Revision of Electoral Rolls | Day 29: Supreme Court reserves judgement

Bhushan: SIR places an unprecedented burden on voters

Bhushan argued that the Bihar SIR seeks to prepare the electoral rolls de novo. He stated that the exercise was being conducted on a footing never adopted before. Referring to the 2003 SIR, he stated that the Booth Level Officers (BLOs) had conducted door to door verifications based on an existing roll. However, in the present instance “the onus has been placed entirely on the voter”.

He submitted that the voters were compelled to submit enumeration forms to remain on the rolls and furnish documents. Failing this would result in their exclusion. He submitted that the structure of the exercise resulted in the fall of voter ratios and a decline in women voters, as claimed by Yogendra Yadav yesterday. The burden, he said, falls hardest on women, migrant workers away for employment and persons from weaker sections who are often unable to complete these formalities.

Bhushan further argued that the ECI proceeded on the assumption that the voter could not be trusted, stating that citizenship enquiries cannot stem from disbelief. For enrolment, the law requires only an assertion of claim supported by any document relating to identity, age or residence. As far as citizenship is concerned, he said, Form 6 requires only a self-declaration. “If someone has no document,” Bhushan asked, “what does he do?”

Once a declaration is made, he submitted, the burden shifts to the person alleging that the applicant is a non-citizen. Relying on Lal Babu Hussein v Electoral Registration Officer (1995), Bhushan argued that earlier electoral rolls carry probative value. A voter may support a claim through affidavits, including one from neighbours. If the ECI seeks to reject such a claim, it must produce evidence to the contrary.

Grover: Section 21(3) lets the ECI choose timing, not invent a new process

Grover submitted that ECI has misunderstood the purpose of Section 21(3) of the Representation of the Peoples Act, 1950 (RP Act). She argued that the RP Act only recognises summary and intensive revisions. Section 21(3) does not create a third category, it only removes the requirement that a revision must take place at a fixed time. The ECI only gets to decide when a revision of electoral rolls will be conducted and not how it will be carried out.

Grover submitted that the consequences of this approach are grave. Once the new electoral roll is published, it becomes the operative roll for the State going forward. Through Annexure D, the ECI had imposed new conditions for enrolment that continue to apply even after the revision is over. This, Grover argued, amounts to a change in the law itself. No source of such power has been shown under Article 324. She argued that calling the exercise “legislative” does not answer the problem.

Farasat: Citizenship cannot be determined without a citizens’ register

Farasat argued that Section 14A of the Citizenship Amendment Act, 1955, relied on by the ECI, enables the Union Government to prepare a register of citizens . It uses the word “may” and leaves the matter to the Government of India to decide whether and when such a register is created. That process, he pointed out, has not been undertaken and no nationwide register of citizens exists.

In the absence of any such register, Farasat submitted that no authority, including the ECI, could assume the power to determine citizenship.

Referring to statutes such as the Advocates Act, the Patents Act and the Trade Marks Act, Farasat noted that citizenship is tested through a uniform method – proof of date of birth, proof of ordinary residence and self-declaration. There is no independent adjudication by the authority. Once these conditions are met, citizenship is presumed. Anything beyond this, Farasat argued, enters the realm of adjudication which the statute permits only where a competent authority has already declared a person to be a non-citizen.

He added that even passports which evidence citizenship are issued on the same basis. If that is the standard there, he asked, how could the ECI impose a higher threshold.

Sen: No reasons for urgency

Sen argued that the present exercise is unsupported by reasons or material. Nothing on record, he submitted, explains why it was considered necessary.

Questioning the issue of urgency, he submitted, Section 21(3) removes any constraint of timing and its proviso makes clear that the existing electoral roll continues to operate until a special revision is completed. There was therefore no basis for a hurried exercise.

Pasha: No basis for 2003 SIR baseline

Pasha argued that voters have always been required to substantiate their date of birth, place of birth and ordinary residence, whether the revision was summary or intensive. To suggest that scrutiny existed only in 2003, he said, was incorrect and contrary to the presumption under the Evidence Act, 1872.

Pasha referred to an RTI application seeking to understand why 2003 alone was chosen as the base year. The response, he said, offered no explanation and simply pointed to the ECI’s 24 June order.

He also noted that despite directions from the Court, the ECI did not place the 2003 guidelines on record. Those were ultimately brought on record by Bhushan. Despite this, the ECI now relied on those guidelines to justify its position.

Alam: ERO’s role is verification, not determination

Alam argued that where a voter’s citizenship is questioned, the ERO must act with restraint. If doubts arise about documents, the ERO may seek authentication from the issuing authority or refer the matter to the Ministry of Home Affairs. An inquiry can begin only if there are credible allegations. In the absence of such material and where valid government documents existed, the ERO’s role is limited. Even suspected bogus certificates must be reported back to the issuing authority as provided in the ECI’s manual.

Alam submitted that citizenship questions often spill into political and public discourse. With senior public officials making allegations about the SIR, Alam urged the Court to remain mindful of the risks this creates while the matter is pending.

Ramachandran: Plenary power cannot mean unchecked power

Ramachandran questioned the source of the ECI’s authority to exclude documents previously accepted under the statutory scheme such as driving licences and PAN cards. No explanation, he submitted, had been offered for departing from the prescribed procedure.

He also pointed to the arbitrariness in the choice of States covered by the 24 June notification. While Bihar was initially described as urgent, the same justification was extended to states like Chhattisgarh which goes to the polls only in 2028 while other similarly placed States were excluded.

Ramachandran rejected the attempt to shield the exercise by calling it legislative. Accepting for the sake of argument that the ECI has a duty to ensure that only citizens vote, Ramachandran said that every power carries a corresponding duty. The ECI also has a constitutional obligation to ensure that every eligible citizen is included in the electoral roll.

By excluding accepted documents placing the burden entirely on individuals and adopting a non-facilitative approach, he argued, the ECI had moved away from that obligation and abandoned its constitutional role.