Logical discrepancy but illogical interim orders?

The Supreme Court orally said on October 28 that it has not decided on the validity of the 'logical discrepancy' parameter used by the Election Commission of India (ECI) to weed out electors in its special intensive revision (SIR) of electoral rolls in various States.

While the Court upheld the validity of the SIR exercise in Bihar, it has now said that the logical discrepancy issue was not decided in that matter.

The Court had earlier also permitted the ECI to employ 'logical discrepancy' in West Bengal prior to the assembly polls in the State. However, it has now clarified that the same was only an interim measure and not a final decision.

The remarks were made by a Bench of Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana after the ECI counsel argued that the apex court had examined every step of SIR and upheld it.

"Ever since the SIR process was initiated, Your Lordships have been seized of the matter and have examined every step. Your Lordships may recall what happened in Bihar," the counsel said.

"Bihar is not a final determination of every question arising in these proceedings. In Bihar, the Election Commission had not initially undertaken logical discrepancy as a category. We permitted it as an interim arrangement in West Bengal. We have not finally adjudicated upon the legality of the logical discrepancy exercise," Justice Bagchi remarked.

The Supreme Court's handling of the West Bengal SIR case warrants attention in this context.

Various petitions, including one filed by then Chief Minister Mamata Banerjee, came up before the Supreme Court earlier this year seeking a stay on SIR in the State just before the assembly elections.

Banerjee contended that the SIR process should not be rushed and should be completed only after following all due procedure. She flagged the immediate and irreversible threat of mass disenfranchisement of eligible voters in the upcoming state assembly elections through a flawed SIR process. Thus, she sought a direction that the polls be conducted based on the existing rolls prepared last year.

During the SIR process, several illogical instances highlighted how the ECI employed "logical discrepancy" to remove voters from electoral rolls. This included confusion over anglicised versions of Bengali names.

For instance, Senior Advocate and TMC MP Kalyan Banerjee said that his son was placed under the 'list of adjudication' during SIR because of the confusion over the 'Banerjee' surname, which is the anglicised version of the Bengali name surname Bandopadhyay, a fact unknown to many outside Bengal.

"My son's name was under the list of adjudication because of Banerjee and Bandopadhyay. All are now logical discrepancies," Banerjee told the Court.

Another glaring instance was when former Calcutta High Court Justice Sahidullah Munshi was marked as “not found” after SIR despite submitting documents twice and undergoing verification. He emphasised that he had consciously avoided invoking his past office.

“I do not want to submit any sort of document which says that I was a former High Court judge because I want to be treated at par with common citizens and that is why I submitted all my correct documents, including the passport as well,” he said.

Justice Munshi was eventually added back to the rolls after the incident came to light.

Despite the glaring discrepancies, the Supreme Court declined to stay the process.

On February 9, a bench of CJI Kant and Justices Bagchi and Justice NV Anjaria made it clear that it would issue directions to ensure the smooth execution of the SIR.

"We will not allow any impediment in conduct of SIR. This must be clear to all States," CJI Kant said.

Subsequently, on February 20, the Court passed an extraordinary order directing the deployment of judicial officers, including retired judges, for the smooth conduct of SIR. This, after the Court said that there was a clear lack of cooperation between the State government and the ECI.

As I wrote before, in an unprecedented move, the Court roped in more than 500 judges from West Bengal, Odisha and Jharkhand to complete the exercise. While a total of 5.23 crore cases remain pending in courts across the country, the top court found it fit to depute judges to do the executive work of election authorities.

The SIR exercise led to the deletion of around 90 lakh voters, with around 38 lakh appeals pending before the ad-hoc appellate tribunals created by the Supreme Court to hear appeals against the exclusions/inclusions.

Elections then took place after the hurried SIR and resulted in a regime change in the State. The outgoing CM refused to accept the verdict and blamed both the SIR exclusion as well as what she alleged was a compromised counting process. 

The elections in Bengal were done and dusted, but the logical discrepancy issue came to the fore again.

On September 22, when the Court was hearing a plea raising questions about the manner in which the SIR was being carried out in Delhi, Justice Bagchi said that some SIR notices appeared to have been mechanically issued. 

“Almost mechanically, notices are being issued. In all probability, they are machine-generated notices. So please examine whether some additional filters are necessary before the notices,” he observed. 

CJI Kant noted that there is scope to clarify what information was being sought from voters over ‘logical discrepancies’ marked against them in SIR notices. 

“That ‘logical discrepancies', you need to clarify this one. For example, notice can come to me. I shifted to Delhi in May 2019 after my elevation. Before that, I was voting in Chandigarh. Your logical discrepancy notice can ask me whether in 2019 I was voting in Delhi or in Chandigarh, or somewhere else. You might not be knowing that I was in Chandigarh. You can say ‘Delhi or somewhere else, clarify.’ So the person should be told what to clarify,” he said.

The failure to define or set out of contours of 'logical discrepancy' could itself strike at the rule against arbitrariness.

With Justice Bagchi now saying on October 28 that the 'logical discrepancy' measure is yet to be finally decided by the Supreme Court, the moot question is what would be the consequence of the Court striking down logical discrepancy? Will it then unseat the incumbent government and order fresh elections or will the Court let it pass as a fait accompli?

Logical discrepancy, illogical interim order and immutable result? Perhaps we can fall back on Spock's wisdom:

"It's only logical."