Uttar Pradesh draft roll out: EC power to verify citizenship flows from Constitution, poll panel tells Supreme Court

The EC cited a resolution moved by Jawaharlal Nehru in the Constituent Assembly on January 8, 1949, which, it said, “required… authorities concerned for preparation of electoral roll to ensure, inter alia, that no person shall be included… if he is not a citizen of India. This resolution was adopted, and ultimately inserted in the form of Article 289-B in the COI (Constitution of India) on 16.06.1949. Article 289-B was re-numbered as Article 326 in the COI. Article 326 read with Article 324 of the COI assimilates the aforesaid intent of the framers of the COI. Thus, it is submitted that the ECI’s power to verify the status of citizenship was always envisaged and contained under Article 326 read with Article 324.”

Article 324 says that superintendence, direction and control of elections would be vested in the EC, while Article 326 lays down that elections to Lok Sabha and State Assemblies shall be on the basis of adult suffrage.

“Pertinently, this obligation does not overlap with an assessment of his/ her citizenship under Section 9 of the Citizenship Act, 1955, wherein the status of the individual as a citizen of India is itself under scrutiny, the power of which vests in the Central Government. Under the SIR exercise, the citizenship of an individual for the purposes of Citizenship Act 1955 will not terminate on account of the fact that he/ she is held to be ineligible for registration in the electoral rolls,” it said.

“The Citizenship Act, 1955, and the Foreigners Act, 1946, do not detract from the power of the ECI with respect to assessment of citizenship, preparation of electoral roll… It is a settled law that parliamentary legislation cannot contravene or dilute constitutional mandate,” it said.

“The power of Parliament under Article 327 to frame laws with respect to matters connected with elections are subject to provisions of this Constitution, meaning, thereby, that the legislative powers of Parliament envisaged under Article 327 are subject to Articles 324 and 326 of the COI,” it said.

The petitioners had argued that determination of citizenship does not fall within the remit of the ECI as under Section 9(2) of the Citizenship Act 1955, it is the Central Government which is vested with that power.

Countering this, the EC said that its “power to assess citizenship flows from Articles 324 and 326 of the COI, read with Section 16 of the RP Act 1950.” It said that Section 9(2) of the Citizenship Act is only concerned with termination of citizenship on account of voluntary acquisition of foreign citizenship, and “it is only in this regard that the Central Government has exclusive jurisdiction. Other aspects related to citizenship can be inquired into by other relevant authorities for their purposes, including those who are constitutionally obligated to do so, i.e., the ECI.”

“Section 9 of the Citizenship Act has no application to the SIR exercise. The entitlement to be registered as a voter in the electoral roll flows from Article 326 of the COI read with Sections 16 and 19 of the RP Act 1950… Article 326 provides for in-built qualifiers which an individual, claiming a right to be registered in the said rolls, must fulfil. Similar is the position under Sections 16 and 19 of the RP Act 1950. The burden to meet the prescription of aforesaid provisions falls on the person who claims the right to be registered in the electoral rolls,” it said.

“The claim of exclusivity as regards determination of citizenship is patently erroneous as various provisions of the COI vest such power in different authorities… Article 103(2) of the COI is a clear indication that for certain specific purposes, the ECI has been empowered under the COI to consider whether a person/ legislator is or is not a citizen of India; or that he has voluntarily acquired citizenship of a foreign state; or is under any acknowledgement of allegiance or adherence to a foreign state. Thus, even an issue which is ordinarily within the fold of Section 9(2) of the Citizenship Act 1955, and is entrusted to the Central Government for decision, can also be considered under Article 103(2) or 192(2) by the President or Governor, respectively, based on the binding opinion of the ECI,” it said.

The poll panel said that in the 1995 decision in Lal Babu Hussein v. Electoral Registration Officer, the SC “recognised that the ECI can look into citizenship for the purposes of electoral roll.”

Backing the SIR exercise, the ECI said that “electoral democracy…requires preparation and revision of electoral rolls based on conditionalities prescribed in Articles 325 and 326, as well as the RP Act 1950. Elections cannot be free and fair unless electoral rolls are intensively revised from time to time.”

“Of course, rhetorically it was said that we are carrying out a parallel NRC. But that was more of rhetorical. NRC includes all the citizens, whereas under the electoral rolls, all the citizens are not included. It is citizens who are above the age of 18 years…A person who may be of unsound mind, if he is a citizen, he will be excluded from the electoral roll, but he will be part of NRC. He is a citizen still, but disqualified. So therefore, electoral roll preparation is not a parallel NRC on the face of it…It is only in Assam where the NRC was earlier done, Your Lordships are monitoring that,” Dwivedi told the bench.

The hearing will resume on January 8.