SC on Bengal SIR: If margin 2% and deletions 15%… what will happen?’

The bench was considering a plea on the pendency of appeals against exclusion on the ground of logical discrepancy before the Appellate Tribunals set up to decide on them.

The Indian Express had reported on April 11 that with the electoral rolls for West Bengal’s two-phased Assembly elections finalised, Election Commission (EC) data shows that more electors have been deleted during the Supreme Court-monitored adjudication process in 15% of 293 constituencies than the winning margin in those seats in the 2021 polls.

During Monday’s hearing, referring to the apex court deputing judicial officers to decide the names flagged for logical discrepancies and setting up Appellate Tribunals, Justice Bagchi said it was “to ensure that all the rights including the fundamental duty of the Election Commission…as a constitutional body are balanced and a fair and impartial exercise is targeted”.

The judge said that no one should think that “the concern of a vigilant voter whose name correctly or incorrectly is not in the list is not in our minds”. He added, however, that given the volume of cases which each judicial officer had to adjudicate, “there is always a chance of margin of error…And in these situations, (to) test it again from the principles of reasonableness, due process, we need to have a robust appellate process…”.

Justice Bagchi said, “Somewhere, we are getting blinded by dust and fury of an impending election. But the right to remain on a roll, right to vote in a country were you were born is something which is not only constitutional, it is sentimental. It is the biggest expression of nationality and patriotism that you are in a participatory process to elect a democratic government.”

He also questioned the EC over the creation of a category of logistical discrepancies, saying it was not done in any other state where the SIR exercise was conducted. He said the poll body had “deviated” from the procedure followed in the Bihar SIR, but the ECI denied this.

“If you see the original SIR notice, it talks of the benchmark as the 2002 electoral rolls. So it does not touch the person who is in (the rolls in 2002). But when you flag logical discrepancy, you in fact touch that 2002 electoral roll,” Justice Bagchi told senior advocate D S Naidu, who appeared for the poll panel.

Naidu said, “What we have said is those who are there in 2002, they are automatically in, provided they can prove their credentials…without any discrepancy.”

Responding, Justice Bagchi said, “No. The way we read your 2002 notification, the 2002 electoral roll is not touched. But what is touched is people who are relating them to the 2002 roll…That is why in your final list, you did not delete them.”

Naidu said, “There is no question of deleting them. Every person has to submit a form to establish it’s one and the same person.”

Justice Bagchi said, “During the Bihar SIR…the submission was very clear…The submission from EC was unequivocal. A person in the 2002 electoral roll does not require to give anything.”

Naidu contended, “He need not prove anything further”, except that he is the same person. “For that purpose, we have two columns, the column which reflects the 2002 name and the present credentials. If they match, automatically in. In most of the cases unfortunately, they have not taken care to put the correct particulars. They have invited the trouble.”

Justice Bagchi, however, reiterated his point. “If that is so, please examine the written submissions put in the Bihar SIR. It is very clear, It’s not that the electorate has to upload documents,” he said.

Naidu said, “No document is needed, provided you are there.” Justice Bagchi said, “Now you are deviating from your original arguments.”

Justice Bagchi said, “Logical discrepancy has not been a category in other states. In Bihar, not a single person was flagged on logical discrepancy.” But Naidu said, “Bihar too has exclusions, but not a single appeal was filed.”

Intervening, the CJI told the counsel, “You are only trying to say, that (if) somebody asks today how have you excluded my name (when) I am there in the 2002 list, you are saying if you are there in 2002, you are welcome, but in 2002 your name is XYZ, today you are claiming XYL, and therefore the problem is arising.”

Naidu said, “Exactly. That’s the only discrepancy. Had they faithfully filled the forms cautiously, that it’s the same person, they would have been automatically allowed.”

Justice Bagchi then said that “a 2002 elector need not fill any form”. But Naidu disagreed and said, “They need to. Enumeration form is mandatory… It’s a ministerial job of filling up the names correctly…Only thing is the details should match…Once they make a mistake in filling the enumeration form, it flags. Otherwise, they are in.”

Justice Bagchi said, “When you bring in logical discrepancy, it actually invokes your constitutional powers of verification…What you rely on is Section 22 of The Representation of the People Act, that is a suo motu enquiry. And when you go into suo motu enquiry…it requires a hearing upon notice. In this situation what happened was there was no hearing given, it was only a verification.”

Justice Bagchi said, “Why we (the court) wanted the appellate tribunal when there was a constriction at the first instance verification? We need to protect the due process rights.”

He added, “That has been done because the volume of logical discrepancies which were marked, and the date for the election was so close and there was a constitutional issue of trust deficit…In this situation, we had to evolve a process, but it had some departure from Rule 19 and 20. Because if you see Rule 19 and 20 enquiry, it speaks of a notice. The opportunity of hearing and opportunity of presentation of documents, the hearing being discretionary upon the election officer.”

He added, “Where they could not be given hearing by the judicial officers, we had to leave it open for the appellate tribunal. And that is why our request to both of you — cannot hurry this process.”

Naidu said even after scrutiny by judicial officers, 45% was the rejection of logical discrepancy cases. Justice Bagchi said, “We are not on the end justifying the means, we are on the means subjecting themselves to the reasonableness and fairness…It is not a fight between the state and Election Commission” but of “voter being sandwiched between constitutional entities.”

Later in the day, the court, while hearing petitions challenging the SIR exercise also indicated that it might consider allowing publication of an additional supplementary voters list even though only those on the list till April 9, when it was frozen, may be able to vote. “That is what we are seeking to focus on,” Justice Bagchi said. “We are also very conscious of this,” said the CJI.

The comments came as Senior Advocate Shyam Divan, appearing for West Bengal Chief Minister Mamata Banerjee, urged the court to consider allowing supplementary lists if the tribunals are able to clear the appeals quickly.

Naidu, meanwhile, said that when it comes to Section 21 of (The Representation of The People Act, 1950, dealt with preparation of electoral rolls), “it’s an ongoing process. When it comes to freezing and finalisation and the right to vote…that’s governed by Section 23 with the Rules. In so far as Section 21, nobody denies that it should go on. That’s what Your Lordships have held, that let the appeals go on so that they can have their rights vindicated if at all they could.”

Justice Bagchi said, “We are conscious that pendency of an appeal does not amount to suspension of the primary decision. That is the Rule. But if an appeal is disposed of, what would be its consequence is also in the Registration of Electors Rules, 1960, that the Electoral Registration officer will immediately amend the electoral rolls. And there, subject to our exercise of Article 142 powers.”

The CJI pointed out that there are also appeals pending against rejection of objections, and if the plea for interim inclusion is to be accepted, then the plea for interim exclusion also will have to be considered.

He said, “We cannot make it burdensome for the appellate tribunals and also there is another petition which says where the objections have been rejected, they should not be allowed to vote as the appeals are pending. We have to think of balance.”

The court noted that the latest letter from the Chief Justice of the Calcutta High Court said that over 34 lakh appeals have been filed as on April 11.

Senior Advocate Kalyan Bandhopadhyay, appearing for the TMC, said the 19 appellate tribunals will not be able to decide all the appeals and urged the court to allow them to vote.

But the CJI said, “Where is the question of voting then? Those who have been allowed, we should stay that also then” — indicating that those whose names have been objected to and were pending before the appellate tribunal too will have to be excluded in that case.

Meanwhile, hearing the matter of violence against the judicial officers in Malda on April 1, the CJI asked the NIA, after perusing the agency’s status report, to inform it by the next date whether the accused had a political background.