SIR Notification Doesn't Cite Illegal Cross-Border Migration As A Reason : Supreme Court Tells ECI

The Supreme Court, while hearing the challenge to the Special Intensive Revision of electoral rolls across various states, yesterday asked the Election Commission of India (ECI) if it defended the SIR for detecting 'illegal transborder migrants', which is expressly different from its reason of 'migration' given under the official announcement. A bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi was hearing the arguments of Senior Advocate Rakesh Dwivedi, for the Election Commission of India(ECI).Dwivedi reiterated that under Article 326, the Commission can examine the citizenship from an electoral point of view. "Was the requirement for examination of citizenship, in light of the amendments to the Citizenship Act, a trigger? Because that trigger does not find eloquent expression in the SIR (reasons),"Justice Bagchi asked.He also pointed out that ECI's official reasoning talks about migration from one state to another.Dwivedi, however, added “and even cross-border migration”However, Justice Bagchi replied, “Your SIR does not pinpoint that it is transborder migration or illegal migration”The counsel replied that the term migration would subsume transborder migration as well. Justice Bagchi then explained that migration can also mean lawful migration; if it is an inter-country migration without documents, it would be illegal. In India, everyone has the right to inter-state migration, which is lawful. Justice Bagchi, then, touching the root of the debate, asked- "Are you defending the SIR to go into the question of illegal migrants? Because that is not very eloquently stated in your (reasons)" Dwivedi clarified ECI's SIR only intends to verify citizenship as per the amended definition of citizenship under the Citizenship (Amendment) Act, 2003."What I am submitting is that this Citizenship Amendment Act 2003 is changing the norms of Citizenship, which has come after that, inasmuch as we are compelled to examine in a revision." He further explained that after the 2003 SIR, the Amended Act was not applied since the last 20 years, as self-declaration of citizenship continued to be in practice along with the filing of objections under Form 7.Under the present SIR requirements, those born after 2003 will only have to show their linkage to either or both of the parents who were on the 2003 rolls. Notably, under the CAA 2003 S.3, a child born in India after 2003 will not get automatic citizenship, unless both parents are Indian citizens or one parent is Indian and the other is not an illegal migrant. Dwivedi further expanded that due to the requirement to establish this linkage, 76% of the people in Bihar did not have to file any additional documents and could easily verify through any of the 11 documents listed. He added that no voter came forward to challenge the SIR, neither in appeals nor in writ petitions before the Constitutional courts. 'Due Process' Principle Argued By Petitioners Is Misconceived American Jurisprudence: ECI Emphasises Dwivedi submitted that the petitioner's argument that the ECI has not followed the 'due process' principle finds no substance in the Indian Court's understanding of procedural fairness. Stressing that the 'Due Process Principle' has been borrowed from the American Jurisprudence, Dwivedi argued that the principle is no longer being followed in its maiden land itself. Referring to the recent US attacks on Venezuela, he said : "Mr Singhvi wants to import from the US, at a time when the US is hardly following due process. Now, President Trump can go and suddenly lift the President of Venezuela and bring him to the US trial, so where is the due process? And now wants Greenland- now the US Supreme Court is also not applying 'due process'...but my learned friends are more keen to import it." Dwivedi highlighted that the Indian Court would be overstepping its jurisdiction and entering into law making field if it were to accept the American understanding of the 'Due Process' Principle. He explained: " Due process virtually allows the Supreme Court there (USA) , if it so deems fit, to strike down provisions based on rejudgment of the wisdom of the law - the policy decisions as such. Whereas, yourlordships have clearly said, we do not sit in judgment over the wisdom (of policy makers), whether this or that should be done... It's an uncharted ocean; if we bring in Due Process, we do not know where it will end" Dwivedi concluded his arguments by briefly reiterating that none of the voters had challenged the SIR, and it was political parties through their MPs or ADR which filed petitions based on 'self-written articles' in the newspapers. He added that in several previous decisions, the Supreme Court has refused to undertake roving and fishing inquiries on policy decisions, which would also apply to SIR. Previously, the bench observed that the ECI cannot have untrammelled and unregulated powers under Section 21(3) of the Representation of the People Act, 1950,...

SIR Notification Doesn't Cite Illegal Cross-Border Migration As A Reason : Supreme Court Tells ECI

Anmol Kaur Bawa

ECI stated that the 2003 amendment to the Citizenship Act was the basis for linkage to the 2002/2003 rolls.

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