New Delhi: Senior advocate Abhishek Manu Singhvi, while arguing in the Supreme Court against the constitutionality of the special intensive revision (SIR) of electoral rolls, said that the Election Commission of India (EC) does not have right to decide that voters en masse need to prove their right to vote and that only parliament has the right to change the law. 

A bench of Chief Justice of India Surya Kant and Justice Joymalya Bagchi has been hearing a batch of petitions challenging the constitutionality of the SIR process, first conducted in Bihar and now being held across 12 states.

In his opening arguments to the Supreme Court on November 27, senior advocate and Congress MP, Abhishek Manu Singhvi elaborated on why the way the EC was conducting the SIR was unconstitutional. 

He argued that the EC cannot create new substantive requirements under Article 324 of the constitution, which pertains to the general power to conduct elections.

“By no standards can it be said the [election] commission is a third chamber in the legislative process within the scheme of the constitution. Merely being a creature of the constitution will not give it plenary and absolute power to legislate as it likes without reference to the law enacted by the legislatures,” Singhvi said.

Singhvi argued that the election commission was effectively treating voters as “some kind of a temporary guest” on the electoral roll – asking them to prove their citizenship before being confirmed. 

Under the current SIR process, he pointed out the EC was checking voters “only by the citizenship test of those 11 documents”, even though those documents “are not in the statutory form” and “not part of the section or the rules”.

He also said that Article 324 must be “read harmoniously with the articles that follow and the powers [given]”, that is, along with Article 327 and with parliamentary competence provided under Entry 72 of the Union List and Entry 37 of the State List, respectively.

Article 324 gives the Election Commission powers to supervise elections, while Article 327 allows parliament to make laws on state and Union elections. These two provisions are provided for in Entry 72 and Entry 37 of the respective lists.

Therefore, Singhvi's argument before the court was that the EC's powers are not absolute but must be understood alongside the legislative rights of the Union and the states.

Singhvi further submitted that the form requiring electors to furnish the 11 documents was not traceable to the Representation of the People Act, 1950, or the Registration of Electors Rules, 1960. He added that such a form “can only come from delegated legislation”. 

Characterising these as “substantive changes”, he said that such an attempt had not been made in 75 years.

“They are actually in the guise of this, doing substantive changes, which is legislation. They may camouflage it: ‘Oh it’s nothing, it’s just a procedural rule.’ But all these 75 years… we have not had the requirement that ‘you fill up a form first and I will presumptively retain you on the list or remove you’. This is substantive change which can only be done by legislature.

“Further, such an absolute and uncanalised power given to the commission without providing any guidelines would itself destroy the basic structure of the rule of law… For such an interpretation as suggested by the council for the respondent would be far from attaining the goal of purity and sanctity of the electoral process,” he said.

In the previous hearing, the top court had tested the role of Aadhaar in the exercise, asking whether a foreigner, who has managed to access welfare schemes using the document, should automatically be granted entry to the electoral roll.

The matter is ongoing. 

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