Declining to restrain the Election Commission of India from proceeding with the Special Intensive Revision (SIR) of electoral rolls in poll-bound Bihar, the Supreme Court Thursday suggested to the poll panel to also consider Aadhaar, voter ID and ration cards for the purpose of updating the rolls.
The vacation bench of Justices Sudhanshu Dhulia and Joymalya Bagchi said it was leaving it to the EC to consider its suggestion on the inclusion of these three documents and “if you have good reasons to discard it, discard it” but “give reasons”.
It directed that the matter be listed for hearing again on July 28, before publication of the draft electoral roll.
Justice Dhulia, who was presiding over the bench that heard a clutch of petitions voicing concerns over the SIR in Bihar, including its timing, said, “There is a democratic process which is on… You may question it, we will examine it, no doubt about that. We can’t stop a constitutional body. We will not allow them to do what they are not supposed to do. But at the same time, what they are supposed to do, they have to do.”
He made these remarks as Senior Advocate A M Singhvi, appearing for a petitioner, urged the court to either direct that the revision process be carried out delinked from the Bihar elections or in the alternative, stay the process and hear the matter later.
The bench’s suggestion to consider Aadhaar, voter ID and ration cards for updating the rolls, came after Senior Advocate Rakesh Dwivedi, appearing for the ECI, submitted that the list of 11 documents to be considered for the revision exercise was not exhaustive.
Intensive revision refers to the de novo preparation of the electoral roll from scratch through personal, house-to-house field verification by electoral registration officers.
Under the Bihar SIR, those who were on the 2003 electoral rolls need only submit an extract from it as proof, while others (enrolled after 2003) must provide one or more documents from a list of 11 (along with a pre-filled enumeration form for existing electors) to establish their date and/or place of birth – which, in turn, is used to determine citizenship.
In its order, the bench said, “After hearing both sides, we are of the prima facie opinion that three questions are involved in this case: (a) The very powers of the Election Commission who undertake the exercise, (b) the procedure and the manner in which the exercise is being undertaken, and (c) the timing, including the timings given for preparation of draft electoral rolls, asking objections and making the final electoral roll, etcetera, which is very short considering the fact that Bihar elections are due in November.”
“We are also of the considered view that the matter needs a hearing. Therefore, let it be fixed before the appropriate bench on July 28. Meanwhile, the counter-affidavit will be filed by the Election Commission on or before July 21, and a rejoinder, if any, be filed before July 28,” it said.
“…Mr Rakesh Dwivedi himself has pointed out that the list of documents which are to be considered by the Election Commission for verification of a voter includes 11 documents, but the list is not exhaustive… Therefore, in our view, since the list is not exhaustive… it would be in the interest of justice that the Election Commission will also consider the following 3 documents such as the Aadhaar card, the EC voter ID card (EPIC card) which is issued by ECI, and ration card as this itself will satisfy most of the petitioners,” it said.
Dwivedi submitted that the order mentioning additional documents may create hurdles since the process is already underway. He urged the court not to name the additional documents.
But Justice Dhulia said, “We are saying it’s up to you to consider it. If you have good reasons to discard it, discard it, give reasons.”
The petitioners said they are not pressing for an interim stay at this stage as the draft electoral rolls are to be published only on August 1.
Dwivedi said the petitioners had clearly asked for an interim stay and, therefore, the court should make it clear that ECI can go ahead with the process.
“We have said it. You go on,” Justice Dhulia. said
The petition filed by NGO Association for Democratic Reforms (ADR) and others, including RJD leader Manoj Jha, have questioned the revision on various grounds including the exclusion of Aadhaar and the timing of the exercise, just ahead of the Bihar Assembly elections.
Singhvi said that if the court intended to allow the exercise, it should be delinked – the court may examine it at leisure, delink it from the elections. “Exercise of this mammoth nature should be done delinked to an impending urgent election,” he said.
Justice Dhulia said, “If we take a call on that, we will be deciding the case.”
Senior Advocate Gopal Sankaranarayanan, appearing for a petitioner, submitted that the Aadhaar card is an acceptable document as per the Representation of People Act, but the ECI is not accepting it for the Bihar roll revision.
“If Your Lordships allow it to go on, it will be presented as an irreversible scrambled egg… If anything is to go on, it is to be with universal publicity of the fact that the Aadhaar card is acceptable,” he said.
The bench asked the EC why it is not accepting Aadhaar card and voter ID: “Aadhaar is mentioned in the statute. Election ID is issued by you. And you say we won’t accept.”
Dwivedi said, “The problem is that there are lots of things happening in the enrolments. Therefore, it needs to be examined. We can’t take the Aadhaar card as conclusive.”
Justice Dhulia said, “We are not stopping you. Do your work. But do it as mandated by law.” Justice Bagchi said, “It is for the ECI to take a call. We will not second guess the ECI.”
Dwivedi said, “All 7.89 crore electors who have registered mobile numbers have been informed personally on their phones. Manoj Jha’s petition admits that 5.74 crore have been informed. Through mobile phones, we have informed . House to house, we are going. Getting it signed and getting it uploaded on the ECINET.”
Justice Dhulia said, “We don’t doubt your sincerity and your efforts. But there is also a perception.”
Dwivedi said, “My unfortunate position, like the courts, is that I can only answer by a fruitful, proper exercise. So, please don’t stop it now. Let us complete… Even the inclusion of this or that document… the Commission has not gone to sleep… Monitoring is being done, here from the headquarters, minute to minute. Suppose there is a large number of people getting out, cannot the Commission intervene at that stage?”
Justice Dhulia said, “We have serious doubts whether you can meet this timeline with the procedure you have to take into consideration while doing this exercise. Remember, you have to follow all those rules… which involves personal hearing… It’s not practical.”
Dwivedi said, “Let us establish our credentials and appropriateness of the exercise… List in August first week. Your Lordship will be knowing an accurate figure, how many people have not been able to get the form. That will be a test of our agility, our perfectness.”
Justice Bagchi said, “The question is: With such a vast population, is it possible to link such an exercise with an election?”
Dwivedi said the court can stop the poll panel, if necessary, once the revision is complete. “It can be stopped, if necessary. Election is in November. Stop me later.”
On concerns that voters will be removed from the rolls if they are not able to produce the documents being sought, Dwivedi said the ECI “cannot and does not have any intent whatsoever to exclude anybody from the voter list unless and until the hands of the Commission are compelled by the provision of law itself.”
The petitioners contended that what’s happening is a citizenship screening. Senior Advocate Kapil Sibal, appearing for Manoj Jha, said, “The burden is not on me to prove citizenship. Before they remove me from the electoral roll, they have to show that they have some document in their possession that proves that I am not a citizen.”
Sibal said a Bihar government survey showed that only a negligible number of people had the certificates sought by the EC.
To Dwivedi’s argument that Aadhaar does not establish citizenship but only identity, Justice Dhulia said, “But citizenship is an issue to be determined not by the Election Commission of India, but by the Ministry of Home Affairs.”
