LAL BABU HUSSEIN HUSAIN DALWAI P U C L Vs. ELECTORAL REGISTRATION OFFICER :UNION OF INDIA :ELECTORAL REGISTRATION OFFICER

JUDGEMENT

(1.) These three cases two writ petition under Article 32 and one special leave petition under Article 136 of the Constitution of India, raise certain vital issues regarding an individual's eligibility for inclusion of his / her name in the electoral rolls of a given constituency. Article 325 of the Constitution envisages one general electoral roll for every territorial constituency for election to either House of Parliament or the Legislature of a State and under Article 326 elections to the House of the People and to the Legislative Assembly of every State must be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than 18 years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under the Constitution or any law on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election. Articles 327 and 328 empower Parliament / State Legislatures respectively to inter alia make provision with respect to all matters relating to, or connected with the preparation of electoral rolls by enacting an appropriate law. The superintendence, direction and control of the preparation of the electoral rolls has been vested in the Election Commission by virtue of Article 324 of the constitution. These are the relevant constitutional provisions bearing on the question of preparation of the electoral rolls and eligibility of every person to be included therein to which our attention was drawn.

(2.) The Representation of the People Act, 1950 (hereinafter called 'the 1950 Act'), inter alia, provides for the preparation of electoral rolls, qualification of voters etc. Part III thereof comprising Sections 14 to 25A provides for Electrical rolls for Assembly Constituencies. Section 15 envisages an electoral roll for every Assembly Constituency. Section 16 prescribes the disqualification for registration in an electoral roll. It says: a person shall be disqualified for registration in an electoral roll if he (a) is not a citizen of India; or (b) is of unsound mind and stands so declared by a competent court; or (c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections. It further provides for striking of the name of any person who becomes disqualified after registration but if the disqualification is removed at any subsequent point of time, the proviso lays down that the name of such person shall forthwith be reinstated in that roll. Section 19 lays down the conditions of registration. It inter alia provides that every person who is not less than 18 years of age on the qualifying date and is ordinarily resident in a constituency, shall be entitled to be registered in the electoral roll for that constituency. Section 20 gives the meaning to the expression "ordinarily resident." Then comes Section 21 which provides for the preparation and revision of electoral rolls. It envisages that the electoral roll of each constituency shall be prepared in the prescribed manner and shall come into force immediately upon its final publication. It contemplates revision of the electoral roll before each general election to the House of the People or to the Legislative Assembly of a State and before each bye-election to fill a casual vacancy in a seat allotted to the constituency. It further provides for the revisions of the electoral roll in any year in the prescribed manner if such revision has been directed by the Election Commission. The proviso to that sub-section lays down that if the electoral roll is not revised the validity or continued operation of the said electoral roll shall not thereby be affected. Sub-section (3) of Section 21 which begins with a non obstante clause says that the Election Commission may at any time, for recorded reasons, direct a special revision of the electoral roll for any constituency or part of a constituency in such manner as he may think fit. Section 22 deals with the correction of entries in electoral rolls. According to that section if the Electoral Registration Officer for a constituency is satisfied after inquiry that any entry in the electoral roll of the constituency is erroneous or defective in any particular or it is necessary to be transposed to another place in the roll on account of the person concerned having changed his place of ordinary residence within the constituency or is required to be deleted because the person concerned is dead or has ceased to be ordinarily resident in the constituency or is otherwise not entitled to be registered in that roll, the Electoral Registration Officer shall, subject to such general or special directions, if any, given by the Election Commission in that, behalf,amend, transpose or delete the entry. The proviso to that section introduces the principle of natural justice, in that it enjoins the Electoral Registration Officer to give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him. Section 23 provides for the inclusion of names in electoral rolls. It says that any person whose name is not included in the electoral roll of a constituency may apply to the Electoral Registration Officer for the inclusion of his name in that roll. On receipt of such an application, the Electoral Registration Officer is enjoined by sub-section (2) thereof to direct his name to be included therein on being satisfied that the applicant is entitled to be registered in the electoral roll. An appeal is provided against the decision of the Electoral Registration Officer under Section 22 or 23 to the Chief Electoral Officer. Lastly, Section 28 empowers the Central Government to make Rules. These are some of the provisions of the 1950 Act which have a bearing on the questions at issue.

(3.) Reference may now be made to the Registration of Electors Rules, 1960 (hereinafter called 'the 1960 Rules'), which came into force on January 1, 1961. Part II thereof concerns 'Electoral rolls for Assembly Constituencies.' Rule 5 provides that the roll shall be divided into convenient parts. Rules 10 and 11 contemplate the publication of draft rolls in the first place and inviting of objections, if any, thereto. Rules 12 to 16 deal with the lodging of claims and objections to the draft rolls. Rule 17 provides that claims or objections not lodged within the time allowed or in the specified form and manner shall be rejected. Rule 18 provides for acceptance of claims and objections without any inquiry if the registration officer is satisfied about the validity of any claim or objection. In all other cases, Rule 19 enjoins giving of notice of hearing, Rule 20 envisages a summary inquiry into the claims and objections in respect of which show cause notice under Rule 19 had been given, recording of evidence and then recording of decision thereon. Rule 21 provides for inclusion of names inadvertently omitted in the rolls. Rule 21A as amended with effect from 3rd September, 1987, lays down that if it appears at any time that owing to inadvertence or error or otherwise, the names of dead persons or person who have ceased to be, or are not entitled to be registered in the rolls, have been included therein, the registration officer shall exhibit the names, etc.,of such electors on the notice board and also publish them in the manner prescribed and after considering the objections decide whether or not the names of all or any of them should be deleted from the roll. This decision must be taken only after the concerned person has been accorded a reasonable opportunity to show cause against the proposed action. After all these requirements are over, Rule 22 contemplates the publication of the final list together with amendments. On such publication, the roll together with the list of amendments shall be the electoral roll of the constituency. Rule 23 provides for an appeal from any decision of the registration officer taken on the claims or objections filed against the draft list. Rule 25 says that the roll of every constituency shall be revised either intensively or summarily or partly intensively and partly summarily, as the Election Commissioner may direct. This, in brief, is the procedure laid down for the preparation of the electoral rolls.