The Supreme Court cautioned that revision of electoral rolls can seriously affect civil rights if names are excluded from voters’ lists. Hearing challenges to the Election Commission’s SIR exercise, the Court said electoral powers cannot be “untrammelled” and must follow due process.
The Supreme Court of India on Wednesday made an important observation while hearing a batch of petitions challenging the Election Commission’s decision to conduct a Special Intensive Revision (SIR) of electoral rolls in several States, including Bihar.
The Court said that “no power can be untrammelled” and warned that revision of voters’ lists can have serious civil consequences for people whose names are left out.
The observations were made by a Bench comprising Surya Kant, Chief Justice of India, and Joymalya Bagchi during the final hearing of the matter.
While hearing detailed arguments from senior advocate Rakesh Dwivedi, who appeared for the Election Commission of India, the Bench closely examined whether the Special Intensive Revision exercise could be carried out by departing from the procedure laid down under the Representation of the People Act, 1950, and the rules framed under it.
Raising serious concerns, the Chief Justice underlined that revision of electoral rolls directly affects the civil rights of citizens. He observed that exclusion of a person’s name from the voters’ list can have far-reaching consequences.
Questioning the Election Commission’s approach, the Chief Justice asked,
“If something affects the civil rights of people, why should not the process followed be in accordance with sub-section (2)?”
The Chief Justice was referring to Section 21 of the Representation of the People Act, 1950, which governs the preparation and revision of electoral rolls. Section 21(2) specifically lays down the manner in which electoral rolls are to be revised before elections.
Section 21(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 supported the Chief Justice’s concern and questioned whether the Election Commission could exercise unchecked authority while conducting the Special Intensive Revision. Referring to the legal framework, he pointed out that the rules clearly provide safeguards, especially when an intensive revision is undertaken, which involves preparing electoral rolls afresh.
Justice Bagchi questioned whether such statutory safeguards could be bypassed and clearly remarked,
“No power can be untrammelled.”
In response, senior advocate Rakesh Dwivedi relied on Section 21(3) of the 1950 Act to defend the Election Commission’s authority. Section 21(3) 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) gives the Election Commission an independent and distinct power to order special revisions, separate from routine revisions under Sections 21(1) and 21(2). Explaining his position, he stated,
“My submission is that sub-sections (2) and (3) of Section 21 do not operate in the same domain.”
The Chief Justice then posed a sharp question to the Election Commission. He asked whether, if Section 21(3) allows deviation from the rules, the Commission could also exempt itself from its own notified procedures while conducting a Special Intensive Revision.
Justice Bagchi further questioned the nature of the inquiry carried out under Sections 21(2) and 21(3), especially with regard to documentary requirements.
He pointed out that while Form 6 prescribes seven documents for inclusion in electoral rolls, the SIR process demands 11 documents. He asked whether the Election Commission could add or remove documents from the prescribed list and even exclude Form 6 documents entirely.
Dwivedi maintained that the language of Section 21(3) allows such flexibility. According to him, the power to depart from the rules is implicit in the provision.
However, he also stated that the Commission could not act arbitrarily and would be required to satisfy the Court that the process was just, fair and transparent, keeping Article 326 of the Constitution in mind.
The batch of petitions includes a lead plea filed by the NGO Association for Democratic Reforms, which has challenged the legality and constitutionality of the Special Intensive Revision exercise.
The petitioners have raised concerns about the wide scope of the Election Commission’s powers, the manner in which citizenship is assessed for electoral purposes, and the risk of large-scale disenfranchisement of voters.
The hearing remained inconclusive on Wednesday and the Supreme Court will continue hearing the matter on Thursday.
Earlier, on January 20, the Election Commission informed the Supreme Court that its order directing the Special Intensive Revision was legislative in nature. It said the order laid down guiding principles, prescribed documents, and was generally applicable across the country, except in Assam.
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