The Election Commission on Thursday told the Supreme Court that its authority stops at determining citizenship only for the purpose of voter registration and does not extend to deportation or deciding whether a person holds a valid visa to stay in India.
Vehement submissions to this effect were made by senior advocate Rakesh Dwivedi on behalf of the poll panel before a bench of Chief Justice Surya Kant and Justice Joymalya Bagchi, as the court resumed final hearings on a batch of petitions challenging the EC’s special intensive revision (SIR) of electoral rolls in several states, including Bihar.
The petitions raise constitutional questions on the scope of the Election Commission’s powers, the meaning of citizenship, and the right to vote.
At the outset, Dwivedi referred to Article 326 of the Constitution to justify the SIR exercise, arguing that elections in India are based on adult suffrage.
He submitted that adult suffrage, in its constitutional sense, consists of three distinct elements, all of which must be satisfied at the stage of voter registration.
“Unless these three conditions are satisfied, one will not be entitled to be registered as a voter,” Dwivedi argued. If a person who is not a citizen continues to remain on the electoral rolls, he said, it would “go against the grain of the Constitution.”
Relying on Section 16 of the Representation of the People Act, 1950, Dwivedi contended that Parliament has made it clear that only citizens are entitled to be registered as electors.
Appearing for petitioner NGO Association for Democratic Reforms (ADR), advocate Prashant Bhushan said there was no dispute that citizenship is a prerequisite for voting.
The core issue, he argued, was whether the poll panel had the authority to determine citizenship at all.
The Chief Justice observed that the commission’s stand was that it was only identifying citizens for electoral purposes, not adjudicating citizenship in a broader sense.
Dwivedi clarified the EC’s position further. “It can determine citizenship only to the extent of registration as a voter … We cannot deport anyone or decide whether a person has a visa to stay in India. Those issues are not our concern,” he said.
The bench said that while the Election Commission cannot act as an authority to grant citizenship, it can hold an inquiry to verify whether a person claiming to be a citizen is genuine for electoral purposes.
Dwivedi told the court that the poll panel had adopted a liberal approach during the SIR by treating the 2003 electoral rolls as a baseline.
Persons whose parents were included in the rolls before 2003 were being accepted, and those born between 1985 and 1986, who were eligible to vote in 2003, were included in the exercise.
Referring to earlier judgments, the bench noted the petitioners’ argument that the presence of a person’s name in any electoral roll should lead to a presumption of citizenship. Dwivedi said he would respond to that argument separately.
Bhushan pointed to the EC’s 2003 guidelines, which, according to him, stated that it was not the job of the Electoral Registration Officer or the Election Commission to determine citizenship, but only to flag issues.
Justice Bagchi, however, said the poll panel has a constitutional duty to ensure that non-citizens do not figure in the electoral rolls.
Addressing allegations that the SIR was meant to cause large-scale disenfranchisement, Dwivedi said that out of nearly 65 lakh voters, no individual had approached the Supreme Court or any high court claiming wrongful exclusion.
“Only organisations like ADR, PUCL and some parliamentarians are before this court,” he said. He argued that preparation of electoral rolls under Article 326 inevitably involves exclusions, such as in cases of death, duplication or migration.
“Why do the petitioners want dead people to be on the voter list?” he asked. Dwivedi said the identity of a person in terms of caste or religion was irrelevant to the exercise. “Only citizenship is to be seen,” he said.
On the question of burden of proof, he submitted that it was for individuals to produce documents when asked. Drawing an analogy, he said that when entering the Supreme Court or an airport, one cannot refuse to show identification.
“Today, we lay great emphasis on rights, but no emphasis on duty. Rights and duties are intertwined,” he said.
Dwivedi also questioned the role of political parties, saying they were directly concerned with elections and should assist voters on the ground with documentation.
He said organisations and political parties should reflect on the fact that only 67 per cent voted in the Bihar Assembly polls and work to improve voter participation.
Justice Bagchi remarked that awareness of civil rights is often not proportional to economic prosperity, while the Chief Justice, in a lighter moment, said that “by the next elections, we will not be surprised if there is online voting.”
The hearing remained inconclusive and will resume on January 20 at 2 pm.
Earlier, on January 13, the poll panel had told the court that it functions as the original authority in matters relating to electoral rolls and the conduct of polls, and that its opinion is binding on the President if a person acquires citizenship of another country.