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PETITIONER: LAL BABU HUSSEIN & OTHERS

       Vs.

RESPONDENT: ELECTROL REGISTRATION OFFICER & OTHERS

DATE OF JUDGMENT06/02/1995

BENCH: AHMADI A.M. (CJ) BENCH: AHMADI A.M. (CJ) SINGH N.P. (J) MANOHAR SUJATA V. (J)

CITATION:  1995 AIR 1189            1995 SCC  (3) 100  JT 1995 (2)   229        1995 SCALE  (1)483

ACT:

HEADNOTE:

JUDGMENT: 1.  These three cases, two writ petitions under  Article  32 and one special leave petition under Article 136 of the Con- stitution of India, raise certain vital issues regarding  an individual’s  eligibility for inclusion of his/her  name  in the electoral rolls of a given constituency.  Article 325 of the  Constitution envisages one general electoral  roll  for every territorial constituency for election to either  House of  Parliament  or  the Legislature of  a  State  and  under Article 326 elections to the House of the People and to  the Legislative Assembly of every State must be on the basis  of adult  suffrage;  that  is to say, every  person  who  is  a citizen of India and who is not less than 18 years of age on such date as may be fixed in that behalf by or under any law made  by  the appropriate Legislature and is  not  otherwise disqualified under the Constitution or any law on the ground of  non-residence, unsoundness of mind, crime or corrupt  or illegal  practice, shall be entitled to be registered  as  a voter  at any such election.  Articles 327 and  328  empower Parliament/State  Legislatures  respectively to  inter  alia make  provision with respect to all matters relating to,  or with the preparation of electoral rolls by 233 enacting an appropriate law.  The superintendence, direction and  control of the preparation of the electoral  rolls  has been vested in the Election Commission by virtue of Article- 324   of   the  Constitution.   These   are   the   relevant constitutional   provisions  bearing  on  the  question   of preparation of the electoral rolls and eligibility of  every person  to  be included therein to which our  attention  was drawn. 2.The  Representation of the People Act,  1950  (hereinafter called  ’the  1950  Act’),  inter  alia,  provides  for  the preparation of electoral rolls, qualification of voters etc. Part III thereof comprising Sections 14 to 2 5A provides for

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’Electoral  rolls for Assembly Constituencies’.  Section  15 envisages an electoral roll for every Assembly Constituency. Section 16 prescribes the disqualifications for registration in   an  electoral  roll.   It  says:  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) for the time being  disqualified from voting under the provisions of  any law  relating  to corrupt practices and  other  offences  in connection with elections.  If further provides for striking off  the name of any person who becomes  disqualified  after registration  but if the disqualification is removed at  any subsequent  point  of time, the proviso lays down  that  the name  of such person shall forthwith be reinstated  in  that roll.  Section 19 lays down the conditions of  registration. It  inter  alia provides that every person who is  not  less than  18  years  of  age  on  the  qualifying  date  and  is ordinarily resident in a constituency, shall be entitled  to be  registered in the electoral roll for that  constituency. Section  20 gives the meaning to the expression  "ordinarily resident".   Then  comes Section 21 which provides  for  the preparation  and revision of electoral rolls.  It  envisages that  the  electoral  roll of  each  constituency  shall  be prepared in the prescribed manner and shall come into  force immediately  upon  its final publication.   It  contemplates revision of the electoral roll before each general  election to the House of the People or to the Legislative Assembly of a  State  and  before, each bye-election to  fill  a  casual vacancy in a seat allotted to the constituency.  It  further provides for the revision of the electoral roll in any  year in the prescribed manner if such revision has been  directed by the Election Commission.  The proviso to that sub-section lays  down  that if the electoral roll is  not  revised  the validity  or continued operation of the said electoral roll shall  not thereby be affected.  Sub-section (3) of  Section 21  which  begins with a non obstante clause says  that  the Election  Commission may at any time, for recorded  reasons, direct  a  special revision of the electoral  roll  for  any constituency or part of a constituency in such manner as  he may  think  fit.  Section 22 deals with  the  correction  of entries  in electoral rolls.  According to that  section  if the  Electoral  Registration Officer for a  constituency  is satisfied after inquiry that any entry in the electoral roll of  the  constituency  is  erroneous  or  defective  in  any particular  or it is necessary to be transposed  to  another place in the roll on account of the person concerned  having changed   his  place  of  ordinary  residence   within   the constituency or is required to be deleted because the person concerned is dead or has ceased to be ordinarily resident in the  constituency  or  is  otherwise  not  entitled  to   be registered in that roll, the Electoral Registration  Officer shall, subject to such general or spe- 234 cial directions, if any, given by the Election Commission in that  behalf,  amend, transpose or delete  the  entry.   The proviso to that section introduces the principle of  natural justice,  in  that, it enjoins  the  Electoral  Registration Officer   to   give  the  person  concerned   a   reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him.  Section 23 provides for the inclusion  of  names in electoral rolls.  It says  that  any person whose name is not included in the electoral roll of a constituency may apply to the Electoral Registration Officer for the inclusion of his name in  that roll.  On receipt  of such  an application, the Electoral Registration Officer  is

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enjoined by sub-section (2) thereof to direct his name to be included  therein on being satisfied that the  applicant  is entitled to be registered in the electoral roll.  An  appeal is   provided   against  the  decision  of   the   Electoral Registration  Officer  under Section 22 or 23 to  the  Chief Electoral Officer.  Lastly, Section 28 empowers the  Central Government to make Rules.  These are some of the  provisions of  the  1950 Act which have a bearing on the  questions  at issue. 3.Reference may now be made to the Registration of  Electors Rules,1960 (hereinafter called ’the 1960 Rules ) which  came into  force  on January 1, 1961.  Part 11  thereof  concerns ’Electoral  rolls  for  Assembly  Constituencies.   Rule   5 provides  that  the roll shall be  divided  into  convenient parts.  Rules 10 and 11 contemplate the publication of draft rolls in the first place and inviting of objections, if any, thereto.  Rule 12’to 16 deal with the lodging of claims  and objections to the draft rolls.  Rule 17 provides that claims or  objections not lodged within the time allowed or in  the specified  form  and  manner shall  be  rejected.   Rule  18 provides for acceptance of claims and objections without any inquiry  if the registration officer is satisfied about  the validity  of  any claim or objection.  In all  other  cases, Rule 19 enjoins giving of notice of hearing, Rule 20  envis- ages  a  summary inquiry into the claims and  objections  in respect  of which show cause notice under rule 19  had  been given, recording of evidence and then recording of  decision thereon.    Rule   21  provides  for  inclusion   of   names inadvertently  omitted  in the rolls.  Rule 21A  as  amended with effect from. 3rd September, 1987, lays down that if  it appears  at any time that owing to inadvertence or error  or otherwise,  the  names of dead persons or  person  who  have ceased  to be, or are not entitled to be registered  in  the rolls, have been included therein, the registration  officer shall exhibit the names,etc., of such electors on the notice board  and  also publish them in the manner  prescribed  and after considering the objections, decide whether or not  the names of all or any of them should be deleted from the roll. This decision must be taken only after the concerned  person has  been  accorded a reasonable opportunity to  show  cause against  the proposed action.  After all these  requirements are over, Rule 22 contemplates the publication of the  final list  together  with amendments.  On such  publication,  the roll together with the list of amendments shall be electoral roll  of the constituency.  Rule 23 provides for  an  appeal from any  decision of the  registration officer taken on the claims or objections filed against the draft list.  Rule  25 says  that the roll or every constituency shall  be  revised either  intensively  or  summarily  partly  intensively  and partly  summarily, as the Election Commissioner may  direct. This, in brief, is the procedure laid down for the 235 preparation of the electoral rolls. 4. It may also be advantageous to noticethe  provisions in regard to citizenship at this stage.  Articles 5 to 7  of the Constitution read as under: by that Government;               "5.   Citizenship at the commencement  of  the               Constitution.  At  the commencement   of  this               Constitution every person who has his domicile               in the territory of India and               (a) Who was born in the territory of India; or               (b)  either of whose parents was born  in  the               territory of India; or               (c)  who has been ordinarily resident  in  the               territory  of  India for not  less  than  five

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             years      immediately     preceding      such               commencement, shall be a citizen of India.               6.  Rights of citizenship of  certain  persons               who  have  migrated  of  India  from  Pakistan               Notwithstanding  anything   in  Article  5   a               person  who has migrated of  the territory  of               India    from  the  territory   now   included               grants  to  Pakistan shall be deemed to  be  a               citizen  of India at the commencement of  this               Constitution if-               (a) he or either of his parents or any of  his               grand-parents was born in India as defined  in               the   Government  of  India  Act,   1935   (as               originally enacted); and               (b)  (i) in the case where such person has  so               migrated  before  the nineteenth day  of  July               1948  he has been ordinarily resident  in  the               territory  of  India  since the  date  of  his               migration, or               (ii)  in  the case where such  person  has  so               migrated  on  or after the nineteenth  day  of               July,  1948,  he  has  been  registered  as  a               citizen  of India by an officer  appointed  in               that behalf by the Government of the  Dominion               of  India  on  an  application  made  by   him               therefor    to   such   officer   before   the               commencement of this Constitution in the  form               and manner prescribed by that Government;               Provided that no person shall be so registered               unless  he has been resident in the  territory               of  India for at least six months  immediately               preceding the date of his application.               7.  Rights of citizenship of certain  migrants               to   Pakistan.  Notwithstanding  anything   in               Articles 5 and  6, a person who has after  the               first  day of March, 1947, migrated  from  the               territory  of  India  to  the  territory   now               included in Pakistan shall not be deemed to be               a citizen of India; Article  II  empowers  Parliament  to  regulate  citizenship rights by law. 5.  The citizenship Act, 1955  was enacted to  provided  for the acquisition and determination of Indian citizenship.  It received the assent of the President on 30th December,  1955 was published in the Gazette on the same day. Sections 3  to 7 thereof provide  for acquisition of citizenship.  Section3 days  that  every  person born in India  on  or  after  26th January,   1950   but  before  the  commencement    of   teh citizenship (Amendment) Act, 1986 and those 236 born  in India on or after such commencement and  either  of whose  parents  is  a citizen of India at the  time  of  his birth,  shall be a citizen of India by  birth.   Sub-section (2)  of that section, however, states that the person  shall not  be such a citizen by virtue of this section if  at  the time  of his birth his father possesses such  immunity  from suits  or  legal  process as is accorded to an  envoy  of  a foreign sovereign power accredited to the President of India and  is  not a citizen of India or his father  is  an  enemy alien and the birth occurs in a place then under  occupation by  the  enemy.   Section  4  provides  for  citizenship  by descent.   This section (which has undergone changes) as  it presently stands provides .that a person born outside  India on or after 26th January, 1950, but before the  commencement of the Citizenship (Amendment) Act, 1992 shall be a  citizen

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of  India by descent if his father is a citizen of India  at the  time of his birth or a person born outside India on  or after  such  commencement  shall be a citizen  of  India  by descent  if either of his parents is a citizen of  India  at the  time of his birth provided that in the latter  case  if either  of  the parents of such a person was  a  citizen  of India by descent only, that person shall not be a citizen of India  by  virtue  of this provision  unless  his  birth  is registered  at  an Indian Consulate within the   given  time frame or either of his parents is, at the time of his birth, in service under Government of India.  Section 5 deals  with citizenship  by  registration.  It empowers  the  prescribed authority to register a person as a citizen of India who  is not  already such citizen by virtue of the  Constitution  or any  other provisions of the Citizenship Act and belongs  to any one of the five categories set out in Clauses (a) to (e) thereof Section 6 deals with citizenship by  naturalisation. Section  6A was enacted by Act 65 of 1985 to give effect  to the  Assam Accord.  Section 7 is also not relevant  for  our purpose  as it provides for citizenship by incorporation  of territory.   Sections  8 to 10 provide  for  termination  of citizenship.  Section 8 states that if any citizen of  India who is also a citizen or national of another country,  makes a   declaration  renouncing  his  Indian  citizenship,   the declaration  shall be registered whereupon the person  shall cease  to be a citizen of India.  Section 9 is relevant  and may be reproduced:               "9.   Termination  of  citizenship   (1)   Any               citizen   of  India  who  by   naturalisation,               registration    or    otherwise    voluntarily               acquires, or has at any time between the  26th               January, 1950 and the commencement of this Act               voluntarily   acquired,  the  citizenship   of               another  country shall, upon such  acquisition               or,  as  the case may  be,  such  commencement               cease to be a citizen of India:               Provided  that  nothing  in  this  sub-section               shall  apply to a citizen of India who  during               any  war  in  which  India  may  be   engaged,               voluntarily   acquires  the   citizenship   of               another country, until the Central  Government               otherwise directs.               (2)   If  any question arises as  to  whether,               when  or  how  any  person  has  acquired  the               citizenship  of another country, it  shall  be               determined by such authority, in such  manner,               and  having regard to such rules of  evidence,               as may be prescribed in this behalf" Section  10 provides that a citizen of India who is such  by naturalisation  or  by virtue of marriage to  a  citizen  of India or by registration otherwise then under clause b  (ii) of  Article 6 of the Constitution or  clause  (a)sub-section (1) of section 5 of the Act 237 shall  cease to be a citizen of India if he is  deprived  of the citizenship by an order of the Central Government  under this  section.   It will be seen from  sub-section  (2)   of Section  9 that if any question arises as  to whether,  when and  how any person has acquired the citizenship of  another country,  it shall be determined by such authority, in  such manner and having regard to such rules of evidence as may be prescribed  in  that behalf If we turn  to  the  Citizenship Rules,  1966  we find detailed provisions in regard  to  the procedure to be followed for the acquisition of  citizenship and for the termination thereof It will thus be seen that if

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a  person has acquired citizenship of India and  a  question arises  whether  or not he/she has lost the  citizenship  by acquisition  has to be resolved by the authority  prescribed under  the  Act.  Thus, the question whether a person  is  a foreigner is a question of fact which would require  careful scrutiny of evidence since the enquiry is quasi-judicial  in character.   This  question  has to  be  determined  by  the Central  Government,  vide Government of Andhra  Pradesh  v. Syed  Mohd.  Khan 1962 Supp. 3 SCR 288 and State of  UP.  v. Rehamatullah 1971 (2) SCC 113. 6.   From the resume of the aforementioned provisions of the Constitution  and the Citizenship Act it becomes clear  that whenever any authority is called upon to decide even for the limited  purpose of another law, whether a person is  or  is not a citizen of India, the authority must carefully examine the question in the context of the constitutional provisions and   the  provisions  of  the  Citizenship  Act   extracted hereinbefore.   In  the  instant case  Article  323  of  the Constitution  provides  for one general electoral  roll  for every  territorial constituency; so does 1950 Act. This  has to be done under the Superintendence, direction and  control of Election Commission as per the man date  of Article   324 the  Constitution.  Section  16 of the 1950   Act  in  terms states  that a person shall disqualfied for registration  in an  electoral  roll if he is not a citizen  of  India.   Put positively  a  person  must  be a citizen  of  India  to  be entitled  to inclusion in the electoral  roll.   Sub-section (2) of the said section empowers striking off the name of  a person who incurs a disqualification set out in clauses (a), (b)  or (c) of sub section (1) after his name is entered  in the register of electoral rolls.  Otherwise every person who is not  less than 18 years of age on the qualifying date and is ordinarily resident in a given constituency  is  entitled to be registered.  Section 22 empowers the Electoral  Regis- tration  Officer  for  a constituency to  delete  any  entry already  made  if  on enquiry he is  satisfied  that  it  is erroneous  or  detective in any particular or  needs  to  be transposed  to  another place in the roll or  the  concerned person  has died or has ceased to be ordinarily resident  in that constituency or that he is otherwise not entitled to be registered.   Of course before any such action is taken  the person concerned, except in the case of death, must be given an  opportunity  to be heard.  Similar is the  provision  in Rule  21A of the 1960 Rules which empowers the  registration officer  before final publication of the roll to delete  the name  or  names of any person or persons  which,  have  been entered  owing  to  inadvertence  or  error  if  the  person concerned is dead or has ceased to be ordinarily resident in that  constituency  or  is  otherwise  not  entitled  to  be registered.  The procedure for exercise of the said power is set  out  therein and conforms to the  requirements  of  the principles of natural justice.  It is obvious from 238 the  above  that two situations arise; the first  where  the name  is to be entered on the rolls for the first  time  and the second where the name already entered is required to  be deleted.   In the first mentioned situation before the  name is  entered on the rolls,                     the  concerned officer  must be satisfied that the person seeking  to  have his  name entered is not disqualified by reason of  his  not being a citizen of India.  Therefore, he would be  justified in  requiring the concerned person to show evidence that  he is  a citizen of India.  In the second situation, since  the name  is  already entered, it must be presumed  that  before entering  his  name  the concerned officer  must  have  gone

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through the procedural requirements under the statute.  This would  be  so  even  if we invoke Section  1  14(e)  of  the Evidence Act.  But then possibilities of mistakes cannot  be ruled  out.   These  mistakes,  if any,  would  have  to  be corrected.  Even if we are to assume (without deciding) that the  words  "is otherwise not entitled to be  registered  in that roll" used in Section 22 of the 1950 Act or Rule 2 1  A of  the  1960 Rules are wide enough to  cover  the  question relating to citizenship, the issue would have to be  decided after  giving the concerned person a reasonable  opportunity of  being heard.  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. 7.   We may now briefly deal with the factual matrix of each case. SLP (C)NO. 21961 OF 1994: 8.   Three  writ petitions bearing Nos. 2429, 2452 and  2330 of 1994 were filed in the Bombay High Court challenging  the directive of the Election Commission dated 21st August, 1992 empowering Collectors of all Districts in India to determine if any person was or was not a foreigner.  According to  the said directive the information collected by the  enumerators had  to be consolidated and furnished to the Collectors  who in  turn were expected to get the same verified through  the police/intelligence agencies or the like and then decide the question  whether  the  person  or  persons  concerned  were citizens of India.  The Electoral Registration Officers were then expected to prepare a draft electoral roll on the basis thereof  and  publish it inviting objections, if  any.   Any person  enumerated but not entered in the roll  could  apply for  the inclusion of his name in the roll.   The  Electoral Registration  Officer  was  to  consider  the  request   for inclusion of his name in the roll and decide thereon.   This was  followed by yet another directive dated 9th  September, 1994 by which power was vested in the Electoral Registration Officers  to  identify  and declare  the  names  Of  foreign nationals  and delete their names from the  electoral  roll. It  was stated in the guidelines of the Election  Commission that  the  onus  of proof of citizenship shall  lie  on  the person  seeking  to  have his name in  the  electoral  roll. Pursuant  to  the  directives of  the  Election  Commission, extensive  search  was undertaken in 39 police  stations  of Greater  Bombay and letters were issued by the police to  as many as 1.67 lakh persons calling upon them to produce 239 (i)   birth   certificate  (ii)  Passport  issued   by   the Government  of  India (iii) certificate of  citizenship  and (iv)  entry  made  in the register  of  citizenship  by  the Government of India.  This led to a virtual commotion,  more particularly because it was believed to be a move to  harass the  minority community and to defranchise them.   Thereupon the  aforesaid writ petitions came to be  filed  challenging the  police action.  In the course of the hearing  of  these petitions.  several  concessions were made  by  the  learned Advocate   General   to  save  the  action  and   even   the Commissioner  of  Police filed an affidavit  clarifying  the fact  that it was not the function of the police  to  delete any  name from the draft electoral roll on the  ground  that

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the  concerned person is not a citizen of India.   That  was function of the Electoral Registration Officer under Rule  2 1  A  of  the 1960 Rules.  However,  it  was  conceded  that pursuant  to the directives of the Election Commission,  the police had identified the areas having sub-stantial presence of  foreign nationals on the basis of intelligence  reports. The notices issued to the persons suspected to be foreigners carried a statement to the effect that the addressee was  or was  not a citizen of India.  The learned  Advocate  General clarified  that  in  all letters issued  in  future  such  a statement will not be printed or typed on the reverse of the notice.  It was also clarified that the documents in support of  proof  of  citizenship will not  be  confined  to  those mentioned hereinabove.  Other documents having a bearing  on the question of citizenship would also be entertained.   The submission that a Ration Card cannot be received in evidence was  spurned by the Division Bench.  On the basis  of  these concessions  the Division Bench of the High Court  dismissed the writ petitions.  Against the said order the  petitioners of  Writ  Petition  No.2452  of  1994  have  preferred  this petition seeking special leave to appeal.  We grant  special leave. 9.   The other two writ petitions have been moved on more or less similar allegations.  In Writ Petitions No.731 of  1994 the  petitioners  are residents of the area known  as  Motia Khan,  Paharganj,  New Delhi.  They are poor,  ignorant  and illiterate  slum-dwellers.  Their grievance is that  members of  the  minority  community have been called  upon  by  the Electoral  Registration  Officer,  Delhi,  by  communication dated 10th October, 1994 to prove their  Indian citizenship. The petitioners contend that they and other residents of the said slum are migrants from U.P. and Bihar who came to Delhi in  search of livelihood and have settled in the  said  area since  a number of years and although they may not have  the documents required to be produced as per the  communication, they have several other documents, such as cards,  electoral rolls  of the past elections, school records, etc., to  show that  they are bona fide residents of the said locality  but they  have  been  brushed aside with the oblique  motive  of deleting  their names as voters.  They have  questioned  the authority  of the Election Commission to undertake any  such exercise.   The  specimen copy of the notice issued  to  the petitioners   and  others  similarly  situated  dated   10th October, 1994 has been produced and reads as under:-                                  "NOTICE               Where  a report has been  received  indicating               that you may not be a citizen of India and  as               such your name appears to be fit for  deletion               from   Electoral   Rolls  of   this   Assembly               Constituency.               You are, therefore, hereby called               240               upon to Appear in person with such evidence as               you may like to adduce in proof of your  being               an  Indian Citizen before the  undersigned  on               13.10.1994  at ’D’ Block, Vikas  Bhawan,  Nex.               Delhi - 110 002.                                    Sd/-                          K. C. Agarwal                     Electoral Registration Officer                     69, Ram Nagar (SC) Assembly                     Constituency, ’D" Block, Vikas                     Bhawan, New Delhi - 110 002" It  is  clear  that the  doubt  regarding  the  petitioner’s citizenship is based on a report.  Admittedly, a copy of the

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said report was not furnished to the addressee.  The  action proposed  is  to delete the name from the  electoral  rolls. The petitioners who had sought more time as they had to col- lect  material from their villages were not granted time  as in the opinion of the Electoral Registration 0officer nearly a  month’s time could not be said to be inadequate.   It  is further  observed that the verification report  prepared  by the police ’is generally reliable’, it was for the addressee to  prove  that  they  were  Indian  citizens  and  ordinary residents of the constituency.  The            order of 25th October,  1994  shows that even though the  police  had  not reported  the  time  of  the  visit  or  the  names  of  the independent  witnesses or neighbors examined, the  Electoral Registration  Officer placed implicit reliance on  the  said document   and  raise  a  presumption  in  regard   to   its correctness.   It  will, thus, be seen  that  the  Electoral Registration Officer totally abdicated in favour of what the police had done during verification.  No effort was made  to evaluate the evidence produced by the petitioners.  Instead, without  holding  any  enquiry worth  the  name,  total  and absolute reliance was placed on the police report which  did not even indicate the time of visit, the witnesses examined, etc.   That too when the said officer himself had  felt  the necessity  Of reverification which the police expressed  its inability  to  undertake.  Could the fate of a  voter  whose name  had  figured in the earlier rolls be  sealed  on  such evidence?  ’Mat is the moot question. 10.  Writ Petition No. 56 of 1995 has been   filed by a  few residents of Sanjay Amar Jhuggi Jhompri Colony also falling within  the  Matia Mahal  constituency  representing  18,000 residents of that locality.  They too contend that they  had shifted  to  Delhi in search of livelihood  from’  U.P.  and Bihar  more  than a decade back.  They have been  voters  in this constituency for the last over 10 years.  They  contend that  in the process of making the electoral rolls  and  the issuance   of   voters’  identify   cards,   the   Electoral Registration  Officer of Matia  Mahal constituency issued  a general notice stating that all the residents of that colony were  suspected  to be foreigners and called  upon  them  to appear  with  concrete proof in support of  their  claim  of citizenship.  They contend that when they went to the office of  the  Electoral  Registration  Officer  with  documentary evidence such as, ration cards, identify cards issued by the Delhi   Administration,  certificates  from  their   village Pradhans and affidavits, they were told that these documents were  of  no avail.  The petitioners  and  their  colleagues thereafter approached the Peoples Union for Civil Liberties, Delhi pointing out their difficulties.  The said body sent a representation  on  behalf  of the  residents  to  the  said Officer   as  well  as  the  Chief   Election   Commissioner protesting   against  what  they  described  as   a   wholly humiliating, unfair and unreasonable demand but received  no reply to the said representation.  Some of the residents had filed claims in Form No.6 241 for  the  inclusion of their names in  the  electoral  roll. They were asked to appear before the Electoral  Registration Officer on 16th and 17th December, 1994 with proof of  their being  Indian nationals.  On their re-appearing  before  the said officer with the   aforementioned documentary evidence, once  again they were told that the same were of  no  avail. On the petitioners learning that the revised electoral rolls had  been published and out of 18,000 voters  registered  in the  previous electoral rolls in polling stations  Nos.  87- 108,  names of only 300 persons figured, thus,  leaving  out

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almost  98%  of the voters thereby depriving them  of  their democratic right to elect their representatives.   Thereupon the present petitions came to be filed. 11.  If we turn to the specimen notice dated 20th September, 1994,  it  shows  that all persons  included  in  the  draft electoral  rolls  of  Matia Mahal  AC  58  polling  stations Nos.87-108 were suspected not to the citizens of India.  The notice  contemplated an inquiry under Rule 21A of  the  1960 Rules  and required the persons concerned to appear  on  the dates  mentioned  in the schedule.  Some  of  these  persons had,as stated earlier,submitted their claim in Form No.6 for inclusion  of  their names in the electoral  roll.As  stated earlier,they  produced documentary evidence in the  form  of ration   cards,   identify  cards  issued   by   the   Delhi Administration,  Certificate  of  Registrar  of   Societies, affidavits,   etc.,   but  to  no  avail.   Left   with   no alternative,  they filed the present writ petition  invoking this   Court’s   jurisdiction  under  Article  32   of   the Constitution. 12.  Like in the previous case, in the present case also the claims  were  rejected solely on the report  of  the  police without  furnishing copies.  It will be seen from the  above averments  that the notice under Rule 21A of the 1960  Rules was  a sweeping notice covering the entire populace  of  the area  without there being any inquiry as to the  citizenship of an individual’. 13.  From what we have stated hereinbefore it is clear  that inhabitants  of certain 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 police was  employed  for this  purpose  and  as  observed  earlier  in  Bombay   they addressed as many as 1.67 lakh notices calling upon the  ad- dressees  to  produce  (i) birth  certificates  (ii)  Indian passports,  if  any, (iii) citizenship  certificates  and/or (iv) extracts of entry made in the register of  citizenship. In Delhi also similar notices were addressed to hundreds  of residents  of Matia Mahal Constituencies requiring  them  to produce the aforestated documents.  The time given was short and  requests for extension of time were refused  presumably because  the work had to be completed within a  given  time- frame.  Except the documents stated in the notices, no other proof, documentary or otherwise, was entertained.  The  fact that  the  addressees  were  by  and  large  uneducated  and belonged to the working class, particularly those who  lived in   jhuggi   jhompris,   was   overlooked.    Perhaps   the instructions  issued  from time to time by  the  office  the Election  Commission created an atmosphere which gave  wrong signals that the verification had to be completed within the time-frame failing which they would incur the displeasure of the  Election  Commission  exposing  them  to   disciplinary action.   This  is  evident from the fact  that  the  police refused to accept 242 any  other  document and prepared stereotype  reports  which betray   non-application   of   mind   and   the   Electoral Registration  Officers abdicated their functions and  merely super   added   their   seals  to   such   reports.    This, notwithstanding  the fact that these persons were voters  in previous elections and hence it would ordinarily appear that their cases were verified before their names were entered in the  electoral  rolls.  That is because it may  be  presumed that  official  acts performed under the provisions  of  the 1950 Act or the 1960 Rules were regularly done.  Their names were  already on the rolls and since they were sought to  be

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removed by undertaking a special revision, whether intensive or otherwise, the procedure for removal had to be  followed. Besides,  as  stated  earlier,  the  atmosphere  was  fairly charged and because of the statements made time and again by the Election Commission the police went about its task  with a  mind-set  which gave practically no  opportunity  to  the addressees  to place the relevant material for  whatever  it was  worth because no other documentary evidence,  save  and except  that  mentioned  in  the  show  cause  notices,  was entertained.   Even  the  Electoral  Registration   Officers merely  acted  on  the police report,  copies  whereof  were admittedly  not supplied to the addressees thereby making  a mockery  of  the  reasonable  opportunity  of  being   heard requirement  contemplated  under the 1950 Act and  the  1960 Rules.   Since  neither Mr. Tulsi nor Mr. Ramaswam  for  the Election Commission and the Chief Election Commissioner even attempted to defend the action impugned in these proceedings we  need not dilate on the question.  In fact, at  the  very first  hearing on 16th January, 1995, Mr. Tulsi very  fairly stated that a fresh exercises under revised guidelines would have to be undertaken. We had no that occasion requested Mr. Tulsi to come up  with a  draft of the proposed guidelines for the perusal  of  the court.   The  petitioners’/appellants’  counsel  were   also requested to apply their minds and suggest broad guidelines. Accordingly at the last hearings on 25th January, 1995,  Mr. Tulsi  came  up  with the proposed  guidelines  prepared  in consultation  with  the Election Commission.   Mr.  Soli  J. Sorabjee,  learned counsel in Writ Petition No.731  of  1994 also  submitted a set of guidelines for  consideration.   We heard Mr. Tulsi and Mr. G Ramaswamy on the draft  guidelines submitted  by Mr. Tulsi and heard their submissions  on  the guidelines  presented  by Mr. Sorabjee.  We also  heard  Mr. Wad,  senior  counsel for the appellants  and  Mr.  Prashant Bhushan, counsel for the petitioners in the other writ peti- tions   on  the  proposed  guidelines.   Having  taken   the guidelines suggested by either side into considerations  and having heard counsel, we proceed to dispose of all the three matters by giving the followng directions:               1.    We allow the appeal arising from  SLP(C)               No.21961  of 1994 and set aside  the  impugned               judgment  and order of the Division  Bench  of               the  Bombay  High Court dated  17th  November,               1994,  except  the undertakings given  by  the               learned Advocate General;               2.    In  all  the three cases  we  quash  the               proceedings  and  direct  that  the               Election   Commission  may,  if  so   desired,               initiate  fresh proceedings by issuance  of  a               notice under the relevant provision disclosing               the  material  on  the basis  whereof  he  has               reason to suspect that the person concerned is               not a citizen of India;                243               3.    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;               4.    The  Officer holdings the enquiry  shall

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             bear  in  mind that the enquiry  being  quasi-               judicial  nature, he must entertain  all  such               evidence,   documentary  or   otherwise,   the               concerned  affected person may like to  tender               in evidence and disclose all such material  on               which he proposes to place reliance,. so  that               the  concerned  person has  had  a  reasonable               opportunity of rebutting   such evidence.  The               concerned  person,  it must always  be  remem-               bered,  must have a reasonable opportunity  of               being heard;               5.    Needless  to state that the Officer  in-               quiring  into the matter must apply  his  mind               independently  to the material  placed  before               him and without being influenced by extraneous               considerations instructions;               6.    Before  taking a final decision  in  the               matter,  the  officer concerned will  bear  in               mind  the provisions of the  Constitution  and               the Citizenship Act extracted hereinbefore and               all related provisions bearing on the question               of  citizenship and then pass  an  appropriate               speaking order (since an. appeal is provided);               7.    The  directive  issued by  the  Election               Commission on 9th September,.1994, prohibiting               the   Officer   from   entertaining    certain               documents will stand quashed and the documents               will   be  received,  if  tendered,  and   its               evidentiary  value  assessed  and  applied  in               decision-making;               8.    These  guidelines not being  exhaustive,               the  Officer  concerned  must,  where  special               situations arise conduct themselves fairly and               in a manner consistent with the principles  of               natural  justice and should not appear  to  be               acting on any pre-conceived notions; and;               9.    We  dean it appropriate to clarify  that               the final electoral roll with regard to others               whose  names were not sought to be deleted  on               the  suspicion that they were not citizens  of               India shall remain undisturbed but in  respect               of  the  ’petitioners  and  others   similarly               situated, these being petitions in the  nature               of   public  interest  litigations,   if   the               revision  of  the  roll  is  not  possible  on               account of paucity of time, they will governed               by the previous roll.               14.   The  appeal and the two  writ  petitions               will  stand  disposed of accordingly  with  no               order as to costs. 245