New Delhi: In August 1992, when the country was opening its markets to the world, the Election Commission of India (ECI) issued a directive empowering collectors of all districts in India to determine if any person was a foreigner. A Supreme Court judgment from 1995 on petitions challenging this 1992 directive made its way back to the apex court last year.
In several of the petitions challenging the ECI’s Special Intensive Revision (SIR) of electoral rolls, this 1995 verdict—Lal Babu Hussein v. Electoral Registration Officer—became a significant plank for the petitioners’ arguments against the exercise.
The petitioners submitted that the Supreme Court had in 1995 taken objection to generalised removal of the petitioners who were voters in past elections, and them being asked to prove their eligibility to find their place back in the rolls.
“If any person whose citizenship is suspected is shown to have been included in the immediately preceding electoral roll, the Electoral Registration Officer or any other officer inquiring into the matter shall bear in mind that the entire gamut for inclusion of the name in the electoral roll must have been undertaken and hence adequate probative value be attached to that factum before issuance of notice and in subsequent proceeding,” the court observed in 1995.
Relying on the Supreme Court’s observations in the 1995 judgment, the petitioners had contended that by requiring already enrolled electors to re-establish their credentials through a fresh process, the SIR exercise reverses this settled presumption, and reserves the burden of proof on the electors to make their way back to the electoral rolls.
On Wednesday, the Supreme Court rejected these arguments and upheld the ECI’s powers to conduct the Special Intensive Revision, as well as the procedure adopted by the poll body. In doing so, the bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi opined that the 1995 judgment must be “confined to the context in which it was rendered”.
For the Supreme Court, what stood was the finding that the bench in the Lal Babu Hussein judgment was not looking into the scope of a systemic or intensive verification exercise undertaken by the ECI while discharging its constitutional mandate.
“The question whether the Commission could, in the larger interest of maintaining the purity and integrity of the electoral roll, require a re-verification of entries, even where such entries had been previously made, did not arise for consideration,” it observed.
Interpreting the 1995 judgment, the court also asserted that merely because a person’s name appears in a previous electoral roll, the presumption of its validity does not act as a “perpetual guarantee” against scrutiny, and that asking electors to furnish supporting material to find their way back to the electoral roll does not amount to reserving the burden of proof.
What was the story behind the 1995 judgment, what had the apex court said then, and what has the court ruled now? ThePrint explains.
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1992 directive that led to Special Intensive Revision
The origins of the 1995 judgment can be traced back to petitions challenging the Election Commission’s 1992 directive.
This directive said information collected by enumerators had to be consolidated and furnished to the collectors, who in turn were expected to get this information verified through the police or intelligence agencies, and then decide the question whether the person or persons concerned were citizens of India. The Electoral Registration Officers (EROs) were then expected to prepare a draft electoral roll on this basis and publish it, inviting objections.
Through another directive issued in September 1994, the EROs were empowered to identify and declare the names of foreign nationals and delete their names from the electoral roll. According to the 1995 verdict, the ECI guidelines had said that the onus of proof of citizenship shall lie on the person seeking his or her name in the electoral roll.
Following the ECI directives, extensive searches were undertaken in 39 police stations of Greater Bombay and letters were issued by the police to as many as 1.67 lakh persons calling upon them to produce their birth certificate, passport, certificate of citizenship, and entry made in the register of citizenship by the Government of India. Similar notices were also issued in Delhi. The move had led to allegations that it was meant to “harass the minority community and to defranchise them (sic)”, as noted in the 1995 verdict.
The 1995 verdict
One of the petitions challenging the directives was filed in the Bombay High Court.
The high court dismissed the petitions, after the Advocate General assured the court of various “concessions” that the authorities had agreed on making. This judgment was then challenged in the Supreme Court. Similarly, two more petitions were filed in the Supreme Court—by residents of Motia Khan, Paharganj, New Delhi, and by a few residents of the Sanjay Amar Jhuggi Jhompri Colony in New Delhi. They had all challenged the notices issued to them to prove their citizenship.
Ruling on these three petitions, the Supreme Court had then observed in 1995 that certain people in Bombay and Delhi were “treated as suspect foreigners”, despite the fact that they were voters in previous elections, and that their names would have been verified before being included in the electoral rolls.
“That is because it may be presumed that official acts performed under the provisions of the 1950 Act or the 1960 Rules were regularly done. Their names were already on the rolls and since they were sought to be removed by undertaking a special revision, whether intensive or otherwise, the procedure for removal had to be followed,” the court had observed.
The court had then allowed the petitions, quashed the proceedings initiated against the petitioners, and directed the ECI to initiate fresh proceedings, if it so desired, while disclosing the material on the basis of which it had suspected the citizenship of the petitioners.
“If any person whose citizenship is suspected is shown to have been included in the immediately preceding electoral roll, the Electoral Registration Officer or any other officer inquiring into the matter shall bear in mind that the entire gamut for inclusion of the name in the electoral roll must have been undertaken and hence adequate probative value be attached to that factum before issuance of notice and in subsequent proceeding,” the court had observed.
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Not a perpetual guarantee
While looking into the applicability of the 1995 judgment on the validity of the Special Intensive Revision exercise, the court also explained that electoral rolls are “evolving instruments”.
It then asserted that the presumption of validity of a person’s name in the electoral roll “cannot be treated as a perpetual guarantee against scrutiny, particularly in the face of a constitutionally sanctioned exercise aimed at ensuring the continued accuracy of the rolls”.
The court also rejected the contention that undertaking of an intensive verification exercise reverses the burden of proof in a manner impermissible in law. It asserted that asking electors to furnish supporting material in the course of such an exercise does not amount to the negation of the presumption. Rather, it said, such a demand “reflects the procedural mechanism through which the Commission seeks to reaffirm or, where necessary, correct existing entries”.
The court pointed out that in Lal Babu Hussein, the bench did not hold that the presumption attached to an entry in an electoral roll is irrefutable. In fact, it observed that calling it a “presumption” implies that it was susceptible to being displaced.
SIR exercise: The differentiator
Upholding the Special Intensive Revision exercise, the Supreme Court also ruled that while inclusion in the electoral roll gives rise to a presumption of validity, such a presumption cannot amount to a “blanket embargo” on the powers of the ECI to undertake an SIR exercise.
The court observed that if such a submission by the petitioners is accepted, it would mean that once an entry finds place in the electoral roll, the ECI is substantially disabled from undertaking any meaningful verification, except through the narrow confines of individual objections.
“Such a construction would unduly fetter the constitutional mandate of the Commission and render it ill-equipped to address systemic deficiencies that may arise over time,” it observed.
The Supreme Court said that the inclusion of a person’s name in the electoral roll cannot lead to a conclusive presumption that would inhibit or restrain the power of the ECI to undertake a fresh and intensive verification of the rolls.
The court accepted that an entry in the electoral roll does amount to “evidentiary presumption”, which means a presumption that facilitates administrative and adjudicatory processes by dispensing with the need to re-prove foundational facts every time. However, it asserted that such a presumption cannot be elevated to a stature that would leave out all enquiry.
(Edited by Nardeep Singh Dahiya)
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