'Hands-Off Approach Amidst Elections': Supreme Court Refuses To Direct ECI To Disclose Form 17C Records Of Votes Polled, Adjourns Plea

A vacation bench of Justices Dipankar Datta and Satish Chandra Sharma said that a "hands-off approach" has to be taken by the Court regarding the election process and that there cannot be any interruptions in the process.

The bench also pointed out that the prayers in the interlocutory application are the same as the prayers in the main writ petition filed in 2019. The bench stated that the main relief cannot be sought in an interim application and suggested that the application be heard along with the main petition.

"In between elections, hands-off approach has to be taken. Let the application be heard along with the main writ petition. We cannot interrupt the process. Let us have some trust in the authority," Justice Datta orally said.

After hearing arguments for over one hour, the bench dictated the following order :

"The arguments on the interim application were heard. Prima facie we are not inclined to grant any relief on the interim application at this stage in view of similarities of the prayer (a) of the interim application with prayer (b) of the writ petition out of which the Interim Application arises. The grant of relief in the interim application would amount to the grant of final relief. Relist the application together with the writ petitions before the appropriate bench after vacations. We have not expressed any opinion on merits except he prima facie view indicated above."

The interim application was filed by NGO Association for Democratic Reforms (ADR) in a writ petiton filed by it in 2019. A writ petition filed by TMC leader Mahua Moitra in 2019 alleging discrepancies in the voter turnout data of the 2019 General Elections is also listed today along with it.

Senior Advocate Dr Abhishek Manu Singhvi appeared for Mitra. Senior Advocate Dushyant Dave appeared for ADR and Senior Advocate Maninder Singh appeared for the ECI.

ECI raises preliminary objections

At the outset, Singh questioned the maintainability of the petition filed by ADR on the ground that the issues were covered in the judgment in the EVM-VVPAT case. Refuting the submission, Dave said that the EVM-VVPAT case covered a totally different aspect; it pertains to the post-counting situation, while the present application is regarding the pre-counting stage.

Singh contended that the ADR's application was based on "unfounded suspicions" and "false allegations." He added that the application, filed on May 9, suppressed the judgment in the EVM-VVPAT case delivered on April 26. Citing Article 329 of the Constitution, Singh contended that the provision bars judicial interference in the middle of the election process.

He stated that the figures in the Voter Turnout App are tentative as they are based on secondary sources. He also refuted the ADR's argument that there was a variance of 6% in the final data from the figures published; the variance is only 1-2%, he said.

Pointing out that the Supreme Court had questioned the bona fides of the ADR in the VVPAt case, Singh said that on the same day the judgment was delivered, the present application "was churned out by the factory", suppressing the judgment in EVM-VVPAT since it had adverse remarks against the petitioner. Singh also claimed that petitions like these are responsible for reducing the voter turnout because of the "continous questioning of the process."

ADR's response

When Dave took stage, Justice Datta said, "We have some questions." Firstly, Justice Datta stated that the prayer sought in the application is the same as the prayers in the main writ petition. Therefore, Justice Datta asked if the main relief can be sought in the interim application.

Justice Datta next pointed out that the interim application was filed based on certain press releases of the ECI. He asked if the subsequent developments can be taken note of in a pending writ petition. "What is the nexus between the 2019 petition and the 2024 application? Why didn't you file a separate WP?," Justice Datta asked.

Justice Datta also asked why did the petitioner not bring the issue before March 16(date of notification of election) and filed the application only after April 26 when the process was on. He asked why the petitioner did not take any steps to get the matter heard for five years.

In reply, Dave said that the cause of election for the application arose only when the Election Commission made the disclosures regarding the voter turnout.

"In between election, hands off approach has to be taken. Let the application be heard along with the main writ petition. We cannot interrupt the process. Let us trust some authority," Justice Datta said.

Appearing for Mitra, Singhvi said that in PIL matters, the Courts ought not to adopt a technical approach and entertain arugments of constructive res judicata, interim prayer covered by final prayers etc.

"Tomorrow is the 6th phase, 5 phases are over....this particular compliance that you are insisting upon would require manpower, it is not possible during this period. We have to be very conscious of the ground reality, we feel this could be heard after the vacations," Justice Datta told Singhvi.

In response, Singhvi said that there are nearly 10.37 lakh Form 17C records in all 543 constituencies. If the total forms are divided by the number of constituencies, the number per Returning Officer per constituency, the figure will come to 1911 forms. "It is manageable," he said.   

However, the bench expressed its reluctance to interfere at this stage and dictated the order.

Disclosure of Form 17C can lead to mischief: ECI says

In its couter-affidavit, the ECI has opposed the application stating that there is no legal mandate for the general public to access Form 17C. The ECI stated that as per the Conduct of Election Rules, Form 17C can be given only to the polling agent of the candidate. The ECI also said the uploading of Form 17C on the website can lead to "mischief" and confuse the voters leading to mistrust in the process.