A troubling nod for electoral exclusion

Legitimising the SIR ignores mass voter disenfranchisement. The Supreme Court’s endorsement of the ECI’s sweeping powers and institutional expertise risks weakening democratic accountability

The Supreme Court’s verdict on the contentious Special Intensive Revision (SIR) of electoral rolls, designed and conducted by the Election Commission of India (ECI), is disappointing because it upholds in principle and practice an undemocratic and largely exclusionary process. The Court validated almost every position and argument of the Commission, which will now consider the ruling a justification for the procedures it adopted for the revision. This is an ex post facto vindication of an ill-conceived process, but the ruling is not entirely surprising because the Court, even during the hearing, did not appear to question SIR’s validity. It did not reject the process, even when its questions were not convincingly answered or when its suggestions were not implemented. Notably, it intervened in the West Bengal situation by appointing judicial officers and appellate tribunals to adjudicate the exclusions. Given that the Court directed the redress mechanism, it could not have faulted the process.

About 59 million names have been deleted from electoral rolls in the SIR undertaken in 13 states and UTs; elections have been held in some of these states. The ECI is set to expand the process across the country. The top court’s ruling now backs its power to conduct the roll revision. The Court held that the process does not violate the provisions of the Representation of the People Act, 1950, and the Registration of Electors Rules, 1960. Two conclusions of the Court stand out. One is that the right to vote is not absolute and can be subject to reasonable regulatory conditions. The other is that the ECI possesses constitutional authority to undertake a “limited enquiry into citizenship” for electoral purposes. The limitation will not constrain the ECI because it will not affect its procedures and decisions relevant to the electoral rolls. The Court said the Ministry of Home Affairs (MHA) would decide on citizenship if a dispute arises. It also said people excluded from the rolls could seek a judicial review of the ECI’s decision. But when voters are removed from the rolls for citizenship-related or other reasons, how many can approach the MHA or the courts for redress? This alternative must also be seen in the context of the MHA’s limitations in handling a large number of grievances within a deadline. By propounding these ideas, the Court has vested the ECI with powers that may be used to divest voters or citizens of their rights. By holding that inclusion in the electoral rolls may have “a presumption of validity” and that such presumption is “rebuttable,” the Court has validated the exclusion of lakhs of voters. A process which should be citizen-centric will now be controlled by the ECI.

Approving the objective and design of SIR, the Court held that the revision “bears a direct nexus to the constitutional goal of a free and fair election.” This is selective reading. It is difficult to imagine a process that excluded lakhs of people from the rolls and denied them their voting right to promote free and fair polls. The Court also said it was convinced that “the material on record indicates that the scale of the problem” identified by the ECI was “systemic in nature, arising from cumulative inaccuracies over an extended period.” It said this needed a comprehensive SIR because “such a problem does not readily admit of piecemeal solutions.” However, questions remain: Why was the exercise not undertaken in most states well ahead of the elections? How did it exclude so many people? Why could corrections not be done in time?

While stating that “the process, as initially designed, did raise legitimate concerns regarding documentation, transparency, and access,” the Court held that a series of judicial interventions “progressively infused the process with safeguards.” However, it has upheld the ECI’s powers to decide on the documentation required for inclusion. SIR held in multiple states revealed that large sections of people, especially the poor, do not have documentary evidence of identity and residence. The safeguards the Court mentioned do not exist for many. The Court said, “The post-exercise data placed on record does not disclose a level of disenfranchisement so widespread or systemic as to indicate a constitutional infirmity in the design of the exercise.” There are at least 27 lakh reasons to counter this statement. The Court decided against supplanting its judgment “in matters that concern the implementation of an exercise” for which the ECI is endowed with “institutional expertise.” The issue before the Court was that the ECI’s expertise and authority were not properly used in the implementation of SIR. The Court was called upon to make a judgment on the matter, and it refused. This amounts to saying that the ECI’s actions are right and cannot be challenged because it has institutional expertise.

The ruling emboldens the Commission, which will now implement the revision with greater assertion in the coming months. It can now dismiss complaints and criticism as baseless. The government and the ruling Bharatiya Janata Party (BJP) will support the exercise as a legitimate action to rid India of infiltrators and illegal immigrants, though the exercise has yet to identify these elements in large numbers. The principle behind the revision of electoral rolls is credible. It is the procedures, the timing, and the ECI’s conduct that raise questions. By endorsing a faulty process in the name of principle, the Supreme Court has done a disservice to the country’s electoral democracy.