The court judgments
On January 4, 2006, a Division Bench of the High Court held that the EC is indeed a composite body and it must act collectively. However, the Court found that the Commission's decision of August 6, 2005 to prepare the electoral roll was not unilateral. More importantly, the Court directed that:

"(III) The Commission should prepare Electoral Roll taking the existing Roll maintained under section 7(6) of the Ordinance as a major basis. If there is a computerised database the Commission should make the best use of it and if not, a computerised electoral roll with database should always be maintained to avoid future controversy, costs and labour.

(IV) The persons whose names are already in the existing electoral roll cannot be dropped from that roll unless they are dead or have been declared to be of unsound mind or ceased to be residents or ceased to be deemed to be residents of that area or the constituency."

The EC appealed against these two directives while continuing to prepare the new electoral roll, although the Supreme Court issued no stay on the High Court judgment. On May 23, the Court dismissed the appeal and upheld the earlier judgment with slight modifications. The only significant thing the Court added in its main judgment was that those who are below the age of 18 be deleted from the existing roll, and it provided a "legal guideline" for the deletion of names.

The SC judgment once for all settled the question of whether to prepare a new electoral roll or to revise it. The Court unequivocally directed the revision of the existing electoral roll prepared in 2000. In fact, it held that the Commission is in no way authorised to prepare a fresh electoral roll for all electoral areas or constituencies upon scrapping the already existing roll preserved under section 7(6) of the said Ordinance since there are provisions for amendments, corrections and revisions of the same. Thus, the Court directed continuity of the electoral roll and maintaining it in the form of a computerised database.

In order to determine whether the EC fully complied with the Court directives, one must very carefully read the judgment in conjunction with the The Electoral Rolls Ordinance, 1982. Justice Amirul Kabir Chowdhury, who wrote the main judgment, directed the Election Commission to "prepare Electoral Roll taking into consideration the existing Roll under section 7(6) of the Ordinance." He then provided a guideline to delete names from the existing roll in accordance with rule 20 and sub-rule 3 and 4 of the said Ordinance. The other four Justices, including the Chief Justice, concurred with these directives.

It should be noted that although Justice Chowdhury provided a guideline for deletion, he offered no guidance as to how to prepare an electoral roll for the upcoming election taking into consideration the existing roll. Justice Md. Tafazzul Islam remedied this void by directing that "before the 9th Parliamentary election it is the existing electoral roll, i.e., the electoral roll of 2000, with some additions, deletions and modification as may be necessary, that is to be published as draft electoral roll.

" The other three Justices, Chief Justice Syed J.R. Mudassir Husain, Justice M.M. Ruhul Amin and Justice Md. Ruhul Amin, concurred with this guideline. It is thus clear that Justice Islam's additions contain a critical supplement to the main judgment written by Justice Chowdhury.

In order to understand the significance of Justice Islam's additions, one must clearly understand the stages in the preparation of electoral roll. Justice Islam himself specified the stages as: "(1) preparation of the draft electoral roll, (2) after making addition or modification or correction in the draft electoral roll publication of the final electoral roll, (3) maintenance of the final electoral roll in the prescribed manner and keeping it open for public inspection, (4) addition, modification and correction of the final electoral roll, (5) revision of the existing electoral roll and preparation of subsequent electoral roll after revision." Justice Islam elaborated the procedure involved in the fifth stage: "At the fifth stage in terms of section 11 read with rule 21, unless otherwise directed by the Election Commission, before each election to an elected body, the electoral roll shall be revised and if directed by the Election Commission, the electoral roll shall also be revised in any year." Thus, it is clear that unless otherwise decided by the Commission in writing, it is mandatory by law to revise the existing electoral roll before each election to an elective body.

Rule 21(1) of the The Electoral Rolls Ordinance, 1982 elaborates the procedure: "For the purpose of revision of the electoral roll for any electoral area, the electoral roll of the electoral area for the time being in force shall, with some additions, deletions and modifications as may be necessary, be published as draft electoral roll in the manner provided in rule 6 and thereupon the provisions of rules 7 to 18 shall apply in relation to every such roll as they apply to the first preparation of an electoral roll for an electoral roll." Accordingly, Justice Md. Tafazzul Islam directed that prior to the next parliamentary elections the existing electoral roll will have to be revised and published as a draft electoral roll for the sake of continuity. (quoted earlier) As noted earlier, Chief Justice Syed J.R. Mudassir Husain, Justice M.M. Ruhul Amin and Justice Md. Ruhul Amin concurred with this direction.

It must be noted that the publication of the draft electoral roll requires enumerators to go from door to door for collecting information under section 7(1) rules 3, 4 and 5, and then publishing it under section 7(2) rule 6 of the said Ordinance inviting claims and objections. Once the draft roll is published, it must be added to, modified and corrected using the procedures laid out in sections 7(3) rules 7 to 17 before publishing it as the final electoral roll under section 7(4) rule 18 of the Ordinance. Thus, it seems that the procedure for the "revision" under section 11 is the same as the procedure for the "first preparation of the electoral roll" under 7(1) of the statute. The only difference between the two appears to be that while the revision must be done for the entire country, the first preparation is applicable to individual electoral areas or constituencies.

It is clear from the above that in order to fully abide by the SC judgment, the EC will have no alternative but to send enumerators from door to door for collecting information. In fact, even without the Court judgment, it is mandatory for the Commission to do so, which is required under section 11 of the Ordinance. It may further be noted that with the revision, the procedures specified for deletion under rule 20(3)(4) by Justice Amirul Kabir Chowdhury in the main judgment, becomes less important.

The EC decisions
Based on newspaper reports, the EC, in its meeting of May 12, decided to amend and correct the existing electoral roll during the month of July in accordance with rule 20 of The Electoral Rolls Ordinance, 1982. Nearly 6,400 Registration/Assistant Registration Officers will be used for this purpose. They will use Forms 2, 7, 8 and 9. The Commission will not send enumerators from door to door for collecting information. The Commission has also decided to prepare a supplementary electoral roll rather than make changes and additions to the existing roll. Furthermore, the Commission initially decided to use the ill-fated electoral roll, although it backed off later because of widespread criticism.

From a careful review, it appears that while the Commission's position is consistent with the guideline provided by Justice Amirul Kabir Chowdhury, it totally ignored the additions made and the guideline provided by Justice Md. Tafazzul Islam, with whom three other Justices concurred. It also totally disregards the revision needed prior to the election of an elective body, as required by the law. We are not aware of any decision by the Commission not to revise the existing electoral roll, as required under section 11 of the Ordinance. Thus, the EC's decisions appear to violate both the law and the Court directives.

However, the EC's decisions are "convenient" for the Commission. The decisions are convenient in that the planned updating can be completed within a short period (31 days are earmarked for it) and with little cost -- the Commission is already under severe criticism for squandering away a large sum of money and time. Thus, the decisions will serve the Commission well.

Although the EC's decisions are convenient and will serve the Commission well, it will not serve the cause of preparing a dependable electoral roll, which is an essential prerequisite for fair elections. It fact, the practicality and wisdom of the Commission's decisions can be seriously questioned. The decision is impractical because it is not conducive to preparing a reliable electoral roll. Nearly six years have elapsed since the existing electoral roll was prepared and many young citizens became eligible to become voters and many lost their eligibility because of death and other reasons. By the EC's own account, as revealed by the electoral roll rejected by the Court, 1.75 crore voters increased between 2000 and 2006. Furthermore, the EC is on record in saying that the 2000 electoral roll contained 65 lac fake voter. It will be impossible to make these huge corrections to make the electoral roll reasonably reliable with only 6,400 functionaries within the one month time limit specified by the Commission, although under Articles 119 and 122 of the Constitution the EC is obliged to enroll every eligible citizen as voters. It is also unreasonable to expect that the vast number of our illiterate voters will travel miles to go to local Election Offices to include their names, request corrections or lodge objections -- such a culture has not yet developed in our country. In addition, this sort of updating may create unprecedented opportunities for including fake voters in the supplementary roll.

One can also challenge the validity of the continuation of the Registration and Assistant Registration Officers appointed during the preparation of the fresh electoral roll for the new task. It may be recalled that the writ petition of the three MPs challenged the legality of their appointments. Would not the High Court and Supreme Court judgments invalidating the preparation of fresh electoral roll also invalidate the appointments of those who were doing the job?

The EC's decision to prepare a supplementary roll rather than making changes in the existing electoral roll prepared in 2000 also begs serious questions. What it would mean is that the names of the fake and ineligible voters will remain in the already existing electoral roll and its users will face nightmarish experiences. There will also be complications for future revisions. In addition, the existing electoral roll will not be "correct" since the age of the voters will not be updated. Furthermore, the Court directed the preparation and maintenance of a computerised database, and there should be one updated database rather than two separate ones. The names of voters by household, irrespective of whether male or female, should be in the electoral roll together, and if the database is properly prepared, they can be easily separated with a simple command.

Given these practical considerations, aside from the Court directions and the legal requirements, the EC should initiate revisions under sections 11 and rule 21 of the Ordinance. This may be done quickly and with reasonable costs if the local body representatives and other social leaders are involved in the process. Furthermore, the overriding concern should be to prepare the most reliable electoral roll rather than the cost of doing so. In addition, we must take up the idea of issuing the identity cards, required by section 11A of the ordinance, and with technical advancements it may not be very difficult to issue identity cards while doing a revision.

Another practical matter is that the proposed updating could perhaps be made reasonably successful if there was political consensus prevailing in the country. In other words, if the political parties would come forward to help with the revision and would mobilise their own forces for this purpose, the task would become much easier, making the Commission more successful. But the opposition political parties have already declared their opposition to the EC's decisions.

In addition to the political opposition, many of our thoughtful citizens are also very critical of the EC. Many of them view the Commission as a partisan body and not capable of conducting free and fair elections. In fact, some even contend that the Commission itself, as it is constituted now, is the biggest barrier to fair elections. Past decisions of the Commission, and personal behaviour of the Commissioners only created new controversies deepening the doubts. For example, the position taken by the CEC that the High Court directives of May 2005 for disclosures by candidates contesting in parliament elections is directory, rather than mandatory, is without legal basis. Similarly, contempt proceedings are already underway for the EC's defiance of the High Court judgment on the preparation of electoral roll afresh. Accusations against Commissioner SM Zakaria that he serves the interests of only certain quarters are well known. Thus, the Commission appears to have lost the trust and confidence of a large proportion of our population.

Conclusion
To conclude, free, fair and impartial elections are preconditions for a true democratic system. However, fair elections require reliable electoral rolls. We are now facing a serious challenge in preparing a reasonably reliable electoral roll, pointing to an unnecessary stumbling block for holding parliamentary elections on time. The problem arises from the EC's defiance of both the law (section 11) and the Supreme Court judgment. Thus, it is clear that the EC is incapable of carrying out its constitutional mandate of holding free, fair and timely elections. We therefore recommend that in order to restore public trust and confidence in the Commission, the three Commissioners resign immediately and they are replaced by competent individuals on the basis of political consensus so that we can get on with the important tasks ahead of us.

Dr Badiul Alam Majumdar is Secretary, Shujan.