Electoral rolls cannot remain static, EC has residual power, says apex court

A day after clarifying that the Election Commission has the power to take a call on exclusion of non-citizens from voters’ list, the Supreme Court on Wednesday said electoral rolls cannot remain “static" and were bound to be revised.

On the second day of hearing on petitions challenging the June 24 notification on Special Intensive Revision (SIR) of electoral rolls in poll-bound Bihar, a Bench led by Justice Surya Kant noted that the expanded list of acceptable documents for identification of voters (from seven to 11) for the ongoing SIR of electoral rolls in Bihar was in fact “voter-friendly and not exclusionary”.

It disagreed with the petitioners’ argument that the exercise did not have any legal basis.

The Bench – which also included Justice Joymalya Bagchi -- said the poll panel had residual power under Article 324 of the Constitution to conduct such an exercise as it deemed fit.

"By that logic Special Intensive Revision can never be done. One-time exercise which is done is only for the original electoral roll. To our mind, the electoral roll can never be static," said the Bench which will resume the hearing on Thursday.

"There is bound to be revision, otherwise how will the poll panel delete the names of those who are dead, migrated or shifted to other constituencies?" the Bench asked Gopal Sankaranarayanan, who represented one of the petitioners.

The court’ comments came after Sankaranarayanan said the SIR should be quashed for want of legal basis as it was never contemplated in law. It was being conducted for the first time and if allowed to happen only God knew where it would end, he submitted.

Petitioners, including Association of Democratic Reforms (ADR), submitted that the EC should not be allowed to carry out SIR exercise across India.

On Tuesday, the Bench had said, “The law of granting or taking away citizenship has to be passed by Parliament… But inclusion and exclusion of citizens and non-citizens from the electoral rolls is within the Election Commission’s remit.”

On Wednesday, it referred to Section 21(3) of the Representation of the People Act which says, "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."

Sankaranarayanan submitted that Section 21(3) only allowed revision of the electoral rolls for "any constituency" or "for part of a constituency" and the EC couldn't wipe out the rolls of an entire state for fresh inclusion.

"Actually, it is a battle between a constitutional right and a constitutional power," the Bench noted.

The Bench clarified that residuary powers of the EC emanated from Article 324 of the Constitution and the RP Act mentioned both summary revision and special revision and the poll panel has only added the word "intensive" in Bihar’s case.

Advocate Prashant Bhushan, representing the ADR, alleged the EC removed the search feature from the draft roll and the list of 65 lakh people whose names were deleted for being dead, migrated or shifted to other constituencies. An ordinary person was denied the right to search their name on the draft roll, he alleged.

On behalf of the poll panel, senior advocate Rakesh Dwivedi, representing the EC, said the petitioners claimed the rural population of Bihar was not tech savvy and now they were talking about the inability of the same people in searching online. Dwivedi will make detailed submissions on Thursday.