Supreme Court to consider whether ECI can decide citizenship during SIR of electoral rolls

Can the Election Commission of India (ECI) determine citizenship of a voter through the Special Intensive Revision (SIR)? The Supreme Court is set to consider the question while deciding the petitions challenging the legality of SIR being undertaken by ECI across different States.

The Bench of Justice Surya Kant and Justice Joymala Bagchi of the top court has been hearing a batch of petitions challenging the SIR undertaken recently in Bihar.

In an application, one of the petitioners the Association for Democratic Reforms (ADR) today sought directions to the ECI to refrain from determining citizenship of voters through SIR.

The Court remarked that while the petitioners may argue that ECI lacks the power to do so, the electoral body may argue otherwise.

"It is one of the issue that will arise in final matter," the Court said, as it sought ECI's response on the application.

In the fresh application, a prayer for use of a de-duplication software was also made to ensure that voters do not remain registered in more than one constituency.

The Court remarked that it was a good suggestion.

It was also prayed that ECI be directed to comply with its own manual which mandates it to hold a Gram Sabha at booth level for voter verification.

"They used to do this. This exercise is also not being done. It’s either called a social audit or a booth level Sabha or gram Sabha," advocate Prashant Bhushan, appearing for ADR, said.

Bhushan also submitted that acknowledgement slip should be given to all voters who submit enumeration forms.

"And the enumeration forms are not being uploaded on the website. There is no proof to show that I have given the enumeration form. If tomorrow my name is deleted on this basis, I have no proof to show," he added.

Bhushan further submitted that ECI should make available the 2003 electoral roll and that should serve as a base for corrections.

"That list should be available to people in a searchable form. So if I want to search if my name is there, I should be able to search it. Especially because booth numbers have changed now," he added.

However, the Court questioned whether disclosure of the searchable list would be in compliance with an earlier ruling of the top court.

"We need to deal with that judgement. Please go through it," Justice Bagchi remarked.

Bhushan argued that a machine-readable list would allow people to search for their names.

"Otherwise they are asking people to show their names in the 2003 list. How does it prejudice anybody if the list is available in a machine readable form," he asked.

Justice Bagchi remarked that such disclosure may affect right to privacy of people.

"The prejudice may be the data available at large. Issues of collective protection of data of Indian citizens. It has a polycentric impact. The data is valuable asset that the ECI is holding in trust," the judge said.

Justice Bagchi added that an individual could be given a password to access the data.

"This is a suggestion which we would want to make to the ECI also. We want you to deliberate on this," the Court said, adding that ECI is entitled to have layers of protection on the data.

Justice Kant then said that it would ask the ECI about their stand.

The Court then issued notice on the application and asked the poll body to respond to the prayers.

Background

The SIR in Bihar had been challenged ahead of the ongoing assembly elections in Bihar.

The petitioners had told the Court that 65 lakh names were dropped from the draft electoral roll published on August 1. The top court declined to halt the exercise and instead chose to monitor the exercise.

On August 14, the Court directed the ECI to upload the list of these 65 lakh voters proposed to be deleted during the SIR. On August 22, it ordered that people excluded from the draft electoral roll can use their Aadhaar cards as ID proof to get themselves included in the voters' list. Before this, the ECI had stated that it would only accept any of eleven other ID documents for this purpose. 

Later, the Court directed the ECI to issue a formal notice stating that Aadhaar will be accepted as an identity proof document for the inclusion of a voter to the revised voters' list being prepared as part of the SIR.

The SIR was completed on September 30. As against 7.89 crore voters on June 24 in Bihar, 7.42 crore electors were retained in the voter list. The number of deletions also came down from 65 lakh to 47 lakh.

ECI has now announced SIR of electoral rolls in over 10 states in the first phase and plans to conduct the exercise across India. At least six political leaders from States like West Bengal and Tamil Nadu have moved Supreme Court. Today, the Court issued notice to ECI on these petitions.

During the hearing of Bihar SIR matter, the Court remarked that ECI should adopt best practices but also keep in mind the local factors of different States.

"You have to keep in mind local conditions of new states. Some places where literacy is very high, in Bihar where the people going to other states is very high, that may not be the case in Tamil Nadu. Every state is different," Justice Kant said.

The Court will hear the application next on November 26, along with the main case.

"On 26th first we’ll take up this application. And whatever the outcome that may have some reflection on the other matters," Justice Kant said.

Meanwhile, Senior Advocate Gopal Sankaranarayanan submitted that the Court should first decide the legality of the SIR.

"The legality is something that has to be answered immediately. They are doing it an each state but they are not answering the question on legality," he submitted.

Senior Advocate Kapil Sibal also submitted that the matter would have to be decided before elections are held in the States.

"The fate of the country depends upon these elections," Sibal said.

The Court then said the matter would be heard on November 26 and 27.

"27th we can continue. We will have to adjust PMLA matter," Justice Kant said.