The Supreme Court on Monday remarked the Election Commission of India (ECI) created a "logical discrepancy" list of doubtful voters only during the Special Intensive Revision (SIR) of electoral rolls in West Bengal. Justice Joymalya Bagchi, sitting on a Bench headed by Chief Justice of India (CJI) Surya Kant, added that the voters have now been sandwiched between different constitutional authorities in West Bengal. Justice Bagchi made the comment after Election Commission of India (ECI) argued that there was 47 percent rejection of cases by judicial officers, who adjudicated the notices issued by the poll body. "It's not end justifying means but means justifying the end. This is not a fight between State and Election Commission. This is not a blame game. It is about voter being sandwiched between two constitutional authorities. Courts have intervened only to promote elections and not interdict it," Justice Bagchi said. However, Justice Bagchi also said that unless and until there is "enormous amount of voters excluded", the election results cannot be interfered with. "If 10 percent does not vote and winning margin is more than 10 percent then...if it's less than 5 percent then we have to apply our mind. Earlier a candidate was given primacy before the appellate tribunal because a candidate cannot be denied the right to contest. Please don't think the question is not in our mind that what about those who are excluded," the judge added.
Justice Bagchi also highlighted the differences between the SIR in West Bengal and Bihar, particularly the creation of logical discrepancy list. "We have permitted the constitutional authority to go into purity of electoral roll issue. Your original ECI notification on SIR did not touch 2002 list. But your logical discrepancy list rejection reasons are 2002 list etc. your notification touched people who relates to people in the 2002 list. 2002 list is the benchmark. See in your final list you did not delete the 2002 list members. When Bihar SIR was argued, submissions of ECI was unequivocal that 2002 list members need not give any document. Please see your written submissions in Bihar case. You had said 2002 electorate need not give documents.." When ECI counsel Senior Advocate DS Naidu said that the people have to prove that they are the same person as in 2002 list, Justice Bagchi said, "Now you are improvising the submissions which you made earlier."
Justice Bagchi also observed that judicial officers too would have committed some errors during the adjudication process. "If you go through 1000 documents a day, if accuracy is 70 percent then the activity should be rated as excellent. So margin of error will be there and we need a robust appellate forum," he said. Observing that the right to vote has to be continuous and that the Court cannot get blinded by dust and fury of impending elections, the judge further said, "Right to vote in a country you were born is not Constitutional only but sentimental. It is like you are a part of democracy and help in electing a government." When Naidu said that West Bengal was not standing out in any manner in the comparative data of States where SIR was undertaken, Justice Bagchi said there was no logical discrepancy list in Bihar. Naidu responded there were rejections in Bihar too but no appeal process.
At this, Justice Bagchi said, "For the appellate tribunal this is not competition between conflating or deflating electoral rolls. They have to hear it on the principles of inclusion." The Court was hearing a case related to the functioning of appellate tribunals in West Bengal. The counsel appearing for a petitioner said that ECI was not even placing matters before the appellate tribunal headed by Chief Justice (retd.) TS Sivanganam. "Appeals are not being taken up. Let freezing date be extended," the counsel said. CJI Kant asked the petitioner to approach the appellate tribunal and make these submission there. The counsel asked whether the appeals will be decided within a time frame. The Court was not impressed with the submission. "So you want us to put the former chief Justices and judges.. under pressure," CJI Kant said. Similarly, Justice Bagchi said, "Calcutta HC Chief has informed manner and mode of appeals have been formulated. It has started hearing from today. We cannot say hearing x appeals from today." The Court then declined to entertain the plea related to the appeal listed before the appellate tribunal. It said the petitioner would have to make a case before the appellate tribunal. When the petitioner's counsel said that even the Chief Justice had remarked that judicial officers had not recorded reasons for rejection, CJI Kant said, "We cannot doubt the judicial officers."