No legal mandate for uploading of Form 17C on website or handing over to anyone other than candidate or agent, EC tells SC

NEW DELHI: The Election Commission on Wednesday contended before the Supreme Court that there is no legal mandate to provide the Form 17C (account of votes polled at each polling booth) to any person other than the candidate or his agent.

Opposing a plea filed by NGO Association for Democratic Reforms, it contended that uploading of Form 17C  on website can lead to mischief and there are possibilities of images being morphed, which can create “widespread discomfort and mistrust”.

It also claimed the allegation with regard to increase of final voter turnout data by 5 to 6% in first two phases was "misleading and unsubstantiated".

The EC also said changing the procedure in the last two phases of polls would amount to interference in election process and would be in teeth of Article 329(b) (no election of Parliament or Assembly should be called in question except election petition) of the Constitution.

Just two days before the court's hearing on the application filed by the NGO on May 24, the EC filed an affidavit, contending a wholesome or indiscriminate disclosure, and public posting of Form 17C is amenable to mischief and would lead to 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 said.

In its response to the plea, the poll panel said 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.

"As per the law enacted by the Parliament in its legislative wisdom, the EC has been mandated to provide Form 17C (Part 1) to polling agents of the candidates only under Rule 49S of the Conduct of Elections Rules, 1961 and not in any other manner. Further, Part II of the Form 17C is signed by the Counting Supervisor and counter-signed by the Returning Officer as mandated under Rule 56C of Conduct of Election Rules, 1961," it said.

The EC said in any electoral contest, the margin of victory may be very close and, 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,” the affidavit said. It further added that if the relief sought by the petitioner is allowed, it will cause chaos in the election machinery, which is already in motion amid the ongoing general election.

It also said Form 17C is designed to be an immutable paper trail which ensconces the EVM and concludes the poll and the form is co-shared with its content, contemporary to the point of time, to the election agent and becomes relevant at the day of counting.

“If Form 17C is seen as an unfettered document then, hypothetically at the end of the poll, the polling station can be overwhelmed by a large number of public demanding a copy of Form 17C on the argument that it is being given to the polling agent," the affidavit said.

The EC alleged the petitioner is trying to create an entitlement when none exists in the law by way of filing an application in the middle of the election period.

It also contended the polling station has no wherewithal to upload the Form 17C.

The plea sought a direction to the EC to upload polling station-wise voter turnout data in figures on its website within 48 hours of polling for each phase of ongoing Lok Sabha polls.

The EC said elections for the 19 th Lok Sabha are already underway. Out of seven phases, five phases are already over while the remaining two are scheduled on May 25 and June 1.

However, it claimed, "There are also certain elements and vested interests who keep on throwing baseless and false allegations, creating unwarranted atmosphere of suspicion in the close proximity of time of conduct of every election by the Election Commission, to somehow discredit it".

"There is a consistent malafide campaign/design/efforts to keep on raising suspicion and doubt in every possible manner and by misleading assertions and baseless allegations regarding the conduct of elections by the EC," it added.

The EC claimed the instant plea was not maintainable as similar issues were raised which resulted in judgement on April 26, 2024 concerning the use of EVMs.

It also contended the writ petition in the matter has been pending since 2019 but the instant application has been filed in the midst of polls to "create prejudice, suspicion, doubts and integrity of the process to gain support for campaign from EVMs to ballot papers".