In the petitions challenging the Special Intensive Revision (SIR) of electoral rolls being carried out by the Election Commission of India, the petitioners told the Supreme Court today that the ECI does not have the powers under the Representation of the People's Act, 1950, to carry out the SIR in the present manner.
Senior Advocates Kapil Sibal and Dr Abhishek Manu Singhvi argued that the ECI cannot fall back upon its plenary powers under Article 324 of the Constitution of India to justify the SIR, since there are precedents which hold that once the field is occupied by the Parliamentary law (RP Act), then the EC has to act as per the statute.
Singhvi pointed out that the enumeration forms for the SIR have no statutory recognition. The RP Act and the Rules do not recognise the enumeration form. He relied on the judgment in AC Jose v Sivan Pillai (1984) which held that "where there is an Act and there are express Rules made thereunder, it is not open to the Commission is over-ride the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Act or the Rules. The Powers of the Commission are meant to supplement rather than supplant the law (both statute and Rules) in the matter of superintendence, direction and Control as provided by Article 324."
So, unless the Rules specifically allow the SIR in the present manner, with the present enumeration forms, the ECI cannot carry it out relying upon its inherent powers under Article 324, the petitioners argued. It was pointed out that Article 327 permitted the Parliament to make laws in relation to the conduct of elections and hence, the power of Article 324 is subject to the Parliamentary law made under Article 327.
The bench of Chief Justice of India Surya Kant and Justice Joymalya Baghchi was hearing the matter.
SIR unreasonable, voters asked to prove citizenship : Sibal
Sr Advocate Kapil Sibal (for RJD MP Manoj Jha) stressed the SIR process was practically unreasonable considering the requirement of the voter to produce the birth certificate or other documents to prove that either of his parents was an Indian Citizen.
He added that it was not in the jurisdictional domain of the Booth Level Officer (BLO), who could be merely a school teacher appointed to the post, to decide the citizenship of the voter.
The enumerator asked him (the voter), please tell me when your father was born? Give me proof of that....how will you give that?"
However, Justice Baghchi interjected to point out that the Court wanted to understand the issue on a 'normative plane' and whether it conforms to the rights of the ECI under the RP Act and the other allied laws like the Constitution and the Citizenship Act.
Justice Bagchi noted that voters can produce documents such as Aadhaar which the Court has allowed as per its previous order .
Sibal, referring to the ground realities of many voters being illiterate/ without education, reverted: " Those documents like passport etc, he will not be able to produce, that is what I am saying... If he is born between 2003 and 2007, then two things will have to be proved: (1) being a citizen of India and (2) he is not an illegal migrant - how will you prove that? And how many will have that? These are very difficult procedural issues which are, per se, unreasonable."
Sibal added that even if it is assumed to be reasonable, could the BLO statutorily have the power to decide upon the citizenship of a person? If the BLO ends up excluding the person from the electoral roll, then he will be excluded from all other government scheme benefits in the country.
Referring to the Electoral Manual issued by the ECI, Sibal stated the provision on the BLO's power to reconsider citizenship :
"It is clear that if the electoral registration officer has any doubt regarding the registration of any person applying for registration or considering any such objection against a person already enrolled in an electoral roll, he should refer the case to the Union Government, Ministry of Home Affairs, for determining the issue under the Citizenship Act."
Objecting to this provision, Sibal said, "This is what they (ECI) are trying to persuade my lords to accept."
He added that "It is a dangerous proposition to have a teacher in school appointed as the BLO to have this right (to consider citizenship)." Reference was made to the decision in Lal Babu Hussein to submit that the ECI does not have the power to determine citizenship.
Advocate Ekalavya Dwivedi, representing the ECI, interjected to submit that the BLO was merely collecting the forms and that the verification was done by the Electoral Registration Officer (ERO).
ECI Does Not Have The Jurisdiction For An 'En Masse' SIR : Sr Adv AM Singhvi
Dr AM Singhvi, also appearing for other petitioners, mainly argued that the SIR process does not have any backing by the statutory laws.
He added that there was no issue with verifications regarding photograph/ residence, etc, but this "is verification for deciding whether I am a citizen or not."
Singhvi then stressed that the SIR was envisioned as an 'individuated exercise' and not an 'en masse/ blanket exercise' under the scheme of the RP Act 1950 (ROPA) and related rules.
He stressed, "Never before in India, not under the ROPA and not under the Rules are you allowed an en masse right?"
According to Singhvi, the issue of contesting the verification of a person's name on the rolls has been dealt with under Form 7(Application Form for Objection for Proposed Inclusion/ Deletion of Name in Existing Electoral Roll). So if there is any doubt regarding any voter, an objection could be filed under Form 7. The Act only permits this 'individuated' exercise and not a mass exercise where every voter must prove their citizenship.
Despite Form 7, having an en masse verification according to Singhvi would be contrary to Article 327. He added that this 'massification' was never given to the ECI, which it is now trying to locate it under Article 324.
The CJI, however, pointed out, "Going by your argument, the ECI will never have the power for SIR."
Singhvi clarified that ECI's powers are limited. As per Section 21(3), the ECI can do a special revision only for a particular constituency or a part of it, and not for all constituencies of a State at once.
He added, "An SIR is a revision of rolls on an individualised/bilateral method on a limited constituency; there is no power en masse."
Singhvi pointed out that there a few 'radicial pecularities' in the present process : (1) It is always minimum state wise, and the states they have started off are the most populous states of India - Bihar and now Bengal; (2) there is no individuation of any kind for any constituency or part of it ; (3) you do not follow the form made under s. 21 (Form 7), to have an individual exercise.
The bench is currently hearing the larger issues regarding the legality of the SIR process. In earlier hearings, the bench had expressed a prima facie view that the ECI has power under Section 21(3) of the RP Act to conduct the SIR. Yesterday, the bench noted that despite the apprehension of mass deletions, no voter challenged exclusion from the Bihar list.
Case Details : ASSOCIATION FOR DEMOCRATIC REFORMS AND ORS. Versus ELECTION COMMISSION OF INDIA & connected matters