New Delhi: The Election Commission on Thursday termed the decision to undertake Special Intensive Revision (SIR) of electoral rolls “fair, just and reasonable”, and urged the Supreme Court to reject pleas challenging the exercise in Bihar.
It argued that a roving and fishing enquiry into the special scrutiny cannot be done at the behest of a few NGOs and politicians.
“None of the 66 lakh persons, whose names were deleted in Bihar SIR, came to this court or high court or filed pleas with the Election Commission. A roving and fishing enquiry cannot be permitted at the instance of ADR (Association for Democratic Reforms) and the PUCL (People’s Union for Civil Liberty) and a few parliamentarians,” said senior advocate Rakesh Dwivedi on behalf of the poll panel.
The submissions were made by the senior lawyer during the final hearing on a batch of petitions challenging the Election Commission’s decision to undertake SIR in different states, including Bihar.
Referring to a judgment in which the top court had refused a plea seeking re-introduction of paper ballot and discarding the EVMs, he said, “In short, we must follow Europe. If they go for EVMs, then we must go for it. And if they go for a paper ballot, then we go for it.”
He said one person writes an article in a newspaper, and the other files a petition in the top court referring to that.
Dwivedi urged the bench of Chief Justice Surya Kant and Justice Joymalya Bagchi to dismiss the pleas with cost while defending the SIR as a lawful and transparent exercise of statutory powers under the Representation of the People Act, 1950.
He argued that once the Election Commission invokes its powers under Section 21(3) of the 1950 Act, the manner and procedure of conducting a special revision are left entirely to its discretion.
Dwivedi argued that Section 21(3) operates independently of Section 21(2), which governs routine and periodical revisions. “There is no compulsion under Section 21(3) that every SIR must be identical in nature,” he said.
He said the SIR exercise had not been undertaken for nearly 20 years in Bihar and was conducted in response to changing demographic realities, including urbanisation and population movement.
According to Dwivedi, merely adopting a different methodology or deviating from the manual governing routine revisions could not, by itself, render the exercise suspect or ultra vires.
The CJI, however, observed that if the poll panel’s argument that Section 21(3) grants unfettered discretion were accepted, “the case would end there”.
Dwivedi placed significant reliance on the Citizenship (Amendment) Act, 2003, which, he said, was enacted after the last SIR and introduced stricter requirements for establishing citizenship, including proof relating to parents’ citizenship.
He pointed out that the amendment was passed during the tenure of then prime minister Atal Bihari Vajpayee with bipartisan support, demonstrating legislative consensus on the need to examine citizenship due to increasing cross-border migration.
Justice Bagchi questioned whether the amended citizenship framework was a trigger for the present SIR, noting that the Election Commission’s order did not explicitly cite trans-border or illegal migration as its basis.
“The word ‘migration’ ordinarily refers to lawful movement. Inter-state migration is a constitutional right,” Justice Bagchi observed, adding that if the SIR was being defended solely as a roll revision exercise after two decades, the larger question of citizenship determination might not arise at all.
Dwivedi responded that the amendment had never been operationalised earlier and that the present SIR provided an appropriate opportunity to take note of the changed legal framework.
He clarified that the objective was to examine citizenship within the contours of Article 326 of the Constitution, which guarantees adult suffrage.
Emphasising transparency, Dwivedi said that Booth Level Agents (BLAs) conducted house-to-house verification, over five crore SMS alerts were sent to voters, and the process strictly followed procedural safeguards.
Nearly 76 per cent of voters did not have to submit any documents, while others were permitted to furnish one of 11 prescribed documents, he highlighted.
Dwivedi said the SIR could not be labelled as “manifestly arbitrary”.
Justice Bagchi, however, observed that “manifest arbitrariness” had evolved as a facet of substantive due process and was now applicable even to primary legislation.
Dwivedi cautioned against importing American notions of “due process” into Indian constitutional law, remarking that US courts often re-evaluate policy decisions, a practice the Supreme Court has consistently resisted.
“US court judgments have been cited… Where is the US following due procedure of law? President Trump can just pick the President of Venezuela for trial. Where is the due process, and now he wants Greenland also. Here, the petitioners want to import that,” he said.
The CJI said that courts here have occasionally used the phrase “due process” without fully appreciating its American constitutional origins.
The petitioners argue that the SIR’s departure from the “prescribed manner” of revision under Section 21(2) lacks transparency and could lead to the arbitrary exclusion of genuine citizens.
