Removal From Voters List Without Hearing The Person Is Arbitrary And Illegal : Kerala HC [Read Judgment]
The Court also held that the ECI cannot raise the defense that the person did not object when draft voters list was published.
In a significant judgment, the High Court of Kerala has ruled that a person should be given reasonable opportunity of hearing before removing his name from the voters list.
"the electoral registration officer is duty bound to give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken", held the Single Bench of Justice Shaji P Chaly.
The order was passed in a petition filed by one Subair challenging the removal of his name from the voters list in the recently held general elections. Subiar, a senior citizen, appeared in Court himself and said that he had been an ordinary resident of Thiruvananthapuram constituency ever since he had a voting right, and that his name was illegally removed from the voters list, depriving him of the right to vote in the Lok Sabha elections.
The Court referred to the proviso of Section 22 of the Representation of People Act 1950, which stated that the the electoral registration officer shall give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to correction of electoral list. The provision is "peremptory in nature", said the Court.
"the action or enquiry contemplated under Sec.22 of Act, 1950 is not an empty formality, but on the other hand, founded on principles of natural justice, which if violated, action becomes arbitrary and illegal inviting action against the officer concerned", added the Court.
Although the petitioner had approached the Court before the elections, the Election Commission of India informed the Court that there was a statutory bar to making inclusion in the voters list after the last date of making nominations. Despite the relief sought by the petitioner for voting in the Lok Sabha elections becoming infructous, the Court chose to proceed with the matter, considering the seriousness of the issue.
The Court found it "surprising" that only his name was struck off from the list, while the names of his wife and daughter remained in the list. It concluded that no "serious exercise" was taken by the officer before removing the petitioner's name from the list.
The Court directed the Election Commission to conduct a detailed enquiry into matter within two months and take appropriate action against the officials responsible for removing Subair's name from the list.
ECI cannot raise the defense that voter did not object to draft list
The Election Commission also stated that the petitioner had not raised any objections to the draft voters list published. The first draft was published in January 2018. This was followed by another revised draft which was published a year later. The final list was published on January 30, 2019. The petitioner did not make any objection to the deletion of his name at any stage, submitted the ECI.
However, the Court did not buy this argument, in view of the "peremptory nature" of proviso to Section 22 of RP Act, which casts a duty on the electoral officer to hear a person before removing his name from the list.
"It is also apposite to mention that, mere inaction on the part of the petitioner to restore the name removed from the voters list, is not a justification for removing the name, otherwise than in accordance with law", observed Justice Chaly in the judgment.