By Nilotpal Basu
The Supreme Court’s order in connection with petitions against Election Commission’s SIR orders in Bihar states that “the commission is empowered in the exercise of its constitutional mandate to undertake a limited enquiry into citizenship for the purpose of satisfying itself as to eligibility for inclusion in the electoral roll.” This came from a bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi. The apex court held that ECI’s power flows from its constitutional responsibility to maintain accurate electoral rolls and ensure that only eligible persons are entitled to exercise their franchise.
Obviously, the apex court has handed the ECI a broad, sweeping mandate. The court has not taken the trouble of even examining the contentions of the ECI in the course of the proceedings. The Commission had maintained that the SIR is not unique and it is based on the broad principles which had prompted the drawing up of the rolls during the election in 2002-03 in Bihar and later, elsewhere in the country. On close questioning by the petitioners, the ECI had also conceded that the Commission is not in a position to furnish the original orders of 2002-03 and the procedures adopted therein. But the broad mandate of the Supreme Court has removed any accountability of the poll body; neither does it insist on the imperative of maintaining a degree of transparency. The basic jurisprudence that judicial and quasi-judicial processes should not only be fair but appear to be fair has been given a go by.
That the ECI did not care two hoots for such transparency has been clear from the outset. The Commission had not been providing the list of deletions, not to speak of any grounds. More importantly, the Commission refused to provide the list of deletions in digital or machine-readable format for exercising public scrutiny. Neither did the Commission respond to this vital question. It is safe to presume that this was a testimony for lack of any concern about being accountable before any public scrutiny.
However, the highest judiciary was aware that the ECI cannot be constitutionally assigned a final role in citizenship adjudication, and directed that where the Commission is not satisfied that a person fulfils the statutory conditions for inclusion in the electoral roll, on citizenship grounds, it must refer the matter to the competent authority within the Union government for adjudication in accordance with law. Buttressing this direction, the Court observed that “the Commission’s determination, being confined to electoral purposes, cannot assume finality on the question of citizenship.”
Referring to section 16 of the Representation of People Act, the Court noted that only citizens have been conferred with the right to vote. Therefore, citizenship is a condition precedent for enrolment. The ECI, therefore, cannot discharge its obligation to maintain a valid electoral roll, without satisfying itself that persons included therein meet this threshold requirement. Concluding its argument, the apex court stated, “In view of the statutory requirement under section 16 of the RP Act, the Commission, in the course of preparing or revising electoral rolls, is undoubtedly empowered to examine questions bearing upon citizenship. However, such an enquiry can only be made from the standpoint of determining inclusion or exclusion from the electoral roll, and must be undertaken with due regard to the presumption operating in favour of an elector whose name is already borne on the roll. It is within this confined statutory setting that the Commission assesses the material before it to arrive at a determination for electoral purposes. Importantly, the entirety of this exercise remains amenable to judicial review, thereby ensuring that the enquiry is conducted in accordance with law and within the bounds of procedural fairness.”
Having given a clean chit to the ECI and rejecting the contention ‘that the Commission has acted in excess of its statutory powers,’ the Supreme Court has actually created more confusion and self-contradiction, which impinges on the foundational principles of our republican constitution. An avid reading of the history of our constitution-making makes it clear that as an independent, democratic, and secular republic, we owed the constitutional right to vote as the building block of our electoral system. It is primarily because of this that the first Election Commission onwards, we have never put the onus of inclusion or exclusion from the electoral roll on the individual citizen. It has been always incumbent on the ECI or its procedural infrastructure and management to ensure this. While the apex court may think that ECI has the statutory powers to conduct the SIR, the judgement of CJI Surya Kant and J. Bagchi are ominously silent on the equally compelling requirement of the constitutional right to vote for the individual citizen, as laid down in the Constitution itself, and further reinforced time and again by different benches.
These questions become pertinent in the light of the reality of 27 lakh voters being denied the right to vote in the recently held West Bengal Assembly Elections. This denial was on account of the timeline pursued by the ECI and the lack of adequate processes available at its disposal to settle the contentious legal and constitutional questions. Finally, it is the apex court which had to propose the creation of judicial tribunals for these disputes. However, the head of one of the tribunals itself and a former Chief Justice of Kolkata High Court was forced to do some plain-speaking, saying that ‘at least four years will be required to dispose of all the applications for adjudication.’ Unfortunately, the Supreme Court’s order does not take into account this situation. The individual citizen’s constitutional right has not received the attention that it deserved.
It is now being observed that, over time, particularly since the Modi government assumed office in 2014, Hindutva has been pushed as the dominating ideology of the Indian State. It will be naive to presume that within the nation state, unlike the executive and legislature, the judiciary will remain insular to this ideological tendency. The Indian Constitution has always been right-based, and the apex court has been the final custodian of that constitutional right.
In sections of the Indian media, there are reports how RSS-led Akhil Bharatiya Adhivakta Parishad is seen to be constantly expanding its influence across benches and bars in Indian courtrooms. The development obviously attempts to hollow out the republican constitution to create space for ‘Bhartiya’ jurisprudence towards strengthening centralised authority, instead of reinforcing grassroot-level citizens’ rights-based democracy. For discerning readers, that should be enough of a clue. Therefore, the attempts to take away universal franchise must be fought back with a protracted struggle for electoral reforms, so that the constitutional right to vote without fear or favour can be salvaged. (IPA Service)
