Citizenship is in Parliament’s domain, but ECI can include citizens and exclude non-citizens as voters: SC

The top court said that self-declaration of citizenship may lead to legal complications and added that the ECI can verify their authenticity.

The remarks came as senior advocate A M Singhvi, appearing for some petitioners, told the bench also comprising Justice Joymalya Bagchi that it was not within the remit of the ECI to decide on citizenship.

Singhvi questioned the ECI’s reluctance to consider Aadhaar and Electoral Photo Identity Cards (EPIC) and said, “very clear that ECI does not want to look at them because they say it’s insufficient for determining citizenship. Otherwise, there’s no reason.”

Justice Kant pointed out that it’s not the ECI but the Aadhaar Act which says that the unique identification number is not proof of citizenship.

‘Presumptive exclusion’

Singhvi said, “This entire exercise is without jurisdiction. Because the ECI has converted itself into an agency that flags citizenship.”

The senior counsel said, “My proposition is determination of citizenship is an exercise which does not fall in domain of the ECI at all. They can’t say before 2 months in a 9-10 crore (voter) election, we are doing SIR and we will remove you on the grounds of citizenship. It is true that you have to decide citizenship to be ultimately on the roll. But 5 crore people are already in the roll after 2003 (revision). Their removal on grounds of citizenship or lack of it has to follow a procedure, which is not with them…The argument is that from 2003-2025, there is ‘presumptive exclusion’ unless ECI on the basis of its test finds them to be citizens. Presumptively, you are held not to be a citizen till you show otherwise,” he added.

Senior advocate Kapil Sibal, also appearing for the petitioners, said, “They (ECI) admit that no inquiry was conducted to ascertain whether these people (who are exempted from the draft roll on the ground of death, migration to other places, etc) are indeed dead or migrated.”

Sibal added that these are people who were there in the 2003 rolls drawn up after a revision. “And since then 22 lakh have died!” he said.

Justice Bagchi, however, said, “There is a degree of intensity in a summary revision vis-à-vis an intensive revision. So inclusion in a summary revision role does not give you a carte blanche to be in an intensive revision draft roll.”

On Aadhaar and ration cards, Justice Kant said, “One is furnishing of documents. Second is verification. Today if I attach a fake Aadhar or a fake ration card, they have a right to verify…”.

Sibal said prima facie, there is an assumption in favour of the person submitting them that these are valid documents.

“Yes, but if you attach a document, it requires consideration, verification,” said Justice Kant.

Referring to those who have been left out of the draft roll, Advocate Prashant Bhushan, appearing for NGO Association for Democratic Reforms (ADR), pointed out that the ECI had said in its affidavit that “we have given some of this information to the booth-level agents (BLAs) of recognised political parties”.
“They say they are not obliged to give to anyone else,” he added.

‘After August 4, the document is not searchable’

Bhushan further said, “Today, what they have done is something mischievous. Until August 4, the draft of the roll was searchable. After August 4, the document is not searchable. They say, go and ask the BLAs of the political party. Why should I, as a citizen, not know from their document and should ask an agent of the political party?”

Justice Kant agreed that “voters and all bona fide citizens have a right” to know.

Senior advocate Rakesh Dwivedi, appearing for the ECI, said ADR had filed a “speculative petition”. He added, “They must await the completion of the exercise.”

Singhvi said, “Electoral roll is presumptively held not to be valid solely on grounds of citizenship. You cannot have a system where citizenship is doubted for 5 crore people unless…presumption is he’s a valid citizen unless they follow procedure and remove…”

Justice Kant said, “Up to 2003, there’s no dispute. Those who are on voter list, they are not required to submit any documents. Mr Dwivedi is saying those who were voters till 2003, their children also are not required to give documents.”

‘If they declare 5 crore people invalid, we are sitting here’

Singhvi said, “When elections are 2.5 months away, what they have done is- they have issued a presumptive negative declaration…and said that to become valid on existing roll on which you are sitting, these people…I am only on the presumption in a squeezed time frame. Look at the object of all this. You declare 5 crore people to be not valid and give them 2.5 months!”

Justice Kant said, “If they declare 5 crore people invalid, we are sitting here. We would definitely like to examine.”

Praying for an interim relief, Singvi said, “We estimate that if you ask for certificates…maybe 1, maybe 2 crore will be invalid. Now we can’t wait till we come back in September and Your Lordships is told now the Model Code of Conduct is in force, elections are around the corner. They are in a scrambling mode.”

Justice Kant said the process can be invalidated even in September if the court finds it is not lawful.
“So what? Can’t we set it aside even in September even if we have a lurking suspicion about the procedure followed by the ECI?”

Bhushan said, “What we have shown (in the petition) is that a very large number of people who find themselves in the draft roll are dead persons, 300 people living in one house, etc. Now they are saying those who are not in the draft list, they will have to fill up a Form 6.”

Bhushan said, “Earlier, even if someone was applying as a fresh voter, they only have to give a self-declaration that they are citizens. Thereafter, if someone challenges and produces some material, they can remove. That’s all. They do not have to give any document for showing that he or she is a citizen.”

Justice Kant said, “That may be legally difficult, that simply somebody says that I am writing that I am a citizen.’

‘A case of trust deficiency’

The judge said the litigation “largely” seemed to be “a case of trust deficiency”.

Activist and psephologist Yogendra Yadav, who also addressed the court, said, “This is the first revision exercise in the whole country where there is zero addition and there are only omissions.”

He said Bihar has an adult population of 8.18 crore and that when there should have been more voters, 65 lakhs have been excluded.

Yadav contended that mass disenfranchisement has already taken place, adding that it did not happen due to the failure of the SIR but that the process was designed for the purpose.

“With one stroke, the percentage of adults eligible to vote in Bihar has come down to 88 per cent already. There would be further deletions now,” he contended.

Yadav added that the number of women voters who have been excluded is more than that of men.