Removal From Voters’ List Without Giving Reasonable Opportunity Of Being Heard Is Arbitrary And Illegal: Kerala HC [Read Judgment]

The Kerala High Court on June 10, 2019, in the case of A. Subair v. The Chief Election Commissioner of Kerala, has held that a person should be given reasonable opportunity of hearing before removing his name from the voters’ list.

A Single Judge Bench of Justice Shaji P. Chaly was hearing a writ petition filed by one Subair challenging the removal of his name from the voters’ list in the recently held general elections.

According to the petitioner, his name was in the voters' list ever since he had the voting right. However, in the voters' list prepared for the purpose of election to Lok Sabha, the name of the petitioner was struck off from the electoral rolls, whereas his wife's and daughter's names were in the voters’ list.

Although the petitioner had approached the court before the elections, the Election Commission of India informed the court that there was a statutory bar to making inclusion in the voters’ list after the last date of making nominations. Despite the relief sought by the petitioner for voting in the Lok Sabha elections becoming infructuous, the court chose to proceed with the matter, considering the seriousness of the issue.

The court referred to the proviso of Section 22 of the Representation of People Act 1950, which stated that the electoral 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 correction of electoral list.

On an evaluation of the said proviso, the court said that “it is explicit that, they are peremptory in nature and can never be brushed aside or overlooked. Proviso thereto makes it clear that before removing a person from the voters list, the electoral registration officer is duty bound to give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken.”

"the action or enquiry contemplated under Sec.22 of Act, 1950 is not an empty formality, but on the other hand, founded on principles of natural justice, which if violated, action becomes arbitrary and illegal inviting action against the officer concerned,” added the court.

Thus, the court directed the Election Commission to conduct a detailed enquiry into matter within two months and take appropriate action against the officials responsible for removing Subair's name from the list.

For restoration of the petitioner’s name in the voters’ list, he was given the liberty to submit an application before the officer concerned, in accordance with law.

[Read Judgment]