EC can conduct limited citizenship probe for electoral rolls, but not final adjudication: Supreme Court

New Delhi: The Supreme Court on Wednesday held that the Election Commission is empowered to undertake a limited inquiry into an individual’s citizenship solely for determining eligibility for inclusion in the electoral roll, but such a determination cannot be treated as conclusive on the question of citizenship.

Referring to Section 16 of the Representation of the People Act, the top court highlighted that citizenship is a condition precedent for enrolment as a voter.

A bench of Chief Justice of India Surya Kant and Justice Joymalya Bagchi clarified that the EC’s power stems from its constitutional mandate to maintain accurate electoral rolls and ensure only eligible citizens are enrolled as voters.

In its judgment upholding validity of SIR in Bihar, the bench said, “The Commission is empowered, in the exercise of its constitutional mandate, to undertake a limited enquiry into citizenship for the purpose of satisfying itself as to eligibility for inclusion in the electoral roll."

The bench, however, made it clear that the inquiry is strictly confined to electoral purposes and does not amount to a formal adjudication of citizenship.

“Such an enquiry does not amount to a determination of citizenship in the strict sense,” the court observed.

It added that any action taken by the Commission affects only the person’s entitlement to be included in the electoral roll and their right to vote.

“It does not operate to divest the individual of claims of citizenship, nor does it foreclose a determination of that question by the competent authority under the Citizenship Act," the bench said.

In order to prevent any overreach, the court directed that wherever the EC is not satisfied about a person’s citizenship for electoral roll purposes, it must refer the matter to the competent authority under the Union Government for adjudication in accordance with law.

The commission’s finding, the court said, cannot assume finality on citizenship.

In a specific direction, the court ordered the EC to forward within four weeks all cases of persons deleted from the 2003 Bihar electoral rolls on grounds of doubtful citizenship to the competent authority under the Citizenship Act, 1955.

The authority has been asked to decide these cases after giving notice and opportunity of hearing, preferably before the next Parliamentary, Assembly or local body elections.

The court further directed that names of those found to be citizens must be restored to the electoral rolls.

While the power to finally determine citizenship lies with the authority under the Citizenship Act, the EC can examine the issue from the limited standpoint of electoral roll preparation and revision. The court observed that the EC’s determination is prima facie and contextual, and remains subject to judicial review.