Citizenship Dilemma : Delay By Foreigners Tribunals Adding To The Woes Of 'D' Marked Voters Of Assam

In the year 1997, Election Commission of India had undertaken an intensive revision of electoral rolls in the State of Assam as apprehensions were expressed from various quarters that the electoral rolls were infested with the names of foreigners/illegal migrants. In the Course of exercise, Citizenship status of as many as 3, 13,046 persons whose names were in the draft voter lists were found to be doubtful and accordingly they were marked as "D" voters in the electoral rolls after local verification by the Election Commission. "D" stands for "doubtful" or "dubious".

The Election Commission of India has issued instructions from time to time to the Chief Electoral Officer, Assam, for intensive revision of the electoral rolls in Assam with reference to 01-01-1997 as the qualifying date and procedure/norms to declare a person as Doubtful or 'D` Voter.

As per procedure & guidelines, if the Electoral Registration Officer has any doubt about the citizenship status of a person whose name appears in the draft electoral roll, he gets the matter verified through the Local Verification Officer (LVO) who makes an on the spot verification. After that he submits Report as per format "ANNEXURE-A" i.e FORMAT FOR VERIFICATION OFFICER`S REPORT.

"Annexure-A" contains 16 columns to write various particulars of the person under Verification-such as :

• Name,
• Address,
• Father's/Mother's/Husband's name,
• Date of Birth,
• Place of Origin,
• Whether concerned voter, his/her father, his/her mother registered as an elector of any constituency in India(if so, details)?,
• Mother tongue,
• whether any documentary evidence produced?
• Whether migrated into Assam?-if yes-place from where migrated,
• whether migrated (a) before 01/01/1966, (b) between 01/01/1966 and 24/03/1971 and (c) on or after 25/03/1971.

This verification Officer's report is submitted by LVO as desired by Electoral Registration Officer. Local Verification Officer (LVO) can declare a person Doubtful.

After receipt of the said verification Officer's report and on consideration of such Report, if the Electoral Registration Officer has reasonable doubt that the person concerned is not a citizen of India, he can forward the matter to the jurisdictional Superintendent of Police (B) for getting an opinion from the competent Foreigners Tribunal after marking such person as "D" Voter in the Voter Lists. The Electoral Registration Officer referrs the matter to the competent Authority i.e. S.P. (B) concerned in a prepared format :- "ANNEXURE-B" (Annexure-B to the guidelines dated 17.06.2004) i.e FORMAT FOR MAKING REFERENCE TO THE COMPETENT AUTHORITY (in the case of suo-moto local verification).

This filled reference contains seven paragraphs

Paragraph-5 & 6 of the Electoral Registration Officer's reference says that-

"5. WHEREAS, I the Electoral Registration Officer for the said Assembly constituency, having doubt about the citizenship of the said person, got the matter verified by an on-the spot local verification.

6. WHEREAS, on consideration the report of such verification, I have reasonable doubt that he/she is not a citizen of India."

But surprisingly, in the aforesaid Annexure- A or B / Columns, there is no column incorporated, where the D-Voter's signature would be taken. The whole reference is cryptic.

As such, thousands of cases are sent to Tribunals without the knowledge of D -Voter. It is also not possible to know from where Local Verification Officer(LVO) have collected these information which was written in their Verification Report. Also, the signature of the person who has provided information in respect of the "D"-voter is not taken in the Report/Annexure .

All cases of "D"-Voters do not necessarily arise from such an exercise by the Electoral Registration Officer. The Gauhati High Court opined in the case of Momeja Khatun Vs. Union of India that persons whose cases are pending before the Foreigners Tribunal are also marked as "D" Voters in the Voter List. It means that the until cleared by Foreigners Tribunal, all persons whose cases are pending there will be marked as 'D' Voters, depriving them the right to vote.

The exercise carried out by the Electoral Registration Officer is a quasi judicial exercise under the Representation of People Act, 1951. Once the Electoral Registration Officer expresses reasonable doubt on the basis of local enquiry that a person is a doubtful citizen, further enquiry by the administrative authority led by the Superintendent of Police may not be warranted as Superintendent of Police cannot sit over the enquiry and prima-facie decision forwarded by the Electoral Registration Officer.

The above exercise was repeated in the year 2005 with the Election Commission of India again going for intensive revision of electoral rolls in the State of Assam taking 01/01/2005 as the qualifying date. On 17/06/2004, the Election commission of India issued guidelines in this regard. Paragraph 2.2 of the guideline dealt with "D" Voters. It says that the guidelines issued in 1997 would be followed while dealing with such category of persons. As per guidelines, after the case of a person was referred by the Electoral Registration Officer to the competent authority, he should wait for the decision of the relevant Tribunal in relation to that person and act according to such decision.

If the Tribunal has given a decision that the person was not an Indian citizen, the Electoral Registration Officer should proceed under Rule 21 A of the Registration of Electors Rules, 1960 to have the name of such person deleted from the electoral roll before it was finally published.

On 25/10/2013, the Hon`ble Apex Court of India in W.P.(C) No.274 of 2009 clarified that as far as persons in the "D" list are concerned, undoubtedly they were doubtful voters and therefore their names could not be included in the NRC updation process in Assam, unless the Foreigners Tribunals declared them to be Indian Citizen. It is also to be mentioned here that the said writ petition is pending before the Apex Court till date and wherein NRC updation process in the State of Assam is being monitored by the Apex Court.

Now, the question is how far the authority of marking "D" against the particular elector only in the state of Assam under certain Orders/instructions of Election Commission of India is legal?

Legality of this exercise was challenged before the Gauhati High Court in HRA choudhury Vs. Election Commission of India. The challenge made was rejected by a Division bench of Gauhati High Court.

Article 324(1) of the Constitution provides that the power of the commission is plenary in character. It says- "The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to parliament and to the Legislature of every State and of elections to the offices of President and Vice President held under the constitution shall be vested in a commission." The Law is now well settled by the Apex Court that the power of the commission under Article 324 of the constitution has to be exercised consistent with the constitutional scheme and the provision of the Representation of Peoples Act, 1950 and 1951, but for a situation for which the Legislature has not made any provision, the commission can exercise the power and issue instructions, guidelines and orders regarding preparation of electoral rolls and conduct of elections. But such instructions, guidelines and orders should not be arbitrary or vitiated by malafide or partiality.

It is also to be mentioned here that in exercise of its power under Article 327 of the constitution, the Parliament has enacted the Representation of Peoples Act, 1950 and Representation of Peoples Act, 1951. Section 16(1) of the Representation of Peoples Act, 1950 is quoted below-

"Disqualifications for registration in an electoral roll — (1) A person shall be disqualified for registration in an electoral roll if he— (a) is not a citizen of India; or (b) is of unsound mind and stands so declared by a competent court; or (c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offenses in connection with elections."

Section 2(e) of the Representation of Peoples Act, 1951 lays down the definition of "elector". It says in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950.

Section 62 of the Representation of Peoples Act, 1951 is quoted below-

"Right to vote.—(1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of by any constituency shall be entitled to vote in that constituency. (2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in section 16 of the Representation of the People Act, 1950".

Net result of the aforesaid provisions is that a person who is not a citizen of India and suffers from this disqualification as mentioned in Section 16 of the Representation of Peoples Act, 1950, will have no right to vote under Section 62 of the Representation of Peoples Act, 1951, even though he is for the time being entered in the electoral roll of a constituency. Beside this, it is settled legal position that mere enrolment of name in the voters list and long stay in the country is no proof of citizenship.

The Gauhati High Court opined in a series of cases that marking of a person as a doubtful "D" voter is only a temporary measure and therefore it cannot be continued for an indefinite period. The marking of a person as doubtful D voter in the voters list is not an end in itself. A decision one way or the other has to be taken after marking the concerned person as a "D" voter within a reasonable time. But such decision can be taken only after obtaining the opinion of the Foreigners Tribunal.

On 14.7.2017 Sri Diganta Das, Deputy Secretary to the Government of Assam and Joint Chief Electoral Officer, Assam has filed one affidavit in WP(C) 1288/2016 before the Gauhati High Court. In paragraph-7 of the said affidavit, it is stated that the tag ``D" Voter from the Electoral Roll cannot be removed without an order from the concerned Foreigners' Tribunal.

Views are personal only.

Author is a lawyer practicing in various Courts in Assam