The Election Commission on Tuesday told the Supreme 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 the citizenship of another country.
The poll panel submitted that the consequence of an adverse finding during the Special Intensive Revision (SIR) exercise would only be exclusion of the person’s name from the electoral roll and does “not ipso facto (by that very fact) result in deportation”.
It said such cases may, however, be referred to the central government for scrutiny and possible action under the Citizenship Act and related laws.
The submissions were made by senior advocate Rakesh Dwivedi on behalf of the Election Commission before a bench comprising Chief Justice Surya Kant and Justice Joymalya Bagchi.
The bench resumed final hearings on a batch of petitions challenging the Commission’s decision to undertake the SIR exercise in several states, including Bihar, raising constitutional questions on the scope of the poll panel’s powers, citizenship and the right to vote.
The bench heard extensive arguments from Dwivedi, who defended the SIR exercise as falling squarely within the constitutional and statutory mandate of the Election Commission.
He rejected the contention that the exercise amounted to a parallel citizenship determination process akin to the National Register of Citizens.
Dwivedi submitted that in matters relating to elections, electoral rolls and the conduct of polls, the Election Commission functions as the de facto authority.
Referring to Section 146 of the Representation of the People Act, 1951, particularly Sections 146A to 146C, he said Parliament has provided a detailed statutory mechanism empowering the Commission to conduct hearings, take decisions and exercise powers similar to those of a civil court for deciding questions relevant to electoral rolls.
“If a person acquires, or is alleged to have acquired, the citizenship of another country, it is ultimately the Election Commission which examines the issue for electoral purposes, and its opinion is binding on the President,” Dwivedi told the court, emphasising that the scrutiny is limited to determining eligibility for inclusion in the voter list.
Clarifying the consequences of such scrutiny, he said the only outcome of an adverse finding during the SIR would be exclusion from the electoral roll.
“It does not ipso facto result in deportation,” he said, adding that in appropriate cases the matter could be referred to the Centre for action under the Citizenship Act, the Foreigners Act and related laws.
Dwivedi also addressed arguments that the Election Commission was exceeding its constitutional mandate by examining citizenship.
He pointed out that several regulatory frameworks, including those governing mining leases or other statutory benefits, require citizenship as a prerequisite and permit inquiry by the competent authority.
Explaining the distinction between the electoral roll and the NRC, he said, “The electoral roll is fundamentally different from the NRC. The NRC includes all persons, whereas the electoral roll includes only citizens above the age of 18 who are otherwise qualified.”
Persons of unsound mind or otherwise disqualified cannot be included in the voter list, he added.
He said Article 326 of the Constitution mandates that only citizens can vote, placing a constitutional duty on the Election Commission to ensure that no foreigner is registered as a voter.
“Even if there are 10 or thousands of foreigners on the rolls, they have to be excluded. This is not a political judgment but a constitutional obligation,” he said.
During the hearing, Justice Bagchi observed the evolution of citizenship law, stating, “We have funnelled our citizenship. First, it was birth plus one parent had to be Indian. Now, the birth plus two parents have to be Indians.”
Dwivedi responded by tracing the historical context of citizenship provisions, referring to Article 5 of the Constitution and the Constituent Assembly debates of January 1949.
He noted that at the time of Independence and the first general elections, India was in a unique transitional phase.
“The Citizenship Act came only in 1955. Part II of the Constitution on citizenship was yet to be finalised when the Assembly debates were taking place,” he said, adding that judgments and constitutional provisions must be understood in their historical and political context, and not as rigid or “mathematical formulas”.
Dwivedi reiterated that the Electoral Registration Officer, acting under the supervision of the Election Commission, is competent to conduct a limited inquisitorial inquiry for electoral purposes.
Justice Bagchi, however, questioned whether a person’s right to vote could be taken away while a citizenship issue is pending before the central government.
Dwivedi responded that any restriction would be only for the limited purpose of examining eligibility to remain on the electoral roll, while questions relating to stay in India or deportation fall within the government’s domain.
The bench is likely to resume hearing in the matter on Thursday.