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Indian Express
11-07-2025
- Politics
- Indian Express
Special Intensive Revision: As hearing starts, recalling a key case from 1977
While agreeing to hear pleas challenging the Special Intensive Revision (SIR) of electoral rolls in Bihar, the Supreme Court on July 7 made a reference to a 1977 ruling that had clarified the powers of the Election Commission of India (ECI) to conduct free and fair elections. The petitioners in the present challenge have questioned the ECI's power to conduct the SIR, as well as the procedure for it. Under Article 326, every citizen above the age of 18 has the right to vote. The SIR has shifted the burden of proof of citizenship on electors in some cases. The ECI has issued a new enumeration form, which is not prescribed in the Representation of the People Act, 1951, which governs the conduct of elections. The court began hearing the challenge on Thursday. The 1977 case The ruling by a five-judge Bench of the Supreme Court (Mohinder Singh Gill v. The Chief Election Commissioner) came after the post-Emergency Lok Sabha election of 1977. Following violence and the destruction of some ballot papers during counting of votes for one segment of the Ferozepore (Firozpur) seat, the ECI cancelled the entire process and ordered a re-election at the seat. Gill was leading the count at the time, and challenged the decision in Punjab and Haryana High Court under Article 226, which gives HCs the power to issue writs for the enforcement of fundamental rights and provide legal remedies for violations of law. The court considered three questions: first, whether the ECI is empowered to order a re-poll for the entire constituency; second, whether the ECI's order violated the principles of natural justice; third, whether the HC was competent to intervene under Article 226, given the bar placed by Article 329(b) on judicial interference in election matters. It upheld the ECI's order and dismissed the petition, saying that it lacked jurisdiction to intervene in electoral matters through a writ petition. On appeal, the Supreme Court too upheld the ECI's decision and clarified the extent of its powers. The SC's ruling The SC underlined the ECI's plenary powers over the 'superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of' elections to Parliament and state Assemblies under Article 324. It said that if laws enacted by Parliament and state Assemblies under Articles 327 and 328 respectively, are silent on any aspect, the ECI must act independently and decisively to ensure free and fair elections. The court also held that the ECI can take proactive decisions, including ordering a re-poll, if it believes that the integrity of the election has been compromised. While natural justice is an important procedural safeguard, it must be 'pragmatic and flexible', the SC said. The court underlined that the powers of the ECI are subject to judicial review, but judicial review came into play only after the election was complete. It clarified that Article 329(b) places a 'blanket ban' on courts from intervening during an ongoing election process, although it has 'large enough powers to give relief to an injured candidate' afterward.
The Hindu
08-07-2025
- Politics
- The Hindu
The ECI does not have unfettered powers
The Election Commission of India (ECI) ordered a Special Intensive Revision (SIR) of the electoral rolls in Bihar, which will be facing Assembly elections in November. Political parties in the Opposition have alleged that the SIR is aimed at disenfranchising thousands of voters in Bihar by disqualifying them on the ground that they are not citizens of India. The ECI has denied this allegation and justified the revision. In the meantime, many petitions have been filed in the Supreme Court challenging the ECI's order. While the controversy centres on the motive behind this exercise being conducted just a couple of months before elections, especially when electoral rolls were revised in 2024, this article focuses on the legality of this exercise and the powers of the ECI to undertake it. Reasons for disqualification Article 326 of the Constitution declares that elections to the Lok Sabha and the Assemblies shall be held on the basis of adult suffrage. This means every adult person is entitled to be a voter provided they are not disqualified on certain specified grounds. There are two essential qualifications of being an elector under this Article: the person should be citizen of India and should be aged not less than 18. The Representation of the People Act (RPA), 1950, lays down disqualifications for registration as an elector. These are namely unsoundness of mind as declared by a competent court, and disqualification from voting as provided in Section 11A of the 1951 RPA. Conditions for registration as a voter are laid down in Section 19 of the RPA: the person should not be less than 18 years of age and they should be ordinarily resident in a constituency. The term 'ordinarily resident' is explained in Section 20, which says a person shall not be deemed to be ordinarily resident merely because they own or possess a dwelling house in that constituency. Also, a person does not cease to be ordinarily resident if they absent themselves temporarily from their ordinary place of residence. The ECI enjoys enormous powers in respect of the preparation of electoral rolls and the conduct of elections to Parliament, the State Legislatures, and to the offices of the President and Vice President. Article 324 of the Constitution, which empowers the ECI to undertake these tasks, is characterised by the Supreme Court as a 'reservoir of power'. Since the conduct of free and fair elections is an essential feature of the basic structure of the Constitution, the ECI needs to be vested with all the necessary powers to complete its task. Nevertheless, it is inconceivable that the Constitution should confer on any authority unfettered powers. The Supreme Court has made it clear that the ECI can exercise all powers in its discretion in areas which are not covered by any statute but shall act in accordance with the law wherever it exists. In Mohinder Singh Gill v. Chief Election Commissioner (1978), the Court stated the law as follows: 'Firstly when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission shall act in conformity with, not in violation of, such provisions but where such law is silent, Article 324 is a reservoir of power to act for the avowed purpose of pushing forward a free and fair election with expedition.' The qualifying date Let us look at the relevant provisions of the the RPA to get a perspective on the powers of the ECI in regard to revision of the electoral rolls. Section 21 of the 1950 RPA deals with the preparation and revision of electoral rolls. It speaks of four stages of revisions: (1) before elections to the Lok Sabha or Assembly; (2) before each by-election; (3) on the direction of the ECI in any year; and (4) a special revision for a constituency or part of a constituency with the ECI recording reasons for doing so. All revisions except (4) are done with reference to a qualifying date, which, under Section 14, is the first day of January. The only exception is (4): no qualifying date is mentioned because it can be done any time. The ECI order of June 24 mentions the qualifying date as 01/07/2025 and is a direction under Section 21(2)(b) of the RPA. It can be assumed that the revision being done in Bihar is under the same Section. But under this provision, the qualifying date should be 01/01/2025. The revision then should have been done from January 1, 2025. The qualifying date mentioned in the ECI order has no sanction under the law. Similarly, the term 'special intensive revision' is not found in the law. The only case where a special revision can be ordered by the ECI at any time is in relation to a constituency or a part of it and not in relation to an entire State. Thus, it is reasonable to conclude that the SIR in Bihar is not in conformity with the provisions of the RPA. The ECI has claimed in its order that it has power under Section 21 to undertake the exercise. True, but that power is limited to a constituency or part of it under Section 21(3) of the Act. While enjoying enormous powers under Article 324, the ECI is responsible to the rule of law and should be amenable to the norms of natural justice as per the Supreme Court. Electoral registration officers cannot summarily reject applications on the ground that foolproof documents are not being furnished to prove citizenship. Rule 8 of the Registration of Electors Rules clearly state that information shall be furnished 'to the best of ability' of the citizens. The ECI cannot ignore this statutory stipulation.
