ECI Can Examine Citizenship For Limited Purpose Of Electoral Roll Inclusion, But Its Determination Not Final: Supreme Court

In a significant ruling on the scope of the Election Commission's powers, the Supreme Court held that the Election Commission of India (ECI) is empowered to undertake a limited inquiry into an individual's citizenship for the purpose of determining eligibility for inclusion in the electoral roll, but clarified that such a determination cannot be treated as conclusive on the question of citizenship.

The judgment came while upholding the Election Commission's Special Intensive Revision (SIR) of electoral rolls in Bihar.

Addressing the challenge to the Commission's scrutiny of citizenship status during the exercise, the bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi held that the ECI's power flows from its constitutional responsibility to maintain accurate electoral rolls and ensure that only eligible persons are included.

“The Commission is empowered, in the exercise of its constitutional mandate, to undertake a limited enquiry into citizenship for the purpose of satisfying itself as to eligibility for inclusion in the electoral roll,” the Court held.

However, the bench made it clear that such an inquiry is confined strictly to electoral consequences and does not amount to a formal adjudication of citizenship under the Citizenship Act.

“Such an enquiry does not amount to a determination of citizenship in the strict sense,” the Court observed, adding that any action taken by the Commission pursuant to such scrutiny affects only the person's entitlement to be included in the electoral roll and their right to participate in the electoral process.

The Court emphasised that the Commission's finding cannot extinguish or conclusively determine a person's citizenship status.

“It does not 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.

To safeguard against the Election Commission assuming a final role in citizenship adjudication, the Court directed that where the Commission is not satisfied that a person fulfils the statutory conditions for inclusion in the electoral roll on citizenship grounds, it must refer the matter to the competent authority within the Central Government for adjudication in accordance with law.

“The Commission's determination, being confined to electoral purposes, cannot assume finality on the question of citizenship,” the Court held.

In a specific direction, the Court ordered the Election Commission to refer within four weeks all cases of persons whose names were deleted from the 2003 Bihar electoral rolls on the ground that they were considered non-citizens, to the competent authority under the Citizenship Act, 1955.

The competent authority has been directed to decide such cases after issuing notice and granting an opportunity of hearing to the affected persons, preferably before the next Parliamentary, Assembly or local body elections, whichever is earlier.

The Court further directed that if any such deleted individuals are found to be citizens, their names must be restored to the electoral rolls.

Citizenship necessary condition for right to vote

Referring to Section 16 of the Representation of the Peoples Act, the Court noted that only citizensh have been conferred with the right to vote. 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.

While acknowledging that the power to determine citizenship is on the authority under the Citizenship Act, the Court stated that the ECI also has the power to verify citizenship for the purpose of electoral enrollment. The Court drew a distinction between both processes.

"In view of the statutory requirement under Section 16 of the RP Act, the Commission, in the course of preparing or revising electoral rolls, is undoubtedly empowered to examine questions bearing upon citizenship. However, such an enquiry can only be made from the standpoint of determining inclusion or exclusion from the electoral roll and must be undertaken with due regard to the presumption operating in favour of an elector whose name is already borne on the roll. It is within this confined statutory setting that the Commission assesses the material before it to arrive at a determination for electoral purposes. Importantly, the entirety of this exercise remains amenable to judicial review, thereby ensuring that the enquiry is conducted in accordance with law and within the bounds of procedural fairness."

The Court added that the ECI's assessment is prima facie and contextual. "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," it added.

Other reports about the judgment can be read here.