Can Right To Vote Be Taken Away Till Centre Decides Citizenship Of Doubtful Voters? Supreme Court Asks ECI In SIR Hearing

While hearing petitions challenging the Special Intensive Revision (SIR) of the electoral rolls across states, the Supreme Court on Tuesday asked the Election Commission of India(ECI) if the right to vote of a person can be taken away till the Central Government determines the question of citizenship.

The query from the bench came in response to the ECI's argument that it was competent to conduct an 'inquisitorial inquiry' into citizenship. ECI also said that it was empowered to strike down names from the rolls even if a doubtful case is pending reference before the Central Government.

The bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi was hearing the matter.

Senior Advocate Rakesh Dwivedi, appearing for the ECI, submitted that an inquisitorial inquiry on the eligibility of a voter can be competently carried out by the Electoral Registration Officers (EROs) under the law.

"It is my submission, under Article 326, the Representation of the Peoples Act 1950 and the Rules taken altogether, the ECI, of course not itself but through the ERO, is competent to take a view and as Justice Bagchi had observed- an inquisitorial inquiry about citizenship can happen for specific purposes."

Notably, the bench had, in an earlier hearing, posed a question whether it was not within the mandate of the Election Commission of India to carry out an 'inquisitorial inquiry' through documents in cases where the eligibility of voters seemed doubtful.

Explaining further, Dwivedi pointed out that such an inquisitorial inquiry is also mandated under other statutory laws like the Mines and Minerals Development and Regulation Act 1957. Under Section 5 of the MMDR Act, if a person wants a mining lease/ prospecting license, he/she has to be an Indian citizen. He added that in such situations, the statutory authorities may conduct an inquisitorial inquiry into whether the person is a citizen or not.

At this juncture, Justice Bagchi asked, once a person's citizenship is doubted and referred to the Central Government to determine his citizenship, till the pendency of the decision, could his right to vote be kept in abeyance?

"You can inquire, after it (ECI) recording a finding. Is it under the scheme of the Citizenship Act that it is required that the finding be referred for appropriate steps and decision by the Central Government? Till then, can you take away the right (to vote)?"

Dwivedi clarified that the reference to the Central Government will be made to decide whether the person is a foreigner or not, and whether he should stay in India or not. For the purpose of the electoral rolls, his name will be struck off regardless.

Turning to the MMDR Act example, Dwivedi explained that there too, the authorities have to decide whether the lease would be granted or not based on the inquiry.

The counsel then emphasised, "These things will happen, ultimately, the whole electoral process cannot be halted, stopped or modified on account of the fact that some people have been found (ineligible). Of course, if it is perverse etc, I am not defending on individual facts - if somebody questions, and the courts decide, then that particular order will go."

Dwivedi also submitted that while the ECI does have the power to determine citizenship, there are enough remedial safeguards for the person who is being doubted.

"We are entitled to look into the citizenship, and we do not have to wait for an ultimate decision. This may go one way or the other. There is enough safeguard because the person may file an appeal - there are so many cases in which a person is excluded on some ground, ultimately, his remedy is to go to appeal and then to court, these are normal processes of law. "

He further reiterated that for the greater good, some people may have to suffer in the governmental process, as also stated by Pandit Nehru.

"Even Pandit Nehruji said that some people will still suffer - nothing is perfect, whatever may be done, whatever processes may be adopted- however, something or the other will remain."

The bench will continue hearing the matter on January 15.

Case Details : ASSOCIATION FOR DEMOCRATIC REFORMS vs. ELECTION COMMISSION OF INDIA| W.P.(C) No. 000640 / 2025

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