00:00Joining me right now is former Chief Justice of Meghalaya High Court,
00:04Sanjeev Banerjee, Justice Sanjeev Banerjee,
00:06and Sanjeev Senior Advocate, Supreme Court.
00:10Appreciate the time, sir, for joining us.
00:12I want to cut across to Justice Sanjeev Banerjee first.
00:15Justice Banerjee, with what we were discussing now with the former law minister,
00:20because there is now a full defense coming in in support of the EC of the residual power clause,
00:27that even though the Supreme Court might not have allowed the EC to modify or authorize the EC to modify
00:35Form 6,
00:36but their EC was given residual powers by the top court,
00:40which clearly doesn't, as per the former law minister, tantamount to a change or modification of Form 6.
00:51Yes. What the Supreme Court did was,
00:57to validate the exercise of conducting SIR,
01:02which is exclusively within the domain of the Election Commission.
01:06Now, is the SIR necessary?
01:07It is.
01:08To ensure the sanctity of the role,
01:11should it be done from time to time?
01:13Yes, it is.
01:15But the Supreme Court did not approve
01:18any of the conditions set about in the SIR,
01:22and as the previous speaker,
01:25the former minister said,
01:26that there was disagreement on the part of the two commissioners
01:31with the Chief Election Commissioner
01:33as to whether the ECI had the authority to make the change.
01:38The change has to be made by the government,
01:41not by the Election Commission.
01:45More importantly,
01:46more importantly,
01:47more importantly,
01:47madam,
01:49at the root of this entire issue is
01:52the Election Commission turning everything on its head.
01:58Under Article 325 of the Constitution,
02:02no person shall be ineligible to be included in any voter role
02:07only on the ground of religion, race, caste, sects, or any of them.
02:11Under Article 316 of the Constitution,
02:15every person who is a citizen
02:17is not less than 18 years
02:19and is not otherwise disqualified under this Constitution
02:24or any law made by the appropriate legislature
02:28shall be entitled to vote.
02:32The burden is on the Election Commission
02:35or the authority
02:37who comes to a citizen and says
02:39that you do not have a right to vote
02:42or you are disqualified.
02:44And that disqualification must be
02:46purely on the basis of the Constitution
02:49or an appropriate law
02:52brought in by an appropriate legislature.
02:55The Election Commission over here
02:57has gone about
02:58putting the ball in the citizens' court
03:02that you, the citizens, tell me
03:05why should you be entitled to vote?
03:07That is completely wrong.
03:10That's just changing the rules of the game
03:12to the detriment of the citizen.
03:15And that could not have been endorsed
03:17by any court
03:20even if it came obliquely before that court
03:22that could never have been endorsed by any court
03:25because it's so fundamental.
03:28And look, it's made a change.
03:30It's made a change.
03:31It's affected.
03:33Probably it's affected the result
03:34of the election in West Bengal.
03:36So let's break it down
03:38because viewers,
03:39for the understanding of our viewers,
03:41the modification of Form 6
03:42was not made in Bihar.
03:44It was made right before
03:46the West Bengal elections.
03:47That was when Form 6 was modified
03:50with the particular question
03:52which linked it to your parents in 2002.
03:55I want to bring in Sanjeev Sen,
03:57Senior Advocate, Supreme Court.
03:59Because Sanjeev Sen,
04:00now, changes in Form 6
04:03can only be made
04:04as per the registration
04:05of electors' rules 1960
04:07by the government in itself.
04:10The issue goes to court
04:11this after a week ago
04:13where the Election Commission of India
04:15has put out a press release
04:16where it has said very clearly,
04:18categorically,
04:19that Form 6 was modified
04:20with the authorization
04:21of the Supreme Court of this country.
04:24The Supreme Court of this country
04:25says nothing doing.
04:26And even though
04:28the ECI had residual powers,
04:30it doesn't tantamount
04:31to making changes
04:32which requires the government
04:34to step in
04:34as per, once again to say,
04:37the registration of electors' rules 1960.
04:39So, the ECI has much answering to do, sir.
04:45You see, fundamental to your question
04:48and the discussion
04:49is that in the courts we say,
04:51in the courts of law,
04:52we say that justice
04:54not only should be done,
04:55but also seen to be done.
04:58So, as far as the Election Commission
05:00is concerned,
05:01the election process
05:04must not just be fair,
05:06but also must seem
05:08or seem to be fair.
05:10Now, on one hand,
05:12the Supreme Court
05:13cannot become
05:14the Election Commission,
05:15but, however,
05:16the Election Commission
05:17is not immune
05:18to judicial review.
05:20Now, as far as,
05:22as far as,
05:22you know,
05:23I would not say
05:24that today's hearing
05:26was to any side's benefit
05:29or any side's detriment.
05:30All that the Supreme Court
05:32has done
05:32is to issue notice
05:33and ask the Election Commission
05:36whether
05:37on certain points
05:39and there also
05:39we must keep in mind
05:41that today's petition,
05:42as I understand it
05:44and as I was told,
05:45has a number of prayers.
05:47So, one set of prayers
05:49was against
05:50the Chief Election Commissioner
05:51himself
05:51and the other set of prayers
05:53was regarding
05:54the procedural,
05:56alleged procedural decisions
05:58that were taken.
05:59Now, as far as
06:00removal of the
06:01Chief Election Commissioner
06:02is concerned,
06:03as you know
06:04that it can be done
06:05under Article 324-5
06:08of the Constitution of India.
06:09The process
06:10is very cumbersome.
06:12Till date
06:13in the history of India,
06:14no Chief Election Commissioner
06:15has been impeached.
06:17First step
06:18to that end
06:20is you need
06:21a requisition
06:22from 100 Lok Sabha
06:23or 50 Rajya Sabha members.
06:25Then,
06:26it has to be admitted
06:27by the Speaker
06:28of the Lok Sabha
06:29or by the Chairman
06:30of the Rajya Sabha.
06:31then the Speaker
06:33or the Chairman
06:34constitutes
06:35an investigative committee.
06:37Then the Parliament,
06:38if the committee
06:39submits an adverse report,
06:41is invited to vote.
06:43The two-thirds
06:44of majority
06:45of Lok Sabha
06:45and Rajya Sabha
06:46has to vote
06:47in favor
06:48and then the President
06:49comes into the picture.
06:51But here,
06:52that is one part
06:53of the story.
06:54So, therefore,
06:54as far as removal
06:55is concerned,
06:56or even I would say
06:57It's not about so much
06:58to removal,
06:59but in the manner
07:00in which
07:00the Election Commission
07:01functioned.
07:02And Justice Sanjeeb Banerjee,
07:03I'll bring you back
07:03into this conversation
07:04because it is important.
07:05because the change
07:07of the modification
07:08of Form 6
07:08came in
07:09after the Bihar elections,
07:11right before
07:11the Bengal elections.
07:12And as you elucidate
07:13quite clearly,
07:15the onus now
07:16lies directly
07:17on the EC
07:18which just a week ago
07:19in a public press note
07:21had quoted
07:22stating
07:23that modifications
07:24of Form 6
07:25were made
07:26with the authorization
07:27of the top court
07:28of the country.
07:30I think
07:31what was said
07:33in the press release
07:33and I do not
07:35have the benefit
07:35of having
07:36directly read
07:37the press release
07:38but what I think
07:39was said was
07:40it was either
07:40approved or upheld
07:42by the Supreme Court.
07:44Now,
07:45let us
07:46understand
07:47the court process
07:48a bit.
07:49In course
07:50of arguments
07:51in court,
07:52certain comments
07:53are made
07:54both by lawyers
07:55and by judges
07:56but every comment
07:58made by the judge
07:59or by the bench
08:00does not amount
08:01to the decision
08:03being made
08:04in that matter.
08:05What ultimately
08:06matters is
08:07the order
08:08which is pronounced
08:09by the court
08:09or the judgment
08:10that is delivered.
08:12Now,
08:12for the election
08:14commission to say
08:15that it has been
08:16upheld
08:17or the modifications
08:18have been upheld
08:19or the modifications
08:20have been approved
08:21by the Supreme Court,
08:23it must demonstrate
08:24a written order
08:26or a judgment
08:27issued by the
08:28Supreme Court
08:29where this has been
08:30clearly so upheld
08:32or approved.
08:33In the absence
08:34of that,
08:35it cannot stand.
08:38All right.
08:39That is...
08:41That's big, sir.
08:43And now,
08:43if the onus
08:44is on the election
08:45commission of India
08:46to justify
08:48what clearly
08:49it had stated
08:50in the press note
08:51just a week ago
08:51because at least
08:52what we have now
08:53is what the CGI
08:55has said,
08:55that the top
08:56code of the country
08:57did not authorize
08:58the modification
08:59of Form 6.
09:00We're going to leave
09:00it at that.
09:01I appreciate both
09:02you gentlemen
09:02for taking the time
09:03out and joining us
09:04this evening.
