SC offers some relief to both EC and petitioners in Bihar SIR case

The Supreme Court’s hearing of petitions challenging the ongoing Special Intensive Revision (SIR) of Bihar’s electoral rolls on Thursday (July 10) has given some relief to both the Election Commission (EC) and the petitioners who challenged it.

The EC, which has been stoutly rejecting the barrage of criticism directed its way over the contentious exercise, has been allowed to go ahead with the SIR.

The court neither imposed an interim stay on the SIR nor extended the August 1 deadline that the poll panel has set for publication of the revised electoral rolls.

Consolation for petitioners

This may have come as a setback for the petitioners, who had been asserting that the August 1 deadline was a “design to disenfranchise a vast number of voters” ahead of the Bihar assembly polls due in November.

However, the court’s directive to the poll panel to “consider” Aadhaar, EPIC Voter ID card, and ration card as one of the acceptable documents – in addition to the 11 documents listed by the EC in its June 24 order – for voter enumeration was some consolation for the petitioners.

Also Read: SC allows Bihar electoral roll revision, asks EC to consider these 3 documents

The court also squarely rejected the contention of the EC’s counsel that the petitioners – Association for Democratic Reforms (ADR), TMC MP Mahua Moitra, RJD MP Manoj Kumar Jha, nine political parties that are part of the Opposition’s INDIA bloc, former JD(U) MLA Mujahid Alam, People’s Union for Civil Liberties, and activist Yogendra Yadav – had no locus standi in the case.

Accepting the submission by EC’s counsel senior advocate RK Dwivedi that the 11 documents listed by the poll panel do not constitute an “exhaustive list” and that the court could adjudicate on the petitions once draft electoral rolls are prepared based on the SIR, the partial-working-days bench of Justices Sudhanshu Dhulia and Joymala Bagchi decided to list the case for further hearing on July 28.

Three issues

The Bench laid down three issues upon which the fate of the petitions will ostensibly be decided.

Firstly, whether the EC has the powers to conduct an SIR, secondly, whether it deems fit the procedure adopted by the poll panel to exercise these powers, and last and most significantly, the one-month timeline of completing the SIR, which the court observed was “very short” considering that elections are due in Bihar in November and that the notification for the polls will come even earlier.

Also Read: Bharat Bandh: 'Parties hijacked general strike over Bihar SIR'

The court also dismissed repeated pleas by Dwivedi to not mention in its interim order that Aadhaar, ration card, and voter ID card will be considered for voter enumeration.

The order, however, does give the EC some wriggle room to still reject these documents during the preparation of the final rolls. Though the court has said that “in our opinion, it would be in the interest of justice if Aadhaar Card, EPIC Card, and Ration Card should be included”, it also observed that if the poll panel does not accept the said documents, it would need to furnish reasons for the decision that must satisfy the petitioners.

Petitioners’ argument

Through Thursday’s hearing, the poll panel’s justification for excluding Aadhaar (and also ration card) from the list of documents was that the unique identity number is “not proof of citizenship”.

The court, however, appears to have leaned favourably towards the rebuttal by the counsel for petitioners, senior advocates Abhishek Manu Singhvi, Kapil Sibal, Shadan Farasat, and Gopal Sankarnarayanan, that the EC had, thus far, not just accepted Aadhaar as a valid document for enumeration but that for the last many years there had been a sustained “campaign (by the government) to enrol for Aadhaar and link it with all other documents”.

Citizenship issue

Though the Bench accepted the EC’s argument that non-citizens cannot be allowed to vote in Indian elections, it also quizzed the poll panel’s counsel on whether the purpose of the SIR was to ascertain bona fides of voters or their citizenship.

Also Read: EC launches #ECIFactCheck to counter Opposition’s Bihar SIR claims

“Citizenship is an issue determined not by the Election Commission of India but by the MHA (Ministry of Home Affairs),” Justice Dhulia pointed out to Dwivedi when the latter sought to rebut the submission by Sibal (appearing for Manoj Jha) that it is the Government of India and not “small officer of the EC” that can contest the citizenship of a person.

Court questions short timeline

The Bench appeared disinclined to accept the short timeline of a month that the EC had set for itself to conduct the SIR in the country’s second-most populous state, particularly since polls in Bihar are just months away.

At one point during the arguments, Justice Dhulia quipped, “We have a serious doubt whether this timeline is realistic... if you ask for these documents (the 11 documents listed in the EC notification, which do not include Aadhaar, Ration Card, and Voter ID), even I will not be able to produce it now; look at the practicality, look at the timeline.”

Also Read: SC to hear pleas against Bihar electoral roll revision on July 10

However, since the court decided to post the petitions for further hearing on July 28, it did not pass any directions to alter the supposedly questionable timeline.

Glaring irony

The Bench pointed out the glaring irony of Aadhaar not being accepted by the EC when, in fact, it is a prerequisite for people to get several of the 11 documents that the EC has deemed acceptable. In a similar vein, the court expressed surprise over why the EC had not listed even the EPIC Voter ID card as an acceptable document when the very purpose of it was to identify voters.

Also Read: Electoral roll revision ‘conspiracy’ to steal Bihar polls like Maha: Rahul

Yet, despite its obvious misgivings over the SIR, the court finally chose not to impose an interim stay on the exercise, asserting that it would “loathe to interfere” with the functioning of a constitutional body (the EC) and also since the petitioners were “not insisting on an interim stay right now”.

Next hearing on July 28

The Bench then decided to post the matter for further hearing on July 28, days before the August 1 deadline set by the EC for publishing the final electoral roll, while also telling the poll panel that the draft rolls too must not be published until then.

Also Read: EC defends Bihar voter list revision, calls it inclusive

The EC has also been directed to file its counter affidavit in the matter on or before July 21 following which the petitioners will have a week’s time to file their rejoinders.