Delhi SIR: Supreme Court to hear Form 6 row on November 19 after ECI clarification

The Supreme Court will hear on November 19 a dispute over the Election Commission of India's clarification allowing voters deleted from Delhi's draft electoral roll during the Special Intensive Revision (SIR) to seek fresh inclusion by submitting Form 6.

The issue was raised before Chief Justice of India Surya Kant on Wednesday by advocate Prashant Bhushan, appearing for petitioners Anjali Bharadwaj and Amrita Johri. Bhushan argued that the Election Commission's November 3 clarification appeared to contradict the Court's observations during the October 28 hearing, when it had questioned why voters previously enrolled in the electoral rolls should have to apply as new voters.

The Chief Justice said the matter was already pending before the Court and urged people not to be apprehensive. He asked the petitioners to file an application placing the Election Commission's latest clarification on record and said the issue would be heard on November 19. He also indicated that the Court could, if necessary, ask the Commission to extend the deadline further.

ECI says deleted voters can use Form 6

The controversy follows a November 3 communication issued by the Election Commission to the Chief Electoral Officers of all States and Union Territories. It clarified that electors whose names do not appear in the draft electoral roll can submit Form 6 to seek inclusion in the final list, irrespective of whether they had been enrolled previously.

The Commission said it had received reports that some previously registered voters were hesitant to use Form 6 because the application contains a declaration that the applicant is seeking inclusion in the electoral roll for the first time. They feared that submitting it despite having been enrolled earlier could amount to a false declaration and expose them to prosecution under Section 31 of the Representation of the People Act, 1950.

The ECI clarified that submitting Form 6 in these circumstances would not, by itself, amount to a false declaration merely because the applicant had previously been registered as a voter.

The Commission also said that an Electoral Registration Officer (ERO) must not initiate action under Section 31 against an elector merely because the person appeared in an earlier electoral roll and submitted Form 6 during or after the SIR process. This protection applies provided the elector is not already enrolled in another Parliamentary or Assembly constituency and the declaration otherwise complies with the law.

The ECI stated: "It is clarified that an elector whose name does not appear in the draft electoral roll may submit Form 6 to seek inclusion in the final electoral roll, in accordance with the prescribed procedure. Consequently, an elector whose name does not appear in the draft roll is required to seek inclusion afresh in the electoral roll under SIR or afterwards, irrespective of whether the elector had been enrolled previously. The submission of Form 6 in such circumstances is, therefore, for the purpose of inclusion in the electoral roll under SIR or afterwards and is not, by itself, false merely because the elector was previously enrolled."

The Commission relied on the Delhi High Court's October 14 judgment in Nilotpal Datta v. Election Commission of India. The High Court had observed that the apprehension of two petitioners, whose names were deleted after they could not complete the enumeration process, that submitting Form 6 would expose them to prosecution for a false declaration was misplaced. It said their applications could be submitted and considered in accordance with law.

The ECI also said the declaration in Form 6 had been in force since August 1, 2022. It directed Chief Electoral Officers to publicise the clarification widely through available media, including in local languages.

What the Supreme Court said on October 28

The petitioners contend that the ECI's latest position does not adequately address the concerns raised before the Supreme Court on October 28. During that hearing, the bench questioned the Commission's insistence that voters excluded from the draft roll for not submitting enumeration forms should apply through Form 6.

The Court pointed out that Form 6 requires applicants to declare that they are seeking inclusion in the electoral roll for the first time, even if their names had appeared in previous electoral rolls. Bhushan had argued that existing voters should not be compelled to make a declaration that they had never been enrolled before, particularly when doing so could potentially attract penal consequences under Section 31 of the Representation of the People Act.

The bench had suggested that people who had shifted residence should be allowed to submit Form 8, which is used for shifting of residence and correction of electoral entries. Those who could not submit enumeration forms should be given an opportunity to do so.

It had also suggested that the ECI publish the list of deleted voters and facilitate their contact with Booth Level Officers (BLOs), enabling them to submit the appropriate forms. Senior advocate Dama Seshadri Naidu, appearing for the Election Commission, had agreed to examine the suggestions and consider remedial measures.

The petitioners now argue that the November 3 clarification, by directing previously enrolled voters to seek inclusion afresh through Form 6, runs contrary to the approach suggested by the Court.

Nearly 47.56 lakh electors affected by deletion

The dispute concerns approximately 47.56 lakh electors excluded from Delhi's draft electoral roll under the category of Absent, Shifted, Dead or Duplicate (ASDD).

During the October 28 hearing, the petitioners had referred to around 43 lakh voters categorised as permanently shifted or absent. They argued that many of them had not received enumeration forms but were nevertheless being asked to apply afresh through Form 6.

In a communication dated November 3 to Chief Election Commissioner Gyanesh Kumar, the petitioners urged the ECI and the Delhi Chief Electoral Officer to establish a simplified mechanism for implementing the Supreme Court's observations. They sought acceptance of Form 8 and enumeration forms from voters on the ASDD list without compelling them to submit Form 6.

The petitioners also cited figures showing that approximately 31.59 lakh deleted voters had been categorised as permanently shifted, while 11.73 lakh were classified as absent or untraceable.

They called for the ASDD list and relevant forms to be made available at booth or block level, along with assistance to voters in completing the process. They also sought adequate publicity in Hindi and other relevant languages to ensure that affected electors were informed about the steps available to them.

ECI makes changes to online Form 6 process

In a related development reported on November 4, the Election Commission removed the additional SIR-related declaration from the online version of Form 6 on its ECINet portal in States where the revision is still under way. The declaration has been made available separately.

The change follows the Commission's earlier decision to separate the SIR declaration from the statutory Form 6 application, following concerns over how the two were presented together online. The ECI had maintained that the statutory form itself could be amended only by the Central Government.

The dispute forms part of the pending writ petition filed by Anjali Bharadwaj and Amrita Johri, which also challenges the ECI's failure to disclose adequate information about voters issued notices over alleged 'Logical Discrepancies' during the Delhi SIR.

The Supreme Court is now expected to consider the petitioners' objections to the November 3 clarification at its November 19 hearing. The Chief Justice has indicated that the Court may also consider asking the Election Commission to extend the deadline if required.