Shivanand Pandit
In March 2024, the Chief Election Commissioner (CEC) Rajiv Kumar emphasized transparency during a press conference, stating: “Our three pillars are — disclosure, disclosure, disclosure… Disclose everything to the public, to the voter. The voter has the right to know everything we are doing and how we are doing it.” Nearly nine months later, on December 9, 2024, the Punjab and Haryana High Court ruled on a civil writ petition titled Mehmood Pracha vs Election Commission of India and Others. The petitioner sought directions for the respondents to provide videography, CCTV footage, and copies of Form 17-C Parts I and II related to the 2024 Haryana Assembly elections. The court directed the respondents to furnish the requested documents under the provisions of the Conduct of Election Rules, 1961, within six weeks of receiving the petitioner’s application.
On December 20, 2024, the Centre amended the Conduct of Election Rules to limit public access to certain poll-related documents. The Union Law Ministry implemented this change based on a recommendation from the Election Commission of India (ECI). While the ECI stated that the amendment aims to safeguard electronic data, critics, including the Opposition and transparency advocates, have condemned it as an attack on the right to information and electoral transparency.
The Conduct of Election Rules, 1961, details the procedures for conducting elections under the Representation of People Act. Through a notification issued by the Ministry of Law and Justice on December 20, 2024, an amendment was introduced to Rule 93(2)(a). Earlier, the rule stated, “All other papers relating to the election shall be open to public inspection.” The amended version now reads, “All other papers as specified in these rules relating to the election shall be open to public inspection.”
The amendment follows a recent directive from the Punjab and Haryana High Court instructing the ECI to provide all documents related to the Haryana Assembly election, including CCTV footage, to petitioner Mahmoud Pracha. The court deemed this permissible under Rule 93(2) of the Conduct of Election Rules, which allows public access to all “papers” unless explicitly restricted. The amended rule now specifies that only certain “papers” listed within it are available for public inspection. A senior ECI official explained, “Election papers and documents do not explicitly include electronic records. To address this ambiguity and mitigate concerns about potential misuse of polling station CCTV footage—such as the use of artificial intelligence to compromise voter secrecy—the rule has been revised. Sharing such footage could pose significant risks, particularly in sensitive areas where maintaining secrecy is critical. All other election-related papers and documents remain accessible for public inspection.”
A setback for democracy
In the absence of any official or credible explanation regarding the true reasons behind the issuance of the notification, one can only hypothesize. Considering the temporal connection between the events of December 9 and December 20, 2024, it is plausible to speculate that the former may have prompted the latter. Simply put, the notification might have been issued to preempt the action mandated by the high court. Put even more plainly, the government — it is crucial to note that such notifications can only be issued by the Government of India — seemingly does not want videography, CCTV footage, and copies of Form 17-C Parts I and II, about the 2024 Haryana Assembly elections and future elections, to be accessible to the public. Notably, the ECI lacks the authority to amend the Conduct of Election Rules. The notification itself underscores this alignment with the government, as it explicitly states: “In exercise of the powers conferred by Section 169 of the Representation of the People Act, 1951…, the Central Government, after consulting the Election Commission of India, hereby makes the following rules further to amend the Conduct of Elections Rules, 1961.”
If this reasoning holds any merit, several critical questions arise. The most pressing one pertains to the CEC’s earlier statement quoted at the outset. Does the CEC, as an independent constitutional authority tasked with ensuring free and fair elections, support the government’s stance of withholding information from voters? Or does he stand by his earlier statement? As a constitutional authority accountable to the people of India, the CEC owes it to both the public and his office to clarify this matter. Without a clear public explanation, citizens may be left questioning the discrepancy between his words and actions. The notification also raises broader concerns. For instance, how would such information requests be handled under the Right to Information Act? Can the Central Government effectively override a law unanimously passed by Parliament through a mere gazette notification? Such a move could be interpreted as the government undermining Parliament’s authority.
A legal question arises regarding the petitioner’s request for videography, CCTV footage, and copies of Form 17-C Parts I and II related to the Haryana elections, made before the high court’s judgment on December 9, 2024. Can a Union Government notification override a prior decision of a constitutional court? The notification states that the amendment “shall come into force on the date of publication in the Official Gazette,” which is December 20, 2024. Given this timeline, the petitioner should still be entitled to the Haryana-specific information.
This episode appears consistent with the ECI’s pattern of obstruction in recent years. It now seems evident that the so-called independent constitutional authority is, in reality, far less independent than it claims to be. This development bodes ill for democracy—or what remains of it.
Transparency ensures the credibility of elections
Rule 93, comparable to the Right to Information Act in the context of elections, plays a crucial role in ensuring citizens’ access to information about the electoral process. Any alteration to this rule risks undermining this right. A preliminary review of the recent amendment suggests it aims to limit citizen-voters’ access to numerous documents generated during Parliamentary and State Assembly elections. While these documents are not explicitly listed in the Conduct of Election Rules, they are referenced in the handbooks and manuals periodically issued by the Election Commission. Given the controversies surrounding voter turnout in recent Lok Sabha and Assembly elections, the amendment’s impact is significant. It could restrict access to key records, such as Presiding Officers’ diaries, which provide detailed data on voter turnout and the distribution of tokens to voters queued at the official closing time of polling. Additionally, it could hinder access to various reports and returns submitted by election officials.
The ECI’s response on December 24, 2024, to the Congress party’s allegations about voter turnout data in the recent Assembly elections is unlikely to ease mounting concerns about the integrity of the electoral process. As a cornerstone of democracy, the ECI faces an unprecedented credibility crisis, where greater transparency and reduced secrecy are imperative. Unfortunately, the ECI is falling short, further eroding trust. While allegations of electronic tampering with voting machines are unfounded, issues like police misconduct, local administrative bias, and voter suppression require thorough and impartial investigation.
A key concern is the significant increase in final voter turnout figures compared to those announced at the close of polling, a pattern observed in recent elections. The ECI attributes this to the inclusion of voters in the queue at polling closure, but credibility demands wider access to relevant video footage to substantiate this claim. Although the ECI asserts that candidates can access all records without rule changes, it remains unclear how officials will handle such requests. Public access to these records is largely denied, undermining arguments about privacy and security, especially when candidates can already review them. Rather than addressing existing concerns, these rule changes appear to save time and effort for the ECI while raising further questions about its intentions.
The writer is a tax specialist, financial adviser, author, guest faculty and public speaker based in Goa. He can be reached at [email protected] or 9822983420
