Holding

The Court quashed the proceedings and held that any fresh enquiry must disclose the material basis for suspicion, afford a reasonable hearing, consider all evidence, and cannot rely solely on police reports; the directive limiting admissible documents was invalid.

Summary

The Supreme Court examined the Election Commission's directives that empowered district collectors and police to determine a person's citizenship and delete alleged foreign nationals from electoral rolls. Petitioners challenged the procedure, arguing that notices relied solely on police reports, limited the documents that could be produced, and denied a reasonable opportunity to be heard, thereby violating natural justice and statutory provisions. The Court held that the proceedings were unlawful, quashed the actions, and directed that any fresh enquiry must disclose the material basis for suspicion and afford the affected person a fair hearing. It emphasized that citizenship is a factual question requiring careful, quasi‑judicial scrutiny and that the officer must consider all evidence tendered. The directive restricting the types of documents that could be accepted was struck down, and the existing electoral roll was to remain undisturbed for those not subject to deletion.

Issues considered

The constitutional validity of the Election Commission's directive authorising police to determine citizenship for electoral roll revisions.
Whether the onus of proof of citizenship can be limited to specific documents and placed solely on the individual.
Whether deletion of names from the electoral roll without providing the material basis of suspicion and a hearing violates natural justice and the Representation of the People Act, 1950 and the Registration of Electors Rules, 1960.
Whether the Electoral Registration Officer may rely exclusively on police reports without independent inquiry.
The effect of the directive prohibiting consideration of certain documents on the rights of voters.

Legislation cited

Citizenship Act, 1955s. Sec.9
Constitution of Indias. Art.324, s. Art.325, s. Art.326, s. Art.327, s. Art.328, s. Arts.5-7
Indian Evidence Act, 1872s. Sec.114(e)
Registration of Electors Rules, 1960s. Rule 21A
Representation of the People Act, 1950s. Sec.16, s. Sec.21A, s. Sec.22, s. Sec.23, s. Sec.25A

Subjects

electoral rollcitizenshipnatural justiceRepresentation of the People ActRegistration of Electors RulesArticle 32Article 325Election Commissionon us of proofquasi‑judicial enquiry

Judgment

LAL BABU HUSSEIN AND ORS. A
v.
ELECTORAL REGISTRATION OFFICER AND ORS.

·FEBRUARY 6, 1995
B
(A.M. AHMADI, CJ., N.P. SINGH AND
MRS. SUJATA V. MANOHAR, JJ.)

Constitution of India-Arts. 5 to 7, 325-Citizenship Act, 1955-R.epre-
sentation of People Act, 1950--Sections 16, 2~egistration of Electors Rules C
1960--Rule 21A-Electoral Rolls-Revision oHeletion of names already on
roll~rocedure for removal-Guidelines issued.

Citizenship Act, 195~Section 9-Citizenship Rules, 1966-Termina-
tion of citizenship-l'rocedure for.
D
The Election Commission by an order dated 21-8-1992 issued a
directive empowering Collectors of all Districts in India to determine if
any person was or was not a foreigner. Enumerators were appointed and
the information collected by the enumerators had to be consolidated and
furnished to the Collectors who were to get the same verified through the
police/intelligence agencies or the like and then decide . the question E
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.
The Electoral Registration Officer was to consider the request for in-
clusion of his name in the roll and decide thereon. Another directive da~ F
9-9-1994 was issued empowering the Electoral Registration Office~ to
identity and declare the names of foreign nationals and delete their names
from the electoral roll. Pursuant to these directives, extensive search was
undertaken in police stations of Bombay and Delhi. Letters were issued by
the police to about 1.67 lakh persons calling upon them t~ produce birth
certificates, Indian passports, if any, citizenship certificates and/or ex- G
tracts of entry made in the register of citizenship. Requests for extension
of time were refused. Except the documents stated, no other proof was
entertained. Onus of proof was on the addressee to prove that they were
Indian citizens and ordinary residents of the constituency. The police
identified the areas having substantial presence of foreign nationals. The H
877
878 SUPREME COURT REPORTS (1995) 1 S.C.R.

A Electoral Registration Officer placed implicit reliance on the said docu-
ment and raised a presumption in regard to its correctness. 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. Claims were
rejected solely on the report of the police without furnishing copies. Writ
B petitions came to be filed challenging the police action. Several <;oncessions
were made by the Advocate General. It was clarified that in all letters
issued in future such a statement will not be printed or typed on the
reverse of the notice; that the documents in support of proof of citizenship
will not be confined to those specified. The petition was dismissed on the
basis of these concessions. Hence this appeal.
c Disposing of the matter, this Court

HELD : 1.1. Proceedings are quashed and the Election Commission
is directed, if so desired to initiate fresh proceedings by issuance of a notice
under the relevant provision disclosing the material on the basis whereof
D he had reason to. suspect that the person concerned was not a citizen of
India. [894-H]

1.2. If any person whose citizenship was suspected was shown to have
been included in the immediately preceding electoral roll, the Electoral
E 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 sub-
sequent proceedings. [895-A]

F 1.3. The question whether a person is a foreigner is a question of fact
wldch would require careful scrutiny of evidence since the enquiry is
quasi-judicial in character. This question has to be determined by the
Central Government. The enquiry being quasi-judicial, the Officer holding
the enquiry must entertain all such evidence, the concerned affected person
may like to tender evidence and disclose all such material on which he
G proposes to place reliance. The concerned person must have a reasonable
opportunity of being heard. The officer must apply his mlnd independently
to the material placed before him and without being influenced by ex-
traneous considerations or instructions. Appropriate order must be
passed after considering the provisions of the Constitution and the
H Citizenship Act and other related provisions bearing on the question of
LAL BABU HUSSEIN v. ELECTORAL REGN. OFFICER 879

citizenship and then pass an appropriate speaking order. A
. (887-C,895-C-E]
1.4. A person must be a citizen of India to be entitled to inclusion in
the electoral rolls. Sub-section (2) of Section 16 of the Representation of
the People Act, 1950 empowers striking off the name of a person who incurs
a disqualification set out in clauses (a), (b) or (c) of sub-section (i) after B
his name is entered in the register of electoral rolls. Section 22 empowers
the Electoral Registration Officer for a constituency to delete any entry
already made if on enquiry he is satisfied that it is erroneous or defective
in any particular or needs to.be transposed to another place in the roll
etc. etc. Before any such action is taken the person concerned must he given
c
an opportunity to be heard •. Two situations arise; the first where the name
is to be entered on the rolls for the first time and 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 dis-
qualified by reason of his not being a citizen of India. Therefore, he would D
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 through the procedural requirement under the
statue. This would be so even if we invoke Section 114(e) of the Evidence E
Act. But then possibilities of mistakes cannot be ruled out. These mistakes,
if any, would have to be corrected. 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
meaningful and purposive one, the concerned person whose name is on the
roll and is intended to be removed must be informed why a suspicion has F ...
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. [887-F-H, 888-A-G]
G
Govt. of Andhra Pradesh v. Siyed Mohamad Khan, [1962] Supp. 3
SCR 288 and State of Uttar Prade~h v. Rehamatullah, [1971] 2 SCC 113,
relied on.

1.5. The directive issued by the Election Commission on 9-9-1994, H
880 SUPREME COURT REPORTS t1995) 1 S.C.R.

A prohibiting the officer from entertaining certain documents was quashed.
The. documents will be received, if tendered, and its evidentiary value
· assessed and applied in decision making. [895-F]

1.6. The final electoral roll with regard to those whose names were
not sought to be deleted shall remain undisturbed. In .respect of the
B petitioners, if the revision of the roll is not possible, they will be governed
by previous roll. [896-B]

1.7. These guidelines not being exhaustive, the Officers concerned -...
must, where special situations arise, conduct themselves fairly and in a
C manner consistent with the principles of natural justice and should not
appear to be acting on any pre-conceived notions. [895-H]

. CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 731 of
1994.

D (Under Article 32 of the Constitution of India.)

With

Civil Appeal No. 1319of1995.

E From the Judgment and Order dated 17.11.94 of the Bombay High
Court in W.P. No. 2452of1994

And

Writ Petition (C) No. 56 of 1995.
F (Under Article 32 of the.Constitution of India.)

K.T.S. Tulsi, Additional Solicitor General, Soll J Sorabjee, S.B. Wad
and G. Ramaswamy, Ms. Neeti Dixit, Gopal Jain, Mukul Mudgal, Ms. Usha
Reddy, Ms. J.S. Wad, Prashant Bhushan, Hemant Sharma, S.N. Terdol, P.
G Parmeshwar, A Subba Rao, Ms. Shomona Khanna, Niranjan Reddy and S.
Murlidhar for the appearing parties.

The Judgment·of the Court was delivered by

AHMADI, CJ. These three cases, two writ petitions under Article 32
H and one special leave petition under Article 136 of the Constitution of
I.

LAL BABU HUSSEINv. ELECTORAL REGN. OFRCER (AHMADI, CJ.) 881

India, raise certain vital issues regarding an individual's eligibility for A
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
B
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 c
327 and 328 empower Parliament/State Legislatures respectively to inter
alia make provision with respect to all matters relating to, or connected
with the preparation of electoral rolls by enacting an appr'.>priate 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 D
of the Constitution. These are the relevant constitutional provisions bear-
ing on the question of preparation of the electoral rolls and eligibility of
every person to be included therein to which our attention 'fas drawn.,

The Representation of the People Act, 1950 (hereinafter called 'the
1950 Act'), inter alia, provides for the preparation of electoral rolls, E
qualification of voters etc. Part III thereof comprising Section 14 to 25A
provides for 'Electoral rolls for Assembly Constituencies'. Section 15 en-
visages 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) F
is not a citizen of India;· or (b) is of unsound mind and stands so declared
by a competent court; or ( c) is for the time being disqualified from voting
under the provisions of any law relating to corrupt practices and other
offences in connection with elections. It 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 G
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 yedrs 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 H
882 SUPREME COURT REPORTS [1995] 1 S.C.R.

A the meaning to the expression "ordinarily resident". Then comes Section 21
which provides for the preparation and revision. of electoral rolls. It en-
visages 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
B · 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
C 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
D 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
E deleted because the person concerned is dead or has ceased to be ordinari-
ly 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 special directions, if any, giver:. by the Election Commission in that
behalf, amend, transpose or delete the entry. The proviso tc: that section
F introduces the principle· of natural justice, in that, it enjoins the Electoral
Registration Officer to give the person concerned a reasonable opportunity
o~ 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 in-
G clusion of his name in that roll. On receipt of such an application, the
Electoral Registration Officer is enjoined by sub-section (2) thereof to
direct his name to be included therein en 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
H
LAL BABU HUSSEIN v. ELECTORAL REGN. OFFICER [AHMADI, CJ.) 883

or 23 to the Chief Electoral Officer. Lastly, Section 28 empowers the A
Central Government to make Rules. These are some of the provisions of
the 1950 Act which have a bearing on the questions at issue.

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 II thereof concerns 'Electoral rolls for Assembly B
Constituencies'. Rule 5 provides that the roll shall be divided into con-
venient parts. Rules 10 and 11 contemplate the publication of draft rolls in
the first place and inviting of objections, if any thereto. Rl;lles 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 accep-
c
tance 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 envisages 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 D
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 E
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 F
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 the 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 G
list. Rule 25 says that the roll of every constituency shall be revised either
intensively or summarily or partly intensively and partly summarily, as the
Election Commissioner may direct. This, in brief, is the procedure laid
down for the preparation of the electoral rolls.

H
884 SUPREME COURT REPORTS (1995] 1 S.C.R.

A It may also be advantageous to notice the provisions in regard to
citizenship at this stage. Articles. 5 to 7 of the Constitution read as under:

"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-
B
(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
c not less than five years immediately preceding such commence-
ment, shall be a citizen of India.

6. Rights of citizenship of certain persons who have migrated to India
from Pakistan. - Notwithstanding anything in Article 5, a person
who has migrated to the territory of India from the territory now
D
included in 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 grant-parents was born
in India as defined in the Government of India Act, 1935 (as
E 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

F (ii) in the case where such person has so migrated on or after
the nineteenth dar 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 therefore
to such officer before the commencement of this Constitution in
G 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.

H 7. Rights of citizenship of cenain migrants to Pakistan. - Not-
LAL BABU HUSSEIN v. ELECTORAL REGN. OFFICER [AHMADI, CJ.) 885

withstanding anything in Articles 5 and 6, a person who has after A
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 cil:izen of India:

Provided that nothing in this article shall apply to a person who,
after having so migrated to the territory now included in Pakistan, B
has returned to the territory of India under a permit for resettle-
ment or permanent return issued by or under the authority of any
law and every such person shall for the purposes of clause (b) of
Article 6 be deemed to have migrated to the territory of India after
the nineteenth day of July, 1948." C

Article II empowers Parliament to regulate citizenship rights by law.

The Citizenship Act, 1955 was enacted to provide for the acquisition
and determination of Indian citizenship. It received the assent of the D
President on 30th December, 1955 and was published in the Gazette on
the same day. Sections 3 to 7 thereof provide for acquisition of citizenship.
Section 3 says that every person born in India on or .after 26th January,
1950 but before the commencement of the Citizenship (Amendment) Act,
1986 and those 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 E
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 F
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 of India by
descent if his father is a citizen of India at the time of his birth or a person G
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 H
886 SUPREME COURT REPORTS [1995] 1 S.C.R.

A 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)
B 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 alsc a citizen
C 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. Tennination of citizenship-- (1) Any citizen of India who by
naturalisation, registration or otherwise voluntarily acquires, or has
D 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 commen-
cement, cease to be a citizen of India:

Provided that nothing in this sub-section shall apply to a citizen of
E
India who, during any war in which India may be engaged, volun-
tarily acouires the citizenship of another country, until the Central
Government othernise directs.

(2) If any question arises as to whether, when or how any person
F has acquirea the citizenship of another country, it shall be deter-
mined 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
G under clause b(ii) of Article 6 of the Constitution or clause (a) of sub-sec-
tion (1) of section 5 of the Act 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
H citizenship of another country, it shall be determined by such authority, in
LAL BABU HUSSEIN v. ELECTORAL REGN. OFFICER [AHMADI, CJ.) 887

such manner and having regard to such rules of evidence as may be A
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 a person has acquired citizenship of India and a question arises
whether or not he/she has lost the citizenship by acquisition of the citizen- B
ship of a~other country, that question 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 U.P. v. C
Rehamatu/lah, [1971) 2 SCC 113.

From the resume of the aforementioned provisions of the Constitu-
tion and the Citizenship Act, it becomes clear that whenever any authority
is called upon to decide even for the limited purpose of another law, D
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 325 of the Constitution provides for one general electoral roll for
every territorial constituency; so does Section 15 of the 1950 Act. This has
to be done under the superintendence, direction and control of the Elec- E

- tion Commission as per the mandate of Article 324 of the Constitution.
Section 16 of the 1950 Act in terms states that a person shall be disqualified
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 F
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 Registration
Officer for a constituency to delete any entry already made if on enquiry G

-- he is satisfied that it is erroneous or defective 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 H
888 SUPREME COURT REPORTS [1995] 1 S.C.R.

A 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
B 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 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
C 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 r<!quiring 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
D before entering his name the concerned officer must have gone through
the procedural requirements under the statute. This would be so even if
we invoke Section 114(e) of the Evidence Act. But then possibilities of
mistakes canno~ 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
E the 1950 Act or Rule 21A of the 1960 Rules are wide enough to cover the
question relating to citizenship, the issue would have to be decided after
r •
gi'.ing 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
F person whose name is borne on the roll and is intended to be removed
must be informed why a suspicion has arisen in regarp 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 respo~sible for the doubt.
G
We may now briefly deal with the factual matrix of each case.

SLP (C) No. 21961 OF 1994:

H Three writ petitions bearing Nos. 2429, 2452 and 2330of1994 were
LAL BABU HUSSEIN v. ELECTORAL REGN. OFFICER (AHMADI, CJ.) 889

filed in the Bombay High Court challenging the directive of the Election A
Commission dated 2ist 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 Collector~ 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
B
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. The Electoral Registration Officer was to consider the request for
inclusion of his name in the roll and decide thereon. This was followed by C
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 D
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 (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 E
commotion, more particularly bec'!-us~ 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 Commis-
F
sioner 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 the concerned person is not a citizen of India. That was
the function of the Electoral Registration Officer under Rule 21A of the
1960 Rules. However, it was conceded that pursuant to the directives of
the Election Commission, the police ha.d identified the areas having sub- G
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
H
'
(
890 SUPREME COURT REPORTS (1995) 1 S.C.R.

A 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 bearirig mi 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
B 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.

The other two writ petitions have been moved on more or less similar -..
c allegations. In Writ Petition No. 731 of 1994 the petitioners are residents
of the area knows 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 Registra-
tion Officer, Delhi, by communication dated 10th October, 1994 to prove
their Indian citizenship. The petitioners contend that they and other resi-
D dents 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, ration cards, electoral rolls of the past elections, school records,
E 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 :-
F
~

"NOTICE

Whereas a report has been received indicating that you may
not be a citizen of India and as such your name appears to be fit "'111io---·

G for deletion from Electoral Rolls of this Assembly Constituency.

You are, therefore, hereby called 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
·-

H 'D' Block, Vikas Bhawan, New Delhi - 110 002.
(

lAL BABU HUSSEINv. ELECTORAL REGN. OFFICER [AHMADI, CJ.] 891

Sd/- A
K.C. Agarwal
... Electoral Registration Officer
69, Ram Nagar (SC) Assembly
Constituency, 'D' Block, Vikas Whawan,
New Delhi - 110 002"
B
It is clear that the doubt regarding the petitioner's citizenship is based on
a report. Admittedly, a copy of the 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 collect
material from their villages were not granted time as in the opinion of the C
Electoral Registration Officer 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 wt::re Indian citizens and ordinary residents of the constituency. The
order of 25th October, 1994 shows that even though the police had not D
reported the time of the visit or the names of the independent witnesses
or neighbours examined, the Electoral Registration Officer placed implicit
reliance on the said document and raised 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. E
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 re-verification which the police expressed
its inability to undertake. Could the fate of a voter whose name had figured F
in the earlier rolls be sealed on such evidence? That is the moot question.

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 con- G
tend 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' identity 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 H
892 SUPREME COURT REPORTS [1995] 1 S.C.R.

A 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, identity 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 ap-
B proached 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 un-
reasonable demand but received no reply to the said representation. Some
C of the residents had filed claims in Form No. 6 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 afore-mentioned documentary evidence, once again they were told that
D 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 almost 98% of the voters thereby
depriving them of their democratic right to elect their representatives.
Thereupon the present petitions came to be filed.
E
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 suspeeted not to be citizens of
India. The notice contetbplated an inquiry under Rule 21A of the 1960
F Rules and required the persons concerned to appear on the dates men-
tioned 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, identity cards issued by the Delhi Administration,
Certificate of Registrar of Societies, affidavits, etc., but to no avail. Left
G with no alternative, they filed the present writ petition invoking this Court's
jurisdiction under Article 32 of the Constitution.

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
H be seen from the above averments that the notice under Rule 21A of the,
(
LAL BABU HUSSEII' v. ELECTORAL REGN. OFFICER [AHMADI, CJ.] 893

1960 Rules was a sweeping notice covering the entire populace of the area A
without there heing any inquiry as to the citizenship of an individual.

From what we have stated hcrcinbcforc it is clear that inhabitants of
certain constituencies in Bombay and Delhi were treated as suspect for-
eigners and enumerators were appointed to verify if persons residing in
certain polling stations were not citizens. The police was employed for this B
purpose and as observed earlier in Bombay they addressed as many as t.67
lakh notices calling upon the addresses 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 requir- c
ing 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 docu-
ments stated in the notices, no other proof, documentary or otherwise, was
entertained. The fact that the addressees were by and large uneducated D
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 of 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
E
Election Commission exposing them to disciplinary action. This is evident
from the fact that the police refused to accept 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 F
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 removed by undertaking a special revision, whether intensive G
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
H
894 SUPREME COURT REPORTS [1995) 1 S.C.R.

A 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
B opportunity of being heard requirement contemplated under the 1950 Act
and the 1960 Rules. Since neither Mr. Tulsi nor Mr. Ramaswamy for the
Election Commission and the Chief Election Commissioner even at-
tempted 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 fr((sh exercise under revised
C guidelines would have to be undertaken. We had on that occasion re-
quested Mr. T.. 1~: to come up with a draft of the proposed guidelines for
the perusal uf the court. The petitioners'/appellants' counsel were also
"""' requested to apply their minds and suggest broad guidelines. Accordingly
at the last hearing on 25th January, 1995 Mr. Tulsi came up with the
D proposed guidelines prepared in consultation with the Election Commis-
sion. 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
E also heard Mr. Wad, senior counsel for the appellants and Mr. Prashant
Bhushan, counsel for the petitioners in the other writ petitions 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 following directions:
F
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;

G
2. In all the thrc ': · ..st;s 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
H suspect that the person concerned is not a citizen o( India;
(
LAL BABU HUSSE!Nv. ELECTORAL REGN. OFFICER [AHMADI, CJ.) 895

3. If any person whose citizenship is suspected is shown to have A
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 unde. .dken and
hence adequate probative value be attached to that factum before
B
issuance of notice and in subsequent proceedings;

4. The Officer holding the enquiry shall 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 c
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;
D
5. Needless to state that the Officer inquiring into the matter must
apply his mind independently to the material placed before him
and without being influenced by extraneous considerations or
instructions;

6. Before taking a final decision in the matter, the Officer con- E
cerned 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);
F
7. The directive issued by the Election Commission on 9th Septem-
her, 1994, prohibiting the Officer from entertaining certain docu-
ments will stand quashed and the documents will be received, if
tendered, and its evidentiary value assessed and applied in
decision-making;
G
8. These guidelines not being exhaustive, the Officer concerned
must, where special situation 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; H
896 SUPREME COURT REPORTS [1995] 1 S.C.R.

A 9. We deem 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 out 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
B paucity of time, they will be governed by the previous roll.

The appeal and the two writ petitions will stand disposed of accord-
ingly with no order as to costs.

R.A. Petitions and appeal disposed of.

•

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