Critical Analysis Of Supreme Court's Approach To WB SIR Exercise

The Supreme Court's recent hearings on the West Bengal Special Intensive Revision (SIR) exercise raise fundamental concerns. At the centre of the controversy is the large-scale deletion of over 27 lakh voters, many of whom claim to have been previously included in the 2002 electoral rolls, coupled with the system's inability to rectify the genuine exclusions before the polling dates.

The Court allowed the SIR exercise to take place even though it was too close to the assembly elections. The introduction of sweeping changes, e.g. the introduction of the so-called Logical Discrepancy (LD) List and the use of micro-observers, at such a late stage, should have required a much greater explanation on the part of the Election Commission of India (ECI) in view of the magnitude and impacts of the exercise.

Revisions of the electoral roll, at this magnitude, are not the order of the day. They have a direct influence on the franchise. The lack of proactive judicial review at this point raises a question of whether a proper application of mind was attached to the risk of mass exclusion.

The law regarding the presumption of the genuineness of a voter mapped in an earlier voter list is ignored

One of the important principles of law laid down in Lal Babu Hussein v. Electoral Registration Officer, 1995 SCC (3) 100 seems to have been ignored in this whole process. In Lal Babu Hussein (supra), the Supreme Court held that the inclusion in an earlier electoral roll brings about a presumption that the person is a real voter; the supposition cannot be easily dispossessed. Rather, the burden to discredit the voter's inclusion in the list lies with the party objecting to the inclusion.

This principle seems to be inverted throughout with the SIR exercise. Voters already registered on the electoral roll- particularly those mapped in 2002- were put under scrutiny, and were asked to prove their inclusion in opposition to a law laid down in Lal Babu Hussein (supra).

Ground reality shows arbitrary exclusions and reversals

The systemic defects in SIR are not only hypothetical but are supported by real-life examples. The fact that a former judge of the Calcutta High Court, Justice Sahidullah Munshi, and his family members were not included in the electoral roll depicts how arbitrary the process was. Later on, he and his family members were included in the list. It raises a pertinent question: when people with known public records and verifiable credentials can be deleted, this casts serious doubts on the reliability of the entire exercise.

Similarly, the case of Congress candidate Motab Shaikh, whose name was initially deleted but later restored after the Appellate Tribunal set aside his exclusion. The Appellate Tribunal noted that the ECI could not furnish the reasons for Shaikh's deletion, though he had Passport, Driving License and Passport. Such reversals indicate that the original deletion process often suffered from a lack of proper application of mind, casting serious doubt on its credibility and suggesting that the exercise may, in many instances, have been carried out in a mechanical manner.

These cases support the point that an assumption of validity as accepted in Lal Babu Hussein (supra) is being undermined in practice.

The court acknowledges the infallibility of the verification mechanism, but fails to provide a significant remedy to voters

During the course of hearings, Justice Bagchi remarked that even a 70 percent accuracy rate in the adjudication process would be considered excellent, considering the work load of the judicial officers tasked with humungous mission to dispose of lakhs of matters within days. This could mean that at least a substantial number of over 60 lakh cases sent for adjudication would be erroneous deletions. So, the logical step should have been to ensure that the appeals are decided at the earliest.

However, it would be unrealistic to expect the 19 appellate tribunals to dispose of the 34.35 lakh appeals before April 23. Despite being faced with his reality, the Court flatly refused to allow voting rights for at least those persons, who were mapped in the previous rolls.

This forms a paradox in that the system acknowledges that it is fallible whilst refusing to provide any significant remedy to the voters unfairly deleted from the rolls.

Concerns regarding electoral legitimacy

An important concern was raised by Justice Joymalya Bagchi that the large-scale voter exclusion could impact the electoral legitimacy, especially in cases where the margins are going to be narrow. In essence, Justice Bagchi cautioned the Election Commission regarding a scenario where the win margin is less than the percentage of the excluded voters.

However, this gives rise to a contradiction. When the Court acknowledges that election outcomes might be constitutionally suspect because of these types of exclusions, would it not be better to avert the outcome? Instead of scrutinising the ECI's decision to hold this exercise close to the polls, the Court itself drove the process by deploying judicial officers.

Thus, the Court has found itself unable to extricate itself from the quagmire it has entered.

The Court's approach reflects a cautious judicial stance that, in this context, appears inadequate to address the scale of the problem. While Justice Bagchi's observations articulate the constitutional stakes, they remain expressions of concern rather than catalysts for corrective action.

Views Expressed Are Personal

(The author is a Supreme Court Correspondent at Live Law. He can be reached at yash@livelaw.in)