2 hours ago
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On a day the Election Commission of India (ECI) began the second phase of the nationwide Special Intensive Revision (SIR) of electoral rolls, senior Congress MP Manish Tewari said the exercise would be a “constitutional transgression” as the poll body does not have the mandate to conduct a pan-India intensive revision of this nature.
The former Information and Broadcasting Minister told The Hindu in an interview that the poll body can carry out such an exercise only in certain regions and constituencies, and that too if there is empirical evidence of the need for it.
“It is important to understand the constitutional and legal scheme with regard to powers of the EC. Article 324 of the Constitution empowers the EC to exercise superintendence, direction and control of elections. However, this is caveated by Article 327 which grants Parliament the power to make laws regarding all matters related to elections to either the Lok Sabha or a State legislature,” said Mr. Tewari. “This includes preparing electoral rolls, delimiting constituencies, and any other provision necessary for the proper constitution of these bodies. Therefore, the powers of EC under Article 324 are not unfettered and they have to be exercised in conjunction with Article 327,” he added.
The Congress MP explained that the primary statute which deals with the conduct of elections is the Representation of the People Act, 1950, and “it is within the framework of Section 21 of this Act that the Commission’s proposal must be tested”.
The SIR involves house-to-house survey following which electoral rolls are prepared afresh. Summary revisions and annual revisions correct anomalies, and add fresh voters and delete those migrated or dead.
Section 21 (2) of the RPA Act requires that electoral rolls be revised for every constituency before each general or by-election, unless the poll body, for “recorded reasons”, decides otherwise. It also foresees an annual revision at the EC’s direction.
“Then comes Section 21 (3) of the RP Act 1950 that empowers the EC to conduct a special revision in any constituency or part thereof for reasons to be recorded in writing. The word is ‘any’ and not ‘every’ constituency. This provision is a surgical scalpel designed to deal with a problem in electoral rolls in a particular constituency or part thereof. It cannot be extrapolated to mean the entire country and become a licence to prepare a fresh electoral roll for the entire country,” Mr. Tewari said.
Then comes the Registration of Electors Rules, 1960, which through Rule 25, adds procedural texture, allowing such revision to be done “intensively or summarily or partly intensively and partly summarily”, he said.
Yet it is the above-mentioned Section 21 (3) of the RPA Act that the poll panel now seeks to rely upon for its proposed nationwide SIR, Mr. Tewari said, contending that this clause was designed as an emergency provision for localised contingencies, not as a substitute for the regular, nationwide revision process.
The leader said that the Clause 21 (3) says such an exercise will be conducted by the EC for “reasons to be recorded” and this requirement is not a procedural formality but a substantive constitutional safeguard against “arbitrariness”.
Also, the provision uses the phrase “any constituency or part of a constituency” — a deliberate legislative choice and thus cannot be used to conduct a pan-India SIR. “Nowhere do the rules contemplate creation of de-novo electoral rolls,” he said.
The former Minister asked that if the EC contends that the previous electoral rolls were so flawed that it mandated a wholesale rework, then where is the empirical evidence. “They should be put that out in the public domain,” he said.
Mr. Tewari said EC is not the only stakeholder in democracy, every individual, especially the voter, is an equal stakeholder.
Excerpts from the interview
Does the ECI have the mandate to carry out a nationwide SIR of this nature
The poll body can carry out such an exercise only in certain regions and constituencies and that too if their is empirical evidence of the need for it.
It is important to understand the constitutional and legal scheme with regard to powers of the ECI. Article 324 of the Constitution empowers for the ECI on superintendence, direction and control of elections. However, this is caveated by Article 327 which grants Parliament the power to make laws regarding all matters related to elections to either the Lok Sabha or a state legislature. This includes preparing electoral rolls, delimiting constituencies, and any other provisions necessary for the proper constitution of these bodies.
Therefore, the powers of ECI under Article 324 are not unfettered and they have to be exercised in conjunction with Article 327.
How can this be argued legally?
The primary statute which deals with the conduct of elections is the Representation of the People Act, 1950 and “it is within the framework of Section 21 of this Act that the Commission’s proposal must be tested”.
Section 21(2) of the RPA Act requires that electoral rolls be revised for every constituency before each general or bye-election, unless the ECI, for “recorded reasons”, decides otherwise. It also forsees an annual revision at the ECI’s direction.
Then there is Section 21 (3) that empowers the election commission to conduct a special revision for reasons to be recorded in writing in “any” Constituency or part thereof. This power can not be extrapolated to mean every constituency and used as a basis for conducting a nationwide SIR. This is a Constitutional and legal travesty.
Then comes the Registration of Electors Rules, 1960, which through Rule 25, adds procedural texture—allowing such revision to be done “intensively or summarily or partly intensively and partly summarily”.
Yet it is Section 21(3) of the RPA Act that the ECI now seeks to rely upon for its proposed nationwide SIR, Mr Tewari said contending that this clause was designed as an emergency provision for localised contingencies, not as a substitute for the regular, nationwide revision process.
Clause 21 (3) says such an exercise will be conducted by the ECI for “reasons to be recorded” and this requirement is not a procedural formality but a substantive constitutional safeguard against “arbitrariness”.
Also the provision uses the phrase “any constituency or part of a constituency”—a deliberate legislative choice and thus cannot be used to conduct a pan-India SIR.
Nowhere do the rules contemplate creation of de-novo electoral rolls.
The ECI says this was needed as there was large-scale migration, duplication and deaths which had not been recorded.
If the ECI contends that the previous electoral rolls were so flawed that it mandated a wholesale rework then where is the empirical evidence.
“They should be put that out in the public domain”.
ECI is not the only stakeholder in democracy. Every individual is an equal stakeholder, specially the voters.
The Supreme Court though has not stayed the process.
The SC has not yet given the final decision, so the ECI should have waited for the final verdict.
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