The Election Commission has told the Supreme Court that it is vested with the power of not only verifying voters’ identity but also assessing their citizenship in terms of Article 326 of the Constitution.
Article 326 deals with the power of the poll agency to conduct elections to the Lok Sabha, Rajya Sabha and state legislatures.
In a counter-affidavit filed before the top court in response to a batch of petitions challenging the recent special intensive revision (SIR) being undertaken in Bihar for the October-November elections, the commission, however, acknowledged that it had not entirely precluded the use of Aadhaar or ration cards as identity proof.
“The ECI is vested with the power to scrutinise whether a proposed elector fulfils the criteria for being registered as a voter in the electoral roll, which includes, inter alia, an assessment of citizenship as per Article 326 of the COI (Constitution of India). Such scrutiny is constitutionally mandated and crystallised by virtue of RP (Representation of People Act, 1950). This power flows directly from the provisions of Article 324 read with 326 and Sections 16 and 19 of the RP Act 1950,” the EC said.
The commission’s assertion comes against the backdrop of widespread apprehensions that the ongoing SIR in Bihar was intended to disenfranchise voters and nullify their citizenship.
Allaying such fears, the poll body assured the Supreme Court that while it is vested with the power to assess the citizenship details of a citizen, the power to declare a person a non-citizen is vested in the Centre.
Article 11 vests in Parliament the power of making any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship. Exercising this power, Parliament has framed The Citizenship Act, 1955.
Section 9 of the Act speaks of the termination of citizenship only in cases of voluntary acquisition of citizenship of a foreign country and vests the power in the Centre to decide any question that arises on when or how any citizen of India has acquired the citizenship of another country.
It is only for this limited purpose that the exclusive jurisdiction has been vested in the central government, to the exclusion of all other authorities.
“The exclusive powers of the central government under Section 9 are confined to reviewing the acquisition of foreign citizenship, and based on such acquisition, citizenship of a person should be terminated,” the commission stated.
It, however, said the powers of the poll body to scrutinise qualifications based on which a claim to be registered on the electoral rolls is made flow directly from Articles 324 and 326.
“It is submitted that no parliamentary law can oust this jurisdiction of the EC. Even with respect to laws framed in the exercise of Article 327 (Parliament’s power to make laws relating to elections), Parliament must give due respect to the plenary powers of the ECI. That in light of no express bar on the ECI to scrutinise the pre-requisites of right to vote, no restrictions can be read in by way of The Citizenship Act, 1955, or any other statute,” the commission said.
According to the poll body, a harmonious reading of Articles 324 and 326 read with Sections 16, 19 and 21 of the RP Act, 1950, make it clear that the poll panel is vested with powers and jurisdiction to request proof of citizenship for enabling the constitutional right to vote.
“The guidelines issued with respect to the SlR exercise are constitutional and in the interest of maintaining the purity of electoral rolls, which is a pre-requisite for free and fair elections — a basic feature of the Constitution,” the EC said, adding: “However, it is reiterated that determination of non-eligibility of anyone under Article 326 will not lead to cancellation of citizenship.”
Aadhaar & ration cards
The Election Commission submitted that Aadhaar has not been included in the list of the 11 documents provided in the enumeration form for the ongoing SIR as it does not help in screening eligibility under Article 326.
“However, this is not to say that Aadhaar cannot be used to supplement other documents to prove eligibility. It is for this reason that the list is indicative and not exhaustive,” it said.
The EC also said that “given the widespread existence of fake ration cards”, it has not been prescribed in the list.
“However, since the list of documents contained in the enumeration forms is not conclusive, the election returning officer is obligated to consider all documents which are presented to him as proof of eligibility.....“Decision to accept or reject the documents is dependent on the satisfaction of the ERO/AERO as per Section 22, and other provision of the RP Act, 1950, and Rule 21(A) and other rules of the RER 1960, and such decisions will be taken on a case-to-case basis and in accordance with procedure prescribed by law,” the Election Commission said.