[This is a guest post by Rajyavardhan Singh.]
Last week, the Supreme Court upheld the validity of the Special Intensive Revision (“SIR”) of electoral rolls in Bihar. Among the four principal questions that crystallised over the course of the proceedings was whether the Election Commission of India (“ECI”) possessed the competence to scrutinise the citizenship status of persons seeking an inclusion in, or a continuation on, the electoral roll (¶15(iv)). The Court answered the question in the ECI’s favour holding that it may indeed undertake enquiries into citizenship for the limited purpose of determining electoral eligibility, and that any consequences flowing from such enquiries shall be confined to the electoral process (¶184).
This post examines the purported “principled distinction” drawn by the Court between citizenship adjudication and the ECI’s enquiry into electoral eligibility which largely underpins its answer to the competence question. As the discussion below would suggest, the distinction proves unable to bear the weight placed upon it and ultimately comes unstuck on the Court’s own terms. What remains – for all practical purposes – is an enquiry conducted under the rubric of electoral eligibility, with consequences that extend just as easily into the domain of citizenship. (The remaining questions identified for determination in the litigation need not detain us here; a fuller discussion of the judgement can be found elsewhere on the blog, as can a more focused proportionality analysis.)
The Citizenship Question in Context
For readers unfamiliar with how the question of competence over citizenship determination came to feature so prominently in the challenge, some context is necessary.
The issue arose because the SIR exercise – as conducted – involved the deletion of names from existing electoral rolls where the ECI was not satisfied that certain individuals fulfilled the statutory conditions for inclusion, with citizenship perhaps being among the most important of those conditions. The petitioners argued that this effectively involved the ECI in a scrutiny of citizenship that it had no competence to undertake, relying upon the Citizenship Act 1955 and the Allocation of Business Rules to press the point that such questions fell within the exclusive domain of the Central Government (¶12(l)). The ECI – for its part – replied that its constitutional mandate under Articles 325 and 326 read with Section 16 of the Representation of People Act 1951 necessarily implied the power to examine whether persons on the electoral roll met the conditions to be there. It further maintained that this did not amount to a determination of citizenship simpliciter, for it was merely an incident of its constitutional mandate i.e. to ensure the accuracy of the electoral roll (¶14(p)–(r)).
The disagreement between these two positions – i.e. whether the ECI was impermissibly determining citizenship, or merely satisfying itself as to electoral eligibility – therefore required the Court to take a position on the matter.
The Court’s “Principled Distinction”
The Court accepted the ECI’s framing of the issue (see ¶173) and proceeded to explain why it considered that position sustainable. At paragraph 174, the Court states:
The question then is one of the nature and extent of such satisfaction. In our considered view, there is a clear and principled distinction between an adjudication of citizenship on the one hand, and an administrative satisfaction as to eligibility for enrolment on the other. The former involves a conclusive determination of status under the Citizenship Act; the latter is a limited enquiry undertaken for the purposes of electoral representation.
Reduced to its essentials, the Court’s explanation is that: (1) the ECI is not determining citizenship conclusively, and (2) what it is doing instead is merely forming a view on electoral eligibility. The relevant distinction therefore lies in the nature of the conclusion ultimately reached. And so, while the ECI and the competent authority under the Citizenship Act may both find themselves considering the same underlying question of citizenship, only the latter can arrive at a conclusive determination of status. Perhaps it is on this basis that the Court insists – as it does so repeatedly – that whatever the ECI does in the course of the SIR exercise touches upon citizenship only incidentally and produces consequences limited to the electoral roll.
Paragraph 176 then offers greater clarity on what – in the Court’s view – distinguishes the two enquiries. Indeed, paragraph 174 does hint that the question is of the “nature and extent” of the satisfaction required:
We have no hesitation in adding that this assessment is necessarily prima facie and contextual. Where the material furnished by an individual does not inspire confidence or give rise to doubt, the Commission is within its authority to decline enrolment or to initiate action for deletion, strictly in accordance with law.
Two words here are the load bearers of the standard the Court is setting, and may be thought to further separate the ECI’s limited enquiry from the more exacting process of citizenship adjudication: “prima facie” and “contextual”. The idea appears to be that a preliminary assessment of the material before the ECI – one that does not “inspire confidence” – is enough. While there may – no doubt – be something to be said about the Court’s clear failure to specify any minimum standard by which citizenship claims are to be assessed, that is a question which may be left aside for now. On its own terms, the distinction is not obviously indefensible. A preliminary, non-binding view on electoral eligibility carrying consequences limited to the roll is at least in the abstract, a different thing from a formal adjudication of citizenship.
The trouble is, however, that the Court does not allow the distinction to remain at that level of abstraction.
The Distinction Consumed by Its Consequences
A finding of non-satisfaction, the Court holds at paragraph 178, triggers a mandatory referral:
Moreover, 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.
It is here that the Court’s careful effort to recast the issue as one of electoral eligibility comes unstuck. A truly limited electoral enquiry that left citizenship entirely untouched would require no citizenship adjudication downstream. After all, what would the competent authority be adjudicating if the ECI had done no more than form a preliminary view on electoral eligibility? The referral mechanism appears to be – if anything – the Court’s own acknowledgment that the ECI may do rather more than assess electoral eligibility. For if the ECI’s finding is capable of setting in motion a process of citizenship adjudication, it is difficult to avoid the conclusion that citizenship has already been placed in issue.
What the judgement produces then, comes to resemble a two-stage process in which administrative satisfaction comes first and formal adjudication follows in due course – with the individual disenfranchised throughout both stages. The “principled distinction” survives only as a means of describing the transition from one stage to the next, rather than as a basis for treating the two as genuinely distinct enquiries.
And as Vasudev Devadasan notes in his analysis of the judgement, this is in fact a road that has been travelled before:
We have seen where this leads, in 1997, during a revision of rolls in Assam, voters whose citizenship was doubted were marked as ‘Doubtful’, now infamously referred to as ‘D-Voters,’ and referred to foreigner tribunals. Tens of thousands of individuals were drawn into decades-long legal battles against a system engineered to deny citizenship. The numbers excluded from rolls under the SIR already run into the millions and could reach the tens of millions. It will take decades for the claims to be processed, during which time these individuals will be stuck in legal limbo. Where this road leads is therefore to a permanent class of disenfranchised persons who simply exist but cannot participate in political life.
In this sense, one can see just how the placement of citizenship in issue – even if only indirectly – can set in motion a process that takes on a life of its own; and outgrows the “principled distinction” within which it is initially presented as. And it is precisely here – then – that something more be said about the Court’s distinction. For it demonstrates most clearly that the issue is not exhausted by questions of the ECI’s competence alone. From the perspective of the individual subjected to the process, there is little difference in kind between a procedure that places citizenship in doubt and one that formally adjudicates it when the former is itself the gateway to the latter. Indeed, the distinction may survive as a matter of legal classification. But for those required to live through the process, it is unlikely to register as a distinction of much consequence (let alone a principled one!).
Citizenship, Despite Everything
Finally, a brief mention must be made of paragraph 180, for it reveals the structure of the Court’s thinking:
This delineation of functions preserves the constitutional balance…To hold otherwise would either render the Commission incapable of enforcing the basic eligibility condition of citizenship or compel it to assume an adjudicatory role not contemplated by law.
The Court presents its holding as striking a “constitutional balance” between two alternatives that it understands as mutually exclusive: (1) either the ECI enforces the citizenship requirement, or (2) it adjudicates citizenship and thereby exceeds its statutory mandate. If that is so, a genuine balance would have required each of these competing concerns to operate as a meaningful constraint upon the other. For if the ECI’s enquiry were truly limited in both purpose and consequence to the electoral roll (as the “principled distinction” suggests), it is difficult to explain what the competent authority is being asked to adjudicate when the mandatory referral arrives. Conversely, if the referral mechanism were coherent, it could only be because citizenship had already been placed in issue, in which case the claim that the enquiry remains limited simply falls away.
What is thus presented as a “balance” between two distinct enquiries comes to resemble – as noted above – successive stages within a single process concerned with the determination of citizenship. And a distinction which dissolves itself into a single enquiry upon its first application – in any meaningful sense – is not a balance at all.
