The Supreme Court on Monday questioned the Election Commission of India (ECI) over the procedure prescribed for voters who could not submit enumeration forms during the Special Intensive Revision (SIR) of electoral rolls in Delhi, asking whether an existing voter who missed the deadline could be required to submit Form 6, which contains a declaration meant for first-time registration.

A Bench of Chief Justice Surya Kant and Justices Joymalya Bagchi and V. Mohana was hearing petitions challenging aspects of the SIR exercise. The Court questioned the ECI on the difficulties faced by voters who had shifted residence, were temporarily absent or had not received enumeration forms, and asked the poll body to consider a mechanism through which such voters could establish their existing electoral registration without being treated as first-time applicants.

At the outset, the Bench asked why the ECI had not filed the status report that it had earlier been directed to submit. Senior Advocate D.S. Naidu, appearing for the ECI, placed before the Court a press note containing the figures relating to the enumeration exercise.

According to the figures, Delhi had 1,45,10,299 electors at the beginning of the SIR exercise. Of these, 97,53,577 had responded, while 47,56,722 had not responded to the enumeration exercise. The categories cited by the ECI included electors who had permanently shifted or were absent, deceased electors and persons whose names appeared at multiple places.

The figures referred to approximately 43.62 lakh electors who had permanently shifted or were absent, 2.82 lakh deceased electors and 1.41 lakh cases of multiple enrolment. Advocate Prashant Bhushan, appearing for the petitioners, referred to the figures for permanently shifted and absent electors separately, stating that approximately 31.59 lakh had permanently shifted and 11.73 lakh were absent or untraceable.

He submitted that the figures could not be viewed merely as a failure by electors to respond. He argued that many voters had not received enumeration forms in the first place. In several cases, the forms carried old addresses, making it difficult for voters who had shifted residence to receive and submit them.

He further questioned the procedure indicated by the ECI for such voters. He added that a voter who was not included in the draft electoral roll could be asked to file Form 6 to secure inclusion at the new location. However, Form 6 contains a declaration that the applicant has not previously been enrolled as a voter. Form 8, on the other hand, is the prescribed form for shifting residence.

Mr Bhushan argued that requiring a previously enrolled voter to submit Form 6 created a difficulty because the voter would have to make a declaration inconsistent with their existing electoral status. He suggested that voters who had missed the enumeration exercise should be permitted to submit their enumeration forms at a later stage and that those who had shifted residence should be allowed to submit the enumeration form along with Form 8.

The Bench then questioned the ECI on the practical difficulties faced by voters in a city such as Delhi, where people frequently move for employment and other reasons. The Court asked why the burden of establishing their eligibility should fall entirely on such voters, particularly when they might not have received the enumeration form because it was sent to an old address.

The CJI observed that population movement was a recurring feature of large cities and that the procedure needed to account for it. The Bench suggested that the ECI could make efforts to reach affected electors, including through booth-wise lists and public notices in simple language. It also referred to the need for notices in Hindi and other relevant languages so that voters could understand what steps they were required to take.

The Court asked the ECI to explain what it meant to say that an enumeration form had been “given” to a voter when the address available in the electoral records was no longer current.

Senior Advocate DS Naidu, appearing for ECI, responded that the latest electoral roll had been used as the basis for the exercise. Where a person had shifted but had not updated the address in the electoral records, the records would continue to reflect the earlier address. He referred to the ECI’s FAQs, press notices, camps and the work of Booth Level Officers as measures taken to inform voters and facilitate the exercise.

The Bench examined the FAQ dealing with electors who had shifted residence. The material indicated that an enumeration form might not be served on such a voter and that the person’s name might consequently not appear in the draft roll, after which the voter could submit Form 6 at the new location.

Mr Bhushan questioned this procedure, reiterating that Form 6 required a declaration that could not appropriately be made by someone who had already been enrolled. The Bench asked why the particulars available in Form 8, including the voter’s previous electoral details, could not be used to identify and map the existing entry.

The Court also distinguished between a person applying for registration for the first time and a person who was already registered but had shifted residence. It asked why the latter should have to proceed through a mechanism designed for the former when the voter’s previous registration could potentially be traced through the electoral records.

The Bench raised concern over the position of voters who might have been temporarily away from Delhi for work or other reasons when the enumeration exercise was conducted. It questioned whether the procedure adequately addressed cases in which a voter had not received a form or had been unable to respond within the prescribed period for reasons unrelated to eligibility.

The CJI observed that the categories used by the ECI appeared to account for electors who had shifted, were absent, were deceased or were enrolled at multiple places, but might not cover every reason for non-response. The Court indicated that there could be a residual category for voters who had been unable to respond because of non-service or other circumstances. Court observed:

‘Logical Discrepancy’ is Not Addressed in Bihar SIR Judgement

The Court referred to its earlier decision concerning the Bihar SIR exercise and the forms prescribed under the electoral framework. It noted that Forms 6, 7 and 8 could not simply be altered, but raised the possibility of the ECI exercising residual powers under Section 21(3) to provide an appropriate mechanism for voters who had not been able to respond.

Mr Bhushan pointed to the ECI’s press note, which indicated that approximately 33 lakh electors had been issued notices in connection with the draft roll. Of these, around 13.79 lakh cases involved no mapping, while approximately 19.34 lakh involved logical discrepancies. He submitted that the ECI had not defined “logical discrepancy” in any of its documents. He questioned the basis on which the category was being applied and raised concerns about the scrutiny of entries in the electoral rolls.

Justice Bagchi observed that the legality of treating logical discrepancy as a separate category in the SIR exercise had not been finally adjudicated by the Court. He asked how entries in the 2003 electoral roll could be reopened on the basis of logical discrepancy and questioned the introduction of the category as part of a wider SIR exercise, rather than as a one-off exercise.

The Bench indicated that the manner in which the category was being applied, including whether there had been an actual application of mind in individual cases, might require closer examination. It cautioned, however, that it was not expressing a final view on the issue at that stage. Justice Bagchi said:

Justice Bagchi also cautioned against treating the Bench’s observations during the hearing as conclusive findings. He said:

“Entire deliberation, why we make these statements are not conclusive, Mr. Bhushan. … These are difficulty in every sensitive matter where the entire dialectics becomes strained due to out of context publication of judicial proceedings.”

SC Flags Form 6 Hurdle For Existing Voters

Naidu submitted that voters whose names were missing from the draft roll could still seek inclusion even after publication of the final electoral roll, up to the date of nomination. He submitted that the ECI had been evolving its procedures and that there was no permanent exclusion of a voter merely because the person’s name did not appear in the draft roll. He said a person could still seek inclusion even after the final roll was published, up to the date of nomination.

The Court, however, questioned whether the availability of a later remedy adequately addressed the procedural difficulty faced by existing voters required to apply through Form 6. He said that the fact that a voter was not permanently excluded did not, by itself, answer the concern that the prescribed process could create an obstacle to inclusion. Justice Bagchi observed:

The Bench asked the ECI to consider whether enumeration forms could be accepted even after the prescribed cut-off and whether the process could continue to accommodate Form 6 and Form 8 applications. It also suggested that the ECI issue public notices through newspapers, its website and other online channels, explaining the steps available to voters who had not responded or whose names were missing from the draft roll.

The Court asked the ECI to prepare lists in simple language for the approximately 43 lakh electors categorised as permanently shifted or absent, setting out where they had previously been enrolled and explaining how they could contact the nearest block or booth office to resolve their status.

Mr Naidu said he would discuss the suggestions with the competent authority and return to the Court. He indicated that an extension of the deadline would be ensured if necessary. He also stated that Form 6 and Form 8 applications were still being accepted and urged electors to apply at the earliest.

The Bench asked the ECI to take steps to reduce the number of electors in the outstanding category and revisit the issue within two weeks. It also asked the poll body to clarify the procedure for voters who had shifted residence, observing that Form 8 might provide the information needed to map their previous electoral entry.

The Supreme Court granted the ECI two weeks to consider its suggestions and report back on the difficulties faced by voters omitted from the draft electoral roll.