'Malafide Intent,' 'ECI Can't Decide Citizenship': Lawyers on Bihar SIR in SC

"ECI is not following its own rules," argued Advocate Abhishek Manu Singhvi in the Supreme Court on Wednesday.

Advocates Abhishek Manu Singhvi, Prashant Bhushan and Kapil Sabil have been arguing against Bihar's SIR in the SC.

(Photo: Vibshushita Singh/The Quint)

For the second consecutive day, the Supreme Court on 13 August, heard arguments of petitioners in the pleas challenging the Election Commission's Special Intensive Revision (SIR) of electoral rolls in Bihar.

The matter was being heard by bench of Justice Surya Kant and Joymalya Bagchi. This comes a day after prominent senior Advocates such as Dr Abhishek Manu Singhvi, Kapil Sabil, and Prashant Bhushan called out the massive vote deletion and discrepancies in the EC's SIR process.

It must be noted that just three days ago, the ECI informed the apex court that it is not obligated under the applicable Rules to publish a separate list of persons who have been deleted from the draft roll.

On 13 August, appearing for the petitioners again, Advocate Singhvi pointed out that in cases when there's a doubt regarding citizenship, the ERO (Electoral Registration Officer) may consult relevant authorities, including the MHA before making a decision. Adding that EC swears by the Lal Babu Hussein case and must adhere to precedent set by the same.

ECI must follow procedure, its own procedure. This same thing happened in 2004. Arunachal and Maharashtra were exempted, while they went on for other states, because elections were round the corner. This (Bihar SIR) is the one time wonder when ECI is not following its own rules! You can't have a time-squeeze for such an important activity. We are seeking a stay.

Advocate Abhishek Manu Singhvi in SC, as per LiveLaw

On 'Acceptable' Identity Cards

"EPIC card is the best identity card, another is Aadhaar. What better cards could there be? Funny part is — EC's counter says 'cannot be ascertained'. Credit card is a great document, but what's the point of it in Bihar?" asked Singhvi.

He argued that in Bihar, there are under 4 crore birth certificates issued from 2001-24. Passport statistics stand at 36 lakhs, only about 1% of the 'voters' have a passport. This exercise is also skewed against women, he noted.

Talking about the rural, poverty-stricken and the flood-affected areas, he asked, "what's the point of making list of 11 documents for them?"

Advocate Singhvi continued, "It is admitted by ECI that 65 lakh voters are off the list, without any notice, document, form, these people declared off the list. X lakhs are dead, Y migrated and Z duplicated. Procedure nowhere in the Representation of the People Act, or anywhere. They don't ask for documents. Non-inclusion is a delightful word — it's de-facto deletion."

For the most part, Advocate Singhvi demanded as to why the SIR was being conducted just months before the Bihar Assembly polls.

Echoing similar statements, Advocate Prashant Bhushan also stated that a large number of people in Bihar don't have a single document, "only matriculation certificate is possessed by about 40% people...but in totality, more than 50% don't have a single document. Even assuming that 10% people are to be given notice, it means 30,000 people per constituency. They will hear, decide everyone in 20 working days?"

Meaning that the "ECI has already achieved fait accompli by finalizing roll in this completely arbitrary manner."

The malafide nature of what ECI is doing is clear from 4 things — (i) they earlier frowned upon such an exercise for other states (ii) their refusal to accept Aadhaar, ration, EPIC cards saying it's not evidence of citizenship (as if other documents are evidence of citizenship) (iii) their refusal to put out the names of 65 lakh persons deleted with reasons. They say they have given booth level list to some BLOs, why should voter have to go to them to find out if his name is deleted or not? (iv) earlier, draft roll was searchable, this was removed deliberately after 4 August so that nobody can search.

Advocate Prashant Bhushan in SC, as per LiveLaw

Meanwhile, also appearing for one of the main petitioners, ADR (Association for Democratic Reforms), Advocate Gopal Sankaranarayanan argued that ECI's own Act and Rules require them to consider Aadhar. "How do they wriggle out of it? My entitlement as a voter/elector once I am on the roll cannot be taken away," he remarked.

'Bihar SIR Biggest Disenfranchisement Exercise In The History of The World' 

Activist and psephologist Yogendra Yadav on 12 August, in one of the pleas, produced two persons two persons who have allegedly been declared dead in the ECI's draft electoral rolls.

The bench however, said that there may have been an "inadvertent error," which could be corrected.

Yadav, referring the bench's earlier assurance to step in if mass exclusion of voters takes place, he alleged that mass exclusion has already begun. He claimed that the number of voters likely to be excluded is much more than 65 lakhs and may increase to 1 crore if EC continues with the SIR.

One of the two people who have been reportedly declared dead, is forty-one-year-old Mintu Paswan, a resident of Bihar’s Ara assembly constituency in Bhojpur district.

Yesterday, senior Advocate Kapil Sibal, appearing for RJD MP Manoj Jha had also stated that the exclusion of 65 lakh voters from the draft electoral roll published on August 1, without any objection to their inclusion, is illegal. However, the bench observed that as per the Rules, the excluded persons have to submit applications for inclusion, and only then is anyone's objection considered.

Sibal reiterated that Bihar locals don't posses the documents they are being asked to show. He said that even persons who were in the 2003 roll, though not required to submit the documents, have to submit the enumeration forms.

"These are very poor people, they can't do it online. Why should the people who were in the 2003 roll be asked to give forms? If they don't, they are also excluded," said Sibal, reported LiveLaw.

Senior Advocate Rakesh Dwivedi, who appeared for the ECI, then clarified that persons who are in the 2003 list and their children need not submit any form and about 6.5 crore voters come in this category.

Dwivedi stated that the petitioners' arguments were mere "speculations" and requested to allow the ECI to complete the process.

Meanwhile Advocate Vrinda Grover argued that "ECI is trespassing into the domain of Parliament". She said that the ECI does not have the authority to specify that only certain documents can be accepted.

"Where does the power of the ECI come? This is an ultra vires exercise. Where is the Parliamentary process to specify the 11 documents?" Grover asked, as per LiveLaw.

Yesterday too, Advocate Singhvi said that emphasised that ECI's SIR is "an exercise reversing burden of proving citizenship."