The Supreme Court on Tuesday (December 9, 2025) asked the Election Commission whether investigating the citizenship of a suspect is beyond its constitutional right. The Supreme Court made this comment while hearing the petitions filed against the Special Intensive Revision (SIR) of voter lists going on in various states. During the hearing, it was argued that the Election Commission cannot take a decision on the issue of citizenship, of which the Supreme Court took cognizance.
It was argued before the bench of Chief Justice Surya Kant and Justice Joymalya Bagchi that the Election Commission cannot decide on the issue of citizenship because its job is only to consider whether the person is an Indian citizen, is 18 years of age or above and resides in the same constituency. It was also argued that the Election Commission cannot decide on the issue of citizenship, because only the Foreigners Tribunal constituted by the Central Government can take a decision in this regard.
Justice Joymalya Bagchi took cognizance of this argument and asked, ‘You say that the Election Commission has no power to declare a person a foreigner or a non-citizen, but it can doubt the existing status and refer the matter to the appropriate authorities. The fact that he can cast doubt (on citizenship) in a way ensures that he has the power to take a decision in this regard… Can’t the Election Commission decide at the initial stage of citizenship?’
According to the PTI report, the petitioners argued that the SIR process suffers from jurisdictional overreach and procedural irregularities and the burden of proving citizenship is unconstitutionally placed on the common voters. Senior Advocate Shadan Farasat said that under Article 326, only three conditions should be fulfilled for adult franchise and they are – Indian citizenship, 18 years of age and absence of specific disqualifications.
Advocate Farasat said that the Representation of the People Act reflects these grounds, but cannot give new grounds for exclusion from the voter list. He said, ‘The Election Commission has no right to stop me from being included in the voter list or to exclude me from the list. If the Commission has doubts about my citizenship, then its investigation should be sent only to the District Magistrate. The decision on citizenship can only be taken by the central government or a foreign tribunal.
He said that under the statutory provision, citizenship is not a pre-condition for inclusion in the electoral roll for the first time and the onus of proving non-citizen is always on the state. On this the court asked, ‘There is a difference between assessment and investigation. Can the Election Commission investigate the cases of suspicious citizens? The Commission is not saying that it has the power to declare anyone a non-citizen… But would this be beyond the jurisdiction of the Commission, in view of its constitutional power to undertake a process which is investigative in nature, for example where the inclusion (in the voter list) appears to be highly doubtful? This way it streamlines the process.
The court said, ‘Citizenship is a constitutional requirement. Section 19 of the Representation of the People Act has been enacted on the basis of Article 325. An illegal immigrant has been living here for a long time… let’s say more than 10 years… so should he remain on the list? It would be wrong to say that citizenship is assumed if residence and age are satisfied. It does not depend on residence or age, as citizenship is a constitutional requirement.