‘Not citizenship proof’: SC directs poll panel to accept Aadhaar as 12th document in Bihar SIR

“There is no quarrel that as per the statutory status assigned to Aadhaar Card under the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, it is not a proof of citizenship and therefore shall not be accepted as proof of citizenship. However, keeping in view Section 23(4) of the Representation of People Act, 1950, Aadhaar Card is one of the documents enumerated for the purpose of establishing the identity of a person,” the court ordered.

The court directed the EC “and its authorities to accept Aadhaar Card as a proof of identity for the purpose of inclusion or exclusion in the revised voter list of the State of Bihar”. “Aadhaar card, for this purpose, shall be treated as the 12th document by the authorities. It is, however, made clear that the authorities shall be entitled to verify the authenticity and genuinity of the Aadhaar card, like any of the other enumerated documents, by seeking further proof/documents,” it said.

The court said the EC “shall issue instructions in this regard” by Tuesday.

On July 10, while refusing to stop the EC from proceeding with the SIR in Bihar, the Supreme Court had asked the poll body to consider Aadhaar, voter ID and ration card for updating the rolls, leaving the final call to the poll panel.
On August 22, the court had said those who wanted to file claims against the exclusion of their names from the draft voters list can do so online by submitting any of the 11 documents mentioned by the EC or Aadhaar card.

On Monday, Senior Advocate Kapil Sibal, appearing for RJD, which is one of the petitioners, said the court’s orders to accept Aadhaar were not being followed and “Booth Level Officers (BLOs) are committing gross contempt by refusing to accept Aadhaar.”

To buttress his argument, Sibal pointed out that the Electoral Registration Officer (ERO) in the Runnisaidpur constituency of Sitamarhi district had issued show-cause notices to BLOs who had accepted documents other than the 11 prescribed originally by the EC.

Justice Kant asked if the petitioners wanted Aadhaar card to be accepted as a proof of citizenship. “No. But as proof of residence,” said Sibal, adding “citizenship anyway cannot be decided by the BLOs.”

Appearing for the EC, Senior Advocate Rakesh Dwivedi said the panel “does not accept the argument” that it “is not empowered for the purposes of the electoral roll to decide whether a person is a citizen or not”.

“Even if an MP or MLA who is elected, if a question arises whether he or she has acquired citizenship of another country, and therefore ceases to be a citizen, then under Article 101 of the Constitution, it is referred to President for decision and President decides on the basis of the opinion given by the EC,” he contended.

Justice Bagchi referred to the show-cause notices cited by Sibal and said, “We would like you to clarify because we have repeatedly passed orders…if you see those 11 documents, apart from passport and birth certificate, none of them are proof of citizenship… The list of documents in your SIR to indicate identity, residence, etc., was clarified by us saying include Aadhaar.” Dwivedi responded that the EC will examine what went wrong.

Senior Advocate A M Singhvi, appearing for some of the petitioners, also said the poll body “is issuing notice to those who are accepting Aadhaar”.

Justice Kant said EC need not treat Aadhaar as proof of citizenship, but only for identity purposes. “Aadhaar is an official document like birth certificate, like ration card, like passport. We do not know who has issued it, to whom it was issued, whether it’s genuine, whatever it is. You will take it and examine it,” he said.

Meanwhile, Advocate Ashwini Upadhyay, who filed a plea seeking countrywide SIRs at regular intervals, raised concerns that Aadhaar cards were being forged for paltry sums. Justice Kant said, “…in one of the hearings, we had also commented that any official document in this country can be forged. You are absolutely right. People have forged passports, Aadhaar cards. But that’s something they will verify.”

The judge said, “Those who are genuine citizens of this country, they are entitled to vote. Those who are claiming citizenship on the basis of forged or fabricated documents, they are liable to be excluded.”

Justice Bagchi said one of the provisions of The Representation of People Act specifically refers to Aadhaar as a document of residence.

Referring to the Bihar SIR, Dwivedi said 99.6 per cent of the 7.24 crore voters in the state have already submitted the requisite documents. Aadhaar was allowed for those excluded from the draft but no one had any complaint that a large number of persons were excluded, he asserted.

The bench also issued notice to the EC on Upadhyay’s plea. The court will hear the matter next on September 15.

The ongoing SIR has triggered concerns over its potential to disenfranchise electors who do not possess the 11 documents listed by the EC that need to be submitted by electors to make it to the final roll.

Currently, under the Bihar SIR, those who were on the 2003 electoral rolls need only submit an extract from it as proof. Those who enrolled after 2003 must provide one or more documents from the list of 11, along with a pre-filled enumeration form for existing electors, to establish date and/or place of birth, which, in turn, is used to determine citizenship.

According to the EC, the list of 11 is indicative, not exhaustive. This is because under The Representation of the People Act, 1950, EROs are empowered to make the electoral roll and the EC can only issue guidelines.

In the Bihar SIR, the 11 documents sought by the EC include birth certificate, passport, matriculation certificate, permanent residence certificate issued by a state authority, forest rights certificate, caste certificate, National Register of Citizens.

They also include: family register prepared by state/ local authorities, land/ house allotment certificate by the government, identity card or pension payment order issued to a regular employee or pensioner of Central/state government or public sector undertaking, or any identity card/ certificate/ document issued by the government/ local authorities/ banks/ post office/ LIC/ PSUs prior to July 1, 1987.

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