Is electoral photo identity card proof of citizenship? A slew of contradictory rulings by different courts in the past week have brought a fundamental question of law under a cloud of uncertainty.
On February 12, the Gauhati high court placing reliance on its 2018 judgment in Md. Babul Islam v. State of Assam held that the electoral photo identity card is not proof of citizenship.
The decision was given by bench of justices Manojit Bhuyan and Parthivjyothi Saikia in a plea by one Munindra Biswas who had produced copy of his voter id and the voter list of 1997 bearing his name.
On electoral card, the court held that it is not proof of citizenship.
“Regarding Electoral Photo Identity Card this court in the case of Md. Babul Islam v. State of Assam [WP(C) No. 3547 of 2016] has held that Electoral Photo Identity Card is not a proof of citizenship.”
On electoral list, the court said that the court said that the petitioner did not produce voter lists prior to 1997 and thereby failed to prove that he was staying in Assam prior to March 1971.
“The petitioner herein has failed to file voter lists prior to 1997, thereby the petitioner failed to prove that he has been staying in Assam prior to 25.03.1971.”
On the very same day, the same bench also rejected the claim of a person who had produced proof of her parents’ names appearing in the voter list but could not prove her linkage to her parents.
PAN and bank documents which were supplied by the petitioner were not accepted by the court which held that they are not proof of citizenship. The court again relied on its 2018 judgment in Md. Babul Islam to hold so.
“This Court in Md. Babul Islam Vs. Union of India [WP(C)/3547/2016], has already held that PAN Card and Bank documents are not proof of citizenship.”
In 2018, the Gauhati high court in Md. Babul Islam v. State of Assam had held that merely producing an electoral photo identity card without any supporting evidence would not be proof of citizenship.
“In so far Exhibit-7 Elector Photo Identity Card is concerned, besides not being proved, it is a post 25.03.1971 document. Besides, merely producing such an identity card in the absence of supporting evidence would not be proof of citizenship”, the court had ruled.
In at least two of these cases, claims of citizenship were turned down by the Gauhati high court despite the persons concerned producing voter card as proof.
While the Gauhati high court consistently ruled against electoral card as a proof of citizenship, a Mumbai court on February 15 ruled that electoral photo identity card is proof of citizenship unless proved otherwise.
The ruling by a magistrate’s court in Mumbai came in a case concerning citizenship of a couple who were alleged to be from Bangladesh.
The court held that “birth certificate, domicile certificate, bonafide certificate, passport, etc can be relied upon to establish the origin of any person.”
The court while acquitting the couple added, “Even the election card can be said to be a sufficient proof of citizenship as while applying for the election card or voting card, a person has to file declaration with the authority in view of Form 6 of Peoples Representation Act to the authority that he is citizen of India and if the declaration is found false, he is liable for punishment.”
The Union Ministry of Home Affairs had in December 2019 stated that voter card, Aadhaar and passport are not citizenship documents.
According to The Indian Express, a government official had said that documents like voter ID, Aadhaar and passport do not prove citizenship and they are only travel documents or prove residence in India.
Supreme Court lawyer Sriram Parakkat agreed.
“As per the existing legal position in India, neither voter id car nor passport will be proof of citizenship. I am not saying that it is morally correct. But that is the law since 2003 because we have stopped giving citizenship based on birth from 1987. The state is hardly bothered whether a person is born in India or not. Aadhaar card, passport, voter id etc are proof that a person was born in India”, said Parakkat.
So what is the law since 2003?
In 2003, a major amendment was introduced to the Citizenship Act. After the amendment, a person who is born in India on or after July 1, 1987 but before the 2003 amendment came into force will be a citizen only if one of his parents is an Indian citizens. In case of those born after the 2003 amendment, both parents should be citizen of India or one of the parents should be a citizen and the other should not be an illegal migrant.
Conflicting decisions by courts, experts said, is because there is a lot of scope for subjective interpretation after the 2003 amendment to the citizenship act.
“The law today has made proving of citizenship a question of fact in such a way that you can never conclusively prove citizenship. Somebody else will have the discretion of declaring you a dubious citizen. Proof will have to be adduced about one of the parents being an Indian citizen for which their documents will have to be adduced and your relationship with that parent will have to be conclusively proved. Moreover, even that will be dependent on the subjective satisfaction of somebody – for example the Foreigners Tribunal in NRC”, said Parakkat.
However, Assam is governed by a special regime under Section 6A of the Citizenship Act and that contextual difference should be looked into while analyzing decisions of Gauhati high court, said Alok Prasanna Kumar, Senior Resident Fellow and Team Lead, Vidhi Karnataka.
“Under section 6A, there is a special regime for Assam. So, in Assam it is not that everyone in voters list is automatically a citizen. A person in Assam will have to show that he/she is descended from somebody who is a citizen of India and in India prior to 1971”, Prasanna Kumar said.
So what purpose does an electoral card serve?
“The name of the parents will be written on electoral card or passport. To that extent, it will be an indication which might make the person easier to prove citizenship. But none of these documents will be conclusive proof of citizenship on a standalone basis. In fact, as the law stands today, there is no single document which we can say is a conclusive proof of Indian citizenship”, Parakkat said.
Moreover, this has constitutional sanction, says Parakkat.
“Article 11 gives wide powers to the Parliament to make laws on citizenship. Constitutionally, tools like NRC etc have a very rigid constitutional base”, he said.
So while the Mumbai court might have had good intentions, Parakkat said that it is not good law unless the 2003 amendment to Citizenship Act is struck down.
“So we cannot say that the Gauhati high court orders are wrong. Yes, we might on a bare perusal feel that it is wrong but I think it has a valid legal and Constitutional base.”
