The Supreme Court’s Form 17-C Order: Three Issues

The Supreme Court’s two-paragraph order refusing to direct the Election Commission to make publicly available the Form 17C data regarding the total number of voters, within 48 hours of polling, sets out a single reason: that similar relief has been prayed for in an already pending petition (filed in 2019), and to pass the order at this stage would amount to “granting the final relief” prayed for in that petition.

This, however, is flawed for two reasons. First – and not for the first time this election season – the Court is using its own failure to hear constitutional cases in good time as a justification to exempt itself from the responsibility of hearing them now. If the pending writ petition regarding Form 17C was filed in 2019 – five years ago – and has still not been decided, then the responsibility for that lies with the Court. And the Court cannot displace that responsibility on to the Petitioners by asking why they didn’t attempt to have the hearing expedited.

Secondly, if passing the order would amount to “granting the final relief”, equally so, refusing to pass the order (which the Court did) would amount to effectively denying the final relief: a judgment on Form 17C data after the general election is long over is about as much use as shutting the stable door a few weeks after the horse has bolted: the case would be long infructuous by then. The Court provides no explanation why “granting final relief”, then, is a worse outcome than “denying final relief”, and effectively deciding in favour of the Election Commission.

While this is all the Order says, it is reported that the Court made two other points during the oral hearing, which – perhaps thankfully – have not found their way into the written text of the Order. First, the Court apparently said that it uploading Form 17C data would take too much effort. As election observers have noted, this is quite simply false: there’s no two ways about it. While one may be grateful that this “reason” was not cited in the judgment, one wonders why the Court appears to be so quick to believe – and even echo – the ECI’s arguments, especially where some quick research would demonstrate their falsity.

Secondly, the Court stated that it ought to take a “hands-off” approach towards institutions such as the EC during an election campaign. This would be an admirable sentiment, were it not for the fact that the fundamental premise underlying the “hands-off” approach is that the EC is an independent body whose core function – that of conducting free and fair elections – should not be encroached on by other bodies. However, as readers are well-aware, the EC’s own appointment procedures – and its independence – are presently under constitutional challenge, and – crucially – the Supreme Court, as we have previously discussed, refused to stay the appointments process, on the basis that it would chaos before the general election.

Thus, given that the Court has already taken a hands-off approach towards the question of appointment (one of the judges, J. Dipankar Datta, has been a member of both benches), and allowed the election to go ahead under the auspices of a Commission where two of three Commissioners have been chosen by the Prime Minister one of his nominated ministers, it becomes positively perverse to once again adopt a hands-off approach when petitioners come to Court complaining of specific action or inaction taken by the EC. In other words, if the Court refused to scrutinise the procedures of appointment of Election Commissioners and their impact on independence, the least it can do is to take seriously and scrutinise specific allegations of election-related violations against those Commissioners. Its failure to do so only compounds the initial problems with its failure to specifically consider the issue of appointments and the independence of the EC.

It is therefore evident that neither the reasoning set out in the order, nor the Court’s oral observations, are sufficient justification for the EC refusing access to Form 17-C data. Unfortunately, though, as we have now seen repeatedly during this election period, the Supreme Court, the Court has failed to take seriously core electoral issues of transparency, accuracy, and reliability, which are meant to the pillars of free and fair election processes. Today’s order marks another notch in that history of failure.