The long arm over-reaches

Last week, the Delhi High Court struck down an RTI application filed at the Election Commission of India, bringing an unprecedented standoff between two of India’s towering institutions of state to a temporary halt.

In the case of Election Commission of India (EC) versus Chief Information Commission & others, the decision came in favour of the EC, ruling that a citizen had no right to ask for confirmation of the results of the assembly elections of 2007 in three constituencies in Manipur.

To understand the implications of the Court’s order, imagine you suspect your ATM incorrectly displays the money available in your bank account. You could compare the printed account statement with the information displayed by the ATM, but what if your bank refuses to let you?

“All we wanted was to confirm that the information displayed by the control unit of the Electronic Voting Machine (EVM) continues to be consistent with the information recorded on form 17 c,” said Ali Naqvi, Advocate, who filed the RTI application on behalf of Neelesh Misra, of the Hindustan Times, “This would ensure that the technology behind the EVM is solid and the information does not erode with the passage of time.”  Form 17c is the official form in which all information pertaining to polling counting for each constituency is recorded.

Despite the intervention of the Central Information Commissioner, the Election Commission of India (EC) refused to part with the information, pleading that as per the Conduct of Election Rules, 1961, the information could only be imparted on the directions of a competent court.

In his judgment, Justice Sanjiv Khanna presents three arguments: First, in prior cases, the Supreme Court of India has ruled that specific allegations must be made against the elected candidates before an re-inspection of ballots maybe allowed.

Second, while the right to information is enshrined in the RTI Act 2005, it must be balanced against the Representation of People’s Act, 1951 that ensures the secrecy of voting – both at the time of time and after the votes have been cast.

Finally, after results have been declared, ballot boxes are considered to be in the custody of a competent court, not the EC. Hence, the EC cannot be asked to furnish information that it does not legally have.

But EVMs are not ballot boxes.  “There are specific challenges to incorporating an electronic process in our elections,” said Menaka Guruswamy, Lawyer Supreme Court, “The law does not consider the contemporary reality of EVMs.”  Guruswamy points out that all the Supreme Court precedents cited in the judgment are in the context of manual voting and pre-date the enactment of the RTI Act 2005.

Section 22 of the RTI Act states that the act shall over-ride all existing laws and Section 6(2) of the RTI Act states that “an applicant making a request for information shall not be required to give any reason for requesting the information.”  This directly contradicts Justice Khanna’ first argument.

The second argument concerning secrecy is also on shaky ground.  “The EVM provides for complete voter secrecy,” said Professor P.V. Indiresan, Chairman of the expert committee for technical evaluation of EVMs, “On pressing the ‘result’ button on the machine, the only information given is a candidate-wise tally of votes and the date and time of polling.” Thus, looking at the EVM’s display shall not compromise voter secrecy.

The third argument could cause the most long-term damage. By ruling that the EC has no legal access to information stored in EVMs after results have been declared, the Delhi High court has effectively barred the Election Commission of India from conducting any longer term tests on its own voting machines.

The Indiresan Committee report clearly recommends that the EC conduct periodic recounting of votes at selected booths “to generate a climate of confidence about the infallible nature of electoral process.”  By ruling out the possibility of such recounts in the absence of a specific allegation of malpractice, the High Court shall destroy all existing confidence in the machines. If the EC cannot test its own machines, who can?

FULL DISCLOSURE: I work with Neelesh Misra at the Hindustan Times and a significant part of our work involves filing RTI applications.

A modified version was first published in the Hindustan Times

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