Why a former SC judge and a sitting one are wrong on SIR

A former judge of the Supreme Court and a serving one have raised serious doubts over the Election Commission’s special intensive revision (SIR) currently underway, alleging that the process of updating electoral rolls was resulting in mass deletions of voters and that the drive was essentially violative of constitutional provisions.

Before getting down to the specifics of these charges, it is worth recalling just how much of a non-issue SIR has been in all assembly polls held since SIR was rolled out barring West Bengal. We will deal with West Bengal later, but it’s worth noting that the other states that went to polls in May saw no traction on SIR. In fact, Congress leaders in Keralam praised SIR for preventing the Left-led government from manipulating voter lists by weeding out names of the dead and those who have permanently shifted. In Tamil Nadu too SIR did not generate any election heat and ruling DMK had no complaints with the process.

SIR non-issue in state polls

It was only much after the elections were over did DMK leader M K Stalin claim his defeat in the Kolathur assembly constituency was due to SIR deleting “favorable” votes. Stalin’s defeat at the hands of actor Vijay’s Tamilaga Vettri Kazhagam (TVK) was no doubt a hard pill to swallow but the Madras High Court dismissed the former Tamil Nadu chief minister’s writ seeking a 100 per cent VVPAT (Voter Verifiable Paper Audit Trail) count and asked him to instead file a regular election petition. In case Stalin does follow such a course of action, the result is unlikely to change with EC’s VVPAT verification having a 100 per cent success record.

Similarly, SIR had no echo with voters and in fact candidates too hardly brought it up as they were well aware that the issue is not agitating people at large. It is an obvious question, one that those who denounce SIR find difficult to answer, that if indeed voters were incorrectly deleted in lakhs would there not be some protests on the ground? Profiling a dozen affected individuals does not establish that the process itself is tainted. Further most such cases brought before the Supreme Court have not proved to be correct on examination while others have recourse to be added back to the electoral roll.

A False Equivalence

Former SC judge Rohington Fali Nariman speaking at a college event in Rajkot suggested the SIR in West Bengal facilitated the ouster of the sitting government and the installation of the ruling party at the Centre in the state. “So you can imagine this was completely illegal – knocking out the common man, the citizen of India in order that a government obtains what it wants. And in Bengal, we saw it ousted the government of the day and brought in the govt of the Centre.” This is, of course, a very serious allegation.

Speaking at another college event, sitting SC Judge Ujjal Bhuyan said the SIR strikes at the heart of the Constitution. He said the name of a voter once enrolled cannot be deleted without notice and hearing. He said the Indian Constitution does not provide for two classes of citizens with voting rights and those without voting rights. “Any process that leads to wholesale disenfranchisement of Indian citizens, making them citizens without voting rights, would be violative of Articles 326 and 14 of the Constitution,” said Justice Bhuyan. If the SIR was disenfranchising millions, the process if intrinsically arbitrary. He had praise for students of the law college – a section had opposed Chief Justice of India Surya Kant being invited a speaker -- as brave. Justice Bhuyan all but suggested that students opposing the CJI’s presence on campus were doing the right thing.

The Real Bengal Story

Now let’s examine the contentions. Justice Nariman’s contention is that most of one lakh appeals against deletions settled in West Bengal have been upheld and many others may lack access to justice. Now, of 90 lakh voters deleted in two phases 22 lakh have filed appeals that are being considered. Here, what Justice Nariman and others who often make the same point skip is why are there so many appeals in the first place and why is their disposal taking time? The fact is that the previous Trinamool Congress government opposed SIR tooth and nail and obstructed the EC at every step. The SC had to take the extraordinary step of directing the appointment of judicial officers to assist the SIR process in West Bengal.

More than 500 judicial officers were deployed by the EC in consultation with the state government and Calcutta High Court to deal with claims and objections. While issuing its order, the SC lamented the “trust deficit” between the EC and the state government, but what was the reason for the Trinamool government’s resistance to SIR? Was it concern about deletion of genuine voters or fear that removal of ineligible voters will harm its electoral prospects?

After the election Trinamool Rajya Sabha MP Derek O’Brien filed a petition in the SC arguing that the difference of votes caused by deletions on several seats that the Bharatiya Janata Party (BJP) won was more than the margin of victory. For one, the assumption that all deleted voters would have voted against BJP or for Trinamool is hard to establish. But it was pointed out that the same stood true for several seats Trinamool had won, making the argument proffered even more suspect.

The suggestion that deletions were the reason why BJP won in West Bengal does no justice to the state’s voters and their mood was evident before and after the results. It chooses to ignore the problem of large-scale infiltration from Bangladesh, visible demographic changes and the use of illegally obtained identity documents. Justice Nariman fails to consider the counter factual – what if the electoral roll was indeed tainted and were being manipulated by the ruling party as Congress leaders from Keralam claimed the Left was doing in that state?

Citizenship and Voters

Justice Bhuyan’s contention that the SIR created two classes of “citizens” – those who are voters and those who are disenfranchised – creates a false choice. To begin with the EC is within its rights to ensure only citizens are voters. Citizenship is the basic eligibility for being on the roll and any voter must submit proof of the same when asked to do so by the EC. Justice Bhuyan said that a voter once enlisted cannot be deleted without notice and hearing. But a voter who is simply absent – a resident who has changed cities for example – will be removed from the electoral roll.

This is hardly new. In any case, the SIR process includes issuance of notices for any discrepancies and a very large number of voters met BLOs (Block Level Officers) and did not lose their right to vote. Citizenship is defined by the Citizenship Act, 1955, and its subsequent amendments. The EC’s right to examine citizenship for the purpose of inclusion in the electoral roll has been upheld by the SC. Under the representation of the people act non-citizens are not eligible to vote.

Given the high degree of awareness about the importance of documents like Aadhar, ration cards, pension certificates, land records, membership of panchayats it is impossible to consider that millions of voters have tamely acquiesced to being removed from the electoral rolls. The internal communications of the EC which have been in the news seem to deal with processes rather than the question whether SIR is flawed. The decision of two election commissioners to write to the Cabinet Secretary is certainly out of ordinary but neither has voted against the EC’s decisions. In fact, if they had felt strongly enough, the ECs could have outvoted the chief election commissioner and shot down proposals relating to the conduct of the SIR.