If special revision is being done, the process needs to be justified: Supreme Court in Bihar SIR challenge

The Supreme Court on Thursday observed that the process related to the Special Intensive Revision (SIR) of electoral rolls in Bihar might need to be justified.

A Bench of Chief Justice of India (CJI) Surya Kant and Justice Joymalya Bagchi was hearing pleas against the validity of SIR and seeking deferment of the process.

Senior Advocate Abhishek Manu Singhvi, appearing for People's Union for Civil Liberties (PUCL) and seven political parties, contended that the SIR form can only come from delegated legislation and then rules.

"This is en masse exercise which the ECI is drawing from Article 324, which is not allowed. This is lack of jurisdiction I am arguing...plugging of loopholes here and there will not help."

CJI Kant then observed,

"Going by your argument, ECI will never have power of SIR...This is not routine updation...but if a special revision is being done...then perhaps the process needs to be justified."

Singhvi then said,

"This Court has given a lot of healing touches in the past 6 months. But what is not law remains not a law."

At the outset of today's hearing, Senior Advocate Kapil Sibal argued,

"Can the BLO (booth level officer) judge if a person is of unsound mind? It is for authorities outside the scope of the Act...A teacher appointed in a school cannot be a BLO to determine this right and that is why substantively this is unreasonable. Disqualification is decided by the RP Act, unsound mind is by court. Registration, age is Aadhaar. Any intensive revision contrary to this will be ultra vires."

Justice Bagchi said,

"We have to see whether in the normative scheme of the Act and the allied laws, the notice that they have given is ultra vires or not."

Sibal went on to argue,

"In Foreigners Act, burden of proof is on the foreigners. Under what powers are they following this procedure? How will we ever discharge the burden if my father's name is not on the electoral rolls?"

CJI Kant replied,

"But if your father's name is not there on the list and you too did not work on it...then perhaps you may have missed the bus. The only difference is that if your parents name in the 2003 list.. if it is not there..."

In his submissions, Singhvi contended that the constitutional scheme must be followed before conducting any exercise like SIR.

"The Election Commission, in the garb of passing orders for regulating the conduct of elections, cannot take upon itself the purely legislative activity which has been reserved, under the scheme of the Constitution, only to Parliament and the State Legislatures. By no standards can it be said that the Commission is a third chamber in the legislative process within the scheme of the Constitution. Merely being a creature of the Constitution will not give it plenary and absolute power to legislate as it likes without reference to the law enacted by the legislatures."

He pointed out that the ECI cannot make substantive changes under the guise of changing procedural rules.

"...we have not had the requirement that you fill up a form first, and then I will presumptively retain you on the list or remove you. This is substantive change."

Later during the hearing, CJI Kant asked,

"If Parliament next says take away fundamental rights of someone, can that be done?"

Singhvi replied,

"Of course no. Parliament decided so far and no further on four features. No way by which a massification can be done. 2003 people are not touched. Now, after so many revisions you subject so many sub-classifications...no rational nexus can be achieved..."

The CJI then asked,

"If Election Commission says that there are large number of dead voters in some constituency...how can Commission say we will ignore dead in some and not in others?"

Singhvi said in response,

"This has happened before also and I will tell you from what they have done before as well."

Before adjourning the matter to December 2, the CJI said,

"We want to independently interpret this, de hors of what the Commission has done."

The Court has been hearing several petitions challenging the conduct of SIR of electoral rolls in various States.

The ECI had first directed the SIR for Bihar in June this year. Multiple petitions were filed before the Supreme Court challenging this exercise. Despite those challenges being sub-judice, the ECI on October 27 extended the SIR to other states and union territories including Tamil Nadu, West Bengal and Kerala.

Subsequently, the SIR exercises in Tamil Nadu and West Bengal were also challenged. The Supreme Court issued notice on those petitions on November 11. The State of Kerala also filed a plea to defer the SIR till after the local body elections in the State were over. Other petitions were filed by

The Communist Party of India (Marxist) [CPI(M)], the Communist Party of India (CPI) and Indian Union Muslim League leader PK Kunhalikutty also moved the Court, challenging the validity of the SIR process itself.

The Bihar SIR was meanwhile completed since the Supreme Court did not stay the process.

The petitions challenging the SIR in Kerala will be heard on December 2, the plea concerning the SIR in Tamil Nadu will be heard on December 4, while the challenge to the exercise in West Bengal will be heard on December 9.

During yesterday's hearing, the ECI's counsel accused political parties of unnecessarily engaging in fear-mongering about the SIR process.