‘Logical discrepancies’ not upheld yet by Supreme Court: Justice Bagchi

• Justice Joymalya Bagchi says the Supreme Court is yet to rule on the validity of ‘logical discrepancies’ flagged during SIR

• The category was allowed in West Bengal alone as an ‘interim arrangement’, he says

• The observation raises questions over why the category was not used in Bihar, why it was introduced in Bengal and whether it is being applied uniformly across other states

Observations by Supreme Court justices these days make news more regularly than their judgments. True to this trend, Justice Joymalya Bagchi on Wednesday, 28 October caused a stir by observing that the court had not yet adjudicated on the validity of ‘logical discrepancies’ flagged by the Election Commission of India (ECI) during the special intensive revision (SIR) in West Bengal. The court, he said, had allowed the use of this category as an "interim arrangement".

The observation was made when counsel for the ECI claimed in court that the Supreme Court had upheld the SIR and every step taken under the exercise. Justice Bagchi interjected to point out that while the court had indeed upheld the SIR in Bihar, it had not upheld the category of logical discrepancies, which was not part of the SIR in Bihar. It had been allowed as an interim measure in West Bengal alone, he observed.

It is worth recalling that software used by the ECI had flagged as many as 1.2 crore voters in West Bengal on account of logical discrepancies. They were asked to attend hearings and produce documents to prove their eligibility to vote. The exercise did manage to resolve the confusion or misunderstanding surrounding half the voters flagged. However, the remaining 60 lakh hauled up for logical discrepancies went through adjudication by judicial officers, on the direction of the Supreme Court.

The adjudication led to the restoration of 33 lakh voters to the electoral rolls, while 27 lakh were dropped from the rolls. Contrary to the law, no grounds were cited and no speaking orders were issued. The ECI informed the Supreme Court in August that 38 lakh appeals were pending before the 19 appellate tribunals in West Bengal, which are functioning only in the state.

The ECI claimed that 22 lakh of the appeals were for inclusion, while 16 lakh were for excluding voters cleared by the adjudication process. It has now informed the court that the appeals for exclusion were filed by officers in the office of the chief electoral officer, West Bengal.

Strangely, election commissioner Sukhbir Singh Sandhu, in a file noting in August, questioned who had authorised appeals for exclusion to be filed on behalf of the Commission, as reported by The Indian Express. He also mentioned that the CEO West Bengal had professed ignorance about the matter.

Justice Bagchi’s oral observation has reopened a can of worms. If logical discrepancies are not yet deemed valid and legal, what has allowed the ECI to flag them in states other than West Bengal? Why was the category allowed in West Bengal in the first place? Why was it not used in Bihar?

In the SIR, logical discrepancy is a category used by the ECI to flag voter records that contain inconsistencies or apparent anomalies and require further verification. Unlike ‘unmapped’ voters, whose details cannot be linked to the previous intensive revision of electoral rolls, logical discrepancy cases generally involve voters whose records have been linked but contain details that the ECI considers inconsistent because of mismatches in names, spelling, age, etc.

During Wednesday’s hearing, Justice Bagchi also asked how a person who was included in the 2003 roll could now be categorised as a logical discrepancy case. Advocate Prashant Bhushan, appearing for the petitioners, submitted that the ECI had not yet defined what it considered a ‘logical discrepancy’.

Justice Bagchi, according to Live Law, said, "The legality of logical discrepancy we will go into greater detail later on." Senior advocate Dama Seshadri Naidu, appearing for the ECI, claimed that 95 per cent of those persons had been restored, referring to voters in Delhi.

Naidu submitted that, in the West Bengal case, the logical discrepancies were "logical". "It does not matter. You have created patterns. We have to examine whether creating of patterns is application of mind by human agency," Justice Bagchi quipped.