While petitioner ADR which has challenged the Bihar SIR had sought a list of the 65 lakh electors who had been excluded from the draft roll, EC said “no such list can be sought by the petition as a matter of right”.

After the Association for Democratic Reforms, one of the petitioners in the Supreme Court who have challenged the Special Intensive Revision, of electoral rolls in Bihar appealed to the Election Commission of India to release the list of the 65 lakh voters who have been excluded from the list after the first phase of the exercise, the poll body has told the apex court that it is not required under the statutory framework of existing rules to publish names of electors who are not included in the draft electoral rolls, or the reasons for their non-inclusion.

The Election Commission’s response came in an affidavit filed in the Supreme Court after the apex court had asked for its response by August 9.

“It is submitted that the statutory framework does not require the Respondent to prepare or share any separate list of names of people not included in the draft electoral rolls, or publish the reasons for non-inclusion of anyone in the draft electoral rolls for any reason,” the affidavit said.

The Election Commission has cited Rule 10 and 11 of the Registration of Electors Rules, 1960 and said that the draft electoral roll is to be made available for inspection outside the Electoral Registration Officer’s (ERO) office and the ERO is also required to make each separate part of the draft roll accessible to the public in the area to which that part relates, and supply two copies of each separate part of the roll to every recognised political party.

“As neither the law nor guidelines provide for preparation or sharing of any such list of previous electors whose enumeration form is not received for any reason during the Enumeration phase, no such list can be sought by the petition as a matter of right,” the Election Commission’s response said.

The Election Commission on August 1 released its first draft of revised electoral rolls, which excluded about 65 lakh voters. Of this, 22 lakh voters were declared deceased, 36 lakh permanently shifted or not found, and seven lakh duplicated in multiple places. The ADR in its application seeking directions from the court earlier this week had said that the draft electoral rolls in their current shape “serve no purpose” and “cannot be used to cross check any details from the ground in absence of the reason for such deletion.”

The poll body said that those whose names are not included in the draft list can submit an application under Form 6 along with the Declaration contained in the SIR order to lodge a claim for inclusion in the draft roll during the claims and objections period, between August 1 and September 1.

“It is implicit in the filing of Form 6 along with the Declaration by an individual, whose name was not included in the draft roll for non-submission of Enumeration Form, that he/she claims to be neither deceased, nor permanently shifted, nor untraceable,” the counter affidavit said.

“For these reasons, the Petitioner’s assertion that without availability of reasons, the individuals whose names are excluded from the draft roll will not be able to seek appropriate recourse under the RER 1960 is false, misconceived, and unsustainable,”it added.

While questions have been raised that non-inclusion in the draft rolls, amounts to deletion of a voter’s name from the voter list, the Election Commission has said that it is not so as human involvement in the exercise includes a possibility of exclusion due to “inadvertence or error.”

“..It is noteworthy that exclusion of a name from the draft electoral roll does not amount to deletion of an individual from the electoral rolls. The draft roll simply shows that the duly filled enumeration form of existing electors has been received during the Enumeration Phase. But, on account of human involvement in execution of this exercise of scale, there is always a possibility that an exclusion or inclusion might surface due to inadvertence or error.

Citing Rule 21 of the RER 1960, the Election Commission said that the ERO has the power to take remedial action.

“It is for this reason that issuance of reasons for exclusion of names from the draft rolls is not contemplated in the statutory framework governing the preparation of electoral rolls,” the Election Commission said.

The Election Commission said that prior to the publication of the draft roll, it had directed that the list of copies of individuals whose names have not been included be shared with political parties to seek their assistance in reaching those electors. It said that this was made known through a press note on July 20 and accused the petitioner of a “blatant attempt” to mislead the court by “making patently false and erroneous assertions” and “malign” the poll body.

“Thus, it is a blatant attempt on the part of the Petitioner to mislead this Hon’ble Court by deliberately making patently false and erroneous assertions in the Application. The Petitioner’s approach is consistent with its earlier attempts to malign the ECI by building false narratives on digital, print and social media. Such attempts should be appropriately dealt with by this Hon’ble Court, and heavy costs should be imposed for Petitioner’s attempts to deliberately mislead this Hon’ble Court,” the affidavit said.

In its application, ADR had said that the Election Commission has deviated from past practice of publishing all deleted names in an electoral roll along with their details. The Election Commission has said that the petitioner had attached a reference of a final electoral roll to establish this and the final roll after the SIR in Bihar will also contain all such information. It accused the petitioner of approaching the court with unclean hands and said that this “deserves imposition of heavy costs for its blatant and consistent attempts to mislead” the court.

“Thus, the allegation of the Petitioner that there is deviation from the past practice in this regard, is false, misconceived, erroneous, unfounded and misleading. That it is reiterated that the Petitioner has not approached this Hon’ble Court with clean hands, and deserves imposition of heavy costs for its blatant and consistent attempts to mislead this Hon’ble Court,” it said.

It has also stated with regard to recommendations made by the BLOs for exclusion of names, was “purely for administrative efficiency, and did not affect the eligibility of an elector in any form or manner.”