SIR row: SC questions limits of ECI’s powers, asks if it can't probe ‘doubtful citizenship’

The Supreme Court on Tuesday examined whether the ECI (Election Commission of India) is barred from conducting inquiries into cases of suspected citizenship while revising electoral rolls, as final hearings continued in petitions challenging the SIR (Special Intensive Revision) of voter lists in several states, including Bihar.

A Bench of Chief Justice Surya Kant and Justice Joymalya Bagchi engaged in an extensive exchange with petitioners who contend that the EC has no authority to question a voter’s citizenship status.

The judges asked whether the poll panel’s constitutional power of superintendence under Article 324 could include a limited, inquisitorial process — short of a formal determination — to ensure the integrity of electoral rolls.

“You say the Election Commission has no power to declare a person as a foreigner or a non-citizen. But it can doubt the status and refer the issue to the appropriate authorities,” Justice Bagchi said. “If it can doubt the citizenship, does this not invert into itself the power to make an imposition of ensuring that…? Can’t the ECI decide the presumptive stage of citizenship?”

Petitioners cite constitutional limits

Senior advocates Shadan Farasat and P.C. Sen, appearing for petitioners, argued that the SIR process amounted to jurisdictional overreach and shifted the burden of proving citizenship onto ordinary voters.

Farasat submitted that Articles 324 to 329 and the Representation of the People Act (RPA) form a unified constitutional code, under which adult suffrage under Article 326 is conditioned only on three requirements: Indian citizenship, attainment of 18 years, and absence of statutory disqualifications.

Farasat argued that the RP Acts mirror these grounds and cannot introduce additional requirements, particularly through administrative instructions.

“The Election Commission has no jurisdiction to prevent me from being on the roll or to knock me out of the roll,” he said. If citizenship is doubted, he argued, the EC may only make a reference to the district magistrate; the determination lies exclusively with the central government or a Foreigners’ Tribunal.

He added that once a name is included in the electoral roll, it carries “strong presumptive value”, and removal requires a “full-fledged, independent determination”, not an inquisitorial exercise by electoral officials.

Bench probes EC’s supervisory scope

The judges questioned whether the ECI’s superintendence over elections — which must conform to Article 14’s requirements of fairness and reasonableness — could extend to ensuring the foundational qualification of citizenship.

“When you say mass exclusion, suspected foreigner status, non-compliance with statutory rules — these relate to the way superintendence is being exercised,” the Bench noted. “So when the court examines the EC’s power of superintendence, can it be said that the superintendence extends to the core constitutional requirement for the right to vote — namely citizenship?”

The Bench stressed that while the EC cannot declare a person a foreigner, it may be constitutionally permissible for it to flag dubious cases and refer them to competent authorities.

“Citizenship is a constitutional imperative… To say it is presumed when residence and age are satisfied will be incorrect,” the court observed, adding that illegal immigrants who have lived in an area for years cannot be automatically treated as eligible.

The Bench clarified that the challenge to SIR involves not only the EC’s jurisdiction but also the manner in which its powers are exercised. It will continue hearing arguments from remaining petitioners on 11 December.