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Declining to direct the Election Commission of India to publish booth-wise numbers of voter turnout and upload copies of Form 17C – it reflects the votes polled in each polling station – on its website within 48 hours of polling, the Supreme Court Friday said it cannot do so in the midst of elections and adjourned hearing on the pleas until after the court’s summer recess.
The bench of Justices Dipankar Datta and Satish Chandra Sharma, which took up an interim application filed by NGO Association for Democratic Reforms (ADR), said the interim relief being sought was the same as the prayer for final relief in a pending 2019 petition by TMC leader Mahua Moitra, and that giving interim relief would amount to granting final relief.
“Arguments on the interim application were heard. Prima facie, we are not inclined to grant any relief on the interim application at this stage in view of the similarity of prayer A of the interim application with prayer B of writ petition out of which the interim application arises. Grant of such a relief amounts to grant of final relief in the writ petition,” the bench said in its order.
It directed that all pleas in this regard be listed before an appropriate bench after the court’s summer recess.
Justice Datta said, “Everyone is for free and fair elections… We cannot interrupt something… We are also responsible citizens. Let us trust some authority. We will keep it pending and (it) will be heard along with the writ petition after the elections are over. In between elections, a hands-off attitude has to be there.”
Stating that the bench had not gone into the merits of the matter, he said, “It is an election spread over seven phases. Five phases are over. Tomorrow is the sixth… This particular compliance that you are insisting on would require not only manpower but also require the mandamus. It is not possible during this period.”
The bench sought to know why the petitioner who moved the court in 2019 had not done anything to pursue the matter and ensure that it was heard in the last five years or before the start of the ongoing Lok Sabha elections.
“You filed this petition in 2019. For the last five years, leave aside the Covid period, what steps were taken to have this heard? And why did you not come up with this application prior to March 16? Why on 26th April when the process is on?” Justice Datta asked.
Senior Advocate Abhishek Manu Singhvi, appearing for Moitra, said it was filed by a person with whom she had a relationship. “He was an advocate. She could not get the files back to move it.”
Rejecting attempts to cast doubts on the role of the ECI, Justice Datta also pointed out that when a bench comprising him heard the plea for matching 100 per cent VVPAT slips with EVM votes, there was a controversy about figures being put out by the Voter Turnout app.
“I asked the ECI counsel, are you statutorily obliged to maintain this? He said no, only with the objective of maintaining fairness and transparency, we are doing this,” he said.
The bench also questioned the petitioners on the similarity of the prayers in the interim application and the 2019 writ petition.
“Prayer A in your application is the prayer B in your petition. That’s the final relief you have prayed for in the writ petition. How can you claim an interim relief? Interim application is based on certain press notes pertaining to the 2024 elections. If subsequent events can be considered by the court to avoid multiplicity of proceedings, what is the procedure for that? Today, if a suit is filed and during the pendency of the suit, there are certain subsequent developments and the court feels that these developments should be taken into consideration for avoiding future litigation, what is the procedure that is adopted in the suit? And what follows in a writ petition where the principles of Civil Procedure Code apply?” Justice Datta asked.
“Does the court by way of an order grant interim relief which is in the nature of final relief, keeping the petition pending?” he said.
“This could have given you the ground for filing a fresh petition. Why did you not file a fresh petition? What is the nexus between the 2019 petition and 2024 application? If you say that there is a nexus, you are trapped in one way. You cannot, by an interim application, seek an order. You have to get your writ petition amended… And if you say there is no connection, then a fresh writ petition should have been filed,” he said.
Senior Advocate Dushyant Dave, appearing for ADR which filed the application for interim relief, said it was not an adversarial litigation and that he was pained by the ECI treating it so “to damn us”.
(The ECI, in its response to the Supreme Court Wednesday, had said “there is no legal mandate to provide Form 17C to any person other than the candidate or his agent” and that “there is a consistent malafide campaign/design/effort to keep raising suspicion and doubt in every possible manner… by misleading assertions and baseless allegations regarding the conduct of elections by the Election Commission of India”.)
The bench continued with its questions. “When this is your final relief claimed in the writ petition, which is awaiting a decision, how can you expect an interim order on the same terms?” Justice Datta asked.
He said the court can grant such relief, but only in “very exceptional cases where the non-grant of an interim relief which is in the nature of final relief has the effect of rendering the proceedings infructuous”.
Dave said the ADR came to the court now because the details of the voter turnout were published now. “Undisputedly, after the two phases, the Election Commission itself revised the percentage of voting. That is why we came. Not for any other reason,” he said.
Justice Datta pointed out that the writ petition prayed for issuing an appropriate writ, order or direction to the Election Commission to provide the information in public domain for the 2019 Lok Sabha elections and for all future elections.
“The Supreme Court is yet to decide on your petition and grant this relief. The matter is pending for decision. You want an interim order on the same terms. Under what law?” Justice Datta said.
Dave said that this being a Public Interest Litigation (PIL), the strict rules of procedure, pleadings, etc do not apply.
Justice Datta said, “We are not strict on PILs if it involves a public cause. But over the years, the public interest litigation jurisdiction… of the matter that we entertain, that comes before us, how many PILs have private interest, publicity interest, paisa interest. So, therefore, it is for us to put a check on frivolous writ petitions from being filed.”
“We don’t say that on merits you don’t have a good case. You may succeed in your 2019 petition. We are trying to say that given the framing of your petition, you may not have approached at the appropriate stage with a proper prayer,” he said.
Dave said he understands the court’s anguish.
At this, Justice Datta said, “It’s not a question of anguish. Everyone is for a free and fair election. If you see the part of my judgment (on petitions seeking 100 per cent verification of VVPAT slips with the EVM votes), you will find whatever improvement is required, has to be done. And that was the point which came from the court itself. It was not pleaded.”
The bench, while keeping the application and petition pending till after the elections, said it is concerned that there could be mischievous people taking advantage.
“We cannot interrupt something. To take it further, we can do it. We are also responsible citizens. Let us trust some authority,” Justice Datta said.
Appearing for the ECI, Senior Advocate Maninder Singh contended the NGO had suppressed the fact the issue of Form 17C was settled by the Supreme Court in its judgment on the EVM-VVPAT matter. He said the application was “only founded on suspicion and apprehension” and urged the court to dismiss it.
