'Voters Sandwiched Between Constitutional Authorities', Says SC But Refuses To Hear Plea Against Bengal SIR Voter Deletion

New Delhi: The Supreme Court on Monday refused to hear a petition filed by some voters in West Bengal whose names have been deleted from the electoral rolls after the Special Intensive Revision (SIR) and said the apprehensions expressed by them in the petition were "premature".

A bench headed by Chief Justice of India (CJI) Surya Kant and Justice Joymalya Bagchi, after hearing the submissions, observed: "Since the petitioners have already approached the appellate tribunals… in our considered view, the apprehensions expressed in the petition are premature. If the plea is allowed, then necessary consequences will follow."

The bench pointed out that the judicial officers had not recorded reasons for rejection, adding that it cannot doubt them. The apex court also clarified that it has "not expressed any views on the merits of the plea", while directing the aggrieved parties to approach the established appellate tribunals. The writ petition was filed by Quaraisha Yeasmin and others regarding the deletion of their names from the rolls after SIR.

Two-phase Assembly polls are set to take place on April 23 and 29 in West Bengal. Making some strong oral observations, the bench said that the SIR in West Bengal has sandwiched voters between different constitutional authorities.

It also observed that the "logical discrepancy" list of doubtful voters was created by the Election Commission of India (ECI) only for West Bengal, adding, "The right to vote in a country where you are born is something which is not only constitutional, it is sentimental."

When senior advocate D S Naidu, representing the ECI, said that in West Bengal, judicial officers had rejected 47 per cent of cases they had adjudicated from the notices issued by the poll body, Justice Bagchi observed that this was "not a fight between the State and the ECI, nor a blame game, yet voters are being sandwiched between different constitutional authorities".

However, he added that unless there is an enormous number of voters who are excluded, the election results cannot be interfered with. He orally observed, "If 10 per cent of the electorate does not vote, and the winning margin is more than 10 per cent, then what will happen?"

Justice Bagchi further said, "Suppose the margin is 2 per cent, and 15 per cent of the mapped electorate could not vote, then maybe we are not expressing any opinion. But we would definitely have to apply our minds."

The bench observed that when it permitted the ECI to go into the issue of the purity of electoral rolls, it was implicit in the original poll panel notification on SIR that the 2002 list would not be touched.

"When the Bihar SIR was argued, submissions of ECI were unequivocal that 2002 list members need not give any document. Please see your written submissions in the Bihar case. You said the 2002 electorate need not give documents. But your logical discrepancy rejection touched people who relate to people in the 2002 list. 2002 list is the benchmark. Please ensure that you don't delete the 2002 list members in your final list," Justice Bagchi said.

When in response, ECI counsel Naidu said people still have to prove that they are the same person as in the 2002 list, Justice Bagchi said, "Now you are improvising the submissions which you made earlier."

He also observed that the purpose of the court must be enabling and not an adjudicatory exercise to decide who is right and who is wrong. He said the very spirit of the court’s hands-off approach, citing previous judgments, is that in every case, the courts have intervened to promote a fair election and not to interdict an election.

“Deploy officers where there was a trust deficit between the State and the constitutional entity… These judicial officers will undertake a verification…. [with] the volume they had to do; there was always a chance of error. Just consider Mr Naidu, going through 1,000 documents a day. Speaking for myself, if the accuracy rate is 70 per cent, I'll rate the activity excellent. This is the pressure at which judicial officers have worked. There will always be a margin of error,” observed Justice Bagchi.

He said it is essential to have a robust appellate forum, and added that somewhere, we are getting blinded by the dust and fury of an impending election. “The right to remain on a roll, right to vote in a country where you are born is something which is not only constitutional, it is sentimental. It is the biggest expression of nationality and patriotism that you are in a participative process…,” observed Justice Bagchi.

Naidu said his client has provided exclusion and inclusion statistics of all states subjected to SIR, and emphasised that West Bengal does not stand out in any manner.

In response, Justice Bagchi said, “Logical discrepancy has not been a category in other states. We have examined Bihar, we have found not a single person was flagged on logical discrepancy."

Naidu said Bihar, too, has exclusions, and not even a single appeal was filed. Justice Bagchi said, “For the appellate tribunal, this is not a competition between conflating or deflating electoral rolls. They have to hear it on the principles of inclusion.”

The petitioner’s counsel then said the ECI was not even placing orders before the appellate tribunal headed by Chief Justice (Retired) T S Sivanganam, and urged the bench to extend the freezing of the electoral roll. In response, the CJI asked the counsel to move the issue before the appellate tribunal.

The counsel then asked whether the appeals would be decided within a time frame. The bench asked if the counsel wanted it to put the former CJs and judges under pressure.

After hearing the submissions, the bench declined to entertain the plea regarding the appeal listed before the appellate tribunal, and pointed out that the judicial officers had not recorded reasons for rejection, adding that it cannot doubt the judicial officers.

SC Voices Reluctance To Permit Individuals Excluded From Electoral Rolls To Cast Their Vote

The apex court, while hearing pleas challenging the SIR in West Bengal, voiced reluctance to permit individuals excluded from the electoral rolls to cast their votes in the West Bengal assembly elections while their appeals remain pending before appellate tribunals.

It observed, “where is the question of voting and those have been allowed then we should stay that also." However, the bench indicated that it might consider the plea to allow the publication of supplementary rolls to include persons whose appeals are allowed before the assembly elections.

Senior advocate Kalyan Bandyopadhyay, representing one of the petitioners who challenged SIR in West Bengal, said an impression has been given that all pending cases have been adjudicated.

"On April 6, the voter list has been published in Raghunathganj constituency…all are under adjudication," he said. The bench pointed out that the list has only over 1800 voters. Bandyopadhyay said this is the first phase, and this one case has come to his knowledge, stressing that the case under adjudication is still pending.

Justice Bagchi noted that the persons whose claims were adjudicated by April 9, the date when the rolls were frozen, can vote on April 23.

Justice Bagchi said, "In 153 constituencies, the last date of nomination was April 6, and the list was published on the night of April 6. There was some spill over on April 7 or 8. Those names will be included in the electoral roll for the April 23 election….don't worry if their names are there, they will be voting”.

It was argued that 16 Lakhs appeals have been filed and it is not possible to dispose off these appeals. Bandyopadhyay stressed, "kindly allow to franchise their vote".

The CJI replied, "Where is the question of voting, those have been allowed, then we should stay that also". The bench said that as per the Chief Justice’s report as of April 11, there were over 34 Lakh appeals.

The CJI orally observed, "55% objections rejected. They have been included. The objectors have gone in appeal…they will ask for the same order. Therefore, we will get back to the same position before the appointment of the judicial officers".

Senior advocate Shyam Divan argued that if the appellate tribunals ,which have just started functioning, show substantial progress over the next week, then surely some supplementary list can be allowed. The bench said it is also conscious of that.

D S Naidu contended that let the appeals go on so that they have their right vindicated if at all they could. Bandyopadhyay said April 23 is the first election day and all those appeals pertaining to the first phase could be disposed of as far as possible by April 20.

The bench said it cannot create a situation where appellate tribunal judges are burdened and urged the senior counsel to see the second side. "There is an application wherever objections are rejected, and we have gone in appeal, don't allow them to vote. The same analogy can apply there; we have to balance," it said.

Bandyopadhyay said that the people of Bengal are looking towards the top court for relief. He added, "deprivations are so much….34 lakh appellants, they are genuine voters, that is the reason 34 Lakhs…they are looking towards you not the ECI".

NIA Submits Status Report

Meanwhile, the National Investigation Agency (NIA) submitted a status report in connection with its probe into the gherao of judicial officers in Malda district on April 1 by those protesting their deletion from the voter list. The bench asked the agency to inform it about the political background of the accused persons.

"We want to know if any of these people arrested had any political background. We don't want this to be an academic exercise. This has to be taken to a logical conclusion," said the bench.

Security Cover For Judicial Officers To Remain

It also made it clear that the security cover provided to judicial officers engaged in the SIR of electoral rolls will remain in place until the conclusion of the upcoming assembly election. The bench said that the security cannot be withdrawn without its prior permission.