CENTRAL INFORMATION COMMISSION HELD THAT ELECTRONIC VOTING MACHINE IS ‘INFORMATION’ UNDER RIGHT TO INFORMATION ACT 2005

The Chief Information Commissioner (CIC), Mr. Sudhir Bhargava, in the case of Razaak K Haidar vs. CPIO, Election commission of India, New Delhi has held on February 12, 2019 that Electronic Voting Machine (EVM) falls under the definition of ‘information’ within the meaning of Section 2(f) of the Right to Information Act, 2005 as amended thereof (the Act).

In the above case, Appellant had filed an RTI Application with the Election Commission of India (ECI) seeking an EVM. In response, the Central Public Information Officer (CPIO) the Respondent herein refused the Appellant’s Application seeking EVM stating it does not qualify to be ‘information’ within the meaning of Section 2(f) of the Act.

The Appellant who attended the hearing through video-conference submitted that the Respondent had wrongfully denied the information under Section 6(1) of the Act. The Appellant contended that as per Section 2(f) and 2(i) of the Act, the definition of ‘information’ and ‘record’ includes model or any sample. Hence, an EVM qualifies as ‘information’ and should be provided to him under Section 6(1) of the Act.

Aggrieved with the decision of the ECI, the Appellant approached the CIC and contended that, according to Section 2(f) and 2(i) of the Act EVM qualifies as ‘information’ and so it should be provided to him under Section 6(1) of the RTI Act. The Respondent, ECI under-Secretary Shri Soumyajith Ghosh argued that ‘the model/samples of the EVM available with the ECI, are only kept for training purposes and are not saleable to the general public’. The Respondent further stated that the software installed in the EVM is an Intellectual Property of a third party, the disclosure of which would harm the competitive position of the third party concerned. Therefore, the said information is exempted from disclosure under Section 8(1)(d) of the Act.

CIC relying upon the definition under Section 2(f) of the Act held that the EVM which is available with the Respondent in a material form and also as samples, is ‘information’ under the RTI Act. The Commission also notes that as per the Respondent, the software installed in the EVM is an Intellectual Property of a third party, the disclosure of which would harm the competitive position of the third party concerned.

However, in favor of the Appellant, the CIC held that the Respondent had denied the information sought by the Appellant erroneously, under Section 6(1) of the Act. The Commission, therefore, directed the Respondent to provide an appropriate reply, as per the provisions of the Act to the Appellant within four weeks from the date of receipt of a copy of this Order.

Sidharth Sudheer

5^th year, Mar Gregorios College Of Law, Kerala

Legal Intern, The Indian Lawyer

With

Suchit Patel

Associate

The Indian Lawyer