SPECIAL INTENSIVE REVISION OF ELECTROAL ROLLS

1. Presently majority of people in India have a justifiable concern over the SIR [Special Intensive Revision] of Electoral Rolls before
   the General Election to various Legislative Assemblies of States. The Supreme Court of India is also ceased of the matter and in fact
   passed certain Orders but the final verdict is expected to come in the near future. To appreciate and understand the concern of
   the people one must know the necessity and process of SIR of electoral rolls, the powers of the Election Commission, conferred by
   the Constitution of India and the Law on this subject.

Elections:

2. Article 324 (1) of the Constitution of India provides that Superintendence, direction and control of elections be vested in an
   Election Commission and the conduct of, all elections to Parliament and to the Legislature of every State shall be vested in the Election Commission. Clause (4) provides that before each general election to the House of the People and to the Legislative Assembly of each State, the President may also appoint such Regional Commissioners as he may consider necessary to assist the Election Commission.

One General Electoral Roll for every
territorial constituency :

3. As per Article 325, There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of the Legislature of a State and no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them.

Power of ‘Parliament’ and ‘States’ to make
law:

4.(a) Article 327 provides that “Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, …………………………”.

(b). Article 328 confers Power on Legislature of a State to make provision with respect to elections to such Legislature as follows:-

“Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from time to time by law make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses”.

5. It is to be noted that powers both the Articles 327 and 328 are subjected to other provisions of the Constitution. That is, wherever there exists no law made by Parliament on a subject, States can make law as it desires. Exercising that power conferred under Article 327, Parliament has passed The Representation of people Act 1950.

The Representation of people Act 1950

‘Constituency’ and ‘qualifying date’ :

6. In that Act Part-III, electoral Rolls for Assembly, – Section 14, defines ‘constituency’ and ‘qualifying date’.

“(a) Constituency means an assemblyconstituency and qualifying date means

(b) qualifying date in relation to preparation or revision of every electoral roll under this Part means the 1ST January of the year in which it is so prepared or revised”.

7. Section 15 provides that for every constituency there shall be an electoral roll…. Section 16. Specifies the disqualifications for
   registration in electoral roll. Section 17 states that no person shall be registered in more than one constituency. Section 18 prohibits entry more than once.

Conditions of registration:

8. Section 19 lays down the conditions for registration to be entitled to be registered in the Electoral Rolls in a constituency. They are:-

(i) the person should have completed 18 years
on the qualifying date; and

(ii) that a person should be ‘ordinarily resident’
in that constituency.

Only such persons shall be eligible to be registered in the electoral roll of that constituency.

‘Ordinarily resident’ [S-20]:

9. Section 20 gives a negative definition for “ordinarily resident” in that constituency as follows:-

(i) A person will not be deemed to be ordinarily resident in a constituency merely because he owns , or possesses a dwelling house therein.

(ii) A person’s temporary absence from his place of ordinary residence will not alter his status of ‘ordinarily resident’ .

Only these two conditions apply to more than 99% of the electors.

Special Categories of Ordinarily resident:

10. The following other conditions apply only to specific categories of persons. They may account for few thousand electors only. They are

(i) members of Parliament or of the Legislature
of States, will not, during the term of office,
lose his status of ‘ordinarily resident’.

(ii) Any person who is having a ‘service –
qualification’ will be deemed as an ordinarily
resident even if he is not living therein.

(iii) Person holding office declared by the
President of India that any, to which this
section applies, will be deemed to be ordinarily
resident in the constituency , but for holding
such office .

Those offices are. President and Vice –President of India; Governor of a State; Cabinet and Deputy ministers of union or Minister of any State; Members of Planning commission; A member of Parliament or State legislature; Speaker and Deputy speaker of House of
people; Speaker/ Deputy speaker / Chairman/ Deputy Chairman of any State Legislative Assembly / Council; Lieutenant Governors;
and Parliamentary Secretaries of Union or of any State.

‘service – qualification’:

11. (i) Sub-section (3)of Section 20 provides that, “Any person having a service qualification shall be deemed to be ordinarily resident
    on any date in the constituency”, even if he resides outside the constituency. Sub section (4) reads “ Any person holding any office in
    India declared by the President” to be deemed to be having such a service qualification

(ii) Any person, having the ‘service qualification’, who would otherwise be eligible to be considered as ‘ordinarily resident’ in any
constituency, will be considered as ordinarily resident in the constituency, if any statement is made and verified in the prescribed form by the person, in the absence of evidence to the contrary.

(iii) This will also apply to the spouse of the person having such ‘service qualification’.

(iv) The ‘service qualification’ – referred above,  means member of armed forces of the Union; members of a force to which the Army Act apples; members of police force of a State; and persons employed under the government of India, in a post outside India.

(v) If in any case a question arises as to where a person is ordinarily resident at any relevant time, the question shall be determined with reference to all the facts of the case and to such rules as may be made in this case in this behalf by the Central Government in consultation with the Election Commission.

Revision of electoral rolls. — Section 21 of
1950 Act :

12. Revision of electoral rolls are to be doneaccording to Section 21 of the Act, which provides :-

“(1) The electoral roll for each constituency shall be prepared in the prescribed manner by reference to the qualifying date and shall
come into force immediately upon its final publication in accordance with the rules made under this Act.

(2) The said electoral roll— (a) shall, unless otherwise directed by the Election Commission for reasons to be recorded in writing, be
revised in the prescribed manner by reference to the qualifying date—

(i) before each general election to the House of the People or to the Legislative Assembly of a State; and

(ii) before each bye-election to fill a casual vacancy in a seat allotted to the constituency;and

(b) shall be revised in any year in the prescribed manner by reference to the qualifying date if such revision has been directed by the Election Commission:

Provided that if the electoral roll is not revised as aforesaid, the validity or continued operation of the said electoral roll shall not
thereby be affected”.

‘prescribed’:

13. As per Section 2 (h), ‘prescribed’ meansprescribed by rules made under this Act. Rule making power is conferred on the Central
    Government by Section 28 of the Act thus :-

“The Central Government may, after consulting the Election Commission, by notification in the Official Gazette, make rules for carrying outthe purposes of this Act”.

Special Revision S-21(3) – for specific
constituency:

14.(1)There can also be Special revision of electoral Rolls for specific Constituency as
provided under Section 21(3) , that reads:-

“Notwithstanding anything contained in sub-section (2), the Election Commission may at any time, for reasons to be recorded, direct
a special revision of the electoral roll for any constituency or part of a constituency in suchmanner as it may think fit:

Provided that subject to the other provisions of this Act, the electoral roll for the constituency, as in force at the time of the issue of any such direction, shall continue to be in force until the completion of the special revision so directed”.

(2) ‘reasons should be recorded :

Special revision can be carried only when there are sufficient reasons, and those reasons should be recorded. Without such recording of sufficient reasons ‘Special revision cannot be ordered or conducted.

Correction of ‘erroneous’ entries:

15. Corrections of entries in the Rolls can be done as provided under Section 22 that reads :-

“If the electoral registration officer for a constituency, on application made to him or on his own motion, is satisfied after such
inquiry as he thinks fit, that any entry in the electoral roll of the constituency

(a) is erroneous or defective in any particular,

(b) should be transposed to another place in theroll on the ground that the person concerned has changed his place of ordinary residence within the constituency, or

(c) should be deleted on the ground that the person concerned is dead or has ceased to be ordinarily resident in the constituency or is otherwise not entitled to be registered in that roll, the electoral registration officer shall, subject to such general or special directions, if any, as may be given by the Election Commission in this behalf, amend, transpose or delete the entry:

Provided that before taking any action on any ground under clause (a) or clause (b) or any action under clause (c) on the ground that the person concerned has ceased to be ordinarily resident in the constituency or that he is otherwise not entitled to be egistered in the electoral roll of that constituency, the electoral registration officer shall give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him”.

“Revision” before every General Election :
S-21(2) :

16. As per Section 21(2)of the Act, before each general election to the Legislative Assembly of a State, the electoral rolls shall be revised in the manner prescribed by Rules made under this Act. This relates to General Revision of Electoral Rolls. That is, before each general election the Electoral Rolls shall be revised, as per the Rules in the prescribed manner .

“Special Revision” for specific constituency
S -21 (3) :

17. Under Section 21(3), the Election Commission may , direct a special revision of the electoral roll for any constituency or part of
    a constituency in such manner as it may think fit: at any time, for reasons to be recorded.

‘Special revision’ – conditional – not for all
constituencies:

18. Combined reading of Sub sections (2) and (3) of Section 21, makes it clear that special revision can be done only for ‘specified
    constituencies’ or for any part thereof. There cannot be a ‘special revision’ for all the constituencies. Thus, the Scheme of the Act
    is to conduct ‘ Revision of rolls’ before every General election. Special Revision could be caried out only to specified constituencies,
    only when the Registration officer is satisfied, after enquiry , that the roll of the constituency is erroneous or defective, in certain aspects.

Rule-making Power- conferred on Central
Government

19. Section 28 of the Act confers the ‘Power to make Rules’ as follows:-

“(1) The Central Government may, after consulting the Election Commission, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

(2) In particular ………such rules may provide for…..

(a) the determination of ordinary residence ……

(aa) particulars to be entered in the electoral rolls;

(c) the manner in which and the time within which claims and objections as to entries in electoral rolls may be preferred;

(h)the revision and correction of electoral rolls and inclusion of names therein”.

Central Government did not make Rules in
1960:

20. The Act mandated the Central government to make rules for determination of ‘ ordinary residence’. But, when the Rules were made, in 1960, no rule was made to determine “ordinary -residence”.

‘Ordinarily resident’ – Section 21 (7).

21. The following Sub section (7) was included to Section 20, when the Act was amended in 1966:-

“If in any case a question arises as to where a person is ordinarily resident at any relevant time, the question shall be determined with reference to all the facts of the case and to such rules as may be made in this behalf by the Central Government in consultation with the election Commission”.

But no such determination was made by the Central Government.

Supreme Court on ‘Ordinarily resident’:

Dr. Manmohan Singh Case:

22. In the meanwhile Dr. Manmohan Singh contested an election from Assam. Election Commission contested his status as an
    ‘ordinarily resident’ within the State of Assam. It resulted in filing the writ application againstthe Election Commission by Dr. Manmohan Singh. The writ petition was allowed, in part,by the Assam High Court, at Gauhati in C.R. No. 1087 of 1994 by order dated 3-1-1996. In that judgment the High Court held, inter alia, as follows:-

“(i)Thatthe“ordinaryresident”inaconstituency as mentioned in the Representation of the People Act, 1950 shall mean a habitual resident of that place or a resident as a matter of fact inregular, normal or usual course. It means an usual and normal resident of that place. The residence must be permanent in character and not temporary or casual. It must be as above for a considerable time; he must have the intention to dwell permanently. He must have a settled abode at that place for a considerable length of time for which a reasonable man will accept him as the resident of that state”.

Election Commission of India Vs
Dr.Manmohan Singh [1999 SUPP 5 SCR 70]

23.The Election Commission appealed against that judgment to Supreme Court, in Election Commission of India Vs Dr. Manmohan Singh. The Hon’ble Supreme Court while disposing the matter has recorded that: “The appellant accepts the correctness of the finding of the High Court in regard to the meaning of the words “ordinary resident”.

‘Ordinarily residents’ – Meaning
‘determined’ by Supreme Court :

24. From the above, it has already becomea settled law, as it has been accepted by the Election Commission of India, and endorsed by the Supreme Court, that the words “ ordinary residence ” found in Section 20, “means, a usual and normal resident of that place. The residence must be permanent in character and not temporary or casual. It must be as above for a considerable time; he must have the intention to dwell permanently. He must have a settled abode at that place for a considerablelength of time for which a reasonable man will accept him as the resident of that state”.

Election Commission has endorsed :

25. The Election Commission, in the Supreme Court, has accepted the meaning of ‘Ordinaryresidence’ as determined by the Assam High Court at Gauhati in Dr. Manmohan Singh case. The Supreme Court has recorded the same in the judgment. Therefore, as early
    as 1999 , the meaning of the term ‘ordinary resident’ has been determined finally by the Election Commission and the Supreme Court. That is binding on all the authorities Election Commission cannot go back on its endorsement. the Election Commission and the Supreme Court. That is binding on all the authorities. Election Commission cannot go back on its endorsement. Migrant workers – not ‘Ordinarily resident’ – in Place of employment :

26.At present large number of persons, from a number of States, have migrated to other states for work. Such migration is only temporary and not permanent. Mostly men migrate to other States go out for work, leaving their families in their native states. In that process the working men live in the migrated States for some time. Such residence is not the migrants’ permanent residence. Such migrants are NOT ‘ordinarily resident’ in the constituency and they cannot be considered as electors of that constituency.

27. As seen above, as per sections 19 and 20 , read with the endorsement of the Election Commission and the Hon’ble Supreme Court, in Dr. Manmohan Singh’s case the phrase “ordinarily resident” has been interpreted as permanent and habitual residence . According to that interpretation, the migrant workers from one State to another cannot be considered as ‘Ordinarily residents’ within that constituency where they work or employed.

THE REGISTRATION OF ELECTORS RULES
1960

28. Exercising the powers conferred by Section 28, the Central Government framed the above rules. The Rule 2 define ‘declared – office’ as an office declared by the President to be an office to which the provisions of sub section (4) of
    section 20 apply. Further, The General Clauses Act would apply for the interpretation of these Rules.

Revision of Rolls : ‘intensively or
summarily’:

29. Rule 25 lays down the procedure for ‘revision of rolls’ as follows:-

(1) The roll for every constituency shall be revised under sub-section (2) of section 21 either intensively or summarily or partly
intensively and partly summarily, as the Election Commission may direct.

Intensive revision:

(2) Where the roll or any part thereof is to be revised intensively in any year, it shall be prepared afresh and rules 4 to 23 shall apply
in relation to such revision as they apply in relation to the first preparation of a roll.

Summary revision:

(3) When the roll or any part thereof is to be revised summarily …… the provisions of rules 9 to 23 shall apply.

Rules 4 to 8 do not apply in case of
summary revision:
Excessive Delegation

30. Rule 25 of the Registration of Electoral Rolls 1960,lays down the procedure for such Revision, either intensively or summarily, or
    partly intensively and partly summarily, as the election Commission may direct.

Excessive delegation of Legislative power :
void:

31. Decision to conduct intensive revision or summary revision is a legislative power. Such a legislative power cannot be delegated at all. Further there are no guidelines as to under what circumstance special revision should be ordered and under what circumstances
    summary revision should be conducted. The rules confer such legislative power on the Election Commission. That amounts to delegation of Legislative power on the Election Commission. Such conferment, suffers from the vice of “excessive delegation”. The
    delegation of legislative power is void.

Rules cannot delegate Legislative power:

32. Here, the delegation is not by the Parliament [legislature ] but by the government [executive]. Rules cannot delegate ‘legislative power’.
33. What are the pre -requisites for ordering ‘intensive’ revision- is not stated under the Rules.
34. Rules state, ‘as the election Commission may direct’. Election Commission must state the reason for arriving at the Conclusion to order intensive revision. Without any ‘compelling reason’ Election Commission cannot order intensive revision.
35. Intensive Revision means preparation of Fresh electoral List. Therefore, the EC must justify the reason for preparing FRESH electoral list. That is the scheme of the Act under sub- section (3) of Section 23.

Arbitrary decision of the EC:

33. Inasmuch as no guidelines have been given, for ordering the intensive revision, the Rule itself is not enforceable. The Election
    Commission must state the reason for ordering intensive revision. Ordering intensive revision to all the constituencies in a State, amounts to ‘arbitrary decision’. Arbitrary decision is ante thesis of democracy. Hence void.

Inclusion of names inadvertently omitted:
[Rule-21]

34. If it appears to the registering officer that during preparation the names of any electors have been left out of the roll the registering officer shall:

(i) prepare a list of names and other details of such electors;

(ii) exhibit on the notice board of his office a copy of the list together with a notice as to the time and place at which the inclusion of these names in the rolls will be considered and also publish the list and the notice in such manner as he may think fit.

(iii) ) after considering the verbal or written objections, decide whether all or any of the names should be included in the roll.

Deletion of names: [Rule 21A]

35. If it appears to the registration officer that the names of dead persons or persons who ceased to be ordinary residents in the constituency or persons not entitled to be registered in that roll , have been included in the roll, the registration officer shall –

(i) prepare a list of the names and other details of such electors;

(ii) exhibit on the notice board of his office a copy of the list together with a notice as to the time and place at which the question of
deletion from rolls will be considered and also publish the list and the notice in such manner as he may think fit.

(iii) after considering the verbal or written objections decide whether all or any of the names should be deleted from the roll.

Before taking any action, as aforesaid, the registering officer shall make every endeavour to give him a reasonable opportunity to show cause why the proposed action cannot be taken in relation to him.

Registration of Electors (Amendment) rules
2022.

36. Aadhar number to be intimated: These Amended Rules, inter alia, contains the following Rule.

“ 26B: Special provision for providing Aadhar number by existing electors: Every person whose name is listed in the roll may intimate
his Aadhar number to the registration officer in Form 6B in accordance with sub-section 5 of section 23 of the Act. Though, the word used is ‘may’, it is mandatory for every elector tofurnish their Aadhar number to the Registering Officer in Form No. 6B.

‘Special intensive revision’ [ SIR ]- not found in the Rules.

37. Strict interpretation of Rule 25 (1) would be that “ Roll for every constituency under Section 21(2) – that is revision prior to General election -may be done as the election commission may direct. That is, it is a ‘routine’ revision That cannot be called Special intensive revision”. That nomenclature is not in accordance with the rules.

“Comprehensive instructions regarding Booth Level Officers” – through ‘Letters’ by Election Commission:

38. The scheme of the Representation of people Act 1950 is that only Central Government can make Rules. The Election Commission cannot make any rule. But the Election Commission has sent series of Letters right from 2007 to 2022, giving, “Comprehensive instructions regarding Booth Level Officers”. Election commission had decided to further strengthen institution of BLOs and constituted a committee of several CEOs to suggest / recommend ways for streamlining and strengthening of the institution of BLOs. On the basis of the decisions taken by the commission in the matter, revised comprehensive instructions were given to BLO. Strengthening the BLOs could be done only by Rules made by the Central Government. It is ultra vires the powers of election Commission.

Section 13B –Electoral Registration Officer:
[ ERO ]

39. Under Section 13B of the Representation of Peoples Act 1950, the Electoral Registration Officers, are to be appointed after obtaining approval from the District Election Officer

Letter of Election Commission dated 4th
October 2022 :

40. In the Letter dated 4th October 2022,from the Election Commission, paragraph-1,1,reads as follows:-

“Booth Level officers are to be appointed by the Electoral Registration Officers under section 13B(2) of the Representation of peoples Act 1950 after obtaining approval of the District Election Officer”. [ It enumerates the categories of Government and semi government employees.]

Basic Duties of BLOs:

41. (a) Paragraph 2.2. “Under overall control and superintendence of ERO, basic duties of Booth level officers will be as follows:-
    Under this, various duties are enumerated, like collection of claims and objections from applicants on behalf of ERO / AERO. They are specified in items from listed as (a) to (y).

(b) In that List, item (s) reads “Identification of dead and shifted voters during period of continuous updation”.

42.(a)The content of the letter makes it clear that EC wants to establish permanent Booth level officers for all the States. Such a power to create permanent bodies, like BLOs, is vested only on the Central Government.

(b)In the absence of any rule made by the Central Government , States can make rules on that behalf; not the Election Commission.

Issue pending before the Supreme Court;

43. The validity of appointment of Booth Level Officers is now pending verdict before the Supreme Court. Hence on that no opinion is expressed

Continuous ‘revision’ of electoral rolls
impermissible:

44. The identification of dead and shifted voters during the period of continuous ‘updation’, indicates the BLOs are to be
    permanent bodies for continuous updation amounts to ‘continuous revision’ of electoral Rolls.

Contrary to Section 21 of the Act:

45.(a) As per Section 21(2)of the Act, the electoral Rolls shall be revised by reference to qualifying date, only before each General
election and before each bye-election. (b) Special Revision may be carried out under Section 21(3) only for a specific Constituency,
for reasons to be recorded.

Conclusion:

46. From the foregoing paragraphs, it is seen that

(i) Election Commission have no power to make Rules; only the Central Government /the State Governments have the power
to make Rules.

(ii) Electoral Rolls can be revised under Section 21(2), for all the constituencies. That is ‘general Revision’.

(iii) Special revision could be carried out only for a specific Constituency under Section 21(3) of the Act.

(iv) The phrase ‘ordinarily residents’ in Section 20 means, permanent or habitual residents.

(v) Migrant workers are not ordinarily residents in the constituency they work.

(vi) The word ‘special’ is found used only in Section 21 (3).

(vii) The phrase ‘Special intensive revision’ is neither found used under the Act nor under the Rules.

(viii) The use of the phrase ‘Special intensive revision’ has no legal sanctity.