Justice Bhuyan: Deleting millions from voter rolls strikes at the heart of the Constitution

Supreme Court judge Justice Ujjal Bhuyan has said that any process that strips millions of Indians of their right to vote and reduces them to "second class citizens" in their own country is intrinsically arbitrary and violates the Constitution.

Speaking at NALSAR University of Law in Hyderabad on Sunday, Justice Bhuyan said no amount of whataboutery could justify the exclusion of voters en masse from the electoral rolls, calling such an action fatal to the Constitution.

"Any process which leads to wholesale disenfranchisement of Indian citizens, making them citizens without voting rights, would be violative of Articles 326 and 14 of the Constitution," he said, referring to the constitutional provisions on adult suffrage and the right to equality. "If any process results in disenfranchising millions and millions of Indian citizens, making them second class citizens in their own country in the sense of being citizens without voting rights, such a process is intrinsically arbitrary. No amount of whataboutery can justify it. It strikes at the very heart of the Constitution."

His remarks come amid continuing student and youth protests demanding the resignation of Chief Election Commissioner Gyanesh Kumar over the Election Commission's Special Intensive Revision (SIR) of electoral rolls. Critics of the exercise say it has led to the deletion of about 13.3 crore voters so far. The Commission has described the revision as a clean-up of the rolls.

Justice Bhuyan is not the first member of the higher judiciary to speak publicly on the issue. Former Supreme Court judge Justice Rohinton F. Nariman recently drew attention to what he called the "astounding figure" of 90 lakh disenfranchised voters in West Bengal alone, and questioned why it had not prompted the Supreme Court to stay the Special Intensive Revision process. He described the exclusion of voters, and the delay in deciding their appeals, as "a completely illegal knocking out of the common man, the citizen of India, in order that a government obtains what it wants".

Justice Bhuyan said the Constitution did not provide for two classes of citizens — those with voting rights and those without them. "No authority can do it; no court can condone it. No one is above the Constitution," he said. "Indian citizens' right to vote is intertwined with India's long years of struggle for freedom."

He said the right to be a voter was not merely a statutory right but a constitutional right, which fell within the framework of the Basic Structure of the Constitution. Citizenship and franchise, he added, were intertwined and could not be divorced from each other: the right of franchise was the very essence of citizenship, and the only way an ordinary citizen could participate in the governance of the country.

"Universal adult franchise is the right of every adult citizen to vote, free of qualifications of sex, race, religion, wealth, education or social status, subject only to narrow, reasoned exceptions," Justice Bhuyan said. "Except in the case of a dead voter, the name of a voter once enlisted in the electoral roll cannot be deleted without notice and hearing."

He traced the idea back to the Government of India Act of 1935, under which the British crown granted only "partial franchise" to Indian subjects. In 'Part A' States, the vote was tied to qualifications such as residence, taxation, property, literacy, community and, for women, marital status. Those entitled to vote then accounted for roughly 14 per cent of the population.

India's Constituent Assembly, in embracing full and universal adult suffrage, found those restrictions arbitrary and retrograde. The founding generation, Justice Bhuyan said, believed in the pragmatism and wisdom of the ordinary Indian and took the country's first step towards equality.

The value of a vote, he said, does not depend on a citizen's wealth, education or social standing: the billionaire and the rickshaw puller each hold one vote of equal worth, just as the socially high-placed temple priest and the poorest labourer stand on the same footing at the ballot box.

The protests over the Special Intensive Revision and the demand for the Chief Election Commissioner's resignation continued across several cities on Sunday.