GUWAHATI, Jan 11 – The Gauhati High Court today upheld the December 9, 1997 circular of the Election Commission (EC) of India which debarred doubtful citizens from casting their votes in Assam elections notwithstanding their enrolment in the State’s electoral rolls, unless their citizenship is favourably decided by the tribunals constituted under the provision of the IMDT Act. Passing a judgement in this connection, the Court of Justice JN Sarma and Justice AK Patnaik rejected the Public Interest Litigation (PIL) petitions filed by Sri HRA Choudhury, Sadhan Chakravorty, Abdul Kayum and others which challenged the EC’s said order. In the judgement, which may have a major impact on the electoral politics of the State, Justice Sarma and Justice Patnaik observed that the judgement was rendered with the objective of preventing foreigners from being included in the voters’ list and not to cause any injustice to the genuine citizens of the country.
It was contended by the petitioners that once a person’s name is enrolled in the electoral roll, he can not be prevented from exercising his voting right on the basis of the impugned circular of the Election Commission. The judgement examined the arguments put forward on behalf of the petitioners in the light of the provisions of the Constitution of India and also under the provisions of the Representative of People’s Act 1950 and 1951 and maintained that only the citizens are provided with the right to vote under the Indian law and therefore the effort of the Election Commission to prevent persons, whose citizenship is doubtful, from voting in an election, is not arbitrary or malafide exercise of power. But, referring to the decisions of the Supreme Court in the cases of Mohinder Singh Gill and Lal Babu Hussain, Justice Sarma and Patnaik directed that before any adverse decision is taken regarding the citizenship of any person, all reasonable opportunity to such a person must be given, as has been directed by the Apex Court of the country.
The High Court also directed the State Government to constitute adequate number of tribunals under the IMDT Act, for expeditious decisions in order to ensure that a person who has been marked as a doubtful citizen does not remain in confusion about his citizenship status due to the delay in disposal of cases by the tribunal. Justice Sarma and Justice Patnaik also directed transmission of the copies of the judgement to the Union Cabinet Secretary, Chief Secretary of Assam and also to the IMDT tribunals of the State with a view to ensuring cooperation from all concerned, so that the references made to the tribunals are decided before the next Parliamentary and Assembly elections in the State. The two judges, in their unanimous verdict, supported by separate reasoning, observed that influx of foreign nationals to Assam has become a burning issue and referred to the observations made by the October 25, 1978 conference of the Chief Electoral officers of the country expressing the apprehension that if the unabated influx of foreigners are allowed to continue, they may soon constitute the majority of the State’s population.
The judgement also referred to the views expressed by the Parliament while enacting the IMDT Act wherein it was observed that the foreign migrants are ethnically similar to the local residents and it is difficult to separate one from the other. The anxiety of the Court was expressed through a reference to an instance of a Pakistani national contesting Assembly elections in Assam on the strength of the enrolment of his name in the electoral roll. The High Court, in its judgement, also observed that the Election Commission should receive due recognition of the Court in their endeavour to tackle the issue of foreign nationals’ influx and enrolment, through legal and democratic means. It may be mentioned here that the petitioner H R A Choudhury challenged the EC circular as the secretary of the United Minorities’ Front (UMF) and Sri Abdul Kayum and Sri Sadhan Chakravorty on behalf of the Congress(I). Senior Advocates B K Das and S N Bhuyan argued on behalf of the petitioners and senior Advocates P K Goswami, B P Kataky, assisted by M R Pathak, represented the Election Commission in the Court.