SIR row: Can't Election Commission decide presumptive stage of citizenship, asks SC

New Delhi, Dec 9 (PTI) The Supreme Court on Tuesday asked whether the Election Commission is barred from conducting an inquiry in case of a doubtful citizen and if an inquisitorial process fall outside its constitutional power.

The observations were made by a bench comprising Chief Justice Surya Kant and Justice Joymalya Bagchi during final hearings on a batch of petitions challenging the Election Commission's decision to undertake a special intensive revision (SIR) of electoral rolls across several states, including Bihar.

During the hearing, Justice Bagchi took note of the relevant law and the vehement submissions that citizenship issue cannot be decided by the poll panel which has to consider that a person is an Indian citizen and is of the age of 18 years and more and residing ordinarily in a constituency.

It was also vehemently argued that the citizenship issue cannot be decided by the poll panel as the central government appointed Foreigners' Tribunal can only decide.

"You say that the Election Commission has no power to declare a person as a foreigner or a non citizen. But, it can doubt the status and refer the issue to the appropriate authorities. And the fact that it can doubt (the citizenship), inverts into itself the power to make an imposition of ensuring that... Can't the ECI decide the presumptive stage of citizenship," the judge asked.

The petitioners argued that the revision exercise suffers from jurisdictional overreach, procedural irregularity, and an unconstitutional shifting of the burden of proving citizenship onto ordinary voters.

It heard detailed submissions from senior advocates Shadan Farasat, P C Sen, and other counsel representing multiple petitioners opposing SIR.

Farasat traced the constitutional and statutory framework governing electoral rolls and said Articles 324 to 329, along with the Representation of the People Act (RPA), form a "single constitutional code" enacted by the same Constituent Assembly functioning as the provisional Parliament.

He submitted that adult suffrage under Article 326 requires satisfaction of only three conditions and they are Indian citizenship, attainment of 18 years of age, and absence of specific disqualifications.

The RP Acts mirror these grounds but cannot create new grounds for exclusions from the electoral rolls.

"The Election Commission has no jurisdiction to prevent me from being on the roll or to knock me out of the roll," Farasat said, adding "If the EC doubts my citizenship, that enquiry must lead only to a reference to the district magistrate. The determination can be made only by the central government or a Foreigners Tribunal." He said under the statutory scheme, citizenship is not a precondition for first-time inclusion, and the burden of proving non-citizenship always lies on the state.

He added that once a person is already on the roll, "strong presumptive value" attaches to their status and the removal requires a "full-fledged, independent determination", not an "inquisitorial exercise" by electoral officials.

"There is a difference between determination and inquiry. Can the ECI do an inquiry in case of doubtful citizens? The ECI is not saying that they have the right to declare someone as a non citizen... but will it be beyond the jurisdiction of ECI keeping in view it's Constitutional power to do a process which is inquisitorial in nature? Like where an inclusion looks highly dubious and thus makes the process streamlined," the bench asked.

The senior lawyer said the Election Commission has no jurisdiction to prevent a person from being on the roll or to knock him out of the roll.

"Citizenship is a constitutional imperative. Section 19 of ROPA is enacted on the bedrock of Article 325. An illegal immigrant residing here for long.. suppose more than 10 years... So should they stay on the rolls? To say that citizenship is presumed when residence and age is satisfied will be incorrect. It is not dependent on residence or age since citizenship is a constitutional requirement," the bench said.

The manner in which the jurisdiction is being exercised by the poll panel must also conform to the constitutional imperatives of fairness and reasonableness, it said.

"When you say mass exclusion, when you say suspected foreigner status, when you say non-compliance with the rules under the statute, these do not really go into the fundamental constitutional power of superintendence. They relate to the way superintendence is being exercised," the bench said.

So when the court examines the poll panel's power of superintendence, can it be said that the superintendence extends to the core constitutional requirement for the right to vote, namely citizenship, it asked.

"If it does not, and you would definitely say it does not, that is one thing. But if it does, then we understand what you are saying, which is that under the statutory schemes of the Citizenship Act and the Foreigners Act, the Election Commission has no power to declare a person as a foreigner or a non citizen. But, it can doubt the status and refer the issue to the appropriate authorities," the bench said.

The bench said the EC's power of superintendence under Article 324 must be exercised in line with constitutional norms of fairness and Article 14.

The bench will continue hearing the remaining petitioners on December 11. PTI SJK MNL ZMN