The Supreme Court on Tuesday asked the Election Commission of India (ECI) whether the right to vote of a person could be taken away till the Central government determined the question of citizenship.
The Bench of Chief Justice of India Surya Kant and Justice Joymalya Bagchi made the constitutional query while hearing a batch of petitions challenging the Special Intensive Revision (SIR) of electoral rolls undertaken in several states across the country.
Senior Advocate Rakesh Dwivedi, appearing for the Election Commission of India, submitted that ECI had statutory competence to undertake an inquisitorial’ scrutiny into questions of voter eligibility, including citizenship status. He argued that such scrutiny could culminate in the deletion of names from electoral rolls even where the issue of citizenship stands referred to, and remains undecided by, the Central Government under the applicable legal framework.
The Senior Counsel pointed out that the constitutional and statutory scheme, read conjointly under Article 326 of the Constitution, the Representation of the People Act, 1950, and the Registration of Electors Rules, 1960, vested the Electoral Registration Officers (EROs) with the authority to examine the eligibility of persons enrolled as voters. Such examination was inquisitorial in nature and limited to determining eligibility for inclusion in the electoral roll, rather than constituting a final adjudication of citizenship, he added.
The submissions followed an earlier exchange in which the Court had queried whether the ECI’s mandate extended to conducting document-based inquisitorial inquiries in cases where voter eligibility appeared doubtful.
Senior Advocate Dwivedi drew analogies from other regulatory statutes, including the Mines and Minerals (Development and Regulation) Act, 1957, where eligibility conditions such as Indian citizenship were required to be verified by statutory authorities prior to the grant of mining leases or prospecting licences. In such regimes, authorities were empowered to conduct factual inquiries into citizenship as an incidental requirement for statutory compliance, he noted.
At this stage, the Apex Court asked whether, once doubts regarding citizenship were recorded and the matter was referred to the Central government under the Citizenship Act, 1955, the right to vote, albeit a statutory right, could be placed in abeyance during the pendency of such determination.
The Bench observed that while inquiries may be undertaken by election authorities, the broader statutory scheme contemplated a reference to the Union Government for consequential action on citizenship, raising concerns about interim disenfranchisement.
The Senior Counsel replied that the reference to the Central government pertained to the determination of whether an individual was a foreign national and their consequent right to remain in India, including proceedings under allied statutes such as the Foreigners Act, 1946. He asserted that for the limited purpose of maintaining the purity of electoral rolls, the ECI was empowered to proceed independently and effect deletion, notwithstanding the pendency of such reference.
Noting that statutory authorities routinely take interim decisions affecting rights and privileges pending final determinations, Dwivedi submitted that the electoral process could not be paralysed or recalibrated due to the identification of ineligible persons. He emphasised that judicial review remained available in cases of perversity, illegality, or procedural impropriety, thereby preserving constitutional safeguards.
The ECI’s actions were accompanied by adequate remedial mechanisms, including statutory appeals and recourse to constitutional courts, he pointed out, adding that the settled legal position, recognised inter alia in decisions such as People’s Union for Civil Liberties v. Union of India, that the right to vote was a statutory right subject to legislative regulation and not a fundamental right, must therefore operate within the contours prescribed by law.
Acknowledging the inevitability of hardship in large-scale administrative processes, the Senior Advocate submitted that governance necessarily involved balancing individual inconvenience against systemic integrity.
The Bench listed the matter for further hearing on January 15, indicating that it would consider the constitutional and statutory limits governing electoral roll revisions and interim disenfranchisement on the next date of hearing.
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