New Delhi: Observing that “no power can be untrammelled”, the Supreme Court Wednesday said the revision of electoral rolls can have serious civil consequences for individuals whose names are not included in the voters’ list.
The observations were made by a bench comprising Chief Justice and Justice Joymalya Bagchi during the final hearing on a batch of petitions challenging the Election Commission’s decision to undertake a Special Intensive Revision (SIR) of electoral rolls in several states, including Bihar.
The bench heard extensive submissions from senior advocate Rakesh Dwivedi, appearing for the Election Commission, as it examined whether the SIR exercise could deviate from the procedures prescribed under the Representation of the People Act, 1950 and the rules framed thereunder.
Raising concerns, the CJI said the revision of electoral rolls can have serious civil consequences for individuals whose names are not included in the voters’ list.
“If something affects the civil rights of people, why should not the process followed be in accordance with sub-section (2)?” the CJI asked, referring to Section 21 of the 1950 Act, which governs the preparation and revision of electoral rolls.
Section 21 of the Act deals with the power of the poll panel to prepare and revise the electoral rolls and its sub-section 2 says, “The said electoral roll shall, unless otherwise directed by the Election Commission for reasons to be recorded in writing, be revised in the prescribed manner by reference to the qualifying date before each general election to the House of the People or to the Legislative Assembly of a State; and before each bye-election to fill a casual vacancy in a seat allotted to the constituency;
“And shall be revised in any year in the prescribed manner by reference to the qualifying date if such revision has been directed by the Election Commission: Provided that if the electoral roll is not revised as aforesaid, the validity or continued operation of the said electoral roll shall not thereby be affected.”
Justice Bagchi also echoed the same concerns, questioning whether the EC could exercise an “untrammelled” power beyond judicial review.
Referring to the statutory scheme, he noted that one of the rules contemplates that when an intensive revision is carried out, electoral rolls are prepared afresh, and asked whether such safeguards could be bypassed altogether.
“No power can be untrammelled,” Justice Bagchi said.
Dwivedi referred to sub-section 3 of Section 21 of the Act in defence and which reads: “Notwithstanding anything contained in sub-section (2), the Election Commission may at any time, for reasons to be recorded, direct a special revision of the electoral roll for any constituency or part of a constituency in such manner as it may think fit:
“Provided that subject to the other provisions of this Act, the electoral roll for the constituency, as in force at the time of the issue of any such direction, shall continue to be in force until the completion of the special revision so directed.”
Dwivedi argued that Section 21(3) of the 1950 Act confers a distinct and independent power on the EC to undertake special revisions, separate from the routine or periodical revisions contemplated under sections 21(1) and 21(2).
“My submission is that sub-sections (2) and (3) of Section 21 do not operate in the same domain,” he said.
The CJI, however, posed a pointed query and asked if Section 21(2) enables the EC to go beyond the rules, can the Commission then exempt itself from its own notified procedures when it undertakes an SIR under Section 21(3).
Justice Bagchi questioned the nature of the inquiry under Sections 21(2) and 21(3), particularly in light of the documentary requirements.
He pointed out that while Form 6 prescribes seven documents, the SIR process requires 11 documents, and asked whether the EC could add to or subtract from the prescribed list and exclude Form 6 documents altogether.
Dwivedi maintained that the statutory language allowed such flexibility and that the authority to deviate from the rules was implicit in Section 21(3).
He, however, reiterated that the Commission could not act arbitrarily and must satisfy the court that the process was just, fair and transparent, keeping in mind Article 326 of the Constitution, which guarantees adult suffrage.
The current hearings arise from petitions, including a lead plea filed by NGO Association for Democratic Reforms (ADR), which challenge the legality and constitutionality of the SIR exercise.
The petitioners have raised concerns about the scope of the EC’s powers, the determination of citizenship for electoral purposes and the potential for disenfranchisement.
The hearing remained inconclusive and would resume on Thursday.
Earlier, on January 20, the EC had informed the Supreme Court that its SIR order was legislative in nature, laying down guiding principles and prescribing documents, and was generally applicable across the country, except in Assam.
PTI
