The Supreme Court on Wednesday upheld as constitutionally valid the poll panel’s special intensive revision (SIR) of electoral rolls in Bihar, but ruled that the Election Commission had no power to decide on the citizenship status of a person.
The court made it clear that decisions on citizenship can only be taken by the “competent authority” under the Citizenship Act, which in this case is the Union home ministry.
The court asked the EC to forward to the “competent authority” within four weeks the names of deleted voters in Bihar so that their citizenship status can be determined. The “competent authority” will have to take a decision on the citizenship of these individuals, “preferably” before the next Assembly or parliamentary or local body elections in the state, whichever is the earliest.
The judgment passed by a bench of Chief Justice Surya Kant and Justice Joymalya Bagchi is likely to have a bearing on the SIR exercise in Bengal, where 27 lakh voters were removed from the rolls following adjudication for “logical discrepancies” and whose appeals are now before Supreme Court-appointed tribunals.
“Through the deliberate insertion of Section 21(3) in the RP (Representation of the People) Act, the legislature has affirmatively vested the Commission with the power to direct a special revision in such a manner as it may think fit,” CJI Kant said.
“Once Parliament itself uses such language and expressly carves out a discretionary domain for the Commission, the foundation of the Petitioners’ case regarding total field occupation becomes considerably weakened.
“Section 21(3) is a conscious attempt by the legislature to confer the power to undertake a special revision of the electoral rolls on the Commission,” Justice Kant, who authored the judgment, added.
The court disposed of a batch of petitions filed by individuals and organisations challenging the SIR as being unconstitutional and arbitrary since it involved the deletion of a large number of voters. The petitioners had also contended that the EC had no power to determine citizenship.
While upholding the EC’s power to conduct the SIR, the apex court said that for the purpose of enrolment of voters, the commission had a limited role in excluding the names of individuals who are not citizens. But on actual citizenship, it is for the “competent authority” to take the call, the court said.
CJI Kant said it must also be borne in mind that electoral rolls were evolving instruments that were subject to periodic revisions, both summary and intensive, precisely because information on residence, eligibility and citizenship was not static.
“The presumption of validity attached to an entry at a given point in time cannot be treated as a perpetual guarantee against scrutiny, particularly in the face of a constitutionally sanctioned exercise aimed at ensuring the continued accuracy of the rolls.
“We are thus of the considered view that while inclusion in the electoral roll gives rise to a presumption of validity, such presumption is rebuttable and cannot be construed as imposing a blanket embargo on the powers of the Commission to undertake a Special Intensive Revision,” the bench said.
The court, however, asserted that the formal determination of citizenship, particularly where it entails adjudication of status or deprivation thereof, falls within the exclusive domain of the “competent authority” under the Citizenship Act.
“There can be no dispute that such a determination cannot be undertaken by the Commission, whose powers are circumscribed by the constitutional and statutory framework governing electoral rolls,” the CJI said.
The court said Section 16 of the RP Act explicitly disqualifies non-citizens from being registered in the electoral rolls.
“The consequence of this provision is clear: Citizenship is a condition precedent for enrolment. The Commission, therefore, cannot discharge its obligation to maintain a valid electoral roll without satisfying itself that persons included therein meet this threshold requirement.
“In our considered view, there is a clear and principled distinction between an adjudication of citizenship on the one hand, and an administrative satisfaction as to eligibility for enrolment on the other. The former involves a conclusive determination of status under the Citizenship Act; the latter is a limited enquiry undertaken for the purpose of electoral representation,” the bench said.
The court said that Section 16 empowers the EC to examine questions that had a bearing upon citizenship. However, such an enquiry can only be made from the standpoint of determining inclusion or exclusion from the electoral rolls.
“We have no hesitation in adding that this assessment is necessarily prima facie and contextual. Where the material furnished by an individual does not inspire confidence or give rise to doubt, the Commission is within its authority to decline enrolment or to initiate action for deletion, strictly in accordance with law. Such action, however, must be understood in its proper perspective. It does not amount to a declaration that the individual is not a citizen of India; it merely reflects the Commission’s inability to be satisfied, for electoral purposes, that the statutory conditions are met,” the court said.
It added: “The consequence of such a determination is correspondingly limited. It affects the individual’s entitlement to be included in the electoral roll, and thereby their right to participate in the electoral process. It does not, however, operate to divest the individual of claims of citizenship, nor does it foreclose a determination of that question by the Competent Authority under the Citizenship Act.”
The court said Bihar domiciles whose names had been erroneously deleted on the ground that they were found absent, dead or having shifted during the SIR process can seek judicial review.
