Revision of Electoral Rolls in Bihar | Day 22: “Exclusion not deportation” says ECI

Constituent Assembly debates

Dwivedi referred to Constituent Assembly debates of 8 January 1949 and submitted that when the Constitution was framed, Part II dealing with citizenship had not yet been finalised. The Citizenship Act, 1955, he pointed out, was enacted only five years later.

He submitted that Constituent Assembly debates and judicial decisions must be read in their historical context. “All judgements should not be understood as a mathematical formula of Aryabhata,” he said. In the 1950s, he added, strengthening a newly formed nation was a central constitutional concern.

The citizenship question

Dwivedi referred to Sections 146A to 146C of the Representation of the People Act, 1950 (RP Act), to submit that Parliament has enacted a detailed mechanism for hearing and deciding issues related to citizenship that arise in the context of elections. These provisions, he said, confer powers of a civil court on the ECI for deciding such questions. “If a person acquires, or if it is alleged that he has acquired, the citizenship of another country, then ultimately it is the ECI which examines the issue and its opinion is binding on the President,” Dwivedi submitted.

In matters concerning elections, electoral rolls, and the conduct of elections, he said, the ECI functions as the authority under the statute.

Dwivedi argued that an Act of Parliament cannot alter Article 326 and said that Sections 16, 18 and 19 of the RP Act must be read in light of Article 326 and operate only to give effect to it. Referring to Article 5, Dwivedi said that when a person does not satisfy valid constitutional criteria for citizenship, they stand disqualified and are excluded from the electoral roll. Parliament has expressed this consequence in negative terms but that drafting choice does not create any conflict with the Constitution.

He warned that accepting the opposite view would compel an ERO to include a person even after finding that the individual is not a citizen, a result inconsistent with the constitutional scheme governing the right to vote.

Addressing the consequence of exclusion, Dwivedi referred to Constituent Assembly debates to submit that the framers were conscious that the citizenship framework could result in hardship. He referred to Jawaharlal Nehru’s admission that some people may suffer in the process of nation-building.

In response to Justice Bagchi’s question regarding children of persons disqualified under Article 5, Dwivedi submitted that children are deemed citizens where the constitutional criteria relating to birth and the status of parents are satisfied. Justice Bagchi observed that India has progressively narrowed its citizenship framework, moving away from birth alone to additional parental requirements.

CJI Surya Kant noted that the years immediately following Independence presented a peculiar situation, where those who chose to stay back continued as Indian citizens and early elections proceeded on simple benchmarks. Dwivedi responded by pointing out that delimitation also did not take place before the first elections.

Effect of an adverse determination

Dwivedi clarified that the effect of an adverse finding by the ECI “is only that the person’s name will not be included in the electoral roll.”

He argued that such cases may thereafter be referred to the Central Government for scrutiny and action under the Citizenship Act, the Foreigners Act, 1946 and other related laws. That referral, he said, explains the relationship between election law and other citizenship-related enactments. It does not convert the ECI’s determination into an order of deportation, nor does it decide whether a person can continue to stay in India.

Can courts decide citizenship disputes?

Dwivedi argued that a civil suit seeking a declaration of Indian citizenship is maintainable, since the Citizenship Act does not bar such proceedings.

He distinguished between two kinds of cases: those where an Indian citizen is alleged to have renounced that citizenship and acquired foreign nationality, and cases where the person’s Indian citizenship is itself in question. In the latter category, Dwivedi submitted that courts retain jurisdiction. Where the issue concerns acquisition or renunciation of citizenship however, he pointed out that the matter is referred to the Central Government. Aside from such cases, there is no complete bar on judicial determination.

Electoral Registration Officer and scope of inquiry

Dwivedi submitted that the ECI does not act directly, but through the Electoral Registration Officer (ERO) who is competent to conduct an inquisitorial inquiry for specific statutory purposes. He pointed out that several statutes require citizenship as a condition and authorities routinely examine citizenship in those cases. The same principle, he argued, applies when the ERO examines eligibility for inclusion in the electoral roll.

When Justice Bagchi asked whether a person’s right could be taken away pending a decision of the Central Government, Dwivedi responded that the inquiry operates only to determine inclusion in the electoral roll. It does not determine the person’s right to remain in India.

Dwivedi noted that some individual cases involving perverse exercise of power would have to be corrected. However, he maintained that such cases do not undermine the existence of the statutory power to conduct an inquiry in the first place.

The ECI will continue its submissions on 15 January at 2 pm.