Expanding number of documents accepted as ID proof is voter-friendly: Supreme Court in Bihar SIR case

The Supreme Court on Wednesday remarked that the fact that the Election Commission of India (ECI) had increased the number of documents for proof of citizenship made the Bihar Special Intensive Revision (SIR) more voter-friendly.

The Bench of Justices Surya Kant and Joymalya Bagchi remarked that asking for only one document would have been anti-voter.

"If they ask for all 11 documents it is anti voter. But if any one document is asked for then," Justice Kant remarked.

On similar lines, Justice Bagchi said,

"They are expanding the number of documents (by which people can prove their citizenship so that they are allowed to vote)...We understand your [petitioners'] argument on exclusionary aspect with respect to Aadhaar...But expansion of documents...is voter-friendly...it is now 11 instead of 7 items by which you can identify yourself as a citizen."

The Court was hearing a batch of petitions challenging the ECI’s June 24 directive ordering an SIR of electoral rolls ahead of the upcoming Bihar assembly elections.

One of the petitioners, Association of Democratic Reforms (ADR), has argued that the SIR can arbitrarily and without due process disenfranchise lakhs of citizens from electing their representatives, thereby disrupting free and fair elections and democracy in the country. 

On the other hand, the ECI has defended its June 24 directive, asserting that it has plenary powers under Article 324 of the Constitution and Section 21(3) of the Representation of the People Act, 1950 to conduct a revision of electoral rolls. 

It told the Court that the exercise was necessitated by factors such as urban migration, demographic changes and concerns raised about inaccuracies in the existing rolls, which had not undergone an intensive revision for nearly two decades.

On August 6, the Court was told that 65 lakh names were dropped from the draft Bihar electoral roll published on August 1.

The ECI in a response has assured the Court that no name will be struck off the draft electoral roll without prior notice, a hearing opportunity and a reasoned order from the competent authority.

It also said that the Representation of People Act, 1950 and the Registration of Electors Rules, 1960 do not require the ECI to publish the reasons for non-inclusion of anyone in the draft electoral rolls for any reason.

On Tuesday, the Court observed that the inclusion and exclusion of citizens and non-citizens from the electoral rolls falls within the remit of the ECI. It also observed that the ECI was right in stating that Aadhaar was not conclusive proof of citizenship.

Senior Advocate Abhishek Manu Singhvi, appearing on the petitioners' side, highlighted the repercussions of excluding a citizen from the voter list due to lack of identity documents.

"There are no foreigner tribunals also. In Assam at least they can go there," he said.

In agreement, Justice Kant remarked that they would have to approach the High Court.

On the argument related to non-acceptance of Aadhaar, the Court pointed to other documents on the basis of which a person can prove citizenship.

Singhvi contended,

"Remember, Aadhaar is the one document, for last 15 years, has highest coverage. In Bihar - 50-60%, maybe more, but it is high. Water, electricity, gas tank bills...Third, see the cumulative impact. Indian Passport has a coverage of less than 1-2 %...What is the nature of the document you want? The nature of the document is a minimum coverage document. Number 4, all the other documents...have between 0-3% coverage...The remaining documents are land (related). If you do not have land, documents no. 5, 6, 7 are out. 1 and 2 doesn't exist, Passport is illusory. Residents' certificate does not exist in Bihar. And, I am digressing, see form 6. Form 6 only requires self-declaration.

You have given 11 documents and 3 of these 11 documents...are empty without notice. The other 2 are doubtful. So this impressive list of 11 is nothing but a house of cards," Singhvi said in conclusion.

However, Justice Kant said,

"Let us not project Bihar this way. In terms of All India services maximum representation is from this State..."

Senior Advocate Gopal Sankaranarayanan, representing ADR, submitted that West Bengal has also received a notice for SIR on August 8 without consulting the State government at all.

With regard to the Bihar SIR, Sankaranarayanan submitted that the enumeration form used in the SIR has no basis in the law.

"It is a figment of ECI imagination...they need to amend the RPA to take my entitlement [vote] away," he added.

"India prides itself for being the largest democracy and ECI can be so casual saying enumeration form is sent and send it with documents. Which law allows you to do this? Who allowed you? 65 lakh people are ousted just like this?" he further submitted.

At end of his arguments, Sankaranarayanan prayed for a stay on the entire exercise.

"What we are seeking is three-fold. When this matter came on July 10, the Court said in interest of justice let Aadhaar be used...ration card. Now they don't allow and they say other supported documents needed. This is even after Court order. Even EPIC Card was not considered. Next, we are pressing stay of this exercise itself. Bengal will also benefit. You cannot take me off electoral roll just by giving a cut off date...at inception it's dead," he submitted.

However, the Court said that the voter list cannot be static.

"But there has to be revision," Justice Kant remarked.

Advocate Prashant Bhushan argued that a person whose citizenship is being suspected, is required to be given a notice with reasons and then opportunity to produce document.

"Not just these documents that you have prescribed. Not just documents, any evidence," he added.

He further submitted that enumeration forms during the SIR were filled up by the booth level officers sitting in their offices.

"We have put it on record. We have given videos that these officers were filling up the enumeration forms and signing them on behalf of the voters. That is why a large number of dead people have...Forms have not been filled by dead, but by the booth level officers," Bhushan said.

He also questioned whether notice can be given to such a large number of people and a decision can be taken within a month.

"When you publish the final electoral roll, there is no time...thus a fait accompli is achieved...by finalising the electoral roll in a completely arbitrary manner," he submitted.

Bhushan today once again raised the issue of making the electoral draft roll non-searchable. He added that the same was done after Congress leader and Leader of Opposition Rahul Gandhi had held a press conference on bogus voters.

However, Justice Kant did not acknowledge to have any knowledge of the press conference.

"We have no knowledge of press conference," the judge said.

On the publication of the roll, Justice Bagchi said disclosure on official website was welcome, but the statutory requirement is explained in Rule 10 of Registration of Electoral Rules, 1961.

Appearing for other petitioners, Senior Advocate Shadan Farasat submitted that they are against the SIR.

"It has never been done and cannot be done," he added.

Farasat further said that the draft roll is meant to be about inclusion.

"If removal happens, then they have no recourse...these 65 lakh people being ousted is illegal," he submitted.

Senior Advocate Prashanto Chandra Sen also made submissions today. He said,

"There is another aspect on migration...When there are such short timelines...party workers come to aid and some have 50,000 volunteers whereas other has 16,000...now how kosher will be that process?"

The arguments will continue on Thursday.