At the heart of the Bihar SIR dispute is the basic natural justice principle: hear a person before causing harm
Here, the 'person' concerned are the 65 lakh voters 'deleted' from the draft electoral roll published by the Election Commission of India (ECI) on August 1. The 'interest', or more aptly put, the Constitutional right involved is the entitlement to remain in the constituency's electoral roll.
The Supreme Court Bench of Justices Surya Kant and Joymalya Bagchi has repeatedly asked in the ongoing hearing whether the challenge to the SIR is about the legality of its procedure or the very power of the ECI to conduct the exercise.
Petitioners have responded that the 'illegality' of the procedure — to 'presumptively exclude' existing electors until they bring proof of their citizenship; the en bloc deletion of lakhs of voters without holding a prior enquiry by the Election Registration Officer (ERO); the absence of a reasonable opportunity to hear electors after providing them with reasons for suspecting they were not Indian citizens — amounted to a 'casual' exercise of the ECI's considerable power to control the electoral roll under Article 324 of the Constitution.
There are stringent standards and procedures set out by statutory laws to guide the ECI on the registration of names in the electoral rolls. These laws balance out the ECI's power of superintendence over elections under Article 324 with the ordinary citizens' or the 'little man's' right to vote enshrined in Article 326 of the Constitution and Section 62 of the Representation of the People (RP) Act.
Section 16 of the RP Act prescribes three reasons for disqualifying a person for registration in an electoral roll. They are non-citizenship, unsound mind and corruption/offences related to elections. Section 22 empowers an ERO to delete an elector from the rolls after holding an enquiry.
Also Read | What happens to 'missing names' on Bihar SIR list?
The elector in question 'must' be given an opportunity to be heard, except in the case of death. Similarly, Rule 21A of the Registration of Electors Rules of 1960 also empowers the ECI to delete existing names from electoral rolls. Again, the procedure for removal must conform to principles of natural justice.
No name will be deleted without notice, says ECI on Bihar SIR
The Supreme Court, in Lal Babu Hussein versus ERO, a 1995 case law which is the focus of the current hearing, has divided electors into two categories — first-time electors and existing electors. That is, those whose names are to be entered on the rolls for the first time and those who have their names already in the voters' list of a constituency.
The Supreme Court held the ECI is not wrong to demand evidence of Indian citizenship from first-time electors.
However, in the case of existing electors, the court observed that 'it must be presumed that before entering his name the officer concerned must have gone through the procedural requirements under the statute'.
Bihar SIR row: ECI lacks authority to determine citizenship
The Bihar draft roll has deleted voters who had participated in multiple elections over the past 22 years. In some cases, petitioners claimed electors were deleted from the rolls on the mere ground that local Booth Level Officers did not recommend their names to continue. Now, the burden is squarely on them to prove their citizenship to the ECI with just two months left for the Assembly elections in November.
In Lal Babu Hussein, the apex court said the 'opportunity' given to an existing voter to be heard before deletion of her name must be a 'meaningful and purposive one'.
'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,' the Supreme Court has held.
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