Identity questions

Print edition : March 02, 2002

The decisions of the Allahabad High Court and the Delhi High Court in two election-related cases raise questions about the Election Commission's role in maintaining the integrity of electoral rolls.

WHILE disposing of a public interest petition on February 11, a Division Bench of the Allahabad High Court, comprising Chief Justice Shyamal Kumar Sen and Justice S.R. Alam, held that a person who figures in the electoral roll cannot be denied the statutory right to vote merely on the ground that he or she does not possess any one of the 18 documents specified by the Election Commission (E.C.), in lieu of the Electors' Photo Identity Card (EPIC) that the E.C. has issued to some voters, for establishing identity.

A senior citizen at a polling station in Ghaziabad, Uttar Pradesh, on February 14. The Election Commission's insistence that voters establish their identity with the aid of a prescribed document, if not an Electors' Photo Identity Card, amounts to intervention by the Commission in the exercise of a statutory right, goes one argument.-MANISH SWARUP/AP

The court observed that the card was intended to facilitate the process of election in case of a challenge to the identity of an elector. Therefore, the court said that voters in Uttar Pradesh could produce before the Presiding Officer at the polling booths any valid document, even other than the 18 documents specified by the E.C., instead of the card, in order to establish their identity. The E.C. appealed against the High Court's judgment by means of a Special Leave Petition filed before the Supreme Court and obtained a stay on it on February 12.

Introduced in 1993 during the tenure of former Chief Election Commissioner T.N. Seshan, the card distribution to eligible voters has made slow progress in some States. Seshan even threatened to defer the holding of elections until all electors got their cards. However, faced with judicial challenge from States such as West Bengal, Bihar, and Orissa, the E.C. relented and told the Supreme Court that it would not stop any elections on the ground that the cards had not been supplied to all.

Seshan's successor M.S. Gill managed to make progress with the cards without risking the wrath of the judiciary. Acknowledging that it would not be desirable to make the production of the cards mandatory for voting, especially because the implementation of the scheme across the States was in various stages, starting with the Haryana Assembly elections in February 2000, the E.C. made it compulsory for every voter to prove his or her identity by producing either the card or any of several other specified documents. As there have been no serious complaints of voters having been denied the opportunity to exercise their franchise owing to this requirement, the E.C. continued the practice.

But the judgment of the Allahabad High Court is an indicator that the E.C.'s requirement might be flawed. On January 23, in view of the elections to the Uttar Pradesh Assembly, the E.C. first prescribed 16 alternative documents that would help establish one's identity. These included passports, driving licences, Permanent Account Number cards issued by the income-tax Department, identity cards issued to employees by the State or the Central government, public sector undertakings, local bodies, or private industrial houses, bank/kisan/post-office pass books, ration cards issued prior to January 1, 2001, Scheduled Caste/Scheduled Tribe/Other Backward Classes certificates, student identity cards, property documents, arms licences, conductor's licences, pension documents, ex-servicemen's widow or dependent certificates, railway or bus passes, certificates that prove physical handicap, and freedom fighter identity cards. On February 7, the E.C. added to the list items such as Photo Identity Cards issued by the Bar Council of the Allahabad High Court, and certificates of residence issued by village administrative officers.

It is obvious that the list is not exhaustive enough to enable all eligible voters, who might otherwise find their names in the electoral rolls, to exercise their franchise. Counsel for the E.C., S.P. Gupta, who had appeared before the Allahabad High Court, conceded that the alternative mode proposed by the E.C. was not exhaustive, and that some more details were to be prescribed if electors were not to be deprived of their voting rights.

According to official estimates, till July 2001, only 52 per cent of the eligible voters in Uttar Pradesh had been issued the cards. That leaves a huge section of voters who might have to produce any of the alternative documents in order to establish their identity at polling centres. There is reason to believe that the E.C. might not have considered the possibility of some voters being denied their right to vote, or choosing not to turn up at the polling booth, simply because they did not have the card or any one of the 18 documents.

For example, in the Kanakapura Lok Sabha byelection held on February 21, the E.C.'s identification requirements led to bizarre situations. Voters who did not possess any of the 18 documents made a beeline to a local cooperative bank to open accounts, with the intention of closing them after using their pass books to vote in the elections. There were also cases of electors whose names were spelt in different ways in ration cards and in electoral rolls. Again, in the case of voters belonging to the Lambani community, who number 1.85 lakhs in Kanakapura, illustrates the flaws in the E.C.'s requirement. The Lambanis are nomads and do not possess any kind of documents, let alone EPICs, which have not been issued to them.

The right to vote may be only a statutory right and not a fundamental right, but can the E.C. intervene here in the guise of checking impersonation? The number of voters effectively disenfranchised following the new requirements may not materially affect the outcome of the election so as to warrant the filing of an election petition, but the E.C. seems to have compromised the electoral process by insisting that the requirements be met.

The Allahabad High Court has pointed out that Section 28 of the Registration of Electoral Rules, 1961, clearly specifies the mode of identification of a voter. If the statute specifies that a particular procedure be followed, it is to be followed that way and in no other way, the court said.

The E.C. contended that its requirement was justified by virtue of Article 324 of the Constitution, and questioned the Allahabad High Court's powers to hear the matter once the notification for elections had been issued, in view of Article 329 (b).

Article 324 (1) vests the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to Parliament, the State legislatures, and to the offices of President and Vice-President, in the E.C. The words "superintendence, direction and control" contained in Article 324 (1) have been interpreted by the Supreme Court to have a wide connotation so as to include therein such powers as are necessary for the effective holding of elections. This Article is intended to empower the E.C. to act in contingencies that are not provided for by law, and to pass necessary orders for the conduct of elections. In its judgment, the Allahabad High Court, citing a Supreme Court order, made it clear that Article 324 (1) was subject to the norms of fairness.

Under Article 329 (b), no election to Parliament or the State legislatures shall be questioned except by means of an election petition presented to a High Court under the Representation of the People's Act (RPA). The term "election" has been interpreted to include all steps and proceedings commencing from the date of notification till the date of declaration of the result. Thus, under this Article, if an election is called in to question, and this interrupts, obstructs, or protracts the election process, the invoking of the judicial remedy has to be postponed until after the elections, in order to facilitate the functioning of democracy.

However, the Supreme Court has held in an election appeal case that judicial intervention is allowable if the assistance of the court is sought to correct or smoothen election proceedings, to remove obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and the jurisdiction of the court is invoked.

In another case relating to the byelection to the Tamil Nadu Legislative Assembly from the Andipatti constituency held on January 21, the Delhi High Court dismissed a writ petition filed by the Dravida Munnetra Kazhagam candidate, 'Vaigai' Sekar, seeking the postponement of the election on the ground that many bogus voters had been enrolled. Justice Manmohan Sarin held that unless a clear-cut case was made out that there had been mala fide or arbitrary exercise of power by the E.C., the court had no jurisdiction to issue a directive, barred as it was under Article 329 (b).

This makes it clear that immunity from interference by the courts under Article 329 (b) once the election notification is issued till the declaration of results, is not an absolute one. The Judge endorsed the Commission's decision to postpone the byelections in the Saidapet and Vaniyambadi Assembly constituencies in Tamil Nadu, as it found some basis with regard to complaints of illegal additions having been made to the voters' lists (Frontline, March 1). Referring to a complaint that 17,000 bogus names had been included in the rolls, the Judge pointed out that the E.C. had verified the situation and had explained every aspect regarding redress of complaints.

However, the Judge gave the petitioner the liberty to file an election petition after the declaration of results if he felt that the electoral rolls in question had materially affected the results. Ironically, however, the grounds for declaring an election void as specified in Section 100 of the RPA - which can be invoked in an election petition - do not include the non-enrolment of eligible voters or the enrolment of ineligible voters. Observers, therefore, wonder whether the petitioner will then have no remedy at all.

Justice Sarin observed that it was likely that political parties, based on their own assessment of their prospects, might seek either to go through or defer elections. For this purpose, they could complain that electoral rolls were not properly prepared, he said.

Democratic processes should not be thwarted or permitted to be derailed on the basis of what may be termed as political opportunism, he remarked. If this proposition can be accepted, the E.C. might be equally wrong in entertaining complaints of irregularities in rolls after the announcement of the byelection schedule in the three Assembly constituencies, and postponing the polls in two of them.

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