The Central Information Commission (CIC) by an order dated February 12, 2019, in the case of Razaak K. Haidar v. CPIO, Election Commission of India has ruled that an Electronic Voting Machine (EVM) is ‘information’ under the Right to Information Act, 2005.
The order was passed by Chief Information Commissioner Sudhir Bhargava on an appeal filed by an RTI applicant who had asked the Election Commission (respondent) for an EVM but was denied.
The appellant who attended the hearing through video-conferencing submitted that the respondent had wrongly denied the information under Section 6(1) of the RTI Act, 2005. He contended that as per Section 2(f) and 2(i) of the RTI Act, 2005, the definition of ‘information’ and ‘record’ includes model or any sample. Hence, an EVM qualifies as ‘information’ and should be provided to him under Section 6(1) of the RTI Act, 2005.
For respondent, ECI Under-Secretary Soumyajit Ghosh argued before the CIC that an EVM did not qualify as ‘information’ under Section 2(f) of the RTI Act. He informed the CIC that “model/samples of the EVM are available with the ECI, but the same are only kept for training purpose by the ECI, and not saleable to the general public.”
Further, Mr. Ghosh also submitted that the said information is exempted from disclosure under Section 8(1)(d) of the RTI Act, 2005, as the software installed in the machines is an intellectual property of a third party, the disclosure of which would harm the competitive position of the third party concerned.
He, however, admitted that due to oversight, the Central Public Information Officer (CPIO) inadvertently quoted Section 6(1) of the RTI Act while denying the appellant’s request for an EVM in the RTI application and tendering an unconditional apology requested the Commission to condone the same.
The Commission noted the definition of ‘information’ under Section 2(f) of the RTI Act, 2005, wherein it is stated that “information means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”
On the basis of the definition, the Commission upheld the appellant’s contention and said that “the EVM which is available with the respondent in a material form and also as samples, as admitted by the respondent during the hearing, is an information under the RTI Act.”
However, the Commission accepted the submission made by the respondent that the software installed in the EVM is an intellectual property of a third party, the disclosure of which would harm the competitive position of the third party concerned. Further, the Commission observed that the respondent had denied the information sought for, erroneously, under Section 6(1) of the RTI Act, 2005.
The Commission, therefore, directed the respondent to provide an appropriate reply, as per the provisions of the RTI Act, 2005, to the appellant within four weeks from the date of receipt of a copy of this order.
EVMs have been in the spotlight recently, as several Opposition leaders have raised doubts about the credibility of the machines.
In January this year, Syed Shuja, a U.S.-based cyber expert at a press conference in London hosted by the Indian Journalist Association and the Foreign Press Association levelled the allegations via Skype that the Electronic Voting Machines (EVMs) used by the electoral body could be hacked and that the 2014 Lok Sabha polls were rigged.
However, rejecting the allegations, the Election Commission reiterated the foolproof nature of EVMs and asked the Delhi Police to lodge an FIR against the U.S. based cyber expert.