New Delhi: Chief Election Commissioner (CEC) Gyanesh Kumar has referred to a Supreme Court judgment to claim that releasing machine-readable voter lists is “forbidden” since it may lead to violation of voter privacy.
The judgment Kumar was referring to on Sunday was passed on a petition filed by Congress leader and former chief minister of Madhya Pradesh Kamal Nath in 2018.
On the issue of machine-readable voter lists, the court observed that while nobody is entitled to get the draft electoral roll in searchable format as a matter of right, it was “for the EC to decide about the format in which it is to be published”. While the Election Commission’s reasons for not providing searchable voter lists was to ensure voter privacy, the apex court said “it is not necessary to go into this aspect”.
In an ‘image-only’ or scanned PDFs—the kind in which draft rolls now exist—have the content locked in a snapshot-like image, without an underlying text layer. Such image-only pdfs are not searchable and their text usually cannot be selected, searched or copied.
As against this, a text layer is added to the image layer, usually placed underneath in searchable PDFs. Such PDF files are almost indistinguishable from the original documents, allowing texts to be selected, searched and copied.
Swapnil Tripathi, Lead at Charkha (Centre for Constitutional Law), Vidhi Centre for Legal Policy, told ThePrint that the SC judgment is narrowly confined to interpreting whether, under the Election Manual, the Commission must provide electoral rolls in “text format,” and to clarifying the meaning of that term.
“The court holds that the EC is indeed obligated to provide rolls in text format, but defines this as limited to the elector’s details–such as name and age–and not photographs. Importantly, it clarifies that ‘text format’ does not mean a ‘searchable PDF’,” he says.
Tripathi asserts that the court did not pronounce on whether the poll panel is bound to provide a machine-readable or searchable voter list. “It only states that no individual has a right to demand rolls in ‘searchable mode,’ leaving it to the Commission’s discretion to decide the format of publication.”
As for the issue of voter privacy, Tripathi says, the EC invoked voter privacy to justify its refusal to publish searchable rolls. “The court, however, declined to assess this argument on merits, simply noting that ‘it is not necessary to go into this aspect’.”
What did the Supreme Court’s 2018 judgment say, and how did the matter reach the court? ThePrint explains.
CEC’s response
At the Sunday’s press conference, Kumar was asked about the allegation that the EC altered the format of some part of the draft electoral roll for Bihar, replacing an earlier machine-readable version with scanned image files that cannot be searched through text.
Critics had pointed out that the current version of the draft rolls cannot be searched through text, and require optical character recognition (OCR) to extract text from the pdf file—a process that may be open to errors.
In response, while Kumar did not acknowledge any change in the format, he emphasised on the difference between a machine readable voter list and a voter list searchable by entering EPIC numbers (present in voter cards) in the database for the voter information to appear.
“We must understand the difference between a machine-readable voter list and a searchable voter list. You can search the voter list available on the EC website by entering the EPIC number, and download it. That is searchable, not machine-readable. On machine-readability, the Supreme Court in 2019 examined this and said that giving machine-readable voter lists can violate voter privacy,” he clarified.
“Machine-readable means that you can read that electoral roll, if you have that list on the computer, you can take that photo and place it somewhere else. If you put one person’s photo somewhere else, that person might not be able to vote…So machine-readable (voter list) is forbidden. And this isn’t the EC’s decision alone, this was taken after the Supreme Court’s judgment. It has been there since then.”
The Supreme Court, he added, stated that this could violate voter privacy.
How matter reached court
In 2018, right before the Madhya Pradesh polls, Kamal Nath petitioned the apex court urging that the EC be directed to publish the voter list in text format, to ensure that it is properly and fairly drawn.
The Congress veteran, along with other senior leaders from Madhya Pradesh, had also submitted a detailed representation to the EC, highlighting various duplicate, repeat, multiple, illegal, invalid and false entries/voters in the electoral rolls.
Nath had alleged that there was an increase by 40 percent—a total of 1,45,13,404 new voters—in numbers of voters vis-à-vis population numbers of electors since the previous MP polls. He claimed that such an increase was “inconceivable and incalculable”.
Pointing out that the EC dropped more than 24 lakh voters from the voter list published in January 2018, he sought a list in text format so that political parties can find out any duplicate or fake voters in the voter list.
In response, the EC informed the court that its field-level functionaries were directed to put only the ‘Image PDF’ of electoral rolls in the public domain, in view of the safety and privacy concerns.
What did SC say on voter privacy
During the Sunday’s press conference, Kumar asserted that the Supreme Court emphasised on the privacy of voters in its judgment.
EC’s counsel Vikas Singh, too, submitted that if the voter list is supplied in text form, it will enable data mining of various forms. The decision, he told the court, to provide voter lists only in non-searchable text mode was taken “in view of the safety and privacy concerns of the voters”, particularly since the right to privacy was recognised as a fundamental right in the 2017 Justice KS Puttaswamy judgment.
In its judgment, the Supreme Court noted the Commission’s submissions on voter privacy, noting, “EC has given the reasons for not adhering to the request of the petitioner in providing draft electoral roll in searchable PDF format.”
“According to it (the poll panel), issues of privacy of voters are involved and the EC move is aimed at prevention of voter profiling and data mining. According to the EC, ensuring free and fair elections, to which it is committed, also necessitates that the EC is duty bound to protect the privacy and profiling of electors,” the top court said, adding that it was “not necessary to go into this aspect”.
Therefore, while the judgment takes note of the EC’s submissions, it did not make any decisive observations on the impact of releasing machine-readable voter lists on voter privacy.
What did SC say on machine-readable lists
The issue before the Supreme Court was, therefore, whether the voter list is to be supplied to the political parties in text mode; albeit in PDF form.
In support of their submissions, Nath’s counsel Kapil Sibal relied on Clause 11.2.2.2 of Chapter XI of the Election Manual 2016, which talks about putting draft roll on the website.
This clause says that the draft roll needs to be put in the public domain, on the Chief Electoral Officer’s website, in a PDF format on the same day. This draft roll, it says, shall be put on the website in “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.
The top court said that the judges “find force” in the EC’s submission that this clause uses the expression “text mode”, and that it does not 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, as a right, that the draft electoral roll should be placed on the website in a ‘searchable mode’. It has only to be in ‘text mode’ and it is so provided,” it observed.
The apex court was of the opinion that the format in which the draft electoral roll is supplied to Kamal Nath fulfills the requirement contained in the election manual. “It may be added that if the petitioner so wants, he can always convert it into searchable mode which, of course, would require him to put his own efforts.”
The Manual on Electoral Rolls, published in March 2023, now says that the draft electoral roll needs to be put on the CEOs’ website, “in an image PDF format”.
(Edited by Tony Rai)
Also Read: Bihar SIR: SC directs ECI to publish list of 65 lakh voters struck off from draft electoral roll