EC has a lot to answer but SC gives it a free pass — and more

The Supreme Court ruling on petitions challenging the Special Intensive Revision of electoral rolls spends far too many words in underlining that which is uncontestable — the Election Commission has a constitutional mandate to ensure free and fair polls. And that which is unexceptionable — the electoral rolls on which the polls rest must be accurate and reliable. No one, no political party, has questioned either of the above principles or pieties. There is no doubt that the EC plays a leading role in the India story, and its monitoring of the sprawling electoral exercise in a country of diversities burnishes that story immeasurably. Undoubtedly, too, the periodic clean-up of electoral rolls is necessary, in light of large-scale migration, rapid urbanisation, illegal cross-border movement, non-reporting of deaths, duplication of entries. Having said that, however, the problem begins.

The EC’s conduct of the SIR in Bihar, and then the manner of its roll-out in West Bengal especially, have raised important questions about the delicate balance between the need for electoral integrity and the imperative of voter inclusion. There are widespread concerns that the EC’s actions have tilted the balance against the citizen — by shifting the burden of proof onto vulnerable voters; by laying down an onerous documentation regime; by setting compressed timelines for the voter and none for the appellate process. This is what led to nearly 27 lakh being disenfranchised in the West Bengal election. Now, the Court does not just exonerate the EC, it hands it a free pass by giving it the benefit of the doubt on every count and unfettered procedural latitude. Most disturbingly, even on the citizenship issue, the Court, in effect, gives the EC free play, without any guardrails. The Commission, says the Court, is empowered to undertake a “limited enquiry” for the purpose of determining the eligibility for inclusion in the electoral rolls, and such an enquiry does not amount to a determination of citizenship, which will be decided by the “Competent Authority under the Citizenship Act”. So far so good. But then, even as the Court speaks of the right to judicial review for those whose names may have been erroneously deleted, it legitimises a short-circuiting of due process by directing that if the EC “is not satisfied that a person meets the statutory conditions for inclusion in the electoral roll”, it must refer this individual to the government’s Competent Authority within four weeks. The SIR isn’t a test for citizenship but the EC, which can only make a “limited enquiry into citizenship”, is empowered to set the stage for a citizenship test.

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This is disquieting in the political climate the current citizenship debate is set in. The new government in West Bengal has announced that those deleted from the electoral rolls would lose government benefits. In a time when the “ghuspaithiya” or illegal immigrant is the subject of spectre-mongering, and a communal dog-whistle politics, the Court undermines its role as the custodian of the individual’s rights. Going forward, therefore, the EC will need stronger scrutiny.