Thread by @LiveLawIndia

#SupremeCourt hearing the batch of pleas challenging the SIR across various states.

Bench: Chief Justice of India Surya Kant and Justice Joymalya Bagchi.

Court hearing a plea that seeks regular SIR of the electoral roll.

Counsel for petitioner: Franchise is only available to the citizens. Parliament has taken a conscious decision with a clear understanding there is entry of foreigners of huge number and that is the purpose of amendment of the Citizenship Act

Counsel: it is the constitutional duty of the Election Commission of India to ensure that citizens alone or in the electoral roll. Article 355 says that the Union of India has the duty to protect every state against external aggression and internal disturbance.

Counsel: India has a massive illegal migration from the neighbouring countries especially after Indo Pak war and the creation of Bangladesh which has changed the demography

Counsel: anybody who is residing in India is eligible for Aadhar. Aadhar number aur authentication does not by itself confer any right or proof of citizenship or of domicile

Counsel: it was never stipulated that it can be used for any of the three purposes for which electoral roll is required to be submitted namely citizenship date of birth or ordinary residence.

Counsel: Aadhar is issued by privately run Aadhaar centres. It cannot be relevant document for SIR.

J Bagchi: do you know even your Passport is also or outsourced to a private company?

Counsel: but Aadhar does not require any authentication.

J Bagchi: any document can be forged even the passport can be forged. While issuing Aadhar the private person is performing a public duty.

Counsel: I am not on forgery. Aadhar is Aadhar can be genuinely issued but there is no control. A person can get a certificate from municipal corporation and Aadhar is issued.

J Bagchi: Aadhar is an acknowledged document of Identity. We have never said that Aadhar can be used as basis of citizenship. Always said that the ECI can verify the Aadhar

J Bagchi: These 11 documents need not always be a clear relation to citizenship but they may be of various species which would ordinary relate to what the purpose with the election commission fixed to serve in exercise this its plenary powers that has been argued by ECI. Your argument is actually going cross purposes with the election commission's view.

Counsel: Aadhar can only be for preventing duplication.

Counsel: the deletion has been across party lines. Parties have won because of this. It cannot be said that it has been done to favour a political party. Every political party has won because of the difference in the deletion of the SIR. There cannot be imputed motive to the ECI

Senior Advocate Vijay Hansaria is appearing for the petitioner.

J Bagchi: you are seeking the regular SIR. the ground of your petition is illegal migration. Show us one word illegal migration in the SR which is before us in judicial review. You are creating a requirement for SIR for illegal migration

J Bagchi: the Election Commission says yes, we will do it.

Senior Advocate Kapil Sibal: let's look at article 324 and 326. Nobody can dispute that the process of election is under the control of the election commission. The question is how transparent is that control. Is it a rule based procedure? It is an administrative act and every administrative act must be based on reason.

Sibal: so far as article 324 is concerned we have no problems. We are challenging the procedure through which all this has been done.

Sibal reads Article 326 of the Constitution.

Sibal: under the rules of business it is the ministry of home affairs department of internal security which deals with issues of citizenship. The entire field is occupied under the authority of the central government as per the constitution.

Sibal: who decides that a person is not a citizen of India. The Government of India. It can't be decided by the commission because the power to grant something includes the power to withdraw it.

Sibal: If someone questions my citizenship there is Form 7. Then he has to give proof.

J Bagchi: in such situation who decides Central Government or the ECI?

Sibal: Central Government obviously, because it cannot be taken away.

Sibal: Now see Form 7. Onus to give proof to substantiate the reason given for objection or removal of the name lies with the applicant.

Sibal: let's assume for the moment that the yaro can decide. So on the day I lose my citizenship?

J Bagchi: No, you lose you right to be in the electoral roll.

Sibal: my lord is putting to me that ERO has the right to decide that I am not a citizen of India for the purpose of excluding me

J Bagchi: ultimate adjudication lies under the citizenship act with the government. The ECI's answer was since the constitutional power of preparation of roll vests with them it would definitely have plenary power over the right to determination

Sibal: if I don't have a birth certificate will the ERO say that you don't have a birth certificate you are prima facie to be removed from the electoral roll?

J Bagchi: That may be wrong. But it is two distinct aspects. One is the existence of the power and another is the exercise

Sibal: your lordships are assuming that there is existence of power because the election commission is preparing the electoral roll. Can the ERO say that you don't have birth certificate to prima facie you are not a citizen India and I will remove you?

Sibal: after 2003 they are asking for the parents documents. Those would be very rare cases where somebody citizenship will be question very very rare. But here it is happening on a daily basis. 1.82 Crore people's citizenship is being question what is the basis of that?

Sibal: how many persons are how many legal migrants are found where all the exercise was done. Not one. Therefore the initial apprehension ultimately may not prove to be correct.

Sibal: a process of this nature should have an application of mind giving reasons as to why this has become necessary.

Sibal: there must be some data with the election commission after all it is a constitutional body which should have enough data to demonstrate to the court. But are they doing that? Correction of electoral roll is one thing but deletion of names is quiet another. You can have mass delicious in this fashion.

Bench: correction is inherently deletion and addition.

Sibal: that is an exercise that the election commission has done on a yearly basis. If they still need a wholesale special and intensive revision they must place before your lordships the data.

Sibal: I am not disputing that somebody may question my citizenship. It is not our case that every person on the electoral roll is a citizen of India and his citizenship cannot be doubted. You can doubt it but then you must have reasons which are germane to the Citizenship Act.

Sibal: I am trying to convey the enormity of the exercise. How can an ERO decide that unless ERO has some evidence for each elector that one of his parents was an illegal migrant? It is impossible and yet you are deleting crores of names.

Sibal: this judgement of yours will decide the future of democracy in India. This is not some ordinary decision. These are not exercises can that can be done overnight. They cannot be done few days before the election or 2 months before the election

Sibal: they are saying 'we are Election Commission of India why would be do anything wrong you must trust us Ultimately somebody has to trust us.' I am not disputing that but why was this exercise not done earlier much before the elections were to take place?

Sibal: my lords have asked me why my name cannot be deleted from the electoral roll? Section 16 has the answer. It says a person can be disqualified for registration in an electoral roll if he is not a citizen of India. That decision cannot be by the ERO according to us

Sibal: according to me personally the concept of the power to exercise the right to say that you are not a citizen of India is not vested in the election commission at all. it can doubt it and send it to the appropriate authority of the Government of India and the Government of India can decide that

Sibal: J Bagchi has been asking why no one has complained. My lords after the election is over who complaints nobody complaints. That is a practical way of looking

Bench: so much for a valuable right

Sibal: people get resigned. They believe that this is their fate and nothing more they can do about it and lakhs and lakhs of people just give up

Senior Advocate Gopal Sankarnarayanan: once you are on the electoral roll certain rights are recruit to you. Can those rights being anyway taken away? It has one your right to vote but also on a practical level our ECI cards is the only evidence of citizenship that many adult Indians have in the largest degree of coverage. 90% TO 93% of our country relies heavily on these. Passports have about a 5 to 7% coverage but that will include children as well

Sankarnarayanan: what SIR has done at least in Bihar is created a cut off date in 2003 and set that those after that will have the onus shifted to them to prove all those aspects which are required for registration all over again. These people who have participated already in at least 5 elections and voted find themselves being told that you have to prove that you are in fact citizens

Sankarnarayanan: representation of peoples act has to be raid in light of articles 326 and 327 with 327 being subject to 326. Stands on a week legal 14 for the following reasons-

The right to vote is a constitutional right.

Sankarnarayanan: representation of peoples act has to be read in light of articles 326 and 327 with 327 being subject to 326. Stands on a week legal footing for the following reasons-

The right to vote is a constitutional right.

Sankarnarayanan: Mr. Dwivedi said he is not disputing that. If you are not disputing that as the election commission then a constitutional right which is available to a person who is already on the roll has been taken away without amending the constitution or the representation of People Act 1950 and 1951, without bringing any rules, without issuing any of the orders which are apparently available to you under article 324

Sankarnarayanan: ECI issued an office order in July last year and told us that it is going to Undertake the exercise for the entire country. Their argument is that it has plenery powers under article 324. Then why bother interpreting section 21 of RoPA?

Political activist Yogendra Yadav (one of the petitioners) addresses the Court -

ECI has not disputed any fact, source or method that I have brought to the attention of this court.

Yadav: on the first day I had said that there are three things that we must judge jaisa yaar again. Completely equity and accuracy. These are the global standards of any electoral roll. On completeness my argument was that SIR has resulted in a sharp decline in electoral population ratio indicating that there is structural design defect and it is not accidental.

Yadav: the problem is not in doing any revision which must happen but the kind of revision that is happening. Wherever in the world you take this design it would lead to disenfranchisement. They say that I have been relying on population projections of 2019 not of 2020. They are absolutely right. There was a subsequent projection of 2020 but I think eci forgot to mention then both these are identical. The commission also says that these are near estimates.

Yadav: slight duplication cannot be 80 lakh people. Incidently the errors that happened in the census estimates are errors about birth rate. In this case we are not dealing with birth rate because everyone that years picking about was on census in 2011 so no estimate of birth rate is required its only death that we are looking at.

Yadav: they say that Bihar CP ratio had acceded 100 in 2022. But it had already come down through the normal process of annual revision from 106 to 97. I want to demonstrate the design effect. Every single state where as SIR has gone the voters proportion is fallen substantially low the population ratio. It is not an accident.

Yadav: lord ships absolutely right about migration. Bihar is out migration state. UP is out migration state along according to the NITI aayog Tamil Nadu and Gujarat in migration States. Bihar and UP are losing people but why is Tamil Nadu now losing 97 lakh why is Gujarat losing 74 lakh? It has nothing to do with migration it is a straight forward case of design flaw

J Bagchi: maybe a case of duplication because these are receptor States. So it is possible that these people have been registered in both the rolls.

Yadav: That's the whole point of reference to the population ratio. Unless the whole country is migrating to the USA all the states cannot lose that's the point time making. Every single state is losing except Assam where SIR was not done

Yadav: my second point is about equity. I had said whenever you take SIR women would be thrown out of the voter list disproportionately. This is exactly what happened. Election Commission owes an explanation why is it that every single state you go and do SIR the gender ratio falls?

Yadav: 60 lakh women have been additionally thrown out. 6 crore people have already been excluded but the disproportionate explosion of women because of the designed defect is 60 lakh. I made the point about Muslims being disproportionately excluded. ECI said communal approach should be deprecated. It is the eci that should be deprecated. It is the ECIs language in the order that 15800 voters of 1 particular community have been excluded. This is an unacceptable therefore we are looking into it. If looking at community is deprecated I am afraid eci will have to deprecate it's on records

Yadav: my third point is about accuracy. I am not saying that SIR has led to loss of accuracy we do not know that yet. We will get to know only much later. Only point I have made is that it does not seem to have improved accuracy

Yadav: the last point is about eci scheme that their current any appeals. That is just a play on English language. They say no aggrieved individual approached this court alleging non inclusion due to lack of documents. No individual approached because by then your lordship had ordered Aadhar Card for acceptance. So the issue was sorted.

Yadav: after the draft list was released 3.66 lakh voters were deleted in ECI language that's the only deletion because they do not recognise the remaining 65 lakh as deletion at all.

Yadav: that 3.66 lakh cannot be used to say that there were no appeals for the remaining 69 lakhs.

Even in the 3.66 lakh there were large number of unjustified deletions.

Yadav: There was no formal appeal but people did go to the ECI to get the names included and their names were also included. But their option was do you want to get your name included or file an appeal. So they just wanted to get their names included

Yadav: large number of names were wrongly excluded and then they were included again even in those 3.66 lakh but no formal appeal was made because that avenue was blocked.

Yadav: For the other 65 lakh, ECI says there were 36,475 claims for inclusion. That is not a correct figure because ECI does not have any mechanism to find out when someone is applying for Form 6 whether it is a new person or an excluded person who is coming back

Yadav: we ran on the computer these 65 lakh names and searched how many of these names were back in the final roll by which river mechanism. 2,97,000 names were excluded which were on the final roll of Bihar. How? The person goes to the BLO saying that his name is not there. So the BLO gives him the form and the person registers as a new voter.

Yadav: ECI data tells us that 21 lakh new voters were registered because they became eligible to vote. Out of those how many were actually 18 to 19 years old? Only 19.5% according to ECI. 80% were outside the age in which they should have used the Form 6 to register

Yadav: I am not saying that all the 80% persons are excluded people trying to come back but that the idea that there was no appeal is absolutely false. We have lakhs of documented cases where they did not find formal appeal, they were wrongly excluded, they tried mechanisms, and the only available mechanism to them they adopted and they got in.

Matter to continue tomorrow.