Citizen First

AN ELEMENTARY civics lesson im­parted to school­children is that only citizens can participate in the political processes of India. This includes, among other matters, the right to partici­pate in elections, especially the right to vote. Yet, this basic facet of citizenship was sought to be nullified by a clutch of petitioners—including some famous political analysts—by knocking on the doors of the Supreme Court.

On May 27, the Supreme Court ended this dangerous development and held that the Election Commission of India (ECI) had the author­ity to undertake Special Intensive Revisions (SIR) of electoral rolls. The instant case emanated from Bihar. This authority flows from The Representation of The People Act, 1950 [Section 21(3)] as well as The Registration of Electors Rules, 1960. Section 21A of the 1960 Rules prescribes the manner in which names can be deleted from the rolls. As such, these two provisions are cognate in nature and cannot be seen in isolation.

There was a lot of hand-wringing on the claim that ECI is not the arbiter of citizen­ship and in undertaking an SIR it was, de facto, exercising the powers of such an author­ity. The Supreme Court put an end to this line of argumenta­tion and 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 apex court’s word­ing is careful. The use of the qualifiers, “limited enquiry,” “in the strict sense” and “confined the electoral conse­quences alone” was designed to calm some of the political­ly more voluble petitioners, but it makes no difference to the nature of citizenship. The right to vote is the first limb of citizenship. There is no other way about it. In India’s demographically fraught states—Assam, West Bengal, Tripura, and others—this is the first right that illegal immigrants from Bangla­desh and elsewhere seek to acquire. It is a fact of life that certain political parties have abetted such cross-border moves to further their politi­cal goals. In Assam, much of the unrest in the last quarter of the 20th century was due to this fact. In West Bengal, the demographic character of certain strategic areas has changed beyond recognition due to such illegal flows.

It would be facile to wholly blame only political parties for such destructive developments. There is an ecosystem that justifies such illegal immigration with each cog of the system—in­tellectuals, lawyers, and even some erstwhile members of the Election Commission— justifying illegal immigrants acquiring citizenship on various grounds.

For now, the Supreme Court has ordered the ECI to send the names that have been deleted from the 2003 roll (in the case of Bihar) to the “competent authority” under the Citizenship Act, 1955 for a decision in accordance with the law. In cases where deletions have been made er­roneously, the doors of courts for appeal remain open.

There is, however, a bigger question. It is now undeniable that a very large number of non-citizens have managed to enter themselves into electoral rolls through fraudulent means. It is best that the cleansing of such rolls and a final adjudication of citizenship should be carried out by executive authorities in such cases on a pan-India basis. The room for judicial review in this process should be narrow and courts should not enter into the question of citizenship. That should be left to executive authorities. As the next step, to discourage further inflows of illegal mi­grants, there should be an ab­solute ban on the acquisition of property by illegal aliens. This, along with extinguish­ing of political rights, can serve as a deterrent for others seeking to enter India.