Will It Be Beyond ECI's Jurisdiction To Inquire Into Citizenship In Doubtful Cases? Supreme Court Asks In SIR Pleas

While hearing the challenge to the Special Intensive Revision process, the Supreme Court on Tuesday questioned 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. The bench of CJI Surya Kant and Justice Joymalya Bagchi was hearing a batch of pleas assailing the SIR initiated across several states.During the hearing, Justice Bagchi asked if the ECI would be going beyond its jurisdiction by holding an inquisitorial inquiry over doubtful names in the voter list? Justice Bagchi posed :" ECI never says that I have a right to declare ABC as a citizen and include their name; nor do they say that I have a right to declare XYZ as a non-citizen.But if there is some reason to believe that there are inclusion of names in the electoral rolls which may be doubtful so far as the status is concerned, will it be beyond the jurisdiction of the ECI, given its constitutional powers and statutory powers, to enter into an inquiry which is inquisitorial in nature?" Sr Advocate Shadan Farasat, appearing from the petitioner's side, answered that the voter is only required to show that he is above 18 years and an ordinary resident in the Country. If any doubts arise, the ECI can make an inquiry. He then added, "But what is the consequence of this inquiry? I get disqualified from being on the roll once I am declared I am not a citizen of India. Unless that declaration comes, my respectful submission is that, ECI has no jurisdiction from preventing me from being on the rolls." He stressed that only when the requirement under S.16(1) of Representation of the People Act is proved, the voter can be knocked out off the rolls. S.16(1) of the ROPA, 1950 disqualification can only occur on the following terms : A person shall be disqualified for registration in an electoral roll if he— (a) is not a citizen of India; or(b) is of unsound mind and stands so declared by a competent court; or(c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offenses in connection with elections.Farasat mainly argued that the ECI cannot play the role of determining citizenship. The issue of determination must go to the Foreigners Tribunal, which the Central Government may set up. He also stressed that the Constitutional Scheme under Article 326 is also mirrored in the Statutory framework of ROPA. Article 326 states : "The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less thaneighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election."Referring to the argument of Farasat that to be an eligible voter, only the proof of residence and age above 18 years is required, Justice Bagchi further probed if it would be justified to allow an illegal immigrant to be a voter purely on these two conditions alone." An illegal immigrant, residing for long, will that give rise to a presumption of citizenship? ...Look at this situation, an illegal immigrant resides in India for 10 years, you said these two things are proven, so he should be on the voter list by default? "Justice Bagchi proceeded to opine that it would thus be incorrect to confine the concept of citizenship only two the conditions of age and residence. He said : "To say that citizenship is to be presumed whenever these two parameters are present - mainly residence and age, is perhaps incorrect.Citizenship is independent of resident and age, it is a constitutional requirement, in addition to the statutory requirements etc." Justice Bagchi then asked does the ECI, in deciding to conduct the SIR and do a document-based verification, "transgress the jurisdiction as the authority to decide on citizenship? Or it dwells in its power to inquire with regard to the correctness of entries which have been made earlier." Farasat explained that s.16 of the ROPA is essentially the reverse requirement of Article 326; this reversing was done 'consciously' by the lawmakers then, to ensure that the burden to prove that you are a citizen or not a citizen is on the State, not the person. Justice Bagchi was quick to point out that under S.16 there exists an 'adversarial situation' where the burden exists on the state. However, "in an inquisitorial situation, there is no burden. There is an inquiry, an inquiry which is appointed through, into various lateral aspects, including documents etc" Farasat reiterated that the Statute has been consciously worded to ensure...

Will It Be Beyond ECI's Jurisdiction To Inquire Into Citizenship In Doubtful Cases? Supreme Court Asks In SIR Pleas

Anmol Kaur Bawa

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