Sharing of Video/CCTV footage of Webcasting: *Voter Privacy/Secrecy Concerns
Some people are raising the demand for making available the video or CCTV footage of the webcasting of the polling stations during the poll day. While this suits their narrative in making the demand sound quite genuine and in the interest of voters and safeguarding the democratic process in the country, it is, in fact aimed at achieving exactly the opposite objective. What is veiled as a very logical demand, is actually entirely contrary to the privacy and security concerns of the voters, legal position laid down in the Representation of the People Act, 1950/1951 and the directions of the Hon’ble Supreme Court of Inda. Sharing of the footage, which would enable easy identification of the electors by any group or an individual, would leave both, the elector who has voted as well the elector who has not voted vulnerable to pressure, discrimination and intimidation by anti-social elements. For instance, if a particular political party gets lesser number of votes in a particular booth, it would easily be able to identify, through the CCTV footage, which elector has voted and which elector has not, and thereafter, may harass or intimidate the electors.
Thus, what exactly lies beneath this layered demand of such persons or interest groups needs to be deciphered and exposed.
To be sure, the Election Commission retains the CCTV footage, which is purely an internal management tool and not a mandatory requirement, for a period of 45 days which aligns with the period laid down for filing an Election Petition (EP). Since no election can be challenged beyond 45 days of the declaration of the result, retaining of this footage, beyond this period, makes it susceptible to misuse of the content by non-contestants for spreading misinformation and malicious narratives. In case of an EP being filed within 45 days, the CCTV footage is not destroyed and also made available to the competent court when asked for.
For the Election Commission of India, safeguarding the interests of its electors and maintaining their privacy and secrecy is of prime concern, even if some of the political parties/ interest groups mount pressure on the Commission to abandon the laid down procedures or to ignore the security concerns of the electors. Maintaining privacy and secrecy of the elector is non-negotiable and the ECI has, never in the past, compromised on this essential tenet laid which is down in the law as well upheld by the Hon’ble Supreme Court.
Some the relevant issues are enumerated below:
A. Sharing of video footage may result in violation of the right of secrecy of electors who have decided not to vote: In any election, there may be electors who decide not to vote. Sharing of video footage of the poll day may result in identification of such electors. This can also lead to profiling of the voters who voted as well as those who did not vote, which may become the basis for discrimination, denial of services, intimidation or inducement.
B. In People’s Union for Civil Liberties v. Union of India, (2013) 10 SCC 1, the Hon’ble Supreme Court held that right to vote includes right not to vote and right of secrecy is accorded to even those persons who have decided not to vote. The relevant extract of the judgement is reproduced below:
“39. A perusal of Section 79(d) of the RP Act, Rules 41(2) and (3) and Rule 49-O of the Rules makes it clear that a right not to vote has been recognised both under the RP Act and the Rules. A positive “right not to vote” is a part of expression of a voter in a parliamentary democracy and it has to be recognised and given effect to in the same manner as “right to vote”. A voter may refrain from voting at an election for several reasons including the reason that he does not consider any of the candidates in the field worthy of his vote….”
“57. Giving right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy. ….”
C. Providing videography is akin to providing Form 17A: Videography of polling day essentially captures the sequence in which electors enter the polling stations and the photo/identity of such electors. This is akin to a live Form 17A (Register of Voters) under Rule 49L of CE Rules, 1961 which contains information pertaining to sequence in which electors enter a polling station, serial number of the elector in the electoral roll, details of the Identification document produced by the electors and their thumb impression/signature. Thus, both videography and Form 17A contain information which is critical for upholding the secrecy of voting. It can also establish who has voted and who has not voted as can be ascertained from Form 17A. Form 17A is mandated to be provided only under order of competent court under Rule 93(1) of CE Rules, 1961. Therefore, video footage can also be provided only under the orders of a competent court as whatever is not intended under law cannot be allowed to be achieved by obtaining the video footage.
D. Violation of secrecy of voting is a punishable offence under Section 128 of RP Act, 1951 for – Any person who contravenes the provisions of this section is punishable with imprisonment for a term expending upto 3 months or fine or both. Thus, ECI is legally bound and committed to protect the privacy of the electors and secrecy of voting, so video footage from polling station cannot be given to any person, candidate or NGO or any 3rd party without the express consent of the elector(s). Webcasting is used basically as an internal management tool by ECI for monitoring poll day activities. However, ECI is ready to provide the same to the competent court i.e. the Hon’ble High Court when directed in an Election Petition, filed for challenging an election, as the Court is also a custodian of the privacy of an individual.
