Indian Express report on Bihar SIR notices: SC asks counsel to file affidavit, says ‘can’t ask ECI to respond to news articles’

“So what it says is there were lakhs of notices which were generated from the centralised Election Commission in the name of the Electoral Registration Officer (ERO) with their digital signatures. And these were objections in standard format, saying that your documents are insufficient, please come and show us your documents. And it went to lakhs of people. According to my information, it’s more than 10 lakh people who were sent these centralised notices. This is totally against the statute itself…,” he said, apparently referring to the Representation of the People Act.

The Act states that only the ERO of the Assembly constituency is empowered to doubt an elector’s eligibility and issue a notice calling for a hearing.

As per The Indian Express report, EROs across Bihar found “pre-filled notices” appearing on their individual log-ins on the ECI’s centralised portal. These notices, estimated to be in lakhs, were addressed to Bihar electors who had already submitted their forms and supporting documents and whose names figured in the draft rolls published in August. Significantly, while the notices bore the names of the EROs, they had not been generated by them.

The CJI, however, asked, “How to rely (on news reports)… Someone will have to verify…”, to which Bhushan replied, “That’s what I am saying. Your Lordships may ask the Election Commission to respond to this.”

Won’t respond to newspaper reports: ECI’s counsel

Senior Advocate Rakesh Dwivedi, appearing for the ECI, objected to this and said, “No, we will not respond to newspaper reports. What is this new procedure!”

The CJI said, “Responding to news item… Mr Bhushan, you know very well, it will have very serious implications.”

Bhushan said he had been told about this by a senior political leader. “This is something with which the leader of a political party of Bihar, a very responsible leader, had come and shared with me some days back.”

The CJI then said, “The (the person who alerted Bhushan) can file an affidavit that this statement is correct or whatever he wants to say.”

Bhushan, however, repeated that the court may ask the EC “to verify and say…because they didn’t respond to this.”

CJI Kant, however, said, “That will be contrary to the settled law. You see, in a particular set of facts, if we are swayed by and if we start asking them to respond to newspaper items, news items…”.

Bhushan said, “This is not an ordinary newspaper item.”

“No. It’s a very responsible (newspaper),” said the CJI. “Ordinary or not, we don’t know it’s biased,” said Dwivedi.

Bhushan said the news item appeared on the front page, “and it says they sought the ECI’s response, they didn’t respond.”

CJI Kant said, “It’s not the question of newspaper. The newspaper is, everybody knows their credibility. They are very renowned, internationally established media platform. There is no doubt about it. But they also depend on human person. They have a reporter. That reporter must also be interacting with someone.”

He added, “Any person who is well conversant with this news item or its background (they can file an affidavit).”

Serious matter, needs ECI’s response: Prashant Bhushan

Bhushan said, he can put it on an affidavit, “But I am saying this is very serious. This needs a response from the Election Commission. This is very serious. Because if lakhs of notices are being sent from a centralised place whereas the Act requires that only the ERO can send such notices. Section 23 of the Act is very clear. It’s very, very serious because it shows something is happening from the centralised Election Commission.”

Dwivedi sought to deny the claims and said, “I am sorry. It’s totally wrong. All notices are issued by the District Election Officer.”

Bhushan reiterated, “This is what I was informed by a very responsible, top leader of a political party of Bihar.”

‘Not proper to shoot from somebody’s shoulders’

Solicitor General (SG) Tushar Mehta, who was also appearing in the SIR matter representing Assam, said, “I have something to say on this. Whenever a public-spirited person is approached by a top political leader, the public-spirited person should advise him to file a petition directly, rather than my lord…”.

The CJI said, “We are sure that the gentleman who has advised Mr Bhushan will come forward and (file an affidavit).” Agreeing, the SG said, “Yes, it’s not proper to shoot from somebody’s shoulders.”

Bhushan said, “I’m just saying this did not just come out of the blue. I was informed about this some days back. Now this has appeared in The Indian Express.”

Dwivedi said, “The unfortunate part is that the petitions began with the newspaper reports and endless arguments are being made based on newspaper reports without any verification.”

CJI Kant said, “The reporter who submitted this report must be justified because he has also balanced. He said they have learnt. Now learnt is qualified.”

“From whom they learnt, nothing is there,” Dwivedi was quick to add.

The CJI said, “It is not that they have direct information or verified or come to know, because after all they are also dependent on… Sometimes people report correctly, sometimes partially incorrect, partially correct. We never know the kind of reporting.”