New Delhi: Hearing the Election Commission (EC)’s argument that existing law ‘expressly preserves’ its powers to deviate from statutory rules on revising electoral rolls, the Supreme Court on Wednesday (January 22) orally noted that the poll body’s discretion is not ‘completely untrammelled or unregulated’.The bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi, which is holding hearings in the challenge against the EC’s contentious special intensive revision (SIR), also orally asked the poll panel if during its revisions it can add to or remove documents that are prescribed by Form 6 – which is used to add electors to the voter rolls – which is notified by the Registration of Electors (RE) Rules of 1960.During the hearing, senior advocate Rakesh Dwivedi, who appeared for the EC, argued that provisions of the Representation of the People (RP) Act of 1950 “expressly preserve the power of the EC to deviate” from the statutory rules regarding the revision of electoral rolls.Section 21(2) of the Act mentions that the EC must revise electoral rolls in the prescribed manner – i.e. in accordance with the rules – ‘unless it directs otherwise’, while section 21(3) that deals with special revisions says that the poll body can discharge such exercises “in such manner as it may think fit”, Dwivedi noted.The RE Rules mention that section 21(2) pertains to revisions that are summary and/or intensive in nature.The “net result” of the phrasing in sections 21(2) and 21(3) is that parliament has maintained the EC’s powers to “[provide] a methodology of preparing rolls that is otherwise than as prescribed in the rules”, he argued.“Of course, we have to be fair, just, reasonable” and transparent as required by Article 14 of the Constitution, which guarantees the right to equality before the law, Dwivedi added.Justice Bagchi too noted that the poll body’s powers cannot be ‘completely untrammelled or unregulated’.The bench also asked if the EC has the power to add to or exclude from those documents that are accepted under Form 6.“Rule 13 is the rule-making power through which Form 6 is notified. Form 6 has about six documents. Your SIR has 11 documents. We would call upon you to answer, can you increase the number of documents or eliminate documents which are there … and say ‘no, we will not look into the documents which are there in [Form] 6, we will look into only 11 documents’,” asked Justice Bagchi.“This is the question we would like you to clarify,” he said. The judge was referring to rule 13 of the RE Rules.He and Dwivedi then deliberated on whether the phrase “unless otherwise directed by the Election Commission” in section 21(2) of the RP Act gives the EC discretion only over the timing of summary and intensive revisions – whether they are conducted before an election – or even over the manner in which revisions are conducted, with Dwivedi arguing for the latter approach.CJI Kant asked the EC why the court should not expect the poll body to follow a procedure that is “less than transparent” as under section 21(2) even during a special revision, given the chances that such an exercise could exclude voters already on the voter rolls and thereby affect their civil rights.“Assuming that we accept the way you are interpreting … the question remains that ultimately there is a special intensive revision of the voter list under (3). The revision of the voter list can lead to some civil consequences against a person who is already a registered voter.“So therefore, when an action is likely to have an impact on the civil rights of people, why should we not expect from you that the procedure which you will ultimately contemplate to follow, will not be not less than transparent as under (2)?” he asked.Dwivedi responded that he “conceded in the beginning that I have to stand the test of Article 14”. “So it is not my submission that we can frame just any kind of SIR”, he said.The top judge also noted that although section 21(3) lacks mention of a ‘prescribed manner’ in which special revisions must be held in, “it still says ‘in such manner as it may think fit’. So there has to be a manner. And that manner, as you are probably fairly conceding, must be in conformity with principles of natural justice, transparency and all other well-known principles.”The matter was posted for further hearing on Thursday.