Revision of Electoral Rolls in Bihar | Day 15: SIR exercise subverts Parliamentary will, argue petitioners

Sibal: SIR imposes citizenship burdens incompatible with the statutory scheme

Sibal argued that the SIR conflicts with the RP Act and allied laws. He submitted that a Booth Level Officer (BLO) would effectively determine the citizenship of applicants. He contended that a BLO, who may be “a teacher appointed in a school,” cannot be tasked with such a responsibility. Disqualification from rolls, he said, are determined under the RP Act, findings of unsoundness of mind arise from courts and age is established through documentary proof such as Aadhaar. “Any intensive revision contrary to this will be ultra vires,” he said.

Sibal questioned how a BLO could verify parental birth details when voters may not have documents such as passports, birth certificates or matriculation records. Justice Bagchi said voters could rely on the illustrative documents listed in earlier orders. Sibal responded that many electors would not possess such documents and described the requirements as “very difficult procedural issues which are per se unreasonable.”

“It is a dangerous proposition to have a teacher in school appointed as the BLO to have this right,” he said. He submitted that the procedure mirrored the Foreigners Act, 1946, where the burden lies on the individual, and argued that reversing the burden of proof through the SIR was impermissible.

Sibal: ECI cannot “supplant” statutory procedure under Articles 324 and 327

Sibal argued that the ECI cannot create a parallel mechanism as the RP Act and the Registration of Electors (Amendment) Rules, 2016  constitute an “occupied field.” Any procedure contrary to the statutory scheme, he submitted, was unconstitutional. He maintained that the SIR was not a valid exercise under Section 21(3) of the RP Act and that the ECI could not adopt a position conflicting with the law enacted under Article 327.

He warned that the current process subjects electors to classifications and documentation requirements “akin to conditions prior to independence,” denying legitimate voters their rights.

Singhvi: ECI cannot create new substantive requirements under Article 324

Singhvi argued that the ECI is not a “third chamber” in the legislative process and does not have plenary powers to create substantive rules. He argued that the Commission cannot use its powers under Article 324 to introduce requirements amounting to legislation. He said Articles 324 and 327 must be read harmoniously with Parliamentary competence under Entry 72 of the Union List and Entry 37 of the State List.

Singhvi submitted that the form requiring electors to furnish 11 documents is not traceable to the RP Act or the Registration of Electors Rules, 1960. Such a form, he said, “can only come from delegated legislation.” He characterised the requirements as a substantive change that had not been made in 75 years.

He argued that the ECI was relying on Article 324 to justify a mass exercise, but “this is lack of jurisdiction.” The statutory scheme envisages individualised revisions, not state-wide or en masse presumptive verification. Singhvi described the current approach as treating “all the people of Bihar” as temporary or presumptive entrants on the roll until confirmed through documents not recognised in the statutory framework.

He argued that no valid classification justified the present approach and said the ECI’s process “subverts parliamentary intent.” Singhvi added that the RP Act procedures under Section 21 contemplate constituency-based, individualised revisions. “Where is the power?” he asked.

The Bench indicated that Section 22 of the RP Act would also require examination. CJI Surya Kant said the Court would interpret the provisions individually before testing the propriety of the ECI’s conduct.

The matter will next be heard on 2 December.