The Supreme Court on Wednesday, observing that “no power can be untrammelled”, said the revision of electoral rolls can have serious civil consequences for individuals whose names are not included in the voters’ list.
The remarks came from a bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi during the final hearing on a batch of petitions challenging the Election Commission’s decision to undertake a Special Intensive Revision (SIR) of electoral rolls in several states, including Bihar.
As the bench heard detailed submissions from senior advocate Rakesh Dwivedi, appearing for the Election Commission, it examined whether the SIR exercise could move away from the procedures laid down under the Representation of the People Act, 1950 and the rules framed under it.
Raising concerns, the Chief Justice said the revision of electoral rolls can have serious civil consequences for individuals whose names are not included in the voters’ list.
“If something affects the civil rights of people, why should not the process followed be in accordance with sub-section (2)?” the CJI asked, referring to Section 21 of the 1950 Act, which governs the preparation and revision of electoral rolls.
Section 21 of the Act deals with the power of the Election Commission to prepare and revise electoral rolls.
Sub-section (2) states: “The said electoral roll shall, unless otherwise directed by the Election Commission for reasons to be recorded in writing, be revised in the prescribed manner by reference to the qualifying date before each general election to the House of the People or to the Legislative Assembly of a State; and before each bye-election to fill a casual vacancy in a seat allotted to the constituency; and 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: Provided that if the electoral roll is not revised as aforesaid, the validity or continued operation of the said electoral roll shall not thereby be affected.’”
Justice Bagchi echoed the concern, questioning whether the Election Commission could exercise an “untrammelled” power beyond judicial review.
Referring to the statutory scheme, he noted that one of the rules contemplates that when an intensive revision is carried out, electoral rolls are prepared afresh, and asked whether such safeguards could be bypassed.
“No power can be untrammelled,” Justice Bagchi said.
Dwivedi relied on sub-section (3) of Section 21 in defence, which reads: “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 part of a constituency in such manner as it may think fit:
‘Provided that subject to the other provisions of this Act, the electoral roll for the constituency, as in force at the time of the issue of any such direction, shall continue to be in force until the completion of the special revision so directed.’”
Dwivedi argued that Section 21(3) confers a distinct and independent power on the Commission to order special revisions, separate from the routine revisions under Sections 21(1) and 21(2).
“My submission is that sub-sections (2) and (3) of Section 21 do not operate in the same domain,” he said.
The Chief Justice posed a pointed query, asking whether, if Section 21(2) enables the Commission to go beyond the rules, the Election Commission could also exempt itself from its own notified procedures when conducting an SIR under Section 21(3).
Justice Bagchi questioned the nature of the inquiry under Sections 21(2) and 21(3), especially on documentary requirements.
He pointed out that while Form 6 prescribes seven documents, the SIR process requires 11, and asked whether the Commission could add to or remove documents from the prescribed list and exclude Form 6 documents altogether.
Dwivedi maintained that the statutory language allowed such flexibility and that the power to deviate from the rules was implicit in Section 21(3).
He added that the Commission could not act arbitrarily and would have to satisfy the court that the process was just, fair and transparent, keeping Article 326 of the Constitution in mind.
The petitions before the court include a lead plea by the NGO Association for Democratic Reforms (ADR), which questions the legality and constitutionality of the SIR exercise.
The petitioners have raised concerns about the scope of the Election Commission’s powers, the determination of citizenship for electoral purposes and the possibility of disenfranchisement.
The hearing remained inconclusive and will continue on Thursday.
Earlier, on January 20, the Election Commission told the Supreme Court that its SIR order was legislative in nature, laying down guiding principles and prescribing documents, and that it was generally applicable across the country, except in Assam.