Public disclosure of voter turnout data based on Form 17C would cause public discomfort and mistrust in the electoral process: ECI to Supreme Court

In a recent development, the Election Commission of India (ECI) opposed the plea seeking public disclosure of voter turnout data based on Form 17C stating that the same would cause public discomfort and mistrust in the electoral process. On May 22, 2024 (Wednesday), the Supreme Court (SC) of India was hearing an interlocutory application filed by non-profits ADR (Association for Democratic Reforms) and Common Cause in a 2019 writ petition alleging discrepancies in the voter turnout data regarding the 2019 General Elections. The petitioner alleged that in the ongoing Lok Sabha Elections, the voter turnout data was published after several days by the ECI. They sought directions to the ECI which are listed as follows:

• “Immediately upload on its website scanned legible copies of Form 17C Part-I (Account of Votes Recorded)of all polling stations after close of polling of each phase in the on-going 2024 Lok Sabha elections;
• Provide tabulated polling station-wise data in absolute figures of the number of votes polled as recorded in Form 17C Part- I after each phase of polling in the on-going 2024 Lok Sabha elections and also a tabulation of constituency-wise figures of voter turnout in absolute numbers in the on-going 2024 Lok Sabha election;
• To upload on its website scanned legible copies of Form 17C Part- II which contains the candidate-wise Result of Counting after the compilation of results of the 2024 Lok Sabha elections.”

While opposing the plea for public disclosure of the copies of Form 17C, the ECI submitted “that a wholesome disclosure of Form 17C is amenable to mischief and vitiation of 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, 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.” It further said that as per the Rules, Form 17C needs to be given to the polling agent not to any other entity. The ECI said, “The legal regime with regard to Form 17C is peculiar that while it authorizes the polling agent at the close of the poll to get a copy of Form 17C, a general disclosure of the nature as sought by the Petitioner is not provided in the statutory framework. The Rules do not permit giving of the copy of Form 17C to any other entity. The contention of the petitioner creates a situation where any member of the public or the elector at the Polling Station can demand a copy of Form 17C on the argument that it partakes into a character of a public document.” 

Further adding, The ECI said “The rule position w.r.t. Form 17C is very clear. After the end of poll, when the polling party submits the same to the RO, RO [under Rule 49V(2) of Conduct of Election Rules, 1961] has to ensure that along with the EVM and other materials, said Form 17C in original is safely stored in, Strong Room. Once again the legal framework has a direct and intelligent nexus to the end of poll process which concludes by depositing all the vital physical election vectors such as forms, envelopes, seals, EVMs, and such like, as a complete priority. If an additional responsibility and wherewithal is to be created to scan any Form, before going to the Strong Room, the statutory priority would be at risk.” In an affidavit submitted by the ECI, it also stated that “In any electoral contest, the margin of victory may be very close. In such cases, disclosure of Form 17C in public domain may cause confusion in the minds of the voters with regard to the total votes polled as the latter figure would include the number of votes polled as per Form 17C as well as the votes received through postal ballots. However, such difference may not be easily understood by the voters and may be used by persons with motivated interests to cast aspersion on the whole electoral process ... cause chaos in the election machinery which is already in motion.”

The ECI also mentioned that if it is assumed that Form 17C is to be uploaded then the most critical aspect would be the location from which the same should be uploaded. It remarked, “There are no scanners at the polling stations...If it is to be done centrally after aggregation by ARO or RO at Sub-Divisional or District headquarter, it violates the extant legal design of straight away keeping Form 17C in strong room after giving a copy to the agent of the candidate...there may be instances where the polling staff may not be so accustomed with technological aspects.” Stressing the fact that the uploading of data from the Form 17C on the website needs appropriate planning and training. It said, “The absence of signature of any polling agent on Form 17C may itself become a ground to challenge the veracity of the Form 17C and create further doubt and suspicion.” Earlier on May 17, 2024, the matter was heard by a three-judge bench constituting Chief Justice of India DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra. The bench directed the ECI to file its reply as to why Form 17C data cannot be disclosed publicly and listed the matter for hearing on May 24.