In an extraordinary development, the Supreme Court on Monday ordered deployment of judicial officers, including the retired judges, for smooth conduct of the special intensive revision (SIR) of electoral rolls in West Bengal.

The Bench of Chief Justice of India (CJI) Surya Kant, Justice Joymalya Bagchi and Justice Vipin Pancholi said there was a clear lack of cooperation between the State government and the Election Commission of India (ECI)

"There is an unfortunate blame game of allegations and counter allegations which shows trust deficit between two constitutional functionaries - that is the State government and the Election Commission of India. Now the process is stuck at the stage of claims and objections of the persons who have been included in the logical discrepancy list. Most of the persons to whom notices were issued have submitted their documents in support of their claim for inclusion in the voter list. These claims are required to be adjudicated in a quasi-judicial process by Electoral Registration Officers (EROs)," the Court said.

The Bench added that it was left with no other option than involve the State judiciary, including the retired judicial officers, for conclusion of the SIR.

Accordingly, it passed the following order:

"In order to ensure fairness in adjudication of genuineness of documents submitted and consequent inclusion or exclusion in voter list, we are left with hardly any other option but to request Chief Justice of Calcutta High Court to spare some serving judicial officers along with some former judicial officers in the rank of Additional District Judge or District Judges who can then in each district aid in disposal or revisiting of the claims under the logical discrepancy list. Each officer shall be assisted by the ECI and officials of State government deputed to assist in the duty."

The Court acknowledged that this direction may impact hearing of normal court cases since judges time will be deployed for the SIR exercise.

Thus, it directed that Calcutta High Court Chief Justice along with a a committee of judges, the Registrar General, and the principal district judges may take a call to shift interim relief cases to an alternate court for a week or 10 days.

"Please cooperate with the High Court. Please create an environment for them to function. Imagine what will happen if the SIR process is not completed. Then what happens?," the Court asked the State.

On February 9, the Court had directed the State of West Bengal to ensure that officers provided by it to the ECI report for the duty.

However, the ECI today alleged that it was not being provided well qualified officers.

At this, CJI Kant said,

"You [State] are not providing competent Group A officers. How can incompetent officials decide the fate of the people?"

Justice Bagchi added,

"There is a sense of hesitancy on both ends. We propose that judicial officers can aid and take the process to a logical conclusion."

In the order passed subsequently, the Court recorded that State is obligated to provide Group A officers who perform the duty of SDO, SDM but there is dispute among about the rank of the officials provided by the government to perform the function of ERO and AERO.

"It is nearly impossible for this court to determine the status and rank of officials now deployed by the ECI given by State," the Court said.

Last year, the ECI had held an SIR in Bihar ahead of the assembly polls there. Multiple petitions, including those filed by the Association for Democratic Reforms (ADR) and the National Federation for Indian Women (NFIW), challenged the legality of the process. However, the ECI proceeded with the SIR since the top court did not impose any stay on the same.

Subsequently, the ECI extended the SIR to other States and Union Territories, including West Bengal, Kerala and Tamil Nadu. This led to multiple petitions challenging the same. The Court reserved its decision on them on January 29.

West Bengal Chief Minister Mamata Banerjee subsequently moved the Court challenging the ECI's decision to hold a SIR in the State and sought a direction that the polls be conducted on the basis of the existing rolls prepared last year. She also sought an urgent direction to halt deletion of voters - particularly those under the “Logical Discrepancy” category, from the electoral rolls.

On February 4, Banerjee appeared in person before the Court and flagged various issues in the SIR. She alleged that the ECI targeted the state just ahead of the assembly elections this year.

"They only targeted Bengal on the eve of elections. What was the hurry? What takes two years is being done in three months even when festival, harvesting season is there," Banerjee said.

The Court then asked the ECI to be careful while sending notices to voters on the basis of name mismatches. However, the Court later also made it clear that it will not allow any impediments in the conduct of SIR.

Arguments Today

Senior Advocate DS Naidu, representing the ECI, submitted that ECI had asked for qualified EROs but the State asked it to wait for further communication.

"We told them we need officers of this nature. They wrote to us saying you wait. Please see their letter. We are looking at qualified EROs," Naidu said.

The Court said it was disappointed with the response of the State government.

"If this is the level of communication from the State? For February 9 order, you have responded on February 17! You are saying State government is examining the officers. Examining? You should have written that 8,500 officers are sent. We are not on micro observers. We are disappointed to see this. We thought States will co-operate. We don't want private explanations," CJI Kant said.

Senior Advocate Menaka Guruswamy, representing the State government, submitted there are only 69 Sub Divisional Officers in the State. The Court said it can ask the ECI to bring officers from outside the State.

"Officers are needed to perform quasi-judicial function. Thus partially judicially trained mind is needed. You can't ask a clerk 'come on now pass a speaking order'. They have to decide the fate of the people," CJI Kant said.

Naidu said the ECI can get trained officers from outside the State.

However, Justice Bagchi pointed out to their lack of knowledge about West Bengal.

"Your officers have little knowledge of Bengali. That is the problem," the judge said.

Senior Advocate Shyam Divan, representing Chief Minister Banerjee, said ECI has deployed some special officers, who override the decisions of electoral registration officers.

"Now after ERO has cleared the file, this new species of observers override the electoral roll officers. Now micro observers, they made a concession here and now the decision of a statutory empowered officer is overridden. 7 lakh people have been marked by this new species of officers," Divan submitted.

However, the CJI said,

"If ERO has passed an order and they have some doubt on a document or so, Then what is the problem?"

Naidu added these officers are there from the very beginning.

"We have never said these officers trump the ERO," the ECI counsel added.

With regard to ECI's allegations that the SIR was marred by violence, intimidation and sustained political interference, the Court today issued a warning to the WB Director General of Police (DGP).

"Unfortunately in this country, all these statements are made during elections. Is the DGP taking care of this? Else there will be stern action," it added.

After it was told no action was being taken by the police on complaints, the Court asked the DGP to give details of all the complaints received and the action taken on them.

The matter will be heard next in March. After the ECI said that it can publish final list after February 28 but the SIR process can still go on, the Court passed the following direction:

"If the process is completed, then list can be published after February 28 and such a list shall not be taken as the final one and then a supplementary list shall be published."