Revision of Electoral Rolls in Bihar | Day 18: “The burden is on the State to prove you are not a citizen,” petitioners argue

Farasat: Constitutional scheme governs electoral rolls

Farasat argued that Articles 324 to 329, read alongside the Representation of the People Act, 1950 (RP Act), forms “one constitutional code”. He argued that the RP Act mirrors the conditions under Articles 325 and 326 which removes discriminatory grounds for inclusion and adopts adult suffrage. Further, Parliament did not require voters to prove their citizenship at the time of enrolment. The Constitution itself identifies who is entitled to be registered. He maintained that the scheme places the burden on the State, and not on the voter, to show non citizenship.

Justice Bagchi asked whether the ECI had the authority to inquire about an inclusion that appears “highly dubious”. He noted that the Commission was not claiming the power to declare that a person was a non citizen. Farasat said that any such inquiry must end with a reference to the District Magistrate under Rule 21 of the Registration of Electors Rules, 1960 (1960 Rules), or to the tribunal constituted under the Foreigners Act, 1946, as required by the Citizenship Act, 1955. “The Election Commission has no jurisdiction to prevent me from being on the roll or to knock me out of the roll,” he said. “If you are prima facie of the view that I am not a citizen, that determination will happen only there. The burden is not on the citizen.”

He stressed that existing electors enjoy a legal presumption and cannot be removed through an inquisitorial or summary process. Justice Bagchi noted that “in adversarial risk laden situations the presumption will always be in favour of the citizen” and compared the right to be on the roll to the constitutional right to information, which is realised through statute.

Farasat referred to Lal Babu Hussein v Electoral Registration Officer (1995), arguing that a person already on the roll can be removed only after a determination by the Foreigners Tribunal under the Foreigner’s Act or after an order of the Central Government under the Citizenship Act. Turning to Rules 8 and 9 of 1960 Rules he pointed out that they allow the registration officer to seek household information, verify age and inspect birth and death registers but contain no power to assess citizenship.

Sen: Article 324 cannot override the RP Act

Sen argued that the ECI has three functions under Article 324: issuing rules or orders under a general subordinate rule making power, adjudicating disputes through such orders and executing the functions assigned under the RP Act and the 1960 Rules.

He submitted that the Commission cannot rely simultaneously on Article 324 and on statutory power. Sen said that once the ECI invokes Section 21(3) of the RP Act to order a special revision, the statutory regime applies in full and the Commission cannot invoke Article 324 to step outside it. He added that the ECI has not shown any link between the object it seeks to achieve through the SIR and the existing Rules, nor explained how the present statutory framework is inadequate.

Pasha: Distinction between “intensive revision” and “summary revision”

Pasha submitted that the ECI’s use of the 2003 electoral roll as a baseline for identifying doubtful entries has no foundation in the 1960 Rules. He argued that the Rules do not recognise any prior rolls as an anchor document.

He argued that the distinction between an “intensive revision” and a “summary revision” is about the scale of the exercise and not the level of scrutiny for each individual voter. He added that voters added after 2003 underwent the same statutory scrutiny prescribed in Rules 10 to 21 (such as field verification, household checks and objections). He argued that the ECI’s reliance on the 2003 roll creates an arbitrary classification unknown to the RP Act or the 1960 Rules.

Shakil: SIR marked by haste and opacity

Shakil submitted that the SIR was being carried out with undue haste in an election year and that such haste raises a presumption of mala fides when the exercise affects the right to vote under Article 326. She pointed out that the EC responded with repeated “not provided” responses, even after the Court directed it  to disclose the basis of those deletions. She said this opacity contradicts the transparency obligations in the ECI’s manuals and in Rules 12, 13, 16 and 17 of 1960 Rules.

She added that voters who did not submit SIR forms were classified as dead, migrated or duplicated without clarity on the inquiry preceding these decisions. She pointed out that Rule 21 requires the registration officer to give an opportunity to be heard before deletion. Noting that the SIR is underway in other states and that BLOs must now ascertain “reasonable cause” for non-submission of forms without any defined procedure in the RP Act or the SIR Guidelines, she warned that similar large-scale deletions could occur when draft rolls are published later.

The Court will continue to hear the matter on 11 December.