While it did not accept the Supreme Court’s suggestion to consider Aadhaar, Voter ID and ration cards as proof for its ongoing Special Intensive Revision (SIR) of electoral rolls in Bihar, the Election Commission, in a counter-affidavit filed in court on Monday, said it was its “Constitutional authority” to determine whether the requirement of citizenship is fulfilled by electors, but citizenship of an individual will “not terminate” on account of being held ineligible as an elector.
On July 10, the Supreme Court, while hearing petitions voicing concerns over the SIR in poll-bound Bihar, declined to restrain the EC from proceeding with the SIR but suggested that the poll panel also consider Aadhaar, voter ID and ration cards for the purpose of updating the rolls. It said the EC could file a counter-affidavit by July 21 and the matter be listed for another hearing on July 28.
In its counter-affidavit, the EC said Aadhaar does not constitute proof of citizenship, and this has been held by various High Courts. “Aadhaar has not been included in the list of 11 documents provided in the enumeration form, as it does not help in screening the eligibility under Article 326. However, this is not to say that Aadhaar cannot be used to supplement other documents to prove eligibility,” it said.
The EC’s enumeration form comes printed with the electors’ EPIC number and an optional Aadhaar column.
The EC also noted that there has been “widespread issuance of bogus ration cards”, and though Aadhaar-seeding has helped, problems still persist. The EC cited a press release issued by the government on March 7 that said the Centre had removed over 5 crore fake ration card holders.
On voters’ cards, the EC said: “…the EPIC (electors photo identity card), by its very nature, merely reflects the current state of the electoral roll and cannot, in itself, establish antecedent eligibility for inclusion in the roll.”
The EC reiterated that the list of 11 documents was indicative and not exhaustive, so the Electoral Registration Officers could consider all documents presented by electors.
The EC’s June 24 order required all existing 7.8 crore electors in Bihar to fill enumeration forms by July 25 to remain on the rolls. For those added to the electoral rolls after January 1, 2003, when the last intensive revision was carried out in Bihar, the EC has specified additional documents to establish eligibility.
The exercise has led to concern among political parties and civil society groups that genuine electors may get disenfranchised as they may not be able to produce one of the 11 documents prescribed by EC. Several petitions have been filed in the Supreme Court, including by the Association for Democratic Reforms and Opposition leaders.
Opposition leaders, including West Bengal Chief Minister Mamata Banerjee, have raised concerns that the exercise would amount to preparing a National Register of Citizens (NRC) through the back door. The court, in its July 10 hearing, had observed that determination of citizenship was the Ministry of Home Affairs’ domain.
“Under the SIR exercise, the citizenship of an individual will not terminate on account of the fact that he/ she is held to be ineligible for registration in the electoral rolls,” the EC said.
The EC said its powers to scrutinise the qualifications flowed from Articles 324 and 326, which pertain to its powers of superintendence over elections and electoral rolls, and the eligibility for electors. “However, it is reiterated, that determination of non-eligibility of anyone under Article 326 will not lead to cancellation of citizenship,” it said.
Responding to the petitioners’ argument that it was the Central government that was empowered to determine citizenship and not the EC, the Commission said when it came to inclusion in the electoral roll, it was well within its powers to ask for proof.
“The exclusive powers of the Central Government under Section 9 [Citizenship Act, 1955] are confined to reviewing the acquisition of foreign citizenship and whether, based on such acquisition, citizenship of a person should be terminated. This is the scope and mandate of the prevalent laws in force,” it said.
The EC said that for those covered under Section 3 of the Act (citizenship by birth), Section 9 (renunciation of citizenship) and Section 10 (termination of citizenship) don’t apply. “Therefore, the ECI is fully competent to require a person claiming citizenship by birth to produce relevant documents for inclusion in the electoral roll,” it said.
As per its order, the EC has asked all those not on the 2003 electoral roll to submit documents as per their age. For individuals born before July 1, 1987, documents establishing their date and/ or place of birth are required; for individuals born between July 1, 1987 and December 2, 2004, documents for themselves and one parent are required; and for individuals born after December 2, 2004, documents for themselves and both parents are needed. While the EC had not specified the reason for this distinction, it said in its counter-affidavit that “Section 3 [Citizenship Act] is the basis for segregation of age groups in the enumeration form”.
“In the absence of a specific exclusion, as in Sections 9 and 10 of the Citizenship Act, 1955, it is submitted that the ECI, being a constitutional body, would have constitutional authority to determine whether the constitutional requirement of citizenship has been fulfilled by a person claiming the right to be included in the electoral roll. It is also submitted… the Citizenship Act, 1955, ought not to be understood as taking away the constitutional authority of ECI, as a parliamentary law cannot take away the said power. Moreover, conferment of delegated authority under a parliamentary law cannot detract from the authority of the ECl conferred by the COI [Constitution of India]. Any denial of such authority would result in inclusion of illegal immigrants and foreigners in the electoral rolls,” the EC said.
The EC also defended placing the burden of proof on the electors. “That in so far as the burden to prove citizenship is concerned, it is submitted that the necessary documents required to establish citizenship are within the special knowledge of the individual claiming to be a citizen of India. Given the nature of this evidence and the fact that such evidence should/ ought to be within the personal knowledge of the individual concerned and not of the authorities of State, it is incumbent on the said individual to provide such proof,” it said.
The Commission also drew a distinction between the burden of proof for the purpose of registration as an elector and when citizenship is under scrutiny. It noted that it was “well within its jurisdiction to conduct an SIR of the electoral roll” and that the process had multiple layers of checks to ensure that no elector is deleted without due process.
On the need for such an exercise now, the EC said since there has not been an intensive revision in the past two decades, though summary revisions have been held annually, there was a need for a “more rigorous and foundational exercise”. It said many political parties had raised concerns over the inaccuracies in the electoral rolls.
“These concerns arise from the limitations of the summary revision process which does not require fresh preparation of electoral rolls. In response, and to restore public confidence in the integrity of the electoral roll, the Commission has initiated the SIR. Unlike summary revisions, the SIR involves a complete, ground-up preparation of the electoral rolls to ensure accuracy, transparency, and inclusion,” the EC said.
