‘EC exposed, but no fresh ground to challenge SIR’: Lawyers on legal fallout of IE report

Days after The Indian Express investigation, the Election Commission’s decision to introduce an additional declaration for new voters applying through form 6 has come under fresh scrutiny, with two petitions filed in the Supreme Court and the Bombay High Court. 

The paper had reported that Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi had raised objections to several EC decisions, including changes to form 6. They had said these changes should have come after amendments to the Registration of Electors Rules. The paper had earlier reported that the ECINET portal had added a declaration asking new voters whether their names or that of their parents or grandparents existed in the last special intensive revision’s electoral roll.

Advocate Shailendra Mani Tripathi has filed a PIL before the Supreme Court PIL seeking the restoration of the original form 6 and an SIT probe into exclusion of voters – the court is set to hear it next week. Ratnagiri resident Prathamesh Gavankar and others have filed a petition before the Bombay High Court challenging changes to form 6 and seeking a judicial probe.

But these petitions are not the only challenge to the process. 

There have been other legal battles over the SIR. One of them, the Bihar SIR challenge, has already been decided. Though the Supreme Court is still hearing SIR-related proceedings concerning West Bengal and Delhi.

Does The Indian Express report change anything for these legal tussles?

Newslaundry spoke to senior lawyers who represented petitioners in these states, including Prashant Bhushan (represented RTI activists and civil liberty groups in Delhi), Menaka Guruswamy (TMC in West Bengal), Shyam Diwan (Mamata Banerjee), Gopal Sankaranarayanan (electoral transparency outfit ADR) and Abhishek Manu Singhvi (opposition parties and civil society groups). 

While they questioned the legality of the changes to form 6, at least two of them said The Indian Express report gives no fresh ground to challenge SIR’s legality. Though they agreed, the findings reinforce concerns over how the process has been implemented.

‘EC cannot change a statutory form’

Prashant Bhushan said the EC did not have the authority to alter a statutory form on its own. He also questioned the decision to make voters establish their connection with the electoral rolls of 2002.

Bhushan said the basic requirements for being a voter are that a person should be above 18, ordinarily reside at the place where they seek registration and declare themselves to be an Indian citizen.

“There is no need or no requirement to prove your mapping from 2002,” he said. 

According to Bhushan, if the other two election commissioners had objected to the change, a decision taken despite their objections would raise a separate question about the statutory requirement of collective decision-making by the multi-member commission.

‘Where do you get this power from?’

Menaka Guruswamy, TMC Rajya Sabha MP and senior advocate who represented the party in the SIR cases, questioned both the requirement of 2002 mapping and the authority to impose the additional declaration.

“I think it's a flawed formula to use the 2002 rolls simply because there have been multiple elections that have been conducted subsequent to that where voters have voted,” Guruswamy said.

The problem, according to her, is particularly acute for younger voters and people who have moved within the country over the past two decades. A voter who was not on the electoral roll in 2002, or whose family cannot be traced to that roll, may nevertheless have voted in several subsequent elections. “Lots of young voters are not mapped, lots of people migrate internally within the country,” she said.

Guruswamy questioned whether the absence of a voter’s name, or that of their family, from the 2002 roll could be used as a basis for imposing an additional burden on someone seeking inclusion. Guruswamy also argued that the passage of more than two decades makes the earlier roll an especially problematic reference point for new voters.

“There is nothing in the Representation of People’s Act, which enables you to encumber a voter with this new form 6. Where do you get this power from?” she said, adding the issue had been raised repeatedly during the SIR litigation in different states.

Singhvi: ‘Can the EC change Form 6? No’

Abhishek Manu Singhvi said the EC lacks the authority to make the change. “Can the Election Commission change form 6? The answer is no,” he said.The authority to make such a change lies with the government under the statutory framework, he said.

Singhvi said the additional requirement had a direct bearing on young people applying to become voters for the first time. “When today’s young men turn 18 and apply to become voters, they duly acknowledge that, ‘Sir, you have a profession, you reside in this house, your residence is here, you hold degrees, you have an Aadhaar card – everything is in order.’ But you cannot apply on this portal until you state whether your grandfather or grandmother, or mother or father, were included in that old SIR or not,” he said. “Where is this written in form 6?” 

Singhvi also questioned the consequences of linking new voters to the 2002 electoral rolls, particularly for those who are entering the electorate for the first time. The question, he said, was not simply whether an applicant could provide the information, but why such information should be required before a person could apply to become a voter through form 6.

‘IE report doesn’t open up any additional ground’

Asked whether The Indian Express investigation opens up any new legal remedy or whether the SIR process can now be stopped, Singhvi said, “It is not right to put so much pressure on one organ. The Supreme Court has already given a lot of time to the SIR and is still giving it time. But as far as accountability is concerned, who has to resign voluntarily? That is for the Chief Election Commissioner to decide. Who has the power to remove him? That is for the government to decide. We will do what our job is.”

Shyam Diwan said, “I don’t think what’s coming out of The Indian Express report is some additional ground of challenge”, but the significance of the investigation lay in what it revealed about concerns within the commission itself. “I think the report, in its own way, emphasises the concerns which people have and exposes how hollow this entire manner of going about revising a roll has been.”

Gopal Sankaranarayanan echoed this, “unless we can show that the initial SIR decision itself, which is what we are challenging as illegal, and where the Supreme Court’s judgment had come against us, was taken without the consensus of the commission”.

“At no stage does it appear, even from The Indian Express reports, that the other two Election Commissioners are saying, ‘Don’t have an SIR.’ It is only regarding the modalities of how to implement the SIR that there apparently are some so-called dissents.”

The issue of ECINET was also among those raised in the Indian Express investigation, which reported objections by the two Election Commissioners concerning the central software and the management of electoral-roll data.

These lawyers also raised concerns about the centralisation of electoral-roll management through ECINET.

Singhvi said the electoral system was designed to ensure that control over voter lists remained decentralised. “Its architecture, its design was created in such a way that no single individual in this country could control the voter list, be it the prime minister or the president,” Singhvi said. 

Bhushan said the Election Commission's software cannot take away the statutory authority of Electoral Registration Officers. “It is totally illegal and malafide,” he said.

Guruswamy similarly argued that technology cannot become a substitute for the statutory decision-making structure. 

EC now sets up panel to review ECINET

The Election Commission, meanwhile, has defended its process and rejected the suggestion that its decisions were taken by only one member of the commission. The EC said its decisions were unanimous and that differing views during deliberations were part of the decision-making process.

On September 26, the Commission announced a series of decisions on SIR and ECINET. It said field officers have role-based access to ECINET according to their statutory powers and announced a committee headed by a senior deputy election commissioner, with an independent IIT or IIIT expert, to review whether the system complies with the relevant laws and rules.

The commission also clarified its position on form 6. It said the declaration attached to form 6 for SIR had been upheld by the Supreme Court and that the forms prescribed under the Registration of Electors Rules, 1960 would be used for periods other than SIR.

The courts will now have to consider that distinction alongside the broader questions raised by the petitions, including whether the commission's decision-making complied with the law governing its multi-member structure, whether the 2002 mapping requirement can be imposed on new voters and whether the technology used to manage electoral rolls was altered or can alter the statutory powers assigned to Electoral Registration Officers.

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