THE CONTEXT: The amendment to the Conduct of Election Rules, 1961 was made by the Union Law Ministry on December 20, 2024, based on recommendations from the Election Commission of India (ECI). This modification aims to address several key concerns:
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- Electoral integrity: Safeguarding the sanctity of the voting process.
- Voter privacy: Protecting individual voter information from potential misuse.
- Technological challenges: Addressing issues arising from the increased use of electronic records in elections.
KEY ASPECTS OF THE AMENDMENT:
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- Previous Rule 93(2)(a): Allowed public access to “all other papers relating to the election.”
- Amended Rule 93(2)(a): Limits access to “all other papers as specified in these rules relating to the election.”
TRIGGER FOR THE AMENDMENT: On December 9, 2024, Justice Vinod S. Bhardwaj of the Punjab and Haryana High Court issued a directive to the Election Commission of India (ECI) in the case of Mahmoud Pracha vs ECI. The court ordered the ECI to provide videography, CCTV footage and copies of Form 17C (Parts I and II). These documents were related to the recently concluded Haryana Assembly elections.
RATIONALE BEHIND THE AMENDMENT TO THE CONDUCT OF ELECTION RULES, 1961:
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- Ambiguity in Interpretation: The ECI identified a critical ambiguity in the interpretation of “election papers” with respect to electronic records. The original rule did not explicitly address modern electronic documentation, creating a legal grey area. This lack of clarity became evident in the recent Mahmoud Pracha vs ECI case, where the Punjab and Haryana High Court directed the sharing of CCTV footage under Rule 93(2).
- Technological Challenges: The ECI expressed serious concerns about the potential misuse of CCTV footage using artificial intelligence (AI). In an era of deepfakes and sophisticated AI algorithms, unrestricted access to such footage could create fake narratives, manipulate voter behavior, and undermine the integrity of the electoral process.
- Voter Privacy and Secrecy: The amendment safeguards the fundamental principle of secret ballot. Unrestricted access to CCTV footage from polling booths could compromise voter secrecy, a cornerstone of democratic elections.
- Security Concerns in Sensitive Areas: Unrestricted access to electronic records in these areas could jeopardize voter safety and potentially influence voting patterns. The ECI highlighted specific security risks in vulnerable regions as follows:
- Jammu and Kashmir: Potential exposure of voters to terrorist threats.
- Naxal-affected regions: Risk of voter intimidation and retaliation.
- North-Eastern states: Concerns over ethnic tensions and voter safety.
- Balancing Transparency and Security: The amendment seeks to strike a balance between electoral transparency and national security. While it restricts public access to certain electronic records, it maintains transparency through continued access for candidates and their agents to all statutory papers. Provision for court-ordered access to electronic records when deemed necessary.
THE IMPLICATIONS:
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- RTI Implications: The amendment has been viewed by transparency advocates as a setback to the Right to Information (RTI) framework in the electoral context. RTI activists argues that the change “essentially restricts people’s right to information about election-related records,” terming it a “regressive move”. This perspective underscores the tension between administrative discretion and public accountability in electoral management.
- Access to Crucial Documents: The amendment potentially limits access to vital election-related documents not explicitly mentioned in the rules, such as Observer reports, Scrutiny reports by Returning Officers, Index Cards containing detailed election statistics, Presiding Officers’ diaries with voter turnout data. These documents are crucial for assessing the fairness and integrity of elections, particularly in light of recent controversies surrounding voter turnout in Lok Sabha and Assembly polls.
- Legal Challenges: The Congress party has filed a writ petition in the Supreme Court challenging the amendment. This move highlights the intersection of electoral law, constitutional principles, and judicial review in India’s democratic framework.
- Erosion of Electoral Integrity: Congress President Mallikarjun Kharge has termed the amendment as part of a “calibrated erosion of ECI’s integrity” and a “frontal attack on the Constitution and democracy”. This perspective raises questions about the balance of power between constitutional bodies and the executive in shaping electoral processes.
- Multi-party Democracy Concerns: Other opposition parties,have accused the Election Commission of “undermining multi-party democracy” by making unilateral decisions without consulting all political stakeholders. This criticism points to the broader issue of inclusive decision-making in electoral reforms.
THE WAY FORWARD:
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- Enhanced Access to Election Data: While safeguarding sensitive electronic records, provide greater access to critical election-related documents like observer reports, scrutiny reports by Returning Officers, and Presiding Officers’ diaries. This aligns with the Supreme Court’s emphasis on transparency in Union of India vs. Association for Democratic Reforms (2002).
- Real-Time Monitoring: Use apps like cVIGIL for reporting malpractices and voter helpline tools for disseminating information. Real-time data systems can monitor polling stations and voter turnout effectively. Employ blockchain technology to secure electronic records and enhance data integrity.
- Decriminalization of Politics: Amend the Representation of the People Act (RPA), 1951, to bar candidates with serious criminal charges from contesting elections unless cleared by fast-track courts (Dinesh Goswami Committee on Electoral Reforms). Establish an Election Commission-supervised fact-checking unit to curb misinformation on platforms like WhatsApp and Facebook.
- Balancing Transparency with Security Concerns: Establish clear guidelines for courts to access sensitive electronic records when required for legal proceedings. Ensure that electronic records like CCTV footage are anonymized before sharing to protect voter identity and privacy. Deploy advanced surveillance systems and mobile polling booths in sensitive regions like Jammu & Kashmir and Naxal-hit areas.
- Institutional Strengthening: Grant the Election Commission financial independence to prevent executive interference (Second Administrative Reforms Commission Report). Train election officials in handling emerging challenges like deepfakes, misinformation, and cybersecurity threats. Conduct regular independent audits of the Election Commission’s functioning to enhance credibility.
- Comprehensive Voter-Centric Reforms: Pilot-test remote voting systems for migrant workers to ensure inclusivity. Launch awareness programs targeting urban apathy and misinformation about electoral processes.
THE CONCLUSION:
Implement robust data protection measures, enhancing public access to non-sensitive electoral information, and fostering multi-stakeholder dialogue. By leveraging blockchain for secure record-keeping and increasing VVPAT verification to 20% of EVMs by 2026, India can set a global benchmark for transparent, secure, and inclusive elections, reinforcing its status as the world’s largest democracy with a projected 987 million eligible voters by 2029.
UPSC PAST YEAR QUESTION:
Q. Discuss the role of the Election Commission of India in the light of the evolution of the Model Code of Conduct. 2022
MAINS PRACTICE QUESTION:
Q. “The recent amendment to the Conduct of Election Rules, 1961, has sparked a debate on balancing electoral transparency with security concerns in the digital age. Critically examine.
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