Citizenship, Enfranchisement and Assam

[dropcap]T[/dropcap]HE Supreme Court on Tuesday, February 12, 2019, sought a response on affidavit from the Election Commission of India on how it plans to deal with a situation where a person who has been included in the latest electoral rolls, did not find their name in the National Register of Citizens for Assam (NRC), set to be published on July 31, 2019.

The top court's directions were in response to a petition filed by two Assam residents, Gopal Seth and Susanta Sen, seeking the Supreme Court's intervention on the grounds that the names of certain individuals from Assam had been dropped from the electoral rolls because they were not included in the final draft of the NRC. The petition describes five categories of individuals who were being excluded from the electoral rolls: (i) those who are included in the final draft of NRC; (ii) those not included in the final draft NRC but who have filed claims and are awaiting its result; (iii) those individuals who have been declared to be foreigners by the Foreigners' Tribunals and the High Court, but had managed to have a stay granted by the Supreme Court; (iv) those declared foreigners in a similar manner but the decision has been set aside by the Supreme Court; and (v) those not included in the final draft NRC but whose families, including parents, are included in the final draft.

D-voters continue to live the lives of suspect foreigners not being able to have access to basic government aid, bank accounts and to find employment. All the disadvantages of poverty are magnified by the D-voter status, while they wait for a Foreigners' Tribunal to issue a reference and adjudicate the status of their citizenship, which could take years and even decades.

Though the Election Commission has submitted before the Supreme Court that no names have been deleted from electoral rolls based on non-inclusion in the final draft of the NRC as published on July 30, 2018, a bench led by the Chief Justice of India has still sought clarity about the precise relationship between the final NRC which is due to be published on July 31, 2019 and the electoral rolls. "What would be fate of the persons whose names appear in the electoral roll but are not included in the final NRC?"

The right to vote a facet of freedom of speech

While dealing with these questions it must be borne in mind that while a person, even one excluded from the final NRC, will be entitled to an appeal before the Foreigners' Tribunal, the right to vote has been held to be a facet of the freedom of speech and expression guaranteed under Article 19 of the Indian Constitution by the Supreme Court. In Union of India V. Association for Democratic Rights [(2002) 5 SCC 294], the court held that a "voter's speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote." Equal weight and equal dignity attached to each vote has also been held to be fundamental by the Supreme Court of the United States of America in the case of Bush v. Gore [531 U.S. 98 (2000)], where it held that the right to vote, once guaranteed to the citizens, cannot be taken away in an arbitrary manner and that the fundamental nature of the right to vote includes equal weight to each vote and equal dignity to each voter. The U.S. Supreme Court held that having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another.

Once the final NRC is published and even if several lakhs are excluded from the same, if the Election Commission decides to delete all those names from the electoral rolls, it would be one of the largest disenfranchisement exercises undertaken in the country.

Notwithstanding the stand to be taken by the Election Commission in this regard, the Supreme Court has dealt with a similar situation in Lal Babu Hussein V. Electoral Registration Officer [(1995) 3 SCC 100], where certain inhabitants of some constituencies in Bombay and Delhi were treated as suspect foreigners and enumerators were appointed to verify if persons residing in certain polling stations were not citizens. The Supreme Court intervened and held that if a person whose name had been included in previous electoral rolls is treated as a suspect voter, they ought to be given adequate reasons and adequate opportunity of hearing to defend such suspicion. The reasoning of the Supreme Court in Lal Babu Hussein was based on the idea that if a person has been included in the previous electoral roll then it must mean that all official acts were undertaken before such inclusion in accordance with the provisions of the Representation of Peoples Act, 1950 and the Registration of Electors Rules, 1960. The Supreme Court held:

"If the opportunity of being heard before deletion of the name is to be a meaningful and purposive one, it goes without saying that the concerned person whose name is borne on the roll and is intended to be removed must be informed why a suspicion has arisen in regard to his status as a citizen of India so that he may be able to show that the basis for the suspicion is ill founded. Unless the basis for the doubt is disclosed, it would not be possible for the concerned person to remove the doubt and explain any circumstance or circumstances responsible for the doubt."

"If any person whose citizenship is suspected is shown to have been included in the immediately preceding electoral roll, the Electoral Registration Officer or any other officer inquiring into the matter shall bear in mind that the entire gamut for inclusion of the name in the electoral roll must have been undertaken and hence adequate probative value be attached to that factum before issuance of notice and in subsequent proceedings"

[Emphasis Supplied]

The D-voter

It remains to be seen that whether the apprehensions of the petitioners in the above case are genuine, but it would not be the first time in Assam that people have been barred from exercising their right of voting despite having all the necessary documents. In 1997, during what was termed as an "intensive revision of electoral rolls" the letter "D" (indicative of doubtful or dubious) was marked against almost 2.33 Lakh names in the electoral rolls of Assam, hence the term D-voters. There is a dearth of any information as to what methodology was followed in marking D against these names, a practice that continues till date. The predicament is peculiar. Apart from not being allowed to cast their votes in elections, the D-voters of Assam are also not being included in the NRC.

It remains to be seen that whether the apprehensions of the petitioners in the above case are genuine, but it would not be the first time in Assam that people have been barred from exercising their right of voting despite having all the necessary documents.

The State Coordinator of the NRC had claimed before the Supreme Court that the identification of such D-voters had been put "on hold" and would only be included in case they were adjudged to be "non-foreigners" by a Foreigners' Tribunal, a process that in itself can take a long time. In the meantime, D-voters continue to live the lives of suspect foreigners not being able to have access to basic government aid, bank accounts and to find employment. All the disadvantages of poverty are magnified by the D-voter status, while they wait for a Foreigners' Tribunal to issue a reference and adjudicate the status of their citizenship, which could take years and even decades.

A person has been included in the previous electoral roll then it must mean that all official acts were undertaken before such inclusion in accordance with the provisions of the Representation of Peoples Act, 1950 and the Registration of Electors Rules, 1960.

Once the final NRC is published and even if several lakhs are excluded from the same, if the Election Commission decides to delete all those names from the electoral rolls, it would be one of the largest disenfranchisement exercises undertaken in the country. With the complete National register of Citizens for Assam proposed to be published by 31 July 2019, Assam is undergoing a unique identity crisis with questions of citizenship, identity and human rights looming large.