The previous post (here) discussed the Supreme Court’s flawed approach when hearing the legal challenge to the Special Intensive Revision (‘SIR’). This post discusses the substance of the legal challenge to the SIR. The post first outlines the statutory scheme governing the revision of rolls. The post then examines the current SIR exercise against this scheme, which raises several questions regarding the legality and constitutionality of the SIR. The post discusses each of these questions in turn.
Before beginning, a clarification on scope is warranted. The SIR raises several systemic legal problems including indirect discrimination and widespread disenfranchisement. The exercise has also led to numerous operational and political issues, such as the incredibly short timelines imposed by the ECI, the organised use of Form 7s to delete Muslim voters, and the use of political power to influence adjudicatory processes under the SIR. The SIR also revives questions regarding the independence of the Election Commission of India (discussed on this blog here). This post does not deal these issues. Instead, it focuses on the doctrinal arguments for invalidating the SIR notifications in the case reserved for judgment by the Supreme Court.
Statutory Scheme for Revision of Rolls
Under s 21 of the Representation of the People Act 1950 (‘RPA’), the Election Commission of India (‘ECI’) is tasked with maintaining updated electoral rolls in “each constituency” in the country. Section 21(2)(a) states that rolls shall be revised “in the prescribed manner” before each general election to the Lok Sabha or State Legislative Assembly and before each bye-election. The use of the phrase “in the prescribed manner” makes it clear that the rolls shall be revised in accordance with statutory rules under the RPA, namely the Registration of Electors Rules 1960 (‘Registration Rules’).
The key provisions concerning the SIR are ss 21(2)(b) and 21(3), and they are worth setting out in full. Section 21(2)(b) states that the electoral roll:
“shall be revised in any year in the prescribed manner by reference to the qualifying date if such revision has been directed by the Election Commission”
While s 21(3) states:
“Notwithstanding anything contained in sub-section (2), the Election Commission may at any time, for reasons to be recorded, direct a special revision of the electoral roll for any constituency or any part of a constituency in such manner as it may think fit:”
Both ss 21(2)(b) and 21(3) empower the ECI to revise the rolls at any time. However, s 21(2) requires the rolls to be revised according to the Registration Rules (“in the prescribed manner”) while s 21(3) omits this requirement. However, the power in s 21(3) is qualified in three distinct ways. First, the process under s 21(3) is referred to as a “special” revision, indicating the power is an exceptional one. Second, while s 21(2), by reference to s 21(1), refers to revision of rolls in “each constituency”, s 21(3) refers to revisions in “any constituency or any part of a constituency,” implying a geographic limitation, i.e., the power is not for every constituency. Third, s 21(3) requires the ECI to justify its reasons for invoking the provision in writing.
Also note that s 21(3) refers to a “special revision”, but the current exercise is titled a “special intensive revision.” The distinction between a regular revision of rolls and an intensive revision of rolls is found in the Registration Rules. Rule 25(1) states that a revision of rolls “under sub-section (2) of section 21” shall either be a summary revision or an intensive revision, or a part summary part intensive revision. Rule 25(2) states that an intensive revision is the preparation of rolls “afresh” (i.e., discarding existing rolls). The Rule also states that when rolls are revised intensively, Rules 4-23 of the Registration Rules apply. Rules 4-23 set out the various procedures and safeguards the ECI and its agents must abide by when revising rolls.
The Present SIR Exercise
It is important to recognise that the SIR notifications (first for Bihar and then other states) lay down their own process for the revision of rolls. The notifications make references to the RPA and Registration Rules, but also make crucial deviations from them. For example, r 8 of the Registration Rules empowers Election Registration Officers (‘EROs’) to send out and require people to fill out Form 4s. These Forms require only three details: (i) name; (ii) name of father/mother/spouse; and (iii) age. Further, Form 4s require the filler to self-declare their citizenship, with the onus on EROs to subsequently verify suspect cases.
This stands in stark contrast to the SIR notifications under which all electors are required to fill out enumeration forms, and failure to submit these forms results in exclusion from the roll. The notification states, “in case enumeration form is not submitted before [date], the name of the elector can not be included in the draft rolls.” Further, all voters registered after the last intensive revision in the State (2003 in Bihar) must submit additional documentation demonstrating citizenship. Nowhere do the Registration Rules, whether the revision is regular or intensive, contemplate citizens’ exclusion from the rolls for failure to submit Form 4s or an enumeration form, and past ECI guidelines placed the onus on Commission staff to go door-to-door to verify voters. Thus, the SIR notifications contemplate a materially different, and considerably more exclusionary, process than the Registration Rules.
Questions raised by the SIR
The ECI acknowledges that the SIR process is different from the regular revision of rolls ordinarily carried out by the Commission. However, it justifies this novel procedure on the grounds that: (i) art 324 of the Constitution gives it inherent and free-standing powers to ensure the integrity of the voting rolls; and (ii) as the SIR is conducted under s 21(3) of the RPA, the ECI is free to devise its own procedures and the Registration Rules do not strictly apply.
This raises the two questions. First, can the ECI directly rely on art 324 of the Constitution as a source of power for the SIR exercise? Second, can the ECI rely on s 21(3) of the RPA at any point? Or must revision of rolls ordinarily be under s 21(2) and s 21(3) only invoked in exceptional circumstances? And is the pan-India SIR such an exceptional circumstance? Beyond this, there is a third question that must be answered, which is, even if the ECI can resort to s 21(3) to create a new procedure for revising rolls, does this new procedure comply with Constitutional Fundamental Rights and administrative law standards applicable to discretionary State action? These questions are at the heart of the legality and constitutionality of the SIR.
The ECI’s powers under art 324
The ECI’s arguments regarding art 324 can be taken at two levels. The maximalist argument would be that the SIR exercise is carried out entirely under art 324 of the Constitution, which tasks the ECI with “superintendence, direction and control of the preparation of the electoral rolls…”, and thus statutory text and rules are irrelevant. However, this legal position was squarely rejected by the Constitution Bench in Mohinder Singh Gill v. Chief Election Commissioner (1977).
Justice Krishna Iyer observed that while art 324 does empower the ECI to supervise the conduct of elections, art 327 read with entry 72 (List I) of the Seventh Schedule empowers Parliament to enact electoral laws while entry 37 (List II) empowers state legislatures to enact electoral laws. This constitutional scheme led the Court to conclude that if Parliament or a state legislature has passed a law, the ECI must comply with it, and the Commission can only rely on art 324 in “areas left unoccupied by legislation.” This position has been consistently reiterated by the Supreme Court, in cases such as Kanhiyalal Omar v. R K Trivedi (1985), Digvijay Mote v. Union (1993), Kuldip Nayar v. Union (2006), and PIF v. Union (2018). Thus, the ECI cannot rely on art 324 to override existing statutory procedures governing the revision of rolls.
A subtler reading of the ECI’s position would be that the ECI is embarking on a novel exercise (i.e. the pan-India SIR) and because existing statutory procedures do not cover all aspects necessary to undertake such an exercise, the ECI can resort to art 324 to fill in the gaps within existing statutory procedures. The problem with this argument is that, as shown above, the SIR Notifications do not fill in the gaps within existing statutory procedure, but rather create a novel procedure of their own. The RPA and Registration Rules expressly contemplate an intensive revision for “each constituency” that the SIR departs from. Further, in AC Jose v. Sivan Pillai (1984), the Supreme Court expressly found that the ECI cannot authorise new conduct through notifications where the field was already covered by statute, and subsequently claim that the pre-existing statutory procedure did not cover the new conduct, thus warranting resort to art 324’s residuary powers.
In AC Jose, the ECI issued a notification authorising the use of electronic voting machines. At the time, neither the Representation of the People Act 1951 nor the Conduct of Election Rules 1961 authorised the use of voting machines. The Court struck down the ECI’s notification and directed re-polling wherever voting machines had been used. Overruling the High Court judgment that upheld the ECI’s notification, the Supreme Court observed,
“The High Court fell into an obvious fallacy by acceptance of the position that the direction of the Commission was intended to operate in an uncovered field. When the Act and Rules prescribe a particular method of voting, the Commission could not innovate a new method and contend that the use of the mechanical process was not covered by the existing law and, therefore, did not come into conflict with the law in this field.”
Parliament subsequently amended the statute and rules to expressly permit the ECI to conduct elections using electronic voting machines.
The RPA and Registration Rules are an existing statutory framework covering the field of revision of electoral rolls, including intensive revisions. The doctrinal position makes it amply clear that the ECI cannot rely on art 324 to either override this framework or create a novel process and then argue that the existing framework does not cover the new process. If the ECI was truly of the belief that existing procedures could not support a pan-India SIR, Parliament should revise the law. But the ECI cannot supplant the existing statutory scheme for revision of rolls under art 324.
Reliance on s 21(3) of the RPA
In addition to art 324, the ECI also argued that it is justified in diverging from the Registration Rules because s 21(3) of the RPA empowers the Commission to conduct a special revision “as it may think fit” and not in “the prescribed manner.” It is true that s 21(3) clearly grants greater procedural discretion to the ECI in how to carry out the special revision. But as noted above, s 21(3) is an exceptional power, to be applied across a limited area, and justified by reference to written reasons.
Reading the ss 21(2)(b) and 21(3) together makes it clear that these are not two parallel procedures that the ECI is free to choose from at will. Section 21(2)(b) is the ordinary procedure where the Registration Rules unquestionably apply, and s 21(3) is a limited exceptional power to address circumstances that cannot be dealt with under s 21(2). If Parliament wanted to allow the ECI to regulate its own procedures for revision of rolls, it would not have insisted that the revision of rolls under s 21(2) be carried out “in the prescribed manner.” Crucially, if Parliament wanted to allow the ECI unfettered discretion to choose between ss 21(2) and 21(3), it would not have required the ECI to justify its reasons for invoking s 21(3). This makes it clear that there is a legal burden that the ECI must meet before being entitled to resort to the exceptional powers under s 21(3) and create its own procedures for the revision of the rolls. The fact that the ECI has sought to rely on this exceptional power to revise every roll in the country only raises the bar for its justification, as this requires showing why in no part of the country is the ordinary process of roll revision viable.
This brings us to the current SIR. During oral arguments, the ECI repeatedly stressed that because the current exercise was an intensive revision, it warranted novel procedures, including excluding citizens from rolls if they did not fill out enumeration forms. However, the r 25 of the Registration Rules expressly contemplates an intensive revision under s 21(2) of the RPA, dispelling the notion that it is the intensive nature of the revision that warrants resort to the exceptional powers under s 21(3). In fact, the ECI would have been better placed to conduct the entire pan-India SIR under s 21(2)(b) as the provision deals with the preparation of rolls for “each constituency” and the ECI would not have to argue that the words “any constituency” in s 21(3) can include all constituencies. However, if the ECI had conducted the SIR under s 21(2)(b), they would have had to do so “in the prescribed manner” and could not have resorted to the exclusionary enumeration forms.
The ECI’s notification discloses two further potential justifications for the current SIR: (i) rapid urbanisation and frequent migration; and (ii) the need to verify citizenship. The problem here is that Rule 21A of the Registration Rules expressly grants EROs the power to investigate and delete names of persons who are dead, not living in the constituency, or not entitled to be registered (which could plausibly include not being citizens). If s 21(3) ought to be invoked only in the face of circumstances where existing procedures are inadequate, domestic migration and international immigration are not such circumstances. Both phenomena are longstanding and ongoing, and the ECI has carried out innumerable roll revisions in accordance with the Registration Rules despite these phenomena.
The ECI’s reasons for why it needs to deviate from existing statutory procedure and resort to the exceptional power under s 21(3) simply do not pass muster. What we have here is an exercise that, for all intents and purposes, could have been carried out under s 21(2)(b) and the Registration Rules, making the use of s 21(3) unjustified. Put more cynically, the only reason for the ECI to resort to s 21(3) was for it to circumvent complying with the Registration Rules.
Judicial Review Beyond the Statute
The decisions in Mohinder Singh Gill, and more recently in ECI v. Ashok Kumar (2000), clearly establish that the Commission’s powers, whether under art 324 powers or statute, are subject to judicial review on Fundamental Rights and administrative law grounds. Thus, even if the ECI can resort to both art 324 and/or s 21(3) of the RPA, this still leaves the question of whether the ECI’s actions comply with these legal standards.
During oral arguments, the Petitioners argued that the SIR notifications, by presumptively excluding all existing voters unless they submit an enumeration form, violate the precedent in Lal Babu Hussein v ERO (1995). The case concerned an ECI notification requiring EROs to verify the citizenship of individuals based on reports collected by the police. Several of these reports cast doubts on the citizenship of individuals and recommended their removal from the rolls. The Three-Judge Bench of the Supreme Court observed that names were being struck off the rolls based on unquestioned reliance on the police reports and without a notice and hearing being provided to the voters, despite their names being present on prior voting rolls. This led the Three-Judge Bench to hold that where:
“the name is already entered [on the voter roll], it must be presumed that before entering his name the officer concerned must have gone through the procedural requirements under the statute. This would be so even if we invoke Section 114(e) of the Evidence Act. But then possibilities of mistakes cannot be ruled out. These mistakes, if any, would have to be corrected […] after giving the person concerned a reasonable opportunity of being heard.”
The Court further held that the person whose name is sought to be removed on the ground that they are not a citizen must be informed of the basis on which their citizenship has been doubted. The effect of Lalu Babu Hussein is that where a person has already been included on the voter rolls, and their name is sought to be deleted, they must be given notice of why their name is sought to be deleted and a hearing to argue against deletion.
The SIR notification runs afoul of this precedent by providing for the automatic deletion of all individuals who do not submit the enumeration form. It stands to reason that if a person cannot be excluded from the voter roll mechanically, even where they may not be a citizen, they cannot be excluded from the roll mechanically for no reason whatsoever (other than not filling out a form). If the ECI believed that certain voters were non-citizens or no longer residing in the constituency, EROs should have sent notices to only these individuals, rather than presumptively deleting any person who did not submit the enumeration form with appropriate documentation.
In addition to Lal Babu Hussein, the SIR also engages art 14 (the right to equality) in notable ways. The notifications differentiate between citizens who were added to the rolls during the last intensive revision (2003 in Bihar) and voters who were added to the rolls subsequently through ordinary revisions. The latter class are required to submit various government documents with their enumeration forms, while the former class only have to submit enumeration forms. The ECI justified this differentiation by arguing that voters added pursuant to the previous intensive revision enjoy a “presumption of citizenship”, while those added subsequently do not. In West Bengal, the ECI further differentiated between voters, sending voters with “logical discrepancies” notices for additional verification. The discrepancies included situations such as where more than six voters added after the last intensive revision had a common parent.
Now the right to equality requires (i) that the State make a classification using intelligible differentia; and (ii) the classification has a reasonable nexus with the object of the State’s action. As noted above, the SIR makes various distinctions between voters, arguably on intelligible differentia. The ECI’s stated objective for the SIR is to ensure the integrity of the electoral rolls in the face of domestic migration by citizens and international immigration by non-citizens. This leaves the question of whether the distinctions made by the ECI have a nexus with the Commission’s stated aims.
On citizenship: As noted in Lal Babu Hussein, the fact that a person is already on the electoral roll creates a presumption that they were added correctly and are citizens, a presumption that can only be displaced by an investigation and a hearing. Therefore, the ECI cannot suggest that the citizenship of those added to the rolls after 2003 is somehow less secure than those added prior to 2003, especially as it was the ECI itself that added these voters to the rolls after 2003. Therefore, it cannot be said that the ECI’s differentiation of pre and post 2003 voters has any reasonable nexus with the goal of eliminating non-citizens from the rolls as all voters on the rolls enjoy the same presumption of validity. In other words, there is nothing about post-2003 voters that makes their citizenship more legally suspect. Further, the list of documents the ECI requires post-2003 voters to furnish are themselves not definitive proof of citizenship. They include documents such as: (i) identify card of a government office; (ii) matriculation certificates; (iii) family register; and (iv) land allotment certificates by governments. Thus, even the ECI’s heightened scrutiny of post-2003 voters cannot be justified vis-à-vis citizenship tests. In this light, the SIR looks more like a restrictive voter-ID law to disenfranchise marginalised groups than a bona-fide exercise to ensure the integrity of the voter rolls.
On migration and discrepancies: The ECI’s justification for differentiating between pre and post 2003 voters is even less reasonable with respect to its stated aims of addressing voter migration. The ECI has led no evidence that voters registered prior to 2003 are less likely to migrate out of the constituency than newer voters. In fact, one would assume that the most recently registered voters are the least likely to have migrated out of the constituency. Yet, the ECI has placed greater burdens on these newer voters.
The above analysis applies equally to the distinction between voters falling within the ECI’s logical discrepancy lists and those falling outside these lists. There is absolutely nothing to suggest that voters who are one amongst several siblings are either less likely to be citizens or more likely to have migrated and thus warrant greater scrutiny. Thus, even if the Supreme Court were to find that the ECI has carte blanche powers under art 324 and s 21(3) of the RPA, the SIR notification would still violate existing Supreme Court precedent and the right to equality.
Conclusion
As noted at the start of this piece, many of the problems flowing from the SIR are not legal. As the previous post observed, the Supreme Court has itself (erroneously) spent much time addressing numerous operational and political problems stemming from the SIR. This includes passing truly sweeping directions, such as requiring West Bengal’s judicial officers to deal with SIR claims, leading to a slowdown in the regular administration of justice across the state. However, as this post demonstrates, the SIR does suffer from significant legal infirmities that warrant its invalidation. In striking down the SIR, the Supreme Court can put an end not just to the legal controversies but also to the administrative, political, religious, and very human problems created by an ill-timed, ill-conceived, and illegal exercise.