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ECI not at fault if SIR’s aim same in all Bihar seats: Supreme Court
Besides Bihar, the SIR exercise conducted in Tamil Nadu, Kerala, West Bengal, Uttar Pradesh and Puducherry have also been challenged in the top court.
The Supreme Court on Thursday said that the Election Commission of India (ECI) cannot be faulted for conducting a special intensive revision (SIR) across the state of Bihar if the reason for undertaking the exercise is common across all constituencies.
Hearing a clutch of petitions challenging the SIR in the state, a bench of Chief Justice of India (CJI) Surya Kant and justice Joymalya Bagchi said, “This is not a routine updation of electoral roll but a special revision. Any process which is fair and transparent, it can go on, unless it can be shown the ECI has no power to do it.”
The court was responding to arguments by senior advocates Kapil Sibal and Abhishek Manu Singhvi appearing for some of the petitioners who submitted that the SIR exercise is unconstitutional as determining citizenship of voters is not the job of the poll panel. Further, Singhvi argued that even if it is assumed that the Representation of Peoples Act, 1950 (ROPA) permits special revision of rolls under section 21(3), it has to be constituency-specific and individual-specific and cannot be an en masse process.
Section 21(3) states, “Notwithstanding anything contained in sub-section (2), the Election Commission may at any time, for reasons to be recorded, direct a special revision of the electoral roll for any constituency or part of a constituency in such manner as it may think fit.”
The bench gave an illustration that if the commission comes to know that in a particular state there are large-scale dead voters, can it be restricted to some 50 constituencies alone. “If reasons to be recorded are common to all constituencies of the state, will it not be discriminatory on part of EC to pick and choose constituencies.”
It further added, “In such a scenario, EC will compulsorily be required to undertake this exercise for every constituency in the state if reasons exist. It is open for you to argue that no reasons are recorded or reasons are not sufficient or the power itself is not available.”
Singhvi, who was assisted by advocate Neha Rathi, told the court that for the past six months the court has been rendering “healing touch” to the SIR exercise in Bihar without realising that the poll panel has no power to conduct such an exercise.
“Where do they get the power to issue the enumeration forms under ROPA and where does any Parliamentary rule or law authorise ECI to seek 12 or 13 documents. This is not a verification of any photograph or a person who has impersonated. This is a verification for deciding if I am a citizen or not,” Singhvi said,
He stated that never before in this country, there has been such an en masse exercise. “All these 75 years, we never had the requirement of filling up forms and proving our citizenship. These revisions have taken place in the past. But this is a new brainchild and it has started off in the most populous states Bihar and West Bengal,” he addd.
He cited provisions under the ROPA and accompanying rules which provide for questioning a person’s citizenship which cannot be en masse. “If you assume to yourself, en masse powers, you can then conduct an all-India exercise. You are then a citizenship tribunal masquerading as ECI. This is dangerous,” he said, adding that the exercise effectively suggests that all citizens in Bihar will be presumptively temporary citizens till they confirm it in three months based on a set of documents, which cannot be contemplated under section 21.
The court told Singhvi that going by this argument, ECI will never have the power to conduct SIR.
Sibal, who appeared for another set of petitioners that the danger in this entire exercise lies in the fact that a booth-level officer (BLO), who is a teacher will determine a person’s citizenship. “Once there is an exclusion from the roll, there is an exclusion from all benefits under the law which is contemplated. ECI only has the power to supplement law and not to supplant it. So this exercise itself is unconstitutional,” Sibal said.
Further, he added that the ROPA or the Rules do not contemplate reversal of burden where the voter must prove his citizenship which is being done under SIR. He said that while the SIR notification exempts this process for persons whose names or names of maternal or paternal parents figure in the 2003 electoral roll, if somebody has married or to another district, it will be difficult to produce these documents.
“If a person is illegally staying in India, he has no right to vote but what about those who are legally staying here,” Sibal said.
The court told Sibal that it is considering the issue from the standpoint of “reasonableness” and “procedural fairness” as it posted the matter for hearing on Tuesday for further hearing.
Besides Bihar, the SIR exercise conducted in Tamil Nadu, Kerala, West Bengal, Uttar Pradesh and Puducherry have also been challenged in the top court which will be heard in the coming weeks.
