SC upholds constitutionality of SIR, says EC can examine citizenship for inclusion in electoral rolls

The Supreme Court on Wednesday upheld the constitutional validity of the Special Intensive Revision (SIR) of electoral rolls carried out by the Election Commission of India (ECI), starting with Bihar and later extended to 12 States and Union Territories, holding that it is well within the powers of the poll panel to undertake such an exercise and that it advances the constitutional goal of free and fair elections.

Holding that the SIR exercise could not be invalidated merely because it did not conform in every respect to the ordinary modalities contemplated for revision under Section 21(2) read with Rule 25, a Bench of Chief Justice Surya Kant and Justice Joymalya Bagchi said that the revision of electoral rolls does not violate the Representation of the People Act and instead “breathes life into the constitutional mandate of Article 324 through the precise statutory conduit provided by Section 21(3).”

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On the contentious issue of whether the Election Commission could engage itself in ascertaining the citizenship of a person for inclusion in the voters’ list, the judgment 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. Such an enquiry does not amount to a determination of citizenship in the strict sense, and any action taken pursuant thereto is confined to electoral consequences alone.”

The Court further said, “The consequence of such a determination is correspondingly limited. It affects the individual’s entitlement to be included in the electoral roll, and thereby their right to participate in the electoral process. It does not, however, 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.”

Upholding the constitutionality of the SIR exercise undertaken by the Election Commission of India, Chief Justice Surya Kant, speaking for the Bench, said, “The Impugned SIR exercise neither stands in direct conflict with the RP Act and the 1960 Rules, nor does it detract from the constitutional imperative of free and fair elections. It is, instead, an exercise traceable to Section 21(3) of the RP Act read with Article 324 of the Constitution, undertaken to advance the very objective which Part XV of the Constitution is designed to protect.”

Stating that the SIR exercise was founded upon a “legitimate and constitutionally grounded purpose” of restoring the “accuracy, completeness, and integrity of the electoral rolls”, the 124-page judgment said, “The measures adopted bear a rational nexus to the objective sought to be achieved, are not manifestly excessive, and are accompanied by sufficient procedural safeguards to prevent arbitrary exclusion.”

On the proportionality of the exercise, the judgment said, “Having regard to the nature of the problem sought to be addressed, the scale of the exercise undertaken, and the procedural safeguards incorporated during its implementation, the measures adopted by the Commission cannot be said to be disproportionate to the object sought to be achieved.”

On the issue of citizenship, the judgment said that in cases where the Commission is not satisfied that a person meets the statutory conditions for inclusion in the electoral roll, it would be incumbent upon it to refer such an individual to the competent authority within the Central government for adjudication in accordance with law.

“The Commission’s determination, being confined to electoral purposes, cannot assume finality on the question of citizenship. Any deletion effected on this ground shall, therefore, remain subject to the outcome of such adjudication by the appropriate authority,” the judgment said.

In respect of people excluded from the electoral rolls in 2003, the judgment said, “Regarding persons whose names have been deleted from the 2003 roll on account of the Commission being of the opinion that they are not citizens, the Commission shall refer such cases within four weeks to the Competent Authority under the Citizenship Act, 1955, for adjudication of their citizenship.”

The Court further directed that the Competent Authority should take a decision in accordance with law, preferably before the next Parliamentary, Assembly or local body elections, whichever is earlier, after giving notice and an opportunity of hearing to the deleted individuals.

It added that if such individuals are held to be citizens, their names shall be restored to the electoral rolls.

In addition, all persons domiciled in Bihar whose names were erroneously deleted on the ground that they were absent, dead, shifted or duplicated would be entitled to challenge the Commission’s decision through judicial review.