ECI & Aadhaar

Many of the acts of omission and commission by the Election Commission of India (ECI) in the recent past have been under question for their perceived bias in favour of the ruling dispensation and against the Opposition. Its latest ongoing exercise of conducting Special Intensive Revision (SIR) of electoral rolls in Bihar further strengthens the suspicion especially in the light of certain observations of the Supreme Court hearing petitions challenging the SIR.

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The most alarming is the revelation that the ECI appears to be arrogating to itself, in the name of electoral roll revision, the task of determining citizenship which is supposedly the exclusive preserve of the Union Home Ministry. However, handing over this critical power to that ministry also is a dangerous proposition. The Home Ministry tried to undertake the job under controversial circumstances through the infamous National Register of Citizens (NRC).

While allowing ECI to continue the SIR in Bihar, the two-judge Bench of Justices Sudhanshu Dhulia and Joymalya Bagchi rightly flagged three key issues, one of which being EC’s power to check the citizenship of voters. The other two issues are the importance of due process and procedure to be followed during the revision and the timing of the revision itself. The Bench pertinently said, “This issue goes to the very root of democracy and the right to vote.” It acknowledged that the EC, as a constitutional body, has powers well beyond the Representation of People’s Act, 1951 (RPA), but at the same time made it amply clear that the process would be subject to judicial intervention. There is no room for confusion over the remit of the Ministry of Home Affairs to determine whether an individual is a citizen, as the SIR has sought to create. The Bench said “citizenship is an issue to be determined not by the Election Commission of India, but by the Ministry of Home Affairs,” when EC’s counsel defended the Commission’s decision to exclude Aadhaar as a valid document.