The Supreme Court heard arguments on citizenship checks and preparation of voter rolls, examining the Election Commission’s duty to maximise voting rights. During the hearing, the Court also flagged low voter participation in Bihar and stressed collective responsibility in a democracy.
New Delhi: The Supreme Court of India heard a public interest litigation filed by the Association for Democratic Reforms and others against the Election Commission of India, concerning issues related to the preparation of electoral rolls and the scope of citizenship verification during elections.
The matter was heard by a Bench comprising Justice Surya Kant, Chief Justice of India, and Justice Joymalya Bagchi.
During the hearing, Senior Advocate Dwivedi made submissions on the constitutional concept of adult suffrage.
He stated,
“Adult suffrage is not just age, it has 3 limbs constituting the limbs of the adult suffrage.”
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He further argued that even if a person has not been formally declared a citizen, such a person should still be included in the voter rolls, saying,
“if person is not declared as citizen, still should be included in the rolls.”
Senior Advocate Prashant responded by questioning who would determine citizenship in case of disputes. He said,
“who does the exercise of determining the citizenship if there is a dispute Election commission is under constitutional duty to determine. we can’t determine how long you stay in India. Mention section 16 of representative of people act 1950.”
The Bench then raised a hypothetical situation and observed,
“suppose an person is not citizens but before 3-4 of election he is enrolled so you will determine the citizenship. you will therefore hold an inquiry to identify whether a person genuinely a citizen or not”.”
In reply, Dwivedi clarified the limited scope of the Election Commission’s role by saying,
“my reach is within the field of elections, not beyond elections.”
The Bench further explained the distinction by stating,
“if person say i am not citizen but i want to be and participate in the elections tat is not your power to determine but if person say i am a citizens and want to vote you can determine.”
Dwivedi then submitted that citizenship falls into different legal categories and added,
“citizenship has categories into 3. also persons are born before and there we accept it.”
Referring to the existing electoral data, he stated,
“we are taking the last voter list of 2005,even the summary inclusions. That out SIR is close too section 16.”
Justice Joymalya Bagchi responded by acknowledging the submission but clarified the opposing stance, saying,
“your point is well taken but they are saying that they have never questioned the constitutional duty.”
Dwivedi further emphasised that the process adopted by the Election Commission is not harsh or intrusive. He said,
“approach of determining is liberal and soft touch. we are not going in a great detail of judicial inquiry.”
Stressing the need for documentation, he added,
“the whole country is aware that we need some document to show so in future this problem will not be there. This criteria is consistent with section3.”
Dwivedi also highlighted the scale of the exercise and lack of objections, stating,
“out of 65 lakh nobody has filled an appeal. our duty under 326 is to maximise and optimise the enfranchisement. when you prepare a voter list on 326 people are bound to be excluded on ground of death, migration etc- the very fixation of 18 years of age.”
He then referred to Article 325 of the Constitution and said,
“article 325 what is the mandate of article 325- constituency is the unit there shall be one electoral control for every constituency.”
He continued by explaining the focus during general elections, stating,
“All the constituencies are in focus in a general elections, most important is the second-i have to blinders with respect to other identities-race, caste. etc the main focus is citizenship. also the burden to proof citizenship is on who want to register if someone is in possession of High school certification he is in possession only he can produce.”
Dwivedi also made a broader constitutional observation, saying,
“unfortunately, we lay on rights but on emphasis on duty.”
He then questioned the petitioners’ approach and remarked,
“when we talk of the electoral roll, the ECI is required to do it for the democracy, the petitioner are interested in reforms. why not concern about 33% people not voted in Bihar.”
Justice Bagchi acknowledged voter participation challenges and said,
“i understand the endeavour of the ECI to have polling both near high rise building to encourage rich people to come and vote.”
The Chief Justice of India made a forward-looking observation, stating,
“will not surprise that if next election there are online voting’s.”
Justice Bagchi then raised a pointed question on the issue of deletion of names from electoral rolls, observing,
“The names are not delegates because of lack of citizenship. your category of deletion is date, duplication and migration. none of these are disenfranchisement. please indicate us ground of person being of suspected citizenship?”
The Chief Justice further stressed democratic participation, stating,
“its high time that political parties make it a part of their agenda to encourage people o come forward and exercise their right to vote.”
Justice Bagchi reiterated the concern by saying,
“you submission on deletion is no pruning of 3 categories-death, duplication, migration not on citizenship.”
Dwivedi responded by asserting the collective responsibility in a democracy, stating,
“i don’t understand burden democracy is not a burden at all.”
The Chief Justice then remarked on the nature of the process, saying,
“so it is an exercising of cooperation not adversarial.”
Dwivedi agreed but added,
“the cooperation is lacking. question to political party why you are not cooperating why are not helping out.”
The Chief Justice shared the Court’s experience, stating,
“it was disappointing experience for us also. no political party except once come forward even if they where called of.”
At the conclusion of the hearing, the Court indicated that the matter will be taken up on 20th January.
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