Bihar SIR : Supreme Court Directs Free Legal Aid To File Appeals Against Exclusion From Electoral List

In the Bihar SIR matter, the Supreme Court on Thursday (October 9) passed an interim order to ensure free legal aid for persons excluded from the final voters' list so they can file appeals against their exclusion. A bench of Justice Surya Kant and Justice Joymalya Bagchi requested the Bihar State Legal Services Authority to issue necessary communication to the District Legal Services Authorities for ensuring the availability of paralegal volunteers and legal aid counsels who can assist the excluded persons in filing appeals."Since the time to file appeals is running short, we deem it appropriate, as an interim measure, to request the Executive Chairman, Bihar State Legal Services Authority, to send communication preferably today itself to all secretaries of DLSAs to provide services of paralegal volunteers, free legal aid counsels to assist excluded persons to file statutory appeals. Secretaries to immediately re-notify mobile numbers and full description of paralegal volunteers in each village, who in turn will contact the Booth Level Officers. They will collect information with respect to persons who have been excluded from the final list. Para Legal Volunteers would reach out to persons, informing them of their right to appeal. They will offer services to draft appeals and provide free legal aid counsel", the bench observed.It further clarified that the benefit of this order shall apply to even those persons whose names were not in the draft list.Election Commission refutes claims of illegal exclusionAt the outset of the hearing, Senior Advocate Rakesh Dwivedi, for the Election Commission of India, addressed an instance raised by petitioner-ADR regarding a person whose name was included in the draft list but deleted from the final list. Refuting the allegation, Dwivedi said that the person was not there in the draft list as he did not submit the enumeration form. Claiming that a false affidavit had been filed, which amounts to perjury, Dwivedi said, "the organization (ADR) must satisfy itself of the affidavit before throwing it on the Court".He added that there is still a window of five days available for the excluded persons to file appeals and said that the petitioners and political parties should rather help the affected parties in filing appeals.The bench, on its part, expressed displeasure with Advocate Prashant Bhushan (ADR's lawyer) for handing over the abovementioned person's affidavit without due verification. "The person should have disclosed correct information...we do not appreciate this", said Justice Kant. Justice Bagchi expressed a similar sentiment, saying that when a document was handed over across the Bar, there should have been more responsibility. Bhushan replied that the affidavit was handed over to him by a responsible person. He added that the Legal Service Authority could be asked to verify the genuineness of the affidavit.The counsel also said that there are similar affidavits given by 20 other persons. Justice Bagchi was however displeased, "After our experience with this affidavit, we don't know how authentic the others will be". The judge further remarked that ADR ought to have verified if the person was there in the draft list, before handing over the affidavit to the Court.At one point, Justice Kant asked the petitioners why aggrieved persons cannot avail the appellate remedies. In this regard, the judge assured that the Court could ensure free legal aid for the aggrieved by the Legal Services Authorities.Countering ADR's submissions, Dwivedi told the bench, "No elector has come to the Court saying they were not served with the order". He further said that if appeals are filed, they will be decided promptly.The Court also heard political activist Yogendra Yadav at length (report on his arguments can be found here). The matter will be next heard on October 16.Developments so farOn July 10, the Court passed an order directing the ECI to consider Aadhaar card, ration card and the EPIC as documents for inclusion in the voters list. On July 28, the Court refused to stop the ECI from publishing draft electoral rolls for Bihar on August 1. But, it orally told the ECI to atleast consider Aadhaar Card and EPIC. A day later, the Court was told that 65 lakh persons are likely to be excluded from the draft electoral rolls. In response, it orally said that if there is mass exclusion, it will step in.On August 6 (after the draft list was published), ADR filed an application alleging inter-alia that ECI had not disclosed details of the omitted 65 lakh voters. ECI filed its counter-affidavit in response.On August 12, the petitioners opened arguments, contending inter-alia that the Bihar SIR was illegal and the onus of proving citizenship cannot be shifted on voters/electors. On August 13, referring to Section 21(3) of the Representation of the People Act, 1950, the bench asked both sides whether ECI does not have residual power to conduct an exercise like Bihar SIR in a "manner it deemed...

Bihar SIR : Supreme Court Directs Free Legal Aid To File Appeals Against Exclusion From Electoral List

Debby Jain

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