The Delhi High Court (“DHC”) has held that an Electronic Voting Machine (“EVM”) is not an ‘ínformation’ under the RTI Act, 2005 (“RTI Act”) thereby overruling the decision[1] of the Central Information Commission (“CIC”) which had held that EVM is an information under the RTI Act.
Background of the case:
One Mr. Razaak K Haider had filed an RTI application before the Election Commission of India (ECI) seeking an ‘EVM’ as under:
“In the sequence of above provisions being the model or material of electronic voting machines under Section 6 (1) make available electronic voting machine. For which, according to the rules, I am ready to pay the actual cost of a EVM Machine. (See Rule 4 (C)”
CPIO/ECI denied the “EVM” on the ground that it is not a ‘model’ or ‘material’.
CIC’s view:
CIC took the view that EVM is available with the ECI in a material form and also as ‘sample’ hence it is an ‘ínformation’ under the RTI Act. This was basis the definition of information under Section 2(f)[2] which defines ‘information’ interalia as “…any material in any form including….samples”[3].
During the hearing, ECI had submitted that models and samples of EVM are kept for training purposes and are not saleable and that they are exempted from disclosure under Section 8(1) (d) as the software installed in the EVMs is the intellectual property of a third party. CIC noted the submissions, but, since the CPIO had denied the information erroneously under Section 6(1) directed the CPIO to provide an appropriate reply to the RTI applicant.
DHC:
ECI challenged the decision of CIC before the DHC. Respondents did not appear. DHC proceeded to examine whether the EVM used by ECI for conducting elections can be a request under Section 2(f) of the RTI Act. DHC analysed the matter as under:
- Section 2(f) deals with records, document, memo, etc.
- The attempt of the RTI applicant to rely upon the word “model” is misplaced as “A model usually represents a three dimensional representation of a thing or proposed structure, typically on a smaller scale than the original”.
- Oxford Dictionary[4] defines the model as “Draw a plan of; produce a preliminary version of. Also, give an outline or synopsis of.; Frame a model or miniature replica of.” EVM sought by the RTI applicant is not miniature/replica and hence cannot said to be a model or information within the meaning of Section 2(f) of the Act.
- Supreme Court in the case of Central Board of Secondary Education & Anr. v. Aditya Bandhopadhyay & Ors[5], held that the RTI Act gives a right to a citizen to only access information and not to seek any consequential relief based on such information.
DHC held that “The RTI application seeking an EVM is actually an application for supply of a product and not any information. It is beyond the scope of the RTI Act.”[6]
Can EVM be sought as a “Sample”?
DHC has taken the view that application seeking EVM is an application for product and not any information. However, it is a fact that the RTI Act defines information as “any material in any form” and is thus not just restricted to the forms of records, documents, memos or obtaining certified copies of records, documents, memos only. Infact, right to information under Section 2(j) includes the right to inspection of work, documents, records, taking notes, extracts, taking certified sample of materials, obtaining information in the form of diskettes, floppies and video cassettes, etc.
Hence, if information can be obtained in the form of a diskettes, floppies, video cassettes etc which too would fall under the category of a ‘product’, then, why not information in the form of an EVM. While, it is a fact that a model means a miniature/replica but a ‘sample’ would not mean the same.
CIC had taken the view that EVM is available with the ECI in a material form and also as ‘sample’ hence it is an ‘ínformation’ under the RTI Act. However, DHC did not examine whether EVM can be sought as a ‘sample’. Though, yes, in all probability ECI would have contended that EVMs are kept by it for training purposes and are not saleable, but the issues of (i)whether an EVM can be an information in the form of a ‘sample’ and (ii) whether it is the software in the EVM which is ‘information’ held in electronic form and hence disclosable would have got addressed.
[1]Razaak K Haider Vs. CPIO, Election Commission of India, Second Appeal No. CIC/ECOMM/A/2018/623983 dated 12.02.2019
[2]2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force
[3] Razaak K Haider Vs. CPIO, Election Commission of India, Second Appeal No. CIC/ECOMM/A/2018/623983 dated 12.02.2019
[4] The shorter Oxford English Dictionary, 5th Edition
[5] (2011) 8 SCC 497
[6] Election Commission of India Vs. Central Information Commission and Anr, W.P.(C) 2679/2019 and CM Appl. No. 12383/2019 dated 17.12.2019
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