Supreme Court asks EC for 2003 Bihar electoral roll documents

The Supreme Court on Thursday (August 14) asked the Election Commission (EC) to provide information about the documents that were considered in the 2003 intensive electoral roll revision in Bihar.

"We would like ECI to state what documents were taken in 2003 exercise", said the bench of Justices Surya Kant and Joymalya Bagchi, which resumed the hearing on a plea challenging the June 24 ECI decision to conduct the special intensive revision (SIR) in the state, reported PTI.

The top court’s remarks came after advocate Nizam Pasha, appearing for one of the parties, cited one of the court’s reported remarks saying saying "if the date of January 1, 2003 (the date of earlier SIR) goes then everything goes".

What Pasha said

"I must submit that nothing was there to show why this date is there… The impression sought to be conveyed is that it is the earlier date when the intensive exercise for revision of the electoral roll was held. It is stated that the EPIC (voter) card issued then is more reliable than one issued during summary exercises conducted from time to time, is incorrect," Pasha said.

Pasha also asked if the process of enrolling under intensive and summary revisions was the same, adding that how could EPIC cards issued under summary exercises be discarded.

The lawyer, therefore, said the date of 2003 was invalid and not based on “intelligible differentia” (basis of distinguishing the two situations).

"No receipt of my enumeration form is being given or any documents acknowledging the receipt is given, and therefore, the booth level officers have an upper hand and these lower level officers have too much discretion on whether the form has to be taken or not," he said.

Also Read: SC on Bihar SIR: Option of 11 documents shows it is ‘voter-friendly’

Court backs EC ID proof

In a jolt to the Opposition, the Supreme Court on Wednesday backed the Election Commission (EC)’s assertion that Aadhaar cannot be used as conclusive proof of citizenship.

The apex court observed that electoral rolls cannot remain "static" and there is bound to be a revision while stating that the expanded list of acceptable documents of identity from seven to 11 for Bihar's Special Intensive Revision (SIR) of voters’ list was in fact “voter-friendly and not exclusionary.”

A bench of Justices Surya Kant and Joymalya Bagchi said the EC had the residual power to conduct such an exercise as it deemed fit. The bench also disagreed with a submission by a petitioner that the SIR of electoral rolls in poll-bound Bihar had no basis in law and ought to be quashed.

Leaders of opposition parties, including the Rashtriya Janata Dal (RJD) and the Congress and the NGO Association of Democratic Reforms(ADR), have challenged the electoral roll revision drive in Bihar.

Also Read: Rahul Gandhi has tea with 'dead' voters from Bihar, takes a dig at EC

What petitioner said

During the hearing of arguments, the petitioner, Association of Democratic Reforms (ADR) submitted that the exercise should not be allowed to be carried out pan-India.

Senior advocate Gopal Sankaranarayanan, appearing for the NGO, said the EC notification on the SIR ought to be set aside for want of legal basis and never being contemplated in law. He, therefore, contended it couldn't be allowed to go on.

The EC can never conduct such an exercise since its inception, and it is being done for the first time in history, and if allowed to happen, only God knows where it will end, he added.

Also Read: Minta Devi voter list row: Rijiju slams Congress for mocking Bihar woman

Court’s observations

"By that logic special intensive revision can never be done. One-time exercise, which is done, is only for the original electoral roll. To our mind, the electoral rolls can never be static," the bench noted.

"There is bound to be revision," the top court said, "otherwise, how will the poll panel delete the names of those who are dead, migrated or shifted to other constituencies?" The bench also told senior advocate Abhishek Singhvi, appearing for the petitioners, that despite their arguments that non-acceptance of Aadhaar was exclusionary, it appeared that the large number of acceptable documents was "actually inclusionary".

"The number of documents in summary revision conducted earlier in the state was seven and in SIR it is 11, which shows it is voter friendly. We understand your arguments that non-acceptance of Aadhaar is exclusionary but a high number of documents is actually inclusionary." The bench then went on to tell Sankaranarayanan that the EC had residual power to conduct an exercise like the SIR as it deemed fit.

Also Read: BJP alleges Sonia Gandhi was on voter list before getting Indian citizenship

Constitutional right vs constitutional power

It referred to Section 21(3) of the Representation of the Peoples Act (RP Act), which says "the Election Commission may at any time, for reasons to be recorded, direct a special revision of the electoral rolls for any constituency or part of a constituency in such manner as it may think fit." Justice Bagchi further asked Sankaranarayanan, "When the primary legislation says 'in such manner as deemed fit' but the subordinate legislation does not... will it not give a residual discretion to EC to dovetail the procedure not completely in ignorance of rules but some more additives than what the rules prescribe to deal with the peculiar requirement of a special revision?" Sankaranarayanan submitted that the provision only allowed revision of the electoral rolls for "any constituency" or "for part of a constituency" and the EC couldn't wipe out the rolls of an entire state for fresh inclusion.

"Actually, it is a battle between a constitutional right and a constitutional power," Justice Bagchi said.

The residuary power of the EC flows from Article 324 of the Constitution and the RP Act mentions both summary revision and special revision and the EC in the instant case has only added the word "intensive", that's all, the judge noted.

Also Read: Bihar SIR can be set aside if illegality is proven, says Supreme Court

Allegations against EC

Advocate Prashant Bhushan, also appearing for the NGO, alleged the EC played "mischief" and removed the search feature from the draft roll and the list of 65 lakh people whose names were deleted for being dead, migrated or shifted to other constituencies.

"This happened just a day after Congress leader Rahul Gandhi did a press conference pointing out that over lakh people(in an Assembly segment in a Lok Sabha constituency in Bengaluru) were fake voters," he added, arguing that an ordinary person was denied the right to search their name on the draft roll whether dead or alive or migrated to another place.

Justice Kant said he was unaware of any such press conference but when it comes to the Registration of Electors Rule of 1960, Section 10 mandates the EC to publish a copy of the draft rolls at the office in the constituency.

"They have to publish the draft rolls at the office in the constituency. That's a minimum threshold under the law. However, we would have liked it if it was published on the website for wider publicity," Justice Bagchi said.

Senior advocate Rakesh Dwivedi, appearing for the EC, said the petitioners claimed the rural population of Bihar was not tech savvy and now they were talking about the inability of the same people in searching online.

(With agency inputs)