Supreme Court orders BLAs to make haste to return rights of 65 lakh voters by 1 Sept

After hearing from counsel for the Election Commission that 1.6 lakh BLAs (booth-level agents) filing 10 forms enumeration forms a day — either digitally or in person — should be able to cover the entire 65 lakh list of deletions within a week (1.6 lakh x 10 persons a day being 16 lakh verifications and updated filings a day), the Supreme Court of India has gone ahead on 22 August, Friday, to direct that BLAs of all political parties should endeavour to facilitate the fresh submissions for the approximately 65 lakh persons excluded from the draft rolls of the ECI in the first phase of the special intensive revision (SIR) exercise in Bihar.  

Senior advocate Rakesh Dwivedi has submitted that there was "no time-squeeze" for BLAs in getting the new forms of their constituency's voters in by 1 September, seeing as today is just 22 August and 16 lakh forms can be submitted a day.

The Supreme Court has accordingly ordered: "We direct the Bihar CEO to issue notice to the president/working president/general secretary of the political parties.

"They shall be represented in Court and file their status reports.

"We clarify:

"(i) An individual person at their own or with assistance of BLAs are entitled to apply online; not necessary to submit application in physical form.

"(ii) BLAs of all political parties are directed to make endeavour that the approximately 65 lakh persons not included in the draft rolls are facilitated, except those who are dead or have voluntarily migrated, in submitting their objections by the cut-off date of 1 September.

"(iii) Wherever physical forms are submitted, BLOs are directed to acknowledge receipt. However, such acknowledgment shall not be proof that the form is complete in all respects."

The courtroom drama

Dwivedi had earlier complained that the political parties should give the ECI assistance in correcting any errors, but were "not cooperating", while voters are well aware of their rights.

Justice Surya Kant — presiding with Justice Joymalyo Bagchi — had sought clarification whether only the individual (not a party or organisation) may file an objection to show an error in the rolls.

Counsel for the ECI had responded that the matter was not being treated very strictly, thus suggesting the BLAs or political parties were at liberty to object as well — while stopping short of actually saying so.

Advocate Prashant Bhushan, on the petitioners' side, interjected, "We have seen a small sample. They say 85,000 have come forward. Everybody whose name has been deleted may not have been able to come forward. Many are migrant workers, temporarily outside state. Flood situation..."

Justice Kant, seemingly now convinced, suggested that the BLAs should be able to help, being locals.

Bhushan pointed out that even the biggest party in the state, the RJD, only had BLAs in half the constituencies, Justice Kant said there can be more BLAs.

Bhushan then noted that another problem was that "they [ECI] are saying that anybody whose name is not in the draft roll now will have to file a claim in Form 6. Form 6 is a claim for inclusion of a fresh voter, not for correction of entries".

Further, he added, though Form 6 normally just requires a declaration and an Aadhaar card, in this context, the ECI is demanding some additional documents out of the specified 11. A clarification, Bhushan urged, was necessary here.

He suggested that one option for an added clarification might be "that any aggrieved person can apply online, give only one document, that is Aadhaar". The other documents the ECI lists have less coverage, he noted, and thus more than half people in Bihar don't have those documents, but most do have the Aadhaar.

Justice Kant responded that people can start by depositing Aadhaar and whatever other documents they do have and wondered why the BLAs weren't coming forward, while Dwivedi interjected that faith should be reposed in the ECI as crores were filing documents and yet "bogus stories" were being circulated.

When Advocate Vrinda Grover, also for the petitioners, went to suggest this problem went beyond the 'dead or moved' 65 lakh, Kant said, "We are only surprised by inaction of political parties. After appointing BLAs, what are they doing?"

Advocate Gopal S. noted here that in the previous Bihar elections, 9 lakh people chose NOTA, implying that not all of them would have a trusted agent of a party to go to.

Justice Kant turned it around to again ask, "Why there is a distance between people and local political persons?"

However, he conceded, "The entire exercise has to be voter-friendly. We will try to ensure..."

Gopal and Grover, however, insisted that clarity was needed on whether Aadhaar may be treated as sufficient standalone documentation here, in the way that the ECI accepted EPIC as a sole document for verification in 2003 — for when the final list comes out, there is likely to be greater confusion otherwise, they argued.

"The ECI needs to hear what the problems on the ground are," Grover insisted, stating that citizens were the ones taking the initiative, while are the ECI was the one "creating the problem".

Justice Kant said someone should go and talk to the citizens, to which Grover asked whose responsibility that might be.

Bhushan weighed in to add that Aadhaar alone was considered inadequate for 7 crore people — "BLOs have already written recommended/not recommended on forms". To this, Justice Kant replied that this could be clarified: "Irrespective of recommendation, their names will continue in draft list." However, Dwivedi continued to argue this was irrelevant.

"Everybody must trust the EC. Let's do the exercise. Give us some time, we will give better picture that no one has been excluded," said Dwivedi.

When Grover pressed for an extended timeline "for fairness on the ground" and a press release from the ECI vis-a-vis the documents, Justice Kant suggested the political parties had not realised their responsibility in this.

Grover prayed, "Let the voter not suffer... the voter is not reliant on political parties."

Bhushan again asked what would happen to the 7.24 crore, for the 12 per cent 'not recommended' by BLOs. He said, "36,000 forms per day have to be scrutinised. It's not possible. No recourse will be available..."

Grover offered herself as an example: Having been named in the 2003 rolls, she had been struck off from both booths later in the 'rationalisation' exercise. "There are so many actual details they have not thought through. People will fall through the cracks!" she said.

Advocate Nizam Pasha, representing the AIMIM petitioner, added that when an EPIC number is entered on the ECI website, there is no entry to confirm what documents have been supplied by that person. Sharing a screenshot, he urged that this be shown so there is no denial of submitted documentation later; Grover and Bhushan joined their prayers to his.

Advocate Fauzia Shakil (for the RJD's Manoj Kumar) also joined prayer for an extended timeline, arguing that while most objections were being facilitated by BLAs, the ECI has not been giving them any acknowledgment or physical receipt for the objections.

While Justice Kant again asked why the political parties were silent, she said the petitioners had raised additional time of 2 weeks for the 65 lakh deleted voters.

Justice Kant then said "Let's wait till September" to see how things panned out and then the Court could see if further modulations were required.

Kapil Sibal too prayed for a week more at least, and Justice Kant responded that while there would be no extension ordered today, it might be considered in case "you have overwhelming response".

"We are going from door to door. Those who are complaining have not filed single objection," interjected Dwivedi, but Justice Kant directed the ECI should examine what documents were being submitted while Justice Bagchi noted that earlier the Aadhaar was not considered admissible but the ECI should see the court's suggestion on that — and noted "if you can include it as a relevant document, it's going to compromise the time taken for verification."

Other things the order states

• Recommendation/non-recommendation by BLOs are not relevant, as persons whose enumeration forms were received have been included in the draft rolls.

• If all recognised political parties assist, each of their BLAs can verify at least 10 names per day. Since 1.6 lakh BLAs have been appointed by political parties, 16 lakh names can be verified in a day. So it won't take more than 4–5 days to verify names that have not been included (there are still 10 days left to submit objections).

• Thus far, 84,305 claims/objections had been received directly from electors.

• "What we are surprised to see is that 1,60,813 BLAs have so far filed only 2 objections. On the other hand, [...] political parties have submitted that their BLAs are not being permitted to submit objections."

• Each voter, besides his/her independent right to apply for inclusion, has the right to submit an objection against the inclusion of a person. Such objections are also to be facilitated by the 12 parties recognised in Bihar, who are expected to instruct their BLAs to submit the objections.

• Impleading all the 12 key political parties as respondents, the court instructed they issue specific directions to BLAs to assist voters for submission of requisite forms along with any of the 11 documents required by the ECI OR an Aadhaar card.

• ECI "may consider the desirability" of putting up acknowledgment receipts on its website.