TMC Can File Plea Regarding Seats Where ‘Under Adjudication’ Exclusions Greater Than Margin of Loss: SC

New Delhi: After the Trinamool Congress (TMC) approached the Supreme Court claiming that its loss margins in 31 seats were eclipsed by the number of people excluded during the judicial offer-led adjudication process, the bench told the party it could file an application on the matter.

Senior advocate and TMC Lok Sabha MP Kalyan Banerjee reportedly recalled before the bench Justice Joymala Bagchi's remark last month that if the victory margin in a seat turned out to be less than the number of people left out of the rolls, the court “would definitely have to apply our minds”.

Per reports, the TMC argued before a bench of Chief Justice Surya Kant and Justice Joymalya Bagchi on Monday (May 11) that the special intensive revision (SIR) in West Bengal materially affected the outcome of the state's election and that in 31 seats the number of people left out during the judicial officer-led adjudication process outnumbered the party's margin of loss.

“In one constituency, the margin of loss is a mere 862 votes, while 5,432 votes are still under adjudication,” the Indian Express quoted Banerjee as saying. He also noted that the BJP on the whole won over 32 lakh votes more than the TMC did and submitted that some 35 lakh appeals were still pending before the state's appellate tribunals.

Banerjee was also cited as recalling Justice Bagchi's statement that the court would have to ‘apply its mind’ if the exclusion of voters materially affected the electoral outcome.

Media reports had quoted the judge as saying on April 13 that “unless and until an enormous number of voters are excluded or it materially affects the election … the election cannot be cancelled”. According to LiveLaw he added at the time that:

“If 10% of the electorate does not vote and the winning margin is more than 10% … what will happen? Suppose the margin is 2% and 15% of the electorate who are mapped could not vote, then maybe, we are not expressing any opinion, but we would definitely have to apply our minds.”

Justice Bagchi responded on Monday that the TMC could file an interlocutory application to have the issue addressed in court.

“Whatever you want to say about, as you said, with regard to results which may have [been] materially affected because of the deletions which are under adjudication, that requires an independent interlocutory application to be taken out,” the Express quoted Justice Bagchi as saying today.

The TMC's lawyers also reportedly brought up Justice (retired) T.S. Sivagnanam's resignation from one of the 19 appellate tribunals in the state and appeared to refer to his remark that his particular tribunal would need four more years to clear its pending appeals at its current rate of adjudication.

According to the Express, Justice Sivagnanam disposed of 1,777 appeals as of a day before polling concluded in West Bengal, even as the state's tribunals were reported to have cleared some 1,600 pleas for inclusion in the voter rolls and rejected 14 others for deletion.

This, the newspaper notes, has raised questions over how many appeals all 19 tribunals had taken up before polling ended as well as how many more people could have ended up back on the voter rolls and not been deprived of their right to franchise.

Polling in West Bengal was conducted under the shadow of the contentious SIR, in which some 91 lakh names were left out of the voter rolls.

Even when the Election Commission released the final voter rolls in February, around 60 lakh names were marked as ‘under adjudication’. Their inclusion in the list was taken up, unprecedentedly, by judicial officers, who decided to leave out approximately 27 lakh names and include the rest.

Then, the Election Commission on the Supreme Court's orders set up the 19 appellate tribunals to consider appeals from those left out of the rolls but also against the inclusion of any names. Ultimately these bodies, which received 34 lakh pleas for addition and deletion from the list, added a mere 1,607 names.

As per The Wire's estimates, the TMC emerged as the loser in 28 seats where the number of names deleted during the ‘under adjudication’ process was higher than the margin of victory. On the other hand it won in 21 such seats.

Reporting for this outlet, Aparna Bhattacharya has written that although the BJP would have probably won the Bengal assembly election even without the SIR, the exercise “likely mattered in a decisive cluster of close contests”.

However commentators have noted that regardless of who would or would not have won, the fact that people found themselves excluded from the voter rolls on polling day for want of time to adjudicate on their case bears portent for Indian democracy.

Winning 207 of the 293 seats that went to polls last month the BJP has formed its first ever government in West Bengal, displacing the 15-year-rule of the TMC, which in turn won 80 seats.

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