 26, the EC said the turnout was at 60.96 percent.

The ADR argued that the data published in the press release dated April 30 (Phase I voter turnout: 66.14 percent and Phase II voter turnout 66.71 percent), when compared with the initial data of April 19 and April 26 respectively, shows an increase of nearly 6 percent in the Phase I data and increase of approximately 5.75 percent in the Phase II data.

It is on this basis that the ADR contended that the ECI not releasing an absolute number of votes polled, coupled with the unreasonable delay in the release of votes-polled data, led to apprehensions in the mind of the electorate about the sharp increase between initial data and data released on April 30.

“These apprehensions must be addressed and put to rest. That in order to uphold the voter’s confidence it is necessary that the ECI be directed to disclose on its website scanned legible copies of Form 17C Part- I (Account of Votes Recorded) of all polling stations which contains the authenticated figures for votes polled, within 48 hours of the close of polling,” the ADR urged the court.

Arguing for the easy accessibility of data, the ADR requested the court that a tabulation of the constituency and polling station-wise figures of voter turnout in absolute numbers and in percentage form must also be disclosed.

“This information would be readily available with the ECI, as it is only upon the compilation of these figures that the voter turnout percentage is arrived at,” the ADR claimed.

It also stated in its application that such information is also required to be reported to the ECI within hours of the closing of polls under various rules and procedures including 17C and the final report by returning officers which should reach the commission by 7 a.m. on the day after the polling and through scrutiny of Form 17A.

“Under the rules, the polling station is mandated to give Form 17C to the polling agents so this information is readily available by the time of close of poll on the day of polling. However, there may be instances that polling agents may not be available,” the ADR argued.

In its counter-affidavit, the ECI claimed that a wholesome disclosure of Form 17C is amenable to mischief and vitiation of the entire electoral space.

“At the moment, the original Form 17C is only available in the strong room and a copy only with the polling agents whose signature it bears. Therefore, there is a one-to one relationship between each Form 17C and its possessor.

“It is submitted that indiscriminate disclosure and public posting on the website increases the possibility of the images being morphed, including the counting results which then can create widespread public discomfort and mistrust in the entire electoral processes,” the ECI claimed before the Supreme Court.

Today’s events at the Supreme Court have ensured that the 18th general elections in India will be concluded before the final resolution of the matter.