NEW DELHI: A day after Congress leader Rahul Gandhi accused the Election Commission of India (ECI) of colluding with the ruling BJP for 'stealing' over one lakh votes in a seat during the 2024 Lok Sabha polls in Karnataka, the poll body alleged that he was re-cycling an old accusation that was thrown out by the Supreme Court in 2018.
Rahul explained that poll roll doctoring is essentially done in five ways — by enrolling duplicate voters, inserting fake and invalid addresses, bulk voters at one address, invalid photos, and the misuse of Form 6 that is used to add new voters. Similar allegations of inflating the voter list in Madhya Pradesh ahead of the 2018 assembly polls were made by the then state Congress president Kamal Nath.
In his petition before the Supreme Court, Kamal Nath cited data from a private website to allege a 40% jump in the number of voters in Madhya Pradesh in a decade. When those born in 1991-2001 and attained the age of 18 years between 2008-2018 are taken into account, the increase in the number of voters in the state as per the prevailing trend ought to have been 1,18,18,290. However, the actual jump in the total number of new voters during 2008-2018 was 1,45,13,404, which works out to over 40%. The addition of 26.95 lakh new votes in Madhya Pradesh was inconceivable, he argued.
Besides, as many as 36 voters had the same face in the poll rolls, Kamal Nath charged. Rahul similarly alleged that the name of Aditya Srivastava was present in the electoral rolls of three different states. But the ECI in its pushback said the error was rectified months ago.
Kamal Nath wrote to the ECI on June 3, 2018 pointing to the humongous errors in the voter list and demanding that it rectify them immediately. The poll body on July 16, 2018 wrote to the All India Congress Committee (AICC) stating that the allegations made by Kamal Nath were not substantiated. It, however, admitted that there were duplicate and fake entries, which had been weeded out. In the process, 24 lakh names were dropped from the voter list published in January 2018. It also admitted that 2,37,234 photo entries were suspicious/ unclear/ blank.
In his petition, Kamal Nath essentially sought two reliefs: (a) Directions for conducting random verification of the Voter Verifiable Paper Audit Trail (VVPAT) for 10% of the votes; and (b) soft copies of the draft electoral rolls in text format to all political parties to let them use online tools to identify duplicate or fake voters.
Interpretations of ‘text mode’
Senior advocate Kapil Sibal, appearing for Kamal Nath, largely focused his argument on the need for machine-readable pdf copy of the poll rolls. He referred to Clause 11.2.2.2 of Chapter XI of the Election Manual 2016, which reads: “Putting draft roll on website: Additionally, the draft roll shall be put in public domain, at Chief Electoral Officer’s website, in a PDF format on the same day. The draft roll shall be put on website in a text mode and no photographs would appear against the elector’s details. Instead it would indicate in the box meant for the photograph of the elector whether the photograph is available or not.”
Sibal said the election manual itself mandates that the draft roll be uploaded in ‘text mode’, albeit without photographs. Yet, the ECI provided Compact Discs (CDs) containing the draft electoral roll published on July 31, 2018 in PDF non-editable form for all 230 constituencies of Madhya Pradesh. Such scanned copies are in fact images and, therefore, inadequate for scrutiny, he said.
Sibal went on to recall that in the 2013 assembly elections in Madhya Pradesh, the draft electoral rolls were provided in ‘text mode’. Likewise, the draft electoral rolls published on July 31, 2018 for Rajasthan, too were in ‘text mode’.
The ECI, in its counter-affidavit, stated that it had taken a conscious decision not to give copies of the voter list to the political parties in scannable ‘text mode’ so as to protect the privacy of voters. Senior advocate Vikas Singh, appearing for the poll body, said if the voter list is supplied in text form, it could enable data mining in various forms, possibly impacting privacy, which was recognised as a fundamental right by the Supreme Court in the landmark Puttaswamy case. As a result, there was a re-look into the matter and the ECI decided to provide the list in image format.
Rahul-ECI faceoff
Back to the present, Rahul brushed aside the ECI's dare to submit his claims and objections against specific voters in Karnataka's Mahadevapura Assembly segment along with a signed declaration/oath. He retorted that since he made his observations in public, the ECI could "take it as an oath". "The EC asks me to file an affidavit and give information under oath. I have taken oath inside Parliament, in front of the Constitution, on the Constitution," Rahul said.
The ECI was alluding to Rule 20(3) of the Registration of Electors Rules, 1960 on inquiry into claims and objections. It reads, "The registration officer may in his discretion — (a) require any claimant, objector or person objected to, to appear in person before him; (b) require that the evidence tendered by any person shall be given on oath and administer an oath for the purpose."
When asked whether the discretion clause under Rule 20 (3) amounts to coercion and harassment, a senior ECI official said, it allows an electoral registration officer to make an independent assessment of claims and objections. “Under the rules, an officer can make an assessment whether the claims or objections made by any citizen are motivated. If he is convinced it is so, he, under the law, is empowered to seek the claim under ‘oath’. We at the Commission feel that if the claims made by the Congress leader are true to his knowledge and belief, he should not have any problem in furnishing the same under oath.” If he fails to do so, he should apologise to the nation, the ECI officer said.
On the question of fake voters, the poll body said updation of poll rolls is a continuous process. For example, self-purification of the voters' list happened on or before May 25, 2018, nine days before Kamal Nath sent his representation on June 3. It was duly conveyed to the petitioner on June 8.
A two-judge bench comprising A K Sikri and Ashok Bhushan said that the entire dispute hinged upon the meaning assigned to ‘text mode’ in Clause 11.2.2.2. The petitioner said the phrase, ‘text mode’, included scope for data search as well. But Vikas Singh argued that ‘text mode’ relates to the content of the draft electoral roll like name, address, age of the voter, and not its format. He went on to submit that there is nothing called a ‘text mode’ format in a PDF document.
Concurring with the ECI, the bench said nowhere does Clause 11.2.2.2 say that the draft electoral roll has to be put up on the Chief Electoral Officer’s website in a ‘searchable PDF’. Therefore, the petitioner cannot claim it as a right.
The court accepted the ECI line on protecting privacy so as to prevent voter profiling and data mining. It upheld the poll body's Instructions dated January 4, 2018 directing its functionaries to put only the ‘Image PDF’ of electoral roll in the public domain. "If the petitioner so wants, he can always convert it into searchable mode which, of course, would require him to put his own efforts," Justice Sikri, who authored the 22-page verdict, reasoned.
Why insist on a oath? As per Section 216 of the Bharatiya Nyaya Sanhita, if a person intentionally make a false statement to a public servant or authorised person under oath and if it is proved false, the person shall be liable to be punished with imprisonment up to three years plus fine. Section 216 reads, “Whoever, being legally bound by an oath or affirmation to state the truth on any subject to any public servant or other person authorised by law to administer such oath or affirmation, makes, to such public servant or other person as aforesaid, touching that subject, any statement which is false, and which he either knows or believes to be false or does not believe to be true, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.”
Rahul alleged that Form 6, meant for the new voters, was the most misused one for ‘vote theft’. “Normally the new voters’ age should vary between 18 to 25 years, but in this category, there were voters with age 98, 97, 85, 75 years and so on. There is not a single person between the 18-25 among these first-time voters,” he pointed out.
