Citizenship (Amendment) Act & illegal immigrants identification: Is EC second guessing SIR’s objectives, asks SC

Dwivedi denied that the exercise was to identify illegal immigrants. “When I am placing this Citizenship (Amendment) Act, I am not going to illegal migration. This Act is not about illegal migration. It’s about citizenship. We are not examining that (illegal immigration).”

He also cited US President Donald Trump’s actions in Venezuela and Greenland to contest the argument advanced by Senior Advocate A M Singhvi, who appeared for some of the petitioners, that due process was not followed by the EC in the exercise of its powers.

“I have a serious problem with this due process which Mr Singhvi is trying to import from the United States at a time when the US is hardly following due process. Now President Trump can just go and lift the Venezuelan President to US for trial, so where is the due process? Now he wants Greenland. The US Supreme Court is not applying due process to all this…But my friends are more keen to go that way and to import that,” the senior counsel said.

He said paragraph 7 of the SIR order sets out the reasons for undertaking the special revision.

“The first is there has been rapid urbanisation, second is frequent migration of population due to education livelihood and other reasons and that has become a trend. Thirdly, there is large-scale duplication of entries on existing electoral rolls… Fourthly, Article 326 requires that only Indian citizens should be registered on the electoral roll. Therefore, an intense verification drive to verify each person before enrollment is necessary. So, the object was to verify.”

“The fifth circumstance is the amendment of the Citizenship Act in 1986 and 2003, which required determination of citizenship… Sixth, political parties across the spectrum have voiced serious concerns regarding the accuracy of electoral rolls revised through summary revision process.”

Dwivedi said political parties have been complaining about the electoral rolls in Haryana, Karnataka, Maharashtra among other states. “Now the same political parties say don’t do SIR. That is a contradiction in their approach. During the course of the arguments most of the petitioners conceded that conduct of SIR is necessary. Mr Yogendra Yadav (psephologist and politician) said he feels SIR is absolutely essential but he has problems with the designs only.”

The EC counsel said Section 21(3) of the Representation of the People Act, “does not require reasons to be stated in a manner in which reasons are recorded in adjudication or quasi-judicial determination. It only requires reasons to be recorded to justify the undertaking of special revision. Reasons indicated in counter-affidavit are sufficient to establish.”

He said, “Now they may argue that you cannot supplement from the counter-affidavit. That’s a principle when some list is decided or some order is passed against a person which impacts him or has civil consequences, then court says you have to confine. Where an order is passed of an SIR, which is legislative in character, then one can always present the circumstances in greater detail in the counter-affidavit.”

Dwivedi said the Citizenship (Amendment) Act of 2003 “was introduced in Parliament and passed when Atal Bihari Vajpayee was the Prime Minister, but there was complete consensus that this was required. Both sides, No opposition. The notification came to be passed when Manmohan Singh was PM, in 2004. That itself indicates that across the political spectrum, this amendment was considered to be desirable.”

As the EC counsel stressed that Parliament made the law in view of illegal immigration, Justice Bagchi wondered if that was one of the reasons for the SIR and said that the June 24 order does not say so explicitly.

“It’s not there in your special revision,” the Judge said.

Dwivedi said, “That’s why if I am right in my submission that this order is of a legislative character, then I can give additional reasons. And in any case it’s a statute of Parliament. I have said that under Article 326, citizenship has to be examined. One could have more expressly mentioned this. But the idea to examine citizenship is there in express terms.”

Justice Bagchi asked, “Is that a reason or just a prefatory statement?” He said “the reasons appear to be three — Urbanisation, migration, and the third is wrong entry.” The judge asked: “Was the requirement for examining citizenship in light of the amendments to the Citizenship Act a trigger” and said, “because that trigger does not find eloquent expression in the SIR”.

Justice Bagchi said the order only speaks of migration but not illegal migration specifically.

Dwivedi responded that “the word migration will subsume inter-country too”.

Justice Bagchi, however, disagreed. “Inter-state and inter-country migration are quite different. Your SIR does not pin point that it’s trans-border migration or illegal migration…Migration when it’s inter-state is always lawful migration. So word migration means lawful migration. When you talk of inter-country migration, it may amount to illegal migration. Because in India everyone is entitled, if he is a citizen, to move throughout the country, it is one of the fundamental freedoms. So when you use a migration simplicitor, we will interpret it as inter-state migration.”

Dwivedi agreed that it could have been stated more clearly.

Justice Bagchi said “our question to you is since you are starting a special revision, was that in your mind? What was in your mind? it says migration, urbanisation etc. It does not clearly say illegal immigration… So are you second guessing now?

Dwivedi said he is not second guessing and added that “even if we ignore this, still the reasons which we gave are sufficient”.

The senior counsel said: “This exercise being legislative in character and this amendment Act having come after the previous SIR, and had never been applied in between because it went on self-declaration of citizenship. Therefore this was also the opportune time since SIR is being done to take note of this and examine.”

On Wednesday, Dwivedi had argued that Section 21(3) of ‘The Representation of the People Act, 1951, gave EC enough elbow room to deviate from the Registration of Electors Rules (RER), 1960, where necessary.

Elaborating on this, he said on Thursday that the section 21 of the RP Act as enacted in 1950 did not contain any provision envisaging any discretion in the EC to depart from the Rules but added this by way of amendments in 1956 and 1966. “This indicates that Parliament intended to introduce a discretion in favour of ECI…”, he said.

Accordingly, the EC, he said, “is well within its domain to device mechanism unrestrained by the prescribed rules under RER 1960 and conduct an SIR as per the order dated 24.6.2025.”

Simplicitor

He said the authorities had restricted the documents admissible for voter enrollment to 11 documents “for good reasons”. Questioning claims that many don’t have the documents, he said that that 24 percent in Bihar, who were required to submit documents as they were not linked to names already in the rolls, were able to file them.

“This being the position, our SIR cannot be castigated as manifestly arbitrary,” Dwivedi said adding “attempt of the petitioners is to have a roving and fishing inquiry which courts have always discouraged.”