Citizenship, due process, timing: SC marks out three key issues for the commission
A bench of Justices Sudhanshu Dhulia and Joymalya Bagchi said that “there is no question that this issue is an important one and goes to the very root of democracy and the right to vote.”
BLO at Nagar Panchayat, Bahadurganj with voters, most of them are bringing Aadhar as identity proof. (Express Photo: Chinmaya N Singh) 
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Even as the Supreme Court allowed the Election Commission (EC) to continue its Special Intensive Revision of the electoral list in Bihar, a two-judge bench Thursday flagged three key issues that the commission will have to factor in as it formulates its response. These include: the EC’s power to check the citizenship of voters; the importance of due process and procedure to be followed during the revision and the timing of the revision itself.
A bench of Justices Sudhanshu Dhulia and Joymalya Bagchi said that “there is no question that this issue is an important one and goes to the very root of democracy and the right to vote.”
The bench, in the three-hour-long hearing, acknowledged that the EC, as a constitutional body, has powers well beyond the Representation of People’s Act, 1951 (RPA) and that the Court will not stop the EC. However, the SC also made it clear that the process would be subject to judicial intervention.
On the citizenship issue, the bench observed that it is the remit of the Ministry of Home Affairs to determine whether an individual is a citizen.
“…citizenship is an issue to be determined not by the Election Commission of India, but by the Ministry of Home Affairs,” the bench said when EC’s counsel, senior advocate Rakesh Dwivedi, defended the Commission’s decision to exclude Aadhaar as a valid document.
EC’s lawyers cited Article 326 of the Constitution, which mandates voting based on adult suffrage. “The precondition for adult suffrage is citizenship,” Dwivedi argued.
However, the bench then observed that if the EC wanted to ensure that only citizens are on the electoral rolls, then it “should have started the process much earlier.”
Essentially, the Court raised questions about the timing of the exercise and inquired whether it could be delinked from the Bihar elections.
“Your decision, to disenfranchise the person who is already there on the electoral roll in 2025, would compel this individual to appeal against (the) decision and go through this entire rigmarole and thereby be denied of his right to vote in the ensuing election. There is nothing wrong in you purging electoral rolls through an intensive exercise to see that non-citizens do not remain on the rolls. But if you decide only a couple of months before a proposed election…” Justice Bagchi said.
“If you ask for these documents immediately, even I will not be able to produce it now, look at the practicality, look at the timeline,” Justice Dhulia added.
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The judges also asked the EC questions on the process it would follow, in case of disenfranchisement of a voter. “If a ‘summary revision’ under the Representation of People’s Act calls for a verbal hearing before deletion of a voter from the electoral roll, can it be said that the ‘intensive’ revision cannot have that process?” Justice Dhulia asked.
According to the rules in the RPA, in all cases of proposed voter deletions, except for confirmed deaths, a notice is served to the voter, providing them with a reasonable opportunity for a hearing.
The SC also, in its order, asked the EC to explain why Aadhaar, Electoral Photo Identity Card (voter card issued by the EC) and ration card cannot be accepted as valid documents in the SIR process. This potentially increases the ambit of the 11-document list that has set off widespread panic and confusion on the ground.
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