- 9 minutes ago
On the Judges Panel, former Supreme Court judge Justice Deepak Gupta and former High Court Chief Justice Sanjiv Banerjee deliberate on the Supreme Court's refusal to expedite hearings regarding Bengal SIR appeals ahead of upcoming by-elections. Addressing concerns over more than 37 lakh pending appeals and disenfranchisement, the panel examined whether judicial review is imperative to maintain transparent electoral rolls. Justice Sanjiv Banerjee emphasised that under the Constitution, every citizen is entitled to vote unless expressly disqualified, questioning the burden placed upon voters to verify their credentials. Justice Deepak Gupta noted that democratic safeguards require courts to step in rather than permit valid citizens to be excluded from voting, urging the judiciary to be far more proactive. Critiquing systemic anomalies and the executive's role in appointments to the Election Commission, the former judges warned that administrative overreach undermines public trust in democratic institutions.
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00:01Now, the Supreme Court today refused to take up hearings on petitions on the SIR appeals in Bengal.
00:08This is in the context of the by-elections that will be held in the state next month.
00:13A Supreme Court bench of Chief Justice Surya Khan, Justice Joymala Bakshi and Justice V. Mohan
00:18decided not to advance the date of hearings.
00:20The petitioners had argued that with by-poll scheduled in Reji Nagar and Nandi Graham constituencies in October,
00:26they wanted an early hearing for those citizens who've been denied their right to vote ahead of the by-elections.
00:33CGI's Surya Khan remarked rather controversially,
00:36these are only by-elections, that's all.
00:39The matter is now listed for October 5th.
00:42Remember, according to an Election Commission affidavit, in the Supreme Court alone,
00:46over 37 lakh appeals are pending in tribunals set up on the orders of the Court for Bengal.
00:52Only 1.26 lakh appeals have been disposed of so far.
00:57Over 22 lakhs are challenging their removal from the voter list.
01:0116 lakhs have been filed to delete names which were earlier cleared.
01:05And remember, there is a controversy.
01:08At this rate of clearance, it will take more than a decade,
01:11more than a decade to decide the appeals for West Bengal alone.
01:20Okay, let's raise then the big questions.
01:23Today, judges panel.
01:25Should the Supreme Court now step in and review the SIR process thoroughly once again?
01:31Has the Apex Court done enough to protect the right to vote?
01:35Should much more be done through courts to make the SIR transparent?
01:40Is the SIR constitutionally valid, as the Apex Court has said in recent times?
01:46Joining me now on the judges panel, Justice Sanjeev Mukherjee,
01:49is former Chief Justice of the Madras and Meghalaya High Court,
01:54and Justice Deepak Gupta, former Judge of the Supreme Court of India
01:58and former Chief Justice of the Tripura and Chhattisgarh High Courts.
02:01Good to have you both on the show today.
02:03I want to come to you, Justice Gupta, first.
02:06At a time when the political class is completely divided over the Election Commission of India's role
02:12in the SIR process in ensuring that our electoral rolls are not contaminated,
02:18do you believe the court could do much more, much more than it's done so far
02:23in ensuring that the process is transparent and an element of confidence,
02:29public confidence is restored in the Election Commission?
02:33Yeah, I think definitely the courts will have to do more.
02:36It's not only that they can't do, they must do more because of two reasons.
02:40One, from what has appeared in the Indian Express in the report by Ritika Chopra,
02:46that a lot of decisions taken by the so-called decisions of the Election Commission
02:52were actually not decisions of the Election Commission.
02:55Because under the law, the Election Commission works either by concessions,
02:59where all three members agree, or by a majority.
03:03Now it is more than apparent that many of the so-called decisions,
03:07which were called decisions of the Election Commission,
03:12were actually the decisions of only the CEC and the other two members had not agreed to them.
03:16So therefore, I think a large portion of the SIR exercise may have to be re-looked at.
03:27No, because the Supreme Court, Justice Gupta, if you recall,
03:31May, June, have said very clearly that the SIR is constitutionally valid.
03:35So they've thrown out all petitions so far that have challenged the entire process.
03:39No, it may be possible.
03:41In your view, for judicial review and that process of judicial review will take a very long time.
03:46No, I'm not saying, you see, I also feel that,
03:49I'm not saying that the SIR is not constitutionally valid.
03:52I'm not saying that at all.
03:54But the SIR must be conducted in a fair manner so that every citizen is not made suspect.
04:03And there's not a finger of suspicion pointing at every citizen of this country.
04:08In a democracy, we all have a right to vote.
04:33Interesting the way you're putting it because the reality, Justice Banerjee, is look at what the court did today.
04:40A bench headed by the Supreme Court Chief Justice on the Bengal issue when a petition was filed saying,
04:48look, you need to speeden up the tribunal process.
04:5122 lakh appeals are pending.
04:53There are by-elections for two constituencies coming up on October 8th.
04:57The court said, look, these are only by-elections.
04:59We can't speeden up the process.
05:02It will carry on.
05:03The truth is, 22 lakh appeals in tribunals at this rate will take 12 years.
05:09So, it's all very well to say that the court must protect the right to vote, but it doesn't seem
05:14to be doing so.
05:15These 22 lakh citizens, those who've been hurt so far, 93% have turned out to be genuine.
05:21So, they didn't get to vote in April in the assembly election.
05:24Now, they won't get to vote in by-elections.
05:28I don't know whether the figure is 22 lakh appeals.
05:32It should be more than 35 lakh more appeals are pending.
05:35And as you say, 93% of the cases went in favor of the appellant voters.
05:42Now, there's a fundamental point that I want to make.
05:44You see, Article 325 of the Constitution says that no person shall be eligible, shall be ineligible to vote only
05:54on the grounds of religion, race, caste, sex or any of them.
05:59Article 326 gives every person who's a citizen of India the right to vote unless disqualified on one of the
06:07more legal grounds.
06:08So, the stress in the Constitution is that everyone is eligible unless expressly or positively found ineligible or disqualified.
06:20Now, what is the discrepant business that the Election Commission has introduced?
06:25The focus must be on, this is your disqualification, sir.
06:29Give us information to tell us you're not disqualified.
06:32Why is there entire burden on the citizen to prove his citizenship or to prove that he's entitled to vote?
06:41And such an anomaly went unnoticed before the Supreme Court.
06:46Indeed, there was a recently retired judge of the Supreme Court who commented over the last few days that the
06:54matter had come up before the BR election,
06:56before a bench over which he presided.
06:58And he saw that there were several onerous conditions in the SIR, but did not state only because the petitioners
07:06on the appellants did not ask for a stay.
07:08Now, you're the Supreme Court of the country.
07:11You see onerous conditions.
07:12And you do not state even a matter of such importance as the right to vote.
07:18I find it very disturbing.
07:23You know, the 22 lakh figure I mentioned were those who had appealed against, the 22 lakh figure for Bengal
07:29I mentioned were those who were under logical discrepancy category.
07:33The remaining are those, as we are finding out, appeals filed by the Election Commission itself on various grounds.
07:39So, total is 38 lakhs, out of which 22 lakhs were under, so far under logical discrepancies gone in appeal.
07:45But you're saying that you believe the court should have intervened a long time ago to reverse the burden,
07:51not put the burden of proof on the citizen to prove that he or she is an eligible voter, but
07:57put the burden on the Election Commission.
07:59Am I correct?
07:59Absolutely.
07:59That's your interpretation of Article 324 and 326?
08:03There's no doubt that the Election Commission has authority to conduct the SIR, but the conditions of the SIR are
08:10what should have been looked into.
08:14So, according to you, could the court have done this so-moto or did the…
08:19I mean, because there have been various petitioners who have gone to the court in the last year, both before
08:24Bihar, both before Bengal.
08:25Now, another petitioner has gone today after these objections or the divisions within the EC have come out in the
08:31open.
08:31So far, the Election Commission, Justice Banerjee, has been reluctant to intervene in what they see is really the domain
08:38of the Election Commission,
08:40the conduct and superintendence of elections.
08:44Yes, but it is also governed by the Constitution and the laws.
08:49Also, the Election Commission is no authority to decide on citizenship.
08:54There is the Home Ministry, according to the Supreme Court judgments, which decides on citizenship.
09:00Now, you don't decide on citizenship, but you impose a lot of conditions which are not answered.
09:06You see, there are many rich and influential who have been excluded from the voters list.
09:12They will, in due course, apply, appeal and get their names back.
09:16What about the people who do not have the resources or even the awareness to access the appellate forum or
09:23any other authority?
09:24They are not even bothered.
09:26They are looking after their daily wages or the daily chores that they have to do and you disenfranchise all
09:34of them.
09:35I will take a small example.
09:36You know, in my home constituency of Bhavanipur in Kolkata, the BJP candidate won by 15,000 votes, 73,000
09:50was polled by the BJP candidate, the Trinamul candidate polled about 58,000.
09:54There were 48,000 names missing from the voters list.
10:00If that 48,000 had voted, the result could have been completely otherwise.
10:05Also, in Bhavanipur constituency, there are 20 votes.
10:08But to be clear, some of them were dead.
10:10No, no, some of them, the EC says was part of a cleaning up of the electoral road process, may
10:16have been dead or moved out.
10:17They may have transferred residence.
10:19Not all of them necessarily should be seen as legitimate voters.
10:2350,000 given that the margin was 15,000 plus Bhavanipur constituency has 24% Muslim voters.
10:3140% of the names in the SIR in Bhavanipur constituency were Muslim voters.
10:3840% that is grossly disproportionate to the general strength of the communities in that constituency.
10:47And all of them don't look good.
10:50There was a fire at the new administrative building in Alipur on the 5th and 6th floors.
10:57And then again a fire on the 9th and 10th floors.
11:00Between 2,500 and 4,000 EVMs got destroyed.
11:06And the chief electoral officer responsible for that election becomes the chief secretary of the state.
11:13And the principal election observer becomes a special advisor to the chief minister.
11:19These don't make for good optics or sound good in a democracy or in a system which is supposed to
11:25be fair.
11:29I take your point but you know Justice Gupta there will be those who are listening to this.
11:34What can the courts do?
11:35You see as I said article 324, 326 courts are trying to ensure separation of powers.
11:41We are not going to intervene beyond the point in what the election commission does or does not do.
11:45We don't want a conflict with the election commission even while admitting including Chief Justice Surya Kandha admitting there is
11:52a trust deficit today between the election commission and constitutional functionary.
11:57So it seems that the court is reluctant to cross a Lakshman Rekha.
12:01How do you respond to what you heard from Justice Banerjee?
12:03Do you also believe that the court should have done more to reverse the onus of proof on the election
12:08commission rather than ask citizens to prove that they are legitimate voters?
12:13I agree with Justice Sanjeev Banerjee wholly on this point.
12:17Let me add a few words.
12:18That we are a democracy.
12:23What is a democracy if every citizen does not get to exercise his right to vote?
12:30And this exercise of the SIR has been more in the nature of disenfranchising voters.
12:35You see, they started off with this, that we'll take out all the non-citizens who have got the right
12:41to vote and we'll throw them out.
12:43But you're seeing, how many have they actually thrown out non-citizens in Bihar or in Bangladesh?
12:49Those figures we have not seen till today.
12:52What does the election commission say?
12:54And the election commission must work in accordance with law.
12:58The Supreme Court, I'm sorry to say, should have interfered earlier.
13:02But now, at least it's imperative for it to interfere.
13:06Because it is now apparent that even two of the election commissioners have raised serious concerns with regard to Form
13:146,
13:14with regard to the manner in which the SIR was being conducted.
13:18So, yes, I can understand that when a decision of the election commission is placed before the Supreme Court,
13:28the election commission also being a constitutional body, you give it due respect and you do not interfere with it
13:34lightly.
13:35But once it is shown that there are dissensions between the Supreme Court and above all,
13:40for me, above all, whether dissensions or no dissensions, even if it was a unanimous election commission,
13:46why should these citizens who have the right to vote be deprived of their right?
13:54See, it's very easy for people like us to go and get all the papers.
13:59But can you imagine a domestic help from Assam working in Delhi?
14:04A poor person from, we have lots of boys and girls from Nagaray, North East,
14:09working in various other parts of the country.
14:11How do they, they have to go back, collect the documents, because the facts have been shown.
14:15I mean, even worse is the fact that as per law, it is the BROs at the block level who
14:22have to register or delete voters.
14:25Now it has become centralized.
14:27They are doing everything at the center level.
14:29The BROs, you have seen what has come from the, from Goa.
14:34Those BROs, they are saying include the names and the election commission is not including the names.
14:40And now what they have done is to, you know, to get over it,
14:43that we've included them by making them form, file the forms six,
14:48which starts on a lie that you have never voted before.
14:52And you can now prosecute those pure people that you had, you had the right to vote,
14:57you have now filled a false form.
15:00I mean, it's, it's, there is a trust.
15:02You see, the question, of course, the question is, of course, sir.
15:07Yes.
15:08Sir, sir, the trust deficit also stems, Justice Gupta,
15:11from the manner in which the election commissioners themselves are appointed.
15:16Now, this matter is before the Supreme Court.
15:19Justice Dipankar Dutta has questioned the executive's dominance in the election process.
15:24The manner in which, you know, the prime minister and the minister are there
15:29and the leader of the opposition is seen as largely ornamental.
15:33So, should there be a, and now there's a constitution bench which is going to look at this.
15:38But the fact is, do you believe that the, it starts with the,
15:41problem starts with the way in which election commissioners are appointed at the moment in the country.
15:46They've always, you know, whichever, whoever's in the opposition accuses now,
15:50whoever is in power of trying to use these election commissioners to subvert the process.
15:57There's no doubt about that.
15:59And just so that it appears fair,
16:01I think the process of appointment of election commission should be a much more fairer system.
16:05And that is what the earlier three-judge bench had said.
16:09And when this matter came up and they had included the chief justice till somebody else come,
16:15the parliament, the government in its wisdom decided to change the law
16:19and the chief justice was excluded.
16:23And, but the third person now is the home minister.
16:27Now, it's actually a match, a cricket match,
16:31starting with two umpires on one side and one umpire on the other.
16:35How would you select?
16:37So, you believe even though parliament,
16:38you believe even though parliament has passed the 2023 Act,
16:42the court should review it?
16:44Definitely.
16:45If, if we have to, you see, because in 20,
16:47in the earlier judgment, which was passed by Justice Joseph,
16:51it was clearly stated that democracy is so inherent to this country
16:54that if, if the country has to be a democracy,
16:58then the selection of the election commissioners should be by a body
17:01which is absolutely even-handed and equally balanced towards all.
17:10Do you believe also, Justice Banerjee,
17:11the time has come for the court through a constitution bench to step in now?
17:15Because the only way to restore,
17:17many believe the authority, the credibility of the election commission
17:20is to ensure a fairer process for selecting election commissioners.
17:24It starts with there.
17:25That's where the Gyanesh Kumar question comes in.
17:28I believe that should have been decided in that two-judge bench decision by itself.
17:35No constitution bench was necessary for that purpose.
17:39It's unfortunate, particularly the circumstances in which
17:43the dissent by the other judge has been made.
17:47The surrounding circumstances, the other, you know, facts,
17:51which were not disclosed, it is, it is really a sad day for the Indian judiciary
17:57and for the justice delivery system that this kind of thing happens at the highest level.
18:05So net-net, you're saying it's time for the judiciary to get tough.
18:09Net-net, that's what you're saying.
18:11It's time for the judiciary to be seen as much more proactive.
18:15To grow probably a spine, to show a spine.
18:22It is absolutely essential.
18:24You see, the election commission, the election commission is the referee,
18:30is the referee, so to say, or the umpire, whichever way, whichever sport you like.
18:34And if the umpire is, you know, biased towards one side,
18:41what's the point of playing the game?
18:43And the supreme watchdog over every system, every process is the Supreme Court.
18:50And if that watchdog misses these glaring anomalies,
18:55then it is a sad day for the public.
18:57And the faith in the system gets eroded.
19:03I'm going to leave it there.
19:05These are very strong words coming in from two former distinguished judges of the country.
19:09I hope someone out there is listening
19:13and is going to develop a part of the body that has gone sadly missing
19:17in public life in this country, the spine or the backbone.
19:21Justice Gupta, Justice Banerjee, good to have both of you here on the show today.
19:26Thank you very much for speaking up and speaking your mind.
19:32The judges panel there on the SI.
19:35The judges panel there on the SI.
19:35The judges panel there on the SI.
19:35The judges panel there on the SI.