Information Commission orders release of video footage of polling in Kerala

The Election Commission of India and its electoral officers have been forgoing openness and transparency in the electoral process, thus undermining democratic elections in Kerala and probably elsewhere in the country. A recent order of the State Information Commission may help to restore at least some degree of transparency.

Access to Webcasting to candidates, agents and public during the Lok Sabha polls last year had resulted in detection of several cases of impersonation and bogus voting. However, when repoll were held, the Chief Electoral Officer (CEO) of Kerala restricted viewing of Webcasts to ‘election machinery’ citing a letter from the Election Commission issued in 2015. This impeded concurrent social auditing of the election process.

The letter said that the Commission had decided that henceforth, webcasting in polling stations will be restricted to viewing only by the election machinery in keeping with the spirit of Rule 93(1) of the Conduct of Election Rules, 1961.[ The rule actually deals with production and inspection of election papers. It specifies that used ballot papers, counterfoils et cetera and sealed control units of EVMs should not be opened or allowed to be inspected by any person or authority except under orders of a competent court. This a clause aimed at maintaining the secrecy of balloting. There is no reference to Webcasting or video footage in this clause. How the Commission could take a decision to deny real time access to web footage under this clause and how it could be in the spirit of the Rule is anybody’s guess.

Even if the decision is valid, it did not cover requests for footage under the RTI Act. However, when Advocate D. B. Binu sought the CCTV/Webcasting footage from polling booths that recorded polling percentage of more than 90%, the State Public Information Officer (SPIO) in the Office of the CEO did not release the information. He initially said that a clarification was being sought from the Commission in view of the restriction imposed by the Commission on public access. Later, he claimed that “the final list of polling booths where webcasting was done was being finalised” (sic). He added that no separate details in the manner of polling booths where 90 % and above polling was recorded was kept in that office. The appellate authority dismissed first appeal saying that the Office was awaiting clarification/permission from Election Commission of India on providing such video footage to the public.

This was when there was no provision under RTI Act giving power to the SPIO to get clarification/permission from the Commission. Moreover, the Handbook for Returning Officers had provision that copy of the video footage should be made available on payment of Rs. 50 (fees as per Right to Information Rules, 2012). Hence, the clarification sought was clearly a delaying tactics by SPIO and a clear violation of RTI Act.

The State Information Commission, in a recent order, has now directed the footage to the released. Allowing an appeal from Mr. Binu, Chief Information Commissioner Vinson M. Paul noted that the contention of the Respondent’s office that it was awaiting clarification from the Election Commission of India was not tenable under the RTI Act. Information sought tinder the Act can be denied only under Section 8 or 9 of the Act. Similarly, the argument that the Respondent office did not maintain details of polling booths, which recorded more than 90% polling, was not valid as the CEO’s office is the repository of all such information.

In response to another RTI application from the writer of this blog, the SPIO is maintaining that the reasons for malfunctioning of the electronic voting machines are not available in the CEO’s Office. As many as 434 balloting units, 391 control units and 1041 VVPATs were replaced in Kerala during Lok Sabha polls. The number of BUs and CUs replaced during the by-polls were 15 each. As many as 56 VVPATs were also replaced.

About a month after the by-elections to the Assembly in September/October 2019, the SPIO maintained that the returning officers were yet to finalise data on the polls except in the case of Pala constituency. Though the data were later released on first appeal, it was provided only in PDF format though the request was for data in excel or similar format that could be easily used for calculations.

If what the SPIO said was true, how the returning officers declared the by-poll results and Election Commission notified the winners without finalising the data?

The appeal before the State Information Commission in this case is pending.

Copy of reply from State Public Information Officer, CEO’s Office, on RTI request for election data
Reply from State Public Information Officer, CEO’s Office, on RTI request for election data- Page 2

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