http://www.hindustantimes.com/india-news/india/Tale-of-two-commissions/Article1-479127.aspx
A Tale of a sore loser !!!
<snip>
Last week, the Delhi High Court struck down a right to information application
filed at the Election Commission, bringing an unprecedented standoff between
two of India's most respected institutions to a temporary halt.
In the case of the Election Commission of India (EC) versus Chief Information
Commission & others, the decision came in favour of the EC, which is that a
citizen has no right to ask for confirmation of the results of the assembly
elections of 2007 in three constituencies of 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, a journalist with 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 records all information pertaining to polling and counting for each
constituency.
Despite the intervention of the Central Information Commissioner, the EC
refused to part with the information on the plea that according to the Conduct
of Election Rules, 1961, the information could be released only on the
directions of a competent court.
The matter was taken up by the Delhi High Court, which upheld the EC's position.
In his judgment, Justice Sanjiv Khanna presented three arguments: First, in
prior cases, the Supreme Court has ruled that specific allegations must be made
against elected candidates before a re-inspection of ballots may be 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, which
ensures the secrecy of voting both at the time and after the votes are cast.
Finally, after the 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 predate the RTI Act.
Section 22 of the RTI Act states that it shall override all existing laws, and
Section 6(2) states: "an applicant making a request for information shall not
be required to give any reason for requesting the information". This directly
contradicts Justice Khanna's first argument.
The argument concerning secrecy is also on shaky ground. "The EVM provides for
complete voter secrecy," said P.V. Indiresan, chairman of the expert committee
for the 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, the EVM's display does 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 the results have been
declared, the Delhi High Court has effectively barred the EC from conducting
tests on its own voting machines.
The Indiresan Committee has recommended that the EC conduct a periodic
recounting of votes at selected booths "to generate a climate of confidence
about the infallible nature of (the) electoral process".
With the high court ruling out the possibility of such recounts in the absence
of a specific allegation of malpractices, the people's confidence in electronic
voting machines will be eroded. If the EC cannot test its own machines, who
can?
