13 Nov 2009

No RTI on voting information: High Court

In an eleborate and comprehensive decision, the Delhi High Court has recently allowed the petition filed by the Election Commission of India challenging the order passed by the Central Information Commission under the Right to Information Act directing the Election Commission to disclose information relating to ballots/votes cast on Electronic Voting Machines (EVMs) and discripancies, if any, in the counting of EVMs etc. The High Court inter alia held that even though the Right to Information Act was a specific overriding law directing all public authorities to disclose all information accessible to it, since the information relating to ballots cast in election was not accessible to the Election Commission, the Right to Information Act had no application and thus the information could not be sought. 

In coming to the conclusion, the High Court notes the election procedure and the powers of the Election Commission and its officers relating to the ballot information as under;
Each EVM has a balloting unit and a control unit. Data of the votes polled is stored in the control unit. After polls, the data stored in the control unit is encoded for counting of votes which is done in the presence of the candidates or their election/counting agents. Thereafter, entries are made in Form nos.17C and 20 and the poll result in form of a result-sheet is announced. After the counting is over and the results are announced, the control units are sealed following the procedure mentioned in Election Rule 57C ...
... under the Election Rules, the production, inspection and disposal of ballot papers/ EVMs is subject to and controlled by Rules 92, 93 and 94. ... Rule 93 stipulates that ballot papers in physical form cannot be inspected or produced before any person or authority except under the order of a competent court. Rule 93(1A) which deals with data stored in the control unit in electronic form, states that the control unit cannot be opened, inspected or produced before any person or authority except upon an order of a competent court. Use of the word “shall” in said Rule; “shall…not opened except under the orders of a Competent Court..”, makes the provision imperative or obligatory.
The object and purpose behind these Rules is to maintain utmost secrecy and confidentiality of the ballot papers and the control unit which contains the information regarding the votes polled, the votes secured by each candidate in a polling station etc. Such information is kept secret to maintain confidentiality, and secure information relating to voters, pattern of voting etc. and avoid unnecessary petitions based on mere apprehensions and unfounded grounds. Ensuring confidentiality and secrecy of the votes polled is sacrosanct in elections by a secret ballot. This is necessary to protect the electorate from any reprisal or adverse consequences for voting in a particular manner or for a party/candidate. The object is that the said material should not be accessible unless a Competent Court for valid reasons directs disclosure or inspection.
The contention of the respondent no. 2 that the restriction contained in Rule 93 is of limited nature and applies only when the election papers are in custody of the District Election Officer and once it is outside his control, the restriction or bar no longer operates is not correct. The Rules do not authorize the Election Commission to access and disclose information/data stored after expiry of any period. Prohibition continues till destruction. Opening of seals and inspection require order of a competent court.
... Retention and disposal of the EVMs, an administrative act, exercised by the Election Commission, is aimed at avoiding technical delays and problems due to non-availability of the EVMs; retaining sealed papers/units and maintain confidentiality over a length of time. Thus, even though, the Election Commission has the power under Rule 94 (2)(aa) to retain or dispose of the voting machines, but that by itself does not expand Election Commission‟s power and negate the requirement of an order of a competent court under Rule 93.
Dealing with the aspect of confidentialty of votes, the High Court notes the settled legal position to this effect;
The Supreme Court has interpreted Rule 93 in various cases. In Ram Sewak Yadav versus Hussain K. Kidwai, (1964) 6 SCR 238, it was observed that ballot papers may be inspected only under an order of a competent court/tribunal, but other documents are open for public inspection subject to certain conditions. An order for inspection should not be granted as a matter of course, on mere allegations and vague pleas made in the petition. In Bhabhi versus Sheo Govind and others (1976) 1 SCC 687, after considering earlier judgments, the Supreme Court observed that inspection of the ballot papers cannot be allowed in order to indulge in a roving inquiry or in order to fish out materials for declaring elections to be bad. The primary aim of the courts is to do justice to the parties balancing the respective rights and interest and accordingly it was held that the following conditions are imperative before inspection of ballot papers can be allowed. ...
Underlying principle behind the aforesaid judgment is to protect secrecy and confidentiality of ballots, unless there are compelling and justiciable reasons why in a particular case inspection of ballot papers should be allowed and this requires an order of a competent court/tribunal. Thus, vague or indefinite material even if involving bold and serious allegations, cannot be a ground to overlook principles of secrecy and confidentiality attached to ballot papers. The aforesaid principle was again reiterated in V.S. Achutanandan versus P.G. Francis and another (2001) 3 SCC 81 wherein it was emphasized that it is for the applicant to prima facie establish existence of grounds justifying examination of the ballot papers.
On the interaction between the two laws i.e. Right to Information Act and Representation of Peoples' Act, the High Court noted;
REP Act is prior in point of time and in case of conflict with any provision of the RTI Act, the latter Act will prevail. Further the Rules framed under the REP Act are subordinate legislation and in case of conflict between the provisions of the said Rules and the RTI Act, the RTI Act will hold the field and has to be applied. However, Section 22 of the RTI Act is triggered and is applicable if there is a conflict between REP Act, the Election Rules and the RTI Act. Albeit, where there is no conflict between the two statutory enactments, Section 22 of the RTI Act is not applicable. ...
Section 2(f) of the RTI Act defines information as material in any form accessible to a public authority under any other law i.e. an enactment other than the RTI Act. Section 2(j) defines “right to information” as “information accessible under the RTI Act which is held by or under the control of the public authority”. The words “information accessible under this Act” used in Section 2(j) can cause ambiguity, if read in isolation. But on a harmonious reading of the two definition clauses, the words “accessible under this Act” have reference to Section 2(f) of the RTI Act otherwise the two definition clauses will be mutually contradictory. The term “Right to information” should be defined with reference to the term “information”. The words “information accessible under this Act” in Section 2(j) will mean information which is accessible to a public authority and not information to which the public authority is denied access. The “right to information” is subject to the provisions and exemptions under the RTI Act and therefore legislature has used the words “information accessible under this Act” while defining “right to information” under Section 2(j).
The words “under the control of a public authority” as per their natural meaning imply right and power of the public authority to have access to the said information. Wharton‟s Law Lexicon (15th edition) defines the word “held” as “to have the ownership or use of: keep as one‟s own”. In Stroud‟s Judicial Dictionary (4th edition) it is observed that in legal parlance the word “held” means to possess “legal title”. words “held by” in section 2(j) in the context of the RTI Act will include not only information under the legal control of the public authority but also all information which is otherwise available with them. The public authority should have dominion over the information or semblance of the right to the material which constitutes information. The words “held by or under the control of an public authority” are to be given a broad and wide meaning but at the same time cannot include information to which access is denied to a public authority itself under any other statutory enactment. If there is a prohibition or bar under an enactment and the public authority is disabled and prevented access to material or information, the bar or prohibition is not undone or erased by the RTI Act. Similarly, if there is a pre-condition before a public authority can access information under any other enactment, the said pre-condition should be satisfied. Right to information from a public authority requires the public authority‟s corresponding right to access the said information. If there is an absolute or complete bar on the public authority‟s right to access information then such information cannot be supplied and if there is a partial bar or pre-condition, then the pre-condition should be satisfied before information is furnished.
Thus, to word it differently, material/details to which the public authority has access must be furnished, subject to the exemptions under the RTI Act. However, if the public authority is denied access or cannot have access to due to any limitation or restriction under a statute, the material does not constitute „information‟ under the RTI Act. Once statutory precondition for access by the public authority to material/details is satisfied, the material/details are “information” within the meaning of section 2(f) and a citizen has a right to access “information”. The requirement is that the public authority should have right to access information which is “held by or under the control of any public authority”.
Any other interpretation of the foregoing sections of the RTI Act, will lead to incongruous and unacceptable results, with a statutory protection or prohibition in another enactment being nullified by filing an application under the RTI Act. The legislature has therefore in Section 2 (f) of the RTI Act, carefully used the words “accessed by a public authority under any other law” before a right to information accrues and information is “held by or under the control of any public authority.” Where a public authority is disabled till satisfaction of certain conditions or is prohibited from having access to any information, the provisions of the third enactment continue to apply and are not re-written or over-written by the RTI Act.
When information is accessible to a public authority and is held or under its control, then the information must be furnished to the information seeker under the RTI Act, even if there are conditions or prohibitions under another statute already in force or under the Official Secrets Act that restricts or prohibits access to information to public. Prohibition or conditions which prevent a citizen from having access to information in view of the non obstante clause in Section 22 of the RTI Act do not apply. Restriction on rights of citizens is erased. However, when access to information by a public authority itself is prohibited or is accessible subject to conditions, then the prohibition is not obliterated and the pre-conditions are not erased. Section 22 of the RTI Act is a key which unlocks prohibitions/limitations in any prior enactment on right of a citizen to access information accessible to a public authority. It is not a key with the public authority that can be used to undo and erase prohibitions/limitations on the right of public authority to access information.
Interpreted in this manner there is no conflict between the provisions of the RTI Act and the REP Act and the Election Rules framed thereunder. As per the Election Rules, once the ballot papers or control unit or EVMs is sealed, no one can have any access to the same except on an order passed by a competent court. The Election Commission does not have right to access the control unit of the EVMs, to encode or download and re-examine the data without permission of the competent court. There is a prohibition and/or restriction on the right of the public authority to have access to the information. It cannot be said that information in respect of queries which can be answered only after examining and downloading the data stored in the EVMs is “information accessible” as it is “held by” or “under the control of” the Election Commission of India unless the conditions specified in the Election Rules are satisfied. Satisfaction of the conditions for encoding and downloading of data stored in the control unit is mandatory before the said information is said to be “held by” or “under the control” of the Election Commission of India-the petitioner herein.
Right to information is an important right. At the same time, maintaining secrecy and confidentiality of the ballot papers, etc. is also an equally valuable right. The Supreme Court has balanced the two rights when it dealt with the question of re-examination and inspection of ballot papers in its decision in Bhabhi (supra), V.S.Achuthanandan (supra) and Ram Sewak Yadav (supra). Enactment of RTI Act has not undone or negated the aforesaid principles and occasioned an absolute right to citizen of India to ask for full details of electronic data relating to ballot papers stored in the control unit of the EVMs. The Supreme Court in the aforesaid decisions has interpreted the two conflicting rights both of which are relevant to uphold democracy and Right to Freedom of Speech and Expression. ...
On legal interpretation of Section 2(j) of the RTI Act, information must be accessible and held by or under the control of any public authority. If this plea of the respondent no.2 is to be accepted then no distinction can be made between queries relating to information accessible to a public authority and information which is not accessible to a public authority or accessible on satisfaction of pre-conditions. Further, all information including confidential information relating to voting will be covered by the Right to Information and over written in view of Section 22 of the RTI Act (whether the said queries are exempted under Section 8(1) of the RTI Act is a separate aspect). Lastly, it is not as if an aggrieved party is remediless. In case a election petition has been filed, the competent court can always direct furnishing of information on being satisfied that the parameters specified by the Supreme Court for furnishing of information and re-examination of data stored in the EVMs are met.
Being of this view, the petition challenging the order of the Central Information Commission was allowed and the direction to disclose information contained in Electronic Voting Machines set aside. 

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