"Arbitrary Action Violating Art 14,9 And 21": Supreme Court Issues Notice On Plea Against Marking Of Certain Voters As 'D' Category In Electoral Rolls

A Bench led by CJI SA Bobde issued notice on the petition filed by several individuals, claiming that they were arbitrarily marked as D-voters in the year 1997, without affording an opportunity of hearing.

The Petitioners have submitted the copy of a RTI reply given by Electoral Registration Officer, wherein the officer has clearly said that even though the Petitioners are marked as D-voters, no such records of putting the "D"-mark is available in the office.

In this backdrop the Petitioners submitted,

"The Respondents herein have no documentation to prima facie justify their action of marking "D" against the names of the Petitioners, making it an arbitrary action and in blatant violation of the provisions of law and precedents."

Violation of Constitutional & Statutory provisions

It is stated that such arbitrary action is in continued violation of their rights under Articles 14 (right to equality), 19 (right to freedom), 21 (right to life and personal liberty), 325 and 326 (adult suffrage) of the Constitution of India as well as their statutory rights under the Representation of the People Act, 1950 and other laws in force.

They have referred to Section 23 of the RP Act, which prescribes the manner and lays down the pre-requisites for inclusion in electoral rolls.

It provides that a person making an application for inclusion in the electoral rolls is entitled to be included upon the satisfaction of the ERO, "after proper verification of facts in such manner as may be prescribed".

Similarly, Section 22 of the Act states that the ERO can amend, transpose or delete the entry "after proper verification of facts". The proviso thereof states that if a name is to be deleted on the grounds that the person is not entitled to be registered as a voter, the election 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 after proper verification of facts.

A similar provision of providing reasonable opportunity is also given under Rule 21A of the Registration of Electors Rules, 1960.

The Petitioner has submitted that the creation of the category of "doubtful" or "dubious" voter is not provided for in the legislations cited hereinabove. The plea states,

"This category of "D-Voter" was created outside the legislative framework and through an act of delegated authority by theG Election Commission of India, under office orders and memorandums.

The implications of the "D" against the name of an individual is far-reaching and includes the denial of basic human rights, Constitutional rights, and other statutory rights— like denial of ration and the right to vote amongst others."

They have relied on Lal Babu Hussein & Ors. v. Electoral Registration Officer & Ors., (1995) 3 SCC 100, where while elaborating upon the nature of the right to vote, and the rights and powers of the persons therein and the ERO, the Supreme Court had observed,

"There exists a presumption that the officer concerned must have gone through and ensured the procedural requirements under a law are met/fulfilled before a name is entered in the electoral rolls.

If a doubt arises on whether a said person is to be included in the electoral rolls, then a meaningful and purposive opportunity of being heard must be given. This would include informing the person concerned about "why a suspicion has arisen"."

The Petitioners have urged the Top Court to issue an order declaring that the process adopted by the Election Commission in marking "D" against their names on the electoral rolls, is arbitrary, illegal, and unconstitutional.

They have sought that their names be reinstated on the electoral rolls and the same be informed to the National Register of Citizens authorities.

The Petitioners also seek a compensation of Rs. 50,000/- each for deprivation of Constitutional and statutory rights.