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The heart of the legal challenge surrounding the Bihar Special Intensive Revision (SIR) lies in a fundamental principle of natural justice: the right to be heard before any action is taken that could potentially cause harm. In this specific case, the 'person' at the center of the controversy are the approximately 6.5 million voters whose names were 'deleted' from the draft electoral roll published by the Election Commission of India (ECI) on August 1st. The 'interest' at stake is nothing less than the constitutional right to remain on the electoral roll of their respective constituencies, a right integral to democratic participation. The Supreme Court Bench, composed of Justices Surya Kant and Joymalya Bagchi, during the ongoing hearings, has repeatedly probed whether the core issue of the challenge to the SIR is the legality of the procedure employed or the very authority of the ECI to undertake such an exercise. The petitioners in this case have argued that the “illegality” of the procedure – specifically, the 'presumptive exclusion' of existing electors who are compelled to present proof of their citizenship, the wholesale deletion of vast numbers of voters without any prior inquiry conducted by the Election Registration Officer (ERO), and the denial of a reasonable opportunity for electors to be heard after being given reasons for suspecting that they are not Indian citizens – effectively amounts to a 'casual' and arbitrary exercise of the ECI's considerable power to oversee and control the electoral roll under Article 324 of the Constitution. This highlights the critical balance between the ECI's responsibility to maintain accurate and legitimate electoral rolls and the individual citizen's fundamental right to participate in the democratic process through voting.
Statutory laws establish stringent standards and procedures that serve as guidelines for the ECI in the process of registering names in the electoral rolls. These laws are designed to ensure a delicate balance between the ECI's constitutional power of superintendence over elections, as stipulated in Article 324, and the fundamental rights of ordinary citizens, often referred to as the 'little man,' to exercise their right to vote, a right enshrined in Article 326 of the Constitution and Section 62 of the Representation of the People (RP) Act. Section 16 of the RP Act meticulously outlines three specific reasons for which a person can be disqualified from being registered in an electoral roll. These reasons are non-citizenship, unsound mind, and involvement in corruption or offences related to elections. Section 22 further empowers an ERO to delete an elector's name from the rolls, but only after conducting a thorough inquiry. Crucially, the elector in question 'must' be provided with an opportunity to be heard, except in cases of death. Similarly, Rule 21A of the Registration of Electors Rules of 1960 grants the ECI the authority to remove existing names from electoral rolls. However, this power is not unfettered; the procedure for removal must strictly adhere to the principles of natural justice, ensuring fairness and transparency. The ECI itself has stated that no name will be deleted without proper notice being given to the elector, reinforcing the importance of due process in these matters. This emphasis on adherence to due process and natural justice underscores the legal system's commitment to protecting the voting rights of all citizens and preventing arbitrary disenfranchisement.
The Supreme Court's ruling in the case of Lal Babu Hussein versus ERO, a 1995 case that serves as a focal point in the current hearing, has categorized electors into two distinct groups: first-time electors and existing electors. First-time electors are those whose names are being entered onto the rolls for the first time, while existing electors are those whose names are already present on the voters' list of a particular constituency. In its judgment, the Supreme Court affirmed that the ECI is not acting improperly in demanding evidence of Indian citizenship from individuals who are registering as first-time electors. The rationale behind this is that it is a necessary step to verify eligibility and prevent fraudulent registrations. However, in the case of existing electors, the court made a crucial observation: 'it must be presumed that before entering his name the officer concerned must have gone through the procedural requirements under the statute'. This presumption places a significant burden on the ECI when it comes to removing existing voters from the rolls, as it acknowledges that the initial registration process should have already established their eligibility. The ongoing Bihar case involves the deletion of voters who have participated in multiple elections over the past 22 years, which raises serious questions about the justification for suddenly questioning their citizenship status. In some instances, petitioners have alleged that electors were removed from the rolls simply because local Booth Level Officers did not recommend that their names be continued, without any further investigation or due process. This practice places the onus squarely on the affected voters to prove their citizenship to the ECI, and they are now faced with the daunting task of doing so with only two months remaining before the Assembly elections in November.
The Supreme Court, in Lal Babu Hussein, has emphasized that the “opportunity” given to an existing voter to be heard before their name is deleted from the electoral roll must be a “meaningful and purposive one”. This means that simply providing a formal notice is not sufficient; the elector must be given a genuine opportunity to understand the reasons for the proposed deletion and to present evidence and arguments to counter those reasons. As the Supreme Court held, 'It goes without saying that the person concerned whose name is borne on the roll and is intended to be removed must be informed why a suspicion has arisen in regard to his status as a citizen of India so that he may be able to show that the basis for the suspicion is ill founded. Unless the basis for the doubt is disclosed, it would not be possible for the person to remove the doubt and explain any circumstance or circumstances responsible for the doubt.' This principle highlights the importance of transparency and fairness in the electoral process and underscores the need for the ECI to provide clear and specific reasons for questioning the citizenship of existing voters. The ECI’s actions in Bihar are being scrutinized in light of these established legal principles, with the court seeking to ensure that the rights of voters are adequately protected and that the electoral process is conducted in a fair and impartial manner, adhering to the principles of natural justice and due process. The outcome of this case will have significant implications for the integrity of the electoral rolls and the protection of voter rights across India.
The legal challenge to the Bihar SIR underscores the inherent tension between the ECI's mandate to maintain accurate and legitimate electoral rolls and the fundamental rights of citizens to participate in the democratic process through voting. The court's emphasis on the principles of natural justice and the need for a 'meaningful and purposive' opportunity to be heard before deleting an existing voter's name highlights the importance of due process and transparency in electoral administration. The presumption that existing voters have already been vetted for citizenship during their initial registration places a significant burden on the ECI to justify any subsequent challenges to their eligibility. The allegations of arbitrary deletions based on mere recommendations from local officials further raise concerns about the fairness and impartiality of the process. The ongoing legal battle is therefore not just about the specifics of the Bihar SIR but also about upholding the constitutional rights of voters and ensuring that the electoral process is conducted in a manner that is consistent with the principles of natural justice and due process. The Supreme Court's scrutiny of the ECI's actions serves as a reminder of the importance of safeguarding the integrity of the electoral rolls and protecting the voting rights of all citizens. The ultimate resolution of this case will have far-reaching implications for electoral administration and the protection of voter rights throughout India.