New Delhi: The Supreme Court on Friday declined to issue a direction to the Election Commission of India (ECI) to upload polling station-wise voter turnout data on its website during the general election, saying it cannot interfere in the ongoing polls and it should keep “hands off ”.
A bench comprising justices Dipankar Datta and Satish Chandra Sharma refused to get into the poll data discrepancy row amid the elections and declined to issue an order to the ECI to make public the absolute number of votes polled, constituency wise. The apex court also refused to direct the ECI to upload Form 17C, containing votes polled data, on its website.
During the hearing, the bench told senior advocate Dushyant Dave, representing the NGO Association NGO Association for Democratic Reforms (ADR), that the court is not keen on entertaining the NGO’s application, 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 the polling, amid the ongoing Lok Sabha election. The NGO had also sought a direction to the Election Commission of India to disclose Form 17C, record of votes polled.
The bench, in its order, said that prima facie the court is not inclined to grant any interim relief since one of the prayers in 2019 petition is similar with a prayer (B) in the 2024 application. The bench has scheduled the matter for further hearing after the summer vacation.
Two-judge bench shot a volley of questions at ADR
The bench told Dave how the prayers in the application can be based on press notes pertaining to the elections. “Please note it down, you have to face a number of questions. First question, interim application is based on certain press notes pertaining to the 2024 elections…”, Justice Datta told Dave.
Justice Datta pointed out that prima facie it appears the prayers in the 2024 application are similar to the main petition pending since 2019, on the issue. “Does the court grant an interim relief which is in the nature of a final relief, keeping the writ petition pending…this (the issue raised in 2024 application) could have given you a ground for filing a separate writ petition…what is the nexus between 2019 and 2024 applications. If you say that there is a nexus you are trapped in one way. You cannot by an interim application seek an order and you have to amend your writ petition”, said Justice Datta, adding that if there is no connection then a fresh writ petition should have been filed. Dave said he is surprised and pained that ECI treats ADR’s application as an adversarial litigation. “We have come bona fide. We have come with genuine reason”, said Dave.
The bench pointed out that prayer B of 2019 writ petition and prayer A of interlocutory application of 2024, were the same, and lasked Dave to look at the final relief sought in a 2019 writ petition, which is awaiting a decision, and further queried him, "then how can you expect an interim order (in 2024 application) on the same terms''. “Why didn’t you come with an application prior to March 16 (before the model code of conduct came into force for the 2024 general election). Why on April 26, when the process is on (election process has begun)”, asked Justice Datta.
Dave said the application can only be filed after the ECI made the disclosures regarding final voter turnout data and also cited the ECI’s press release. Justice Datta told Dave, “Over the years the public interest litigation jurisdiction….PIL has become publicity interest, paisa interest…therefore it is for us to put a check…you may not have approached (the court) at the appropriate stage with a proper prayer”.
Dave said he understands the anguish of the bench. “It is not about anguish. Everybody wants a free and fair election….we will keep it pending and it will be heard along with Article 32, petition ( 2019 PIL) after the election. In between the election, hands off!...we are also responsible citizens”, said Justice Datta.
Regarding the voter turnout app, the number of votes polled, the bench said there was a controversy about the figures being maintained on the app and “I asked Mr Singh (ECI’s counsel), are you statutorily obliged to maintain this. ‘He said no, only for the purpose of maintaining fairness and transparency we are doing it. I did not say it in open court but now I will have to say it is like aa bail mujhe maar (to put oneself in trouble)’”.
Dave said Form 17C is a statutory document and ECI has all the figures associated with it, and people and even the counsel have full faith in ECI, and if we are able to point something which may strengthen the election process then why should we be shut out. Senior advocate Maninder Singh, representing the ECI, said the counsel have said that ECI’s response is ridiculous. Senior advocate A M Singhvi, represented TMC leader Mahua Moitra, who is also a party in the matter along with the ADR. Singhvi said his client filed the first petition in the matter in 2019.
"We don't say anything on merit...but you don't have a good case, at this time…. We keep it pending, we will examine it at appropriate time. Let's trust some authority. There is very little window open for you" the bench, concluding the proceedings, told Dave and Singhvi.
ECI’s arguments in the apex court: Urging the court to dismiss ADR’s application with exemplary costs, Singh stressed that such applications only attempt to keep controversy on EVMs alive in mind of people in the midst of polls and the petitioners’ attempt to create false narrative despite the apex court repeatedly upholding validity of elections through EVMs and allaying all apprehensions. Singh said the application filed by ADR only creates suspicion in minds of voters and it is only founded on suspicion and apprehension, and it was a classic case of the abuse of the process as it was filed when the election process was already on.
The ECI said the petitioner has annexed press releases issued by the poll body but not the judgment of April 26 when the court dealt with their plea concerning the cross verification of VVPAT counts with EVMs. ECI said that the ADR’s application is not maintainable and the plea was completely barred by constructive res judicata.
Singh said court entertaining ADR’s application is causing so much damage to public interest and the court has kept on permitting such vested interests to raise questions when the election process is going on. Singh raised doubts on ADR’s claims that there is a variance of 5-6 per cent of voters’ and termed it “false”.
ADR’s contention before SC: ADR’s application said: “the inordinate delay in the release of final voter turnout data, coupled with the unusually high revision (of over 5%) 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 applications said the data published in the press release dated April 30 (Phase I voter turnout- 66.14 per cent and Phase II voter turnout - 66.71 per cent) when compared with the initial data of April 19 and April 26 respectively shows an increase of nearly 6 per cent in the Phase I data and increase of approximately 5.75 per cent in the Phase II data.
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