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.
-----------------------
@i$#w@ry@!
No comments:
Post a Comment