Calling it a “constitutional mandate”, the Supreme Court (SC) on Thursday refused to stop the Election Commission of India (ECI) from proceeding with the Special Intensive Revision (SIR) of electoral rolls in poll-bound Bihar.

Questioning the timing of the exercise, a two-judge bench of Justice Sudhanshu Dhulia and Justice Joymalya Bagchi, however, asked the poll body to consider Aadhaar, voter ID and ration cards for the purpose of updating the rolls, but left it to the discretion of the ECI whether to accept or reject them.

The court said this after Senior Advocate Rakesh Dwivedi, appearing for the ECI, submitted that the list of 11 documents to be considered for the revision exercise is not exhaustive. Noting that none of the petitioners, including leaders of 10 Opposition parties, prayed for an interim stay of the poll panel’s exercise, the bench sought response on the batch of petitions and posted the hearing on July 28, before the draft electoral roll is published.

“We are also of the considered view that the matter needs a hearing. Therefore, let it be fixed before the appropriate bench on July 28. Meanwhile, the counter affidavit will be filed by the election commission within one week from today, that is, on or before July 21, and a rejoinder, if any, be filed before July 28,” it added.

Intensive revision refers to the de novo preparation of the electoral roll from scratch through personal, house-to-house field verification by electoral registration officers. Under the Bihar SIR, those who were on the 2003 electoral rolls need only submit an extract from it as proof, while others (enrolled after 2003) must provide one or more documents from a list of 11 (along with a pre-filled enumeration form for existing electors) to establish their date and, or place of birth — which, in turn, is used to determine citizenship.

The ECI also justified the exercise and said Aadhaar wasn’t a “proof of citizenship”. The top court questioned Dwivedi over the exclusion of Aadhaar card in the SIR drive in Bihar and said the ECI had nothing to do with citizenship of a person and it was the Ministry of Home Affairs’ domain.

Dwivedi responded while referring to Article 326 of the Constitution and said every voter has to be an Indian citizen and “Aadhaar card is not proof of citizenship”. Justice Dhulia said, “If you are to check citizenship under SIR of electoral rolls in Bihar, then you should have acted early; it is a bit late.”

Dwivedi said 60 per cent of voters had verified their credentials and assured the court none of the voter’s names will be removed from the electoral rolls, without giving them a hearing. “We cannot stop a constitutional body from doing what it is supposed to do. Simultaneously, we will not let them do what they are not supposed to do,” the bench said.

In its order, the apex court said : “After hearing both sides, we are of the prima facie opinion that three questions are involved in this case: (a) The very powers of the election commission who under take the exercise, (b) the procedure and the manner in which the exercise is being undertaken, and (c) the timing, including the timings given for preparation of draft electoral rolls, asking objections and making the final electoral roll, which is very short considering the fact that Bihar elections are due in November…”

The top court said : “… Mr Rakesh Dwivedi himself has pointed out that the list of documents which are to be considered by the Election Commission for verification of a voter includes 11 documents, but the list is not exhaustive… therefore, in our view, since the list is not exhaustive… it would be in the interest of justice that the election commission will also consider the following 3 documents such as the Aadhaar card, the EC voter ID card (EPIC card) which is issued by ECI, and ration card as this itself will satisfy most of the petitioners.”

Dwivedi said the order mentioning additional documents may create hurdles as the process is already underway. He said it was not necessary to name the additional documents. But Justice Dhulia said, “We are saying it’s up to you to consider it. If you have good reasons to discard it, discard it, give reasons.” The petitioners said they are not pressing for an interim stay at this stage as the draft electoral rolls are to be published only on August 1.

Dwivedi said the petitioners had clearly asked for an interim stay and, therefore, the court should make it clear that ECI can go ahead with the process. “We have said it. You go on,” Justice Dhulia remarked.

BJP, Opposition hail SC decision

While the BJP on Thursday hailed the Supreme Court decision allowing the Election Commission to continue with the Special Intensive Revision of the electoral rolls in Bihar, the Congress said the top court’s suggestion to the poll body to allow Aadhaar cards, voter-ID cards and ration cards in the exercise was a “relief for democracy” and a “significant advance” in the case.

The JD(U), headed by Bihar Chief Minister Nitish Kumar, however, claimed that the court’s observations on a bunch of petitions against the special intensive revision of electoral rolls were tantamount to a rap on the knuckles for the opposition.

The Communist Party of India (Marxist-Leninist) said that the court order “corroborates the basic fears and objections of the electorate” reflected in the bunch of petitions that sought an interim stay on the Election Commission’s exercise.

BJP MP and the party’s national spokesperson Rajiv Pratap Rudy said that the special intensive revision in Bihar was to ensure that only eligible voters could exercise their franchise. “It’s the Election Commission’s constitutional right,” the MP from Bihar’s Saran Lok Sabha seat said. “The Opposition parties had approached the Supreme Court on the issue. But, the apex court did not stay the process. It’s a major setback to the political parties which started this campaign (against the revision of electoral rolls in Bihar),” Rudy said, when asked for a comment.

These opposition parties must now be scared and have started sensing their defeat in the upcoming Bihar elections, the former Union minister said. “They should work hard enough to get (woo) their voters… rather than coming out crying that their voters are being removed.”

Congress general secretary organisation, K C Venugopal said the court asking the EC to allow Aadhaar cards, ration cards and voter-ID cards for the identification of voters during the special exercise is in itself a big thing. “That itself is the biggest thing coming from the Supreme Court. The Supreme Court has given its view through that to ensure that Aadhaar cards, ration cards and election-ID cards should be part of a verification process in a democratic set up. I think the EC will go with that suggestion of the Supreme Court. Let us wait for that,” the Congress leader said.

JD(U) national spokesman Rajiv Ranjan Prasad said that the exercise was receiving “enthusiastic response”, and it would be over before the next date of hearing, July 28. Yesterday, opposition leaders, including Rahul Gandhi and Tejashwi Yadav, in a way tried to put pressure on the Apex Court. They have got a rap on the knuckles,” Prasad said. The JD(U) leader alleged that the opposition had been questioning the authority of the Election Commission “even though its powers are defined clearly in the Constitution”.

A statement issued by the party’s general secretary Dipankar Bhattacharya said, “The Supreme Court, in its order, has taken note of the fundamental constitutional and legal anomalies and improprieties underlying the EC’s sudden SIR campaign in Bihar and also the logistical issues and inconvenience being experienced by common voters of Bihar. In this sense, the SC order corroborates the basic fears and objections of the electorate reflected in the bunch of petitions being heard by the apex court.”

Bhattacharya, who is one of the petitioners who moved the top court, seeking direction for stopping the EC’s exercise, said : “The Supreme Court advise given to the EC to include Aadhaar, voter card and ration card in the acceptable list of documents in the interest of justice voices the common demand of every voter on the ground. The SC hearing should also take note of two most basic worries expressed by the Bihar electorate on the basis of the actual experience of the first fifteen days of the SIR drive in Bihar. Most electors are complaining about non-receipt of any acknowledgement about the enumeration forms being submitted.”