Image courtesy: https://www.news18.com/

Nov 11, 2019

By: Venkatesh Nayak

Readers may remember reading my despatch from September 2019 in which I had explained how Bharat Electronics Ltd. (BEL) did a volte face under The Right to Information Act, 2005 (RTI Act) about supplying information relating to Electronic Voting Machines (EVMs) and Voter Verified Paper Trail Units (VVPATs) deployed during the 2019 General Elections to the Lok Sabha. After demanding copying charges of Rs. 1,434/-, the Central Public Information Officer (CPIO) returned the money claiming that BEL did not hold some of the information and that disclosing names of Engineers deputed to provide technical support for these machines at the constituency-level, would endanger their lives. The CPIO also refused access to operational manuals relating to these machines. The CPIO of Electronics Corporation Ltd. (ECIL) which also supplied EVMs and VVPATs for use during the same elections had also denied information sought in an identical RTI application. 

Now in a welcome turnaround, ECIL's First Appellate Authority (FAA) has upheld my first appeal and directed its CPIO to provide access all information which he had denied earlier. 

Meanwhile BEL's FAA directed the CPIO to transfer the queries relating to the number of EVMs and VVPATs deployed during the 2019 Lok Sabha Elections to the Election Commission of India (ECI) but upheld his decision to reject information about Engineers and operational manuals used. 

After being rejected by BEL and ECIL, I had submitted an identical RTI application to ECI's CPIO. He did not bother to send a reply for more than 40 days. Now I have filed a first appeal and am waiting for the FAA's decision in this case. ECI's CPIO is also required to reply to similar queries transferred to him by BEL's CPIO.

A tale of three RTI Interventions

After closely scrutinising some of the election-related information and statistics that ECI published, on 17th June, 2019, I decided to file two identical RTI applications seeking the following information from BEL and ECIL which neither they nor the ECI have placed in the public domain:  

"I would like to obtain the following information pertaining to the Electronic Voting Machines (EVMs), Voter Verified Paper Audit Trails (VVPATs) and Symbol Loading Units (SLUs) supplied by your company for use during the recently concluded General Elections to the Lok Sabha, under the RTI Act:

1) The maximum number of votes recordable on each EVM supplied for use in the 2019 Lok Sabha Elections,

2) The maximum number of votes printable on each VVPAT Machine supplied for use in the 2019 Lok Sabha Elections,

3) The district-wise number of Control Units of EVMs transported across India for use in the 2019 Lok Sabha Elections,

4) The district-wise number of Ballot Units of EVMs transported across India for use in the 2019 Lok Sabha Elections,

5) The district-wise number of VVPATs transported across India for use in the 2019 Lok Sabha Elections,

6) The district-wise number of thermal paper rolls used in VVPATs transported across India for use in the 2019 Lok Sabha Elections,

7) A clear photocopy of the List of Engineers with name and designation, deputed for carrying out tasks relating to the preparation of EVMs and VVPATs that was sent to every District Election Officer in India for the purpose of the 2019 Lok Sabha Elections,

8) A clear photocopy of the List of Senior Level Engineers with name and designation, deputed for supervision and coordination during the preparation of EVMs and VVPATs that was sent to every District Election Officer in India for the purpose of the 2019 Lok Sabha Elections,

9) The total number of SLUs used by your Team(s) of Engineers during the 2019 Lok Sabha Elections,

10) A clear photocopy of the official document handed over to every District Election Officer during the 2019 Lok Sabha Elections containing details of every SLU allocated to your team(s) of Engineers,

11) A clear photocopy of the User Manual prepared by your company, pertaining to the VVPAT machines used during the 2019 Lok Sabha Elections, if any,

12) A clear photocopy of the User Manual prepared by your company, pertaining to the SLUs used during the 2019 Lok Sabha Elections, if any,

13) A clear photocopy of the application filed with the Office of the Patent Controller for securing a patent on VVPAT, if any, along with the postal address of such office, and

14) A clear photocopy of the application filed with the Office of the Patent Controller for securing a patent on SLU, if any, along with the postal address of such office."

ECIL CPIO's RTI reply:

ECIL's CPIO did not bother to send me a signed reply. Instead he uploaded some text on the RTI Online Facility without a signature replying as follows:

1) RTI Queries 3, 4, 5 & 6: ECIL's CPIO claimed that information about EVMs and VVPATs despatched to the Lok Sabha constituencies and the number of thermal paper rolls used for printing the ballots is not readily available and they will be sent as soon as they are received.

2) RTI Queries 7 & 8: The CPIO denied access to the list of Engineers who were stationed in the constituencies to do prepare the EVMs and VVPATs for polling and their superiors who supervised the whole exercise claiming that it was personal information exempt under Section 8(1)(j) of the RTI Act. 

3) RTI Queries 10 & 12: The CPIO rejected access to the User Manual of the Symbol Loading Units and the official document related to them, handed over to the district administration after the candidate information is loaded on the EVMs and VVPATs. The CPIO says that it is classified information and attracts Section 8(1)(a) and 8(1)(d) of the RTI Act. Section 8(1)(a) exempts information which will prejudicially affect security and strategic interests of the State. Click here for the ECIL-related RTI application and reply.

First appeal sent to ECIL and the FAA's order

Aggrieved by the ECIL CPIO's unsigned reply, I submitted a first appeal with the FAA in September, 2019 arguing as follows:

1) ECIL's CPIO had committed an procedural error by not sending a signed reply;

2) As more than three months had passed since the completion of the 2019 Lok Sabha Elections, information relating to RTI Queries 3-6, that is, constituency-wise deployment of EVMs, VVPATs and thermal paper rolls used in VVPATs should now be available for disclosure;

3) The List of Engineers deployed by ECIL at the constituency-level cannot be treated as personal information whose disclosure would violate their privacy because they were performing public duties;

4) The VVPAT and Symbol Loading Unit User Manuals and VVPAT patent application are also information that must be in the public domain and that the CPIO had not issued a speaking order justifying how the exemptions were attracted.

ECIL's FAA examined the issues raised in the appeal and directed the CPIO to collect all the information and supply it under the RTI Act. However, the FAA has not specified a time limit for compliance. Click here for the 1st appeal and ECIL FAA's order.

First appeal sent to BEL and the FAA's order

Aggrieved by the BEL CPIO's decision to reject access to the information sought in a similar RTI application, despite demanding additional fees initially, I had submitted a first appeal with the FAA in September, 2019 arguing as follows: 

1) It is difficult to understand as to why the CPIO who initially charged additional fees calculating the exact number of page for every RTI query, later on claimed that he did not hold the information about the constituency-wise deployment of the EVMs and VVPATs; 

2) It is not clear as to how the disclosure of details of Engineers deputed would endanger their lives; and

3) The CPIOs' revised reply denying access to most of the information which he was prepared to disclose initially indicated that he was under pressure from some internal or external agency to change his stance.

BEL's FAA upheld the CPIO's refusal to supply information relating to the Engineers deployed, the operating manuals relating to VVPATs and SLUs and the application submitted for claiming a patent on the VVPATs. However, she directed the CPIO to transfer the first part of the RTI application to the ECI to answer queries relating to the constituency-wise details of deployment of EVMs, VVPATs and thermal paper rolls used in VVPATs. 

Click here for the 1st appeal and BEL FAA's order. 

ECI's treatment of the RTI application for similar information

As both BEL and ECIL had initially rejected my request for information about EVMs and VVPATs deployed during the 2019 Lok Sabha Elections and the list of Engineers deputed to render technical support, I submitted an RTI application with the ECI seeking similar information. ECI's CPIO did not bother to send a reply for more than 40 days. So I have filed a first appeal. Now ECI has to make a decision not only on this first appeal but also make a decision on the RTI application transferred to it by BEL, in accordance with the FAA's orders. Click here for the RTI application and the first appeal submitted to ECI. 

Lack of uniformity of treatment of similar RTIs

Even after 15 years, the implementation of the RTI Act in many public authorities is not predictable. Identical RTI applications yield diverse responses. This is a clear indicator of the failure of the system to make the transformation from secrecy to transparency as envisaged in the preamble of the RTI Act. The political leadership which only pays lip sympathy to the democratic values of transparency and accountability, the lack of seriousness and commitment from the bureaucracy to making this transformation and the clearly demonstrable weaknesses of the oversight mechanisms such as the FAAs and Information Commissions are to blame for this state of affairs.

However, the ECIL FAA's order provides the proverbial silver lining to the dark clouds of poor implementation. The FAA appears to have recognised the imperative of transparency in all matters relating to elections (except voters' choices) and directed the CPIO to disclose all information. As there is no time limit in his order, I will wait for a month before I explore the need for approaching the Central Information Commission (CIC). As for the BEL, I will challenge the FAA's order upholding rejection of a part of the RTI application, before the CIC. Meanwhile, the wait for ECI's response to my first appeal and the RTI application transferred from BEL continues.

All facts are in the public domain. Views are personal.

CHRI's Trail of Inquiry: ECIL-RTIappealdocs-2019 | BEL-RTIappeadocs-2019 | ElectionCommission-RTIappealdocs-2019

Media coverage: counterview.org