New Delhi: The Supreme Court on Monday said it was presuming that the Election Commission, being a constitutional authority, was following the law during the special intensive revision (SIR) of electoral rolls in Bihar and warned that the entire exercise would be set aside in case any illegality is found at any stage.
A bench of Justices Surya Kant and Joymalya Bagchi, which fixed October 7 for hearing final arguments on the validity of Bihar SIR, refused to offer any “piecemeal opinion” on the exercise and said “our judgement in Bihar SIR will be applicable for pan-India SIR”.
The court clarified it can’t stop the poll panel from conducting a similar exercise for the revision of electoral rolls across the country. The bench, however, allowed petitioners against the Bihar SIR exercise to also argue on the pan-India SIR on October 7.
The top court also clarified that the publication of the final electoral roll on September 30 will not make any difference to the adjudication of the case.
“What difference will the final publication of the electoral roll make to us? If we are satisfied there is some illegality, we can set it aside,” the bench told the petitioners who have challenged the SIR exercise.
The top court, in the meantime, issued notice on a plea seeking the recall of the September 8 top court order directing the poll panel to include the Aadhaar card as the 12th prescribed document in the Bihar SIR.
At the outset, senior advocate Rakesh Dwivedi, appearing for the Election Commission, requested the bench that the court should defer the hearing till the final assessment of the SIR exercise is made.
Senior advocate Gopal Sankarnarayanan, appearing for NGO Association for Democratic Reforms (ADR), said that the ECI is moving ahead with the preparations for conducting the SIR exercise in other states.
“We have to address the court on the legal aspect of the exercise. If it is found that there is a perversion of a constitutional scheme, we may press that this may not continue. There is no question of proceeding with other states and establishing fait accompli,” he submitted.
The bench told him that the court cannot stop the poll panel from conducting the SIR exercise.
Advocate Vrinda Grover, appearing for some activists, said no one should be denied a right to vote because of an illegal methodology.
The bench said, “Please take it from us. If we find any illegality in the methodology adopted by ECI at any stage of SIR in Bihar, the entire exercise will be set aside.”
Senior advocate Abhishek Singhvi, appearing for several opposition political parties, including the Congress, requested the court to take up the matter at the earliest as the ECI has announced the SIR exercise across the country.
Justice Kant said, “We can’t express any opinion in piecemeal. Whatever they are proposing in the meanwhile, our judgment for Bihar SIR, will obviously have an impact.”
Advocate Prashant Bhushan, appearing for the Rastriya Janta Dal, alleged that the Election Commission was acting in gross violation of the rules and their own manual.
“There is virtually no transparency. Their rules require that within one day objections be uploaded on their website, so that people can see who has applied for deletion, etc. This is not being followed.
“They have uploaded only 30 per cent of the objections and requests for additions, etc. They are only following the court’s order and not their own rules,” he submitted.
The bench said, “The Election Commission, being a constitutional authority, is presumed to follow the law and the mandated rules.”
Justice Kant said it would hear the matter in detail on October 7 and consider all legal aspects of the exercise.
Advocate Ashwini Upadhyay submitted that he has filed an interlocutory application for the recall of the September 8 order, which said that the Aadhaar card be considered as the 12th document for the SIR exercise.
“There are six judgments of the court which say Aadhaar is not proof of age, residence or citizenship. Therefore, Aadhaar cannot be equated to those 11 documents; otherwise the entire SIR exercise will be disastrous,” he submitted, adding that over one lakh people are Rohingyas and Bangladeshi nationals in Bihar.
He submitted that under the law, Aadhaar can also be given to even foreigners and it can be made on a recommendation letter of a village pramukh, local MLA or MP.
The bench, while issuing notice on his interlocutory application, said the court will hear him on October 7 and pointed out that Aadhaar was made acceptable as an interim arrangement.
Justice Bagchi told Upadhyay that “whether it would be disastrous or not will be decided by the ECI”.
Justice Kant said this court has earlier said that even a driving licence or birth certificate can be forged but Aadhaar can be used to the extent the law permits.
On September 8, the apex court clarified that Aadhaar will not be proof of citizenship and the poll panel can ascertain its genuineness on being submitted by an elector for inclusion in the electoral roll.
The SIR of the voter list in Bihar — the first since 2003 — sparked a huge political row, with the opposition parties alleging that the exercise is aimed at depriving people of their right to vote.
The EC has maintained that the SIR’s purpose was to clean the voter list by deleting names of people who are dead, possess duplicate voter cards or are illegal immigrants.
The SIR’s findings reduced the total number of registered voters in Bihar, from 7.9 crore before the exercise to 7.24 crore.
