The Supreme Court has questioned whether the Election Commission can decide citizenship status while revising electoral rolls. The hearing raises major constitutional concerns about voter rights, illegal immigrants, and the limits of ECI’s powers.
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NEW DELHI: In a significant hearing on Tuesday, the Supreme Court of India raised critical questions about the Election Commission of India’s (ECI) authority to examine citizenship status during its ongoing Special Intensive Revision (SIR) of electoral rolls across several states, including Bihar.
A bench led by Chief Justice of India Surya Kant and Justice Joymalya Bagchi posed queries to counsel opposing the ECI’s move, focusing on whether the poll body can conduct inquiries into doubtful citizenship and determine the presumptive stage of citizenship while preparing electoral rolls.
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During the hearing, the bench asked whether the ECI, while verifying the eligibility of voters, is restricted only to checking age and residence or whether it can take an inquisitorial approach to seek documents indicating citizenship.
Quoting Section 19 of the Representation of the People Act (ROPA) and its roots in Article 325 of the Constitution, the bench observed that citizenship is a constitutional prerequisite, not merely a procedural requirement.
Justice Bagchi raised a compelling scenario:
If an illegal immigrant has been living in India for more than 10 years, should that individual remain on the electoral rolls?
The bench stressed that presuming citizenship solely based on residence and age would be “incorrect,” reinforcing that citizenship must be independently established.
Petitioners Argument
Senior advocates Shadan Farasat and P. C. Sen, appearing for multiple petitioners, contended that the ECI lacks jurisdiction to decide citizenship status, which falls exclusively under the purview of the Central government and Foreigners’ Tribunals.
Arguments put forward included:
- The ECI can only assess whether a person is 18 years or older and ordinarily resident in a constituency.
- Any doubt about citizenship should result in a reference to the district magistrate, not removal from the rolls.
- The SIR exercise imposes an “unconstitutional burden” on citizens to prove their nationality.
- Removal from voter rolls requires a full-fledged legal determination, not a summary inquiry by election officials.
Farasat emphasized that adult suffrage under Article 326 rests on three conditions:
- Indian citizenship
- Attainment of 18 years
- Absence of statutory disqualifications
He argued that the SIR process risks converting ECI officials into de facto tribunals.
Distinction Between Inquiry and Determination
The Supreme Court acknowledged a critical distinction:
Inquiry (which may be within ECI’s powers) vs. Determination of citizenship (which belongs to statutory authorities).
The bench asked:
“Can the ECI undertake an inquiry where an inclusion looks highly dubious, to streamline the electoral process?”
Notably, the bench suggested that the ECI may have the authority to doubt citizenship, raising the question of whether it can then decide the “presumptive stage of citizenship” needed for inclusion in electoral rolls.
The Supreme Court will continue hearing the matter on December 11.
Click Here to Read Previous Reports on Bihar SIR Row
