The Election Commission told the Supreme Court that India’s constitutional scheme is citizen-centric and only citizens can be included in electoral rolls, asserting that names can be removed pending Central Government decisions under the citizenship framework.
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NEW DELHI: The Supreme Court of India on Tuesday took up public interest litigation, filed by the Association for Democratic Reforms (ADR) and others versus the Election Commission of India (ECI), raising critical questions on citizenship, electoral rolls, and the scope of the Election Commission’s powers during the Special Intensive Revision (SIR) of voter lists.
The matter was listed before a Bench led by the Chief Justice of India, with Senior Advocate Rakesh Dwivedi appearing for the Election Commission and Senior Advocate M.R. Shamshad representing affected petitioners.
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Senior Advocate M.R. Shamshad informed the Court that a fresh plea has been filed on behalf of 100 displaced persons whose names do not appear in the electoral rolls in Uttar Pradesh following the Special Intensive Revision exercise.
Shamshad highlighted that the petitioners are slum-dwellers and among the most vulnerable sections of society, likely to be disproportionately affected by voter list revisions.
Responding to this submission, the CJI stated that once procedural defects in the petition are cured, the matter would be listed within two days, indicating urgency and judicial sensitivity to the issue.
Appearing for the Election Commission, Senior Advocate Rakesh Dwivedi submitted that in matters concerning elections, electoral rolls, and conduct of polls, the ECI functions as a de facto constitutional authority.
Dwivedi relied on Sections 146A to 146C of the Representation of the People Act, 1951, which empower the Election Commission to:
- Conduct inquiries,
- Provide hearings, and
- Take binding decisions on electoral matters,
while also conferring civil court–like powers on the Commission.
He submitted that where a person is alleged to have acquired foreign citizenship, the Election Commission examines the issue, and its opinion is binding on the President of India.
Dwivedi emphasized that only citizens can be included in electoral rolls, even if this principle is not expressly stated in every constitutional or statutory provision.
“Our Constitution is citizen-centric… even if it is not expressly stated, only citizens can get on the electoral roll,”
he submitted.
He read excerpts from the Constituent Assembly Debates of 8 January 1949, arguing that the framers clearly envisaged voting rights as exclusive to citizens.
Dwivedi also cautioned against treating isolated observations from older judgments or legislative speeches as binding precedents, stressing that constitutional interpretation evolves with time, particularly after developments like the basic structure doctrine.
Addressing concerns raised by the petitioners, Dwivedi clarified the scope of Section 9(2) of the Citizenship Act, which deals with voluntary acquisition of foreign citizenship after the commencement of the Constitution.
Citing State v. Abdul Khadir and Syam Mohammed v. Union of India, he explained that:
- Only cases involving the acquisition of foreign citizenship fall within the exclusive jurisdiction of the Central Government under Section 9(2).
- All other citizenship-related questions — including whether a person was ever an Indian citizen — can be decided by courts or statutory authorities.
He stressed that courts retain jurisdiction except in the narrow category expressly covered by Section 9(2).
A key issue raised by the Bench was whether an adverse finding on citizenship must be referred to the Central Government before consequences follow, such as deletion from the electoral roll.
Dwivedi responded in the affirmative, submitting that:
- Removal from the electoral roll can occur before a Central Government decision.
- Any later favourable decision by the Centre would allow restoration of the voter’s name.
He argued that several statutes require authorities to incidentally determine citizenship to exercise their powers, citing examples under the Mines and Minerals Act.
Dwivedi strongly opposed the suggestion that individual grievances could stall the entire Special Intensive Revision process.
“Individual cases cannot invalidate or stall the SIR exercise unless a specific order is shown to be perverse or without material,”
he argued.
He further submitted that Sections 16, 18, and 19 of the Representation of the People Act must be read harmoniously with Article 326 of the Constitution, which mandates adult suffrage only for citizens.
Tracing the evolution of Indian citizenship law, Dwivedi noted:
- Article 5 applied only at the commencement of the Constitution.
- Section 3 of the Citizenship Act initially mirrored constitutional criteria.
- Subsequent amendments in 1986 and 2003 tightened citizenship requirements, particularly in response to large-scale migration concerns.
- The 2003 amendment introduced OCI status, granting long-term rights but excluding voting rights.
He emphasized that even refugees or long-term visa holders cannot vote unless they are citizens.
During the hearing, the Bench made notable observations on:
- Post-Partition citizenship realities,
- Gradual tightening of citizenship criteria,
- The shift from pure birth-based citizenship to residence and parental status.
Justice Joymalya Bagchi observed that citizenship in India has been “gradually funneled” over time.
When asked about the remaining submissions, Dwivedi stated he would need 1 to 1.5 hours to complete arguments, particularly on the constitutional relationship between Parliamentary law and Article 326.
The Bench thereafter concluded the hearing for the day.
Case Title:
ASSOCIATION FOR DEMOCRATIC REFORMS AND ORS. Versus ELECTION COMMISSION OF INDIA
W.P.(C)No. 640/2025
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