Setback to 'Vote Chori campaigners ... Sickular gang and Rahul-led ecosystem ::: Supreme Court says Election Commission can include citizens and exclude non-citizens as voters

The apex court rules that though Citizenship is in Parliament’s domain, but EC has the authority to  include citizens and exclude non-citizens as voters.  

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

Presiding over a Supreme Court bench hearing petitions challenging the EC's  special intensive revision (SIR) in Bihar, Justice Surya Kant said the litigation 'largely' seems to be 'a case of trust deficiency'.

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

While holding that the Election Commission can decide to include a citizen in the voter list or exclude a non-citizen from it, the Supreme Court on Tuesday, Aug 12 expressed dissatisfaction with the norm of prospective voters merely having to furnish a declaration that they are citizens for inclusion in the list.

“Law regarding conferment of citizenship or taking away of citizenship will have to be enacted by the Parliament. No debate is required on that. 

But once that law has been made and in terms of that if somebody has been acknowledged or recognised as citizen, inclusion of that person in the voters list and a person who has not been recognised as citizen and who is not a citizen, exclusion of that person, that has to be undertaken by the commission only,” said Justice Surya Kant. 

Appearing for petitioners challenging SIR in Bihar, senior advocate Abhishek Manu Singhvi told the bench (also comprising Justice Joymalya Bagchi ) that it was not within the remit of the EC to decide on citizenship.

Singhvi questioned the ECI’s reluctance to consider Aadhaar and Electoral Photo Identity Cards (EPIC) as valid and bonafide documents. 

He said, it is “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 Surya Kant pointed out that it’s not the EC but the Aadhaar Act which says that the unique identification number is not proof of citizenship.

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

The senior counsel (also a Congress lawmaker) 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.

Another opposition MP and senior counsel 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.”

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, 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 Surya 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.

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 Surya 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." 

Justice Kant said 5 crore people are declared 'invalid', the Supreme Court will definitely like to examine the matter.

Prashant 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.”

ends