Opinion Why Supreme Court’s order on Bihar SIR is not a ‘rebuke’ to Election Commission

The Representation of the People Act, 1950 and the Registration of Electors Rules, 1960, made to implement the Act, do not contain the words “Special Intensive Revision”. They only mention a “summary revision” (which happens regularly) or an “intensive revision” (which happens rarely), or a mix of the two, necessary in special circumstances. An SIR, at least as it is being carried out in Bihar, seems to have no basis in the law. The official justification for this exercise is the need to remove non-citizens from the electoral rolls. However, it has now shifted the burden of proof onto the citizen to “prove” their citizenship. It has discarded its own electoral roll prepared after people have declared that they are citizens, except for the 2003 electoral roll. The ECI has given a limited list of documents that it will accept as proof of citizenship. Crucially, Aadhaar cards and Electoral ID cards (issued, ironically, by the ECI itself) are not considered acceptable evidence.

Something similar happened in 1994 in Delhi and Mumbai. The ECI instructed Electoral Registration Officers to identify “non-citizens” and remove them from the electoral list, in coordination with the local police. Notices were issued to nearly three lakh people demanding that they prove their citizenship — only with documentary proof — limiting its possibility to only four documents. Ration cards, perhaps the most widely held proof of identity, were not accepted by the ECI until it was pushed to do so by the Bombay High Court. Those affected in Delhi approached the SC directly.

In its 1995 judgment, a three-judge bench of the SC set aside the instructions of the ECI and directed that no one should be required to prove their citizenship unless the ECI had credible material to show that they were not citizens. When such material was found, the ERO was required to conduct a full-scale inquiry, allowing the person in question to provide all possible evidence to show that they were citizens of India. Then, as now, the ECI’s move triggered strong political backlash against the ruling party (Congress).

The SC’s latest order has also pushed the ECI to accept more documents as proof of identity and to also declare why certain voters have been left out of the draft electoral list. The ECI has claimed (without substantiating) that, by and large, voters have been removed from the draft electoral roll as they have either died or migrated. The SC’s order will test the truth of the ECI’s claims, but the key point is that it took the SC to push the ECI to follow the most basic principles of natural justice.

Between the Lal Babu Hussain judgment and the latest order in the SIR case, the relationship between the ECI and the SC has been one of institutional bonhomie. The SC, in its judicial orders, has helped push forward some key ECI proposals for changes in the electoral process relating to the declaration of assets and criminal cases, the disqualification of convicted politicians, and the “None of the Above” option. The ECI’s indifferent stance on electoral bonds, which the Supreme Court struck down as unconstitutional, was one of the rare instances of relative disagreement between the two institutions.

The SC’s order in the SIR case is, therefore, no “rebuke” to the ECI; rather, it is far from it. The SC judges hearing the case, through their oral observations, do not seem convinced that the ECI is acting either unlawfully or in bad faith. Rather, they have tried to nudge the ECI along, pointing to its own commitment to transparency and fairness in the process. Coming along with the earlier order of the SC, which pushed the ECI to accept the Aadhaar card and the EPIC card as valid documents, has meant that the focus of SIR has shifted, subtly, from questions of citizenship to questions of correctness of the rolls.

The very first electoral rolls in India were prepared in such a way that even the homeless and the nameless (mostly women who were referred to only as someone’s mother or wife) found themselves on the voter rolls. This was done at a time when the Constitution was not even final, and no one knew who was going to be a citizen in the new India. Had that exercise been done with the callousness and cruelty of the SIR, India would never have been the world’s largest electoral democracy.

The writer is a co-founder of the Vidhi Centre for Legal Policy and an advocate