THE SUPREME Court, while hearing petitions challenging the constitutional validity of the SIR exercise, asked if it would be outside the Election Commission’s jurisdiction to inquire into citizenship status in case of dubious entries and take appropriate action.
The observation was made by a bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi during the final hearing on a batch of petitions challenging the EC’s decision to undertake the Special Intensive Revision (SIR) of electoral rolls across several states, including Bihar.
“There is a difference between determination and inquiry… Can the EC do an inquiry in case of doubtful citizens? EC is not saying that they have the right to declare someone as a non-citizen…but will it be beyond the jurisdiction of EC keeping in view its constitutional power to do a process which (is) inquisitorial in nature, like where an inclusion looks highly dubious, and thus make the process streamlined…?” said Justice Bagchi.
He asked this after Senior Advocate Shadan Farasat contended that the EC cannot determine the citizenship status of voters.
Farasat said the EC “has no jurisdiction to prevent me from being on the roll or to knock me out of the roll…If you want to make an inquiry, please do so by all means. But that inquiry must eventually lead to a reference to the District Magistrate. If you are prima facie of the view that I am not a citizen, that determination will happen only there. Only after that does the restriction under section 16(1) come into play and my name can be knocked out”.
Justice Bagchi said “citizenship is a constitutional imperative. Section 19 of The Representation of the People Act, 1951, is enacted on the bedrock of Article 325. Illegal immigrants 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.”
Section 19 of the RP Act says that any person who is not less than 18 years of age on the qualifying date, and is ordinarily resident in a constituency, shall be entitled to be registered in the electoral roll for that constituency. Article 325 says that no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them.
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Justice Bagchi said “the manner in which the jurisdiction is being exercised by EC must also conform to the constitutional imperatives of fairness and reasonableness… Superintendence must be exercised in a manner that meets the constitutional touchstone of Article 14 and also the requirements of the statute and the rules”.
“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.
