In a scathing comment on what the Election Commission of India (ECI) has become today, Justice Lokur said it has become Imperium in Imperio (a power within a power). Nobody can question it. Article 324 was not intended to give blanket power to the Election Commission. That is we have the Representation of the People Act and the guidelines under Article 327 of the Constitution:  once you have a field that is occupied by law, fine — you have to go by that law.

Justice Madan Lokur

Justice Madan Bhimrao Lokur Justice served as a Judge of the Supreme Court of India from June 4, 2012 to December 30, 2018. He was speaking at a conclave on ‘One Nation-One Election, Federalism and Citizenship’, organised at the Constitution Club in Delhi. The conclave was organised jointly by the Constitutional Conduct Group and the Group on Federalism & Elections.

Also at the conclave were former Home Secretary Gopal Pillai, former Chief Election Commissioner S. Y. Quraishi, former Election Commissioner Ashok Lavasa, former chairman of the Law Commission of India Justice A. P. Shah, political scientist Niraja Jayal, and transparency advocate Anjali Bhardwaj, among others.

Justice Lokur speaking on the occasion said:

First, I would like to deal with the issue of the controversy that we are facing right now, which was adverted to by Ashok Lavasa (former Election Commissioner)— the passport versus the citizen. If I have an Indian passport, am I a citizen of India? Am I recognised as a citizen of India? We have been told by the Ministry of External Affairs, in a press conference, that the passport is nothing but a travel document — that it does not mean you are a citizen of India just because you have a passport. Therefore, I had a look at the Passports Act of 1967. And I will read to you the Preamble to the Act, and then come to some other sections. The Preamble to the Act says that it is “an Act to provide for the issue of passports and travel documents, to regulate the departure from India of citizens of India and other persons,” and so on. So the Preamble itself makes a distinction — and so does the Act itself — between a passport and a travel document. A passport is defined in the Passports Act, and a travel document is also, separately, defined in the Passports Act.

Now, Parliament does not make laws using superfluous words, or words that have no meaning — I think that is a well-settled principle. So when the Passports Act talks about a passport, and separately talks about a travel document, it means that these are two separate documents. To say that a passport is nothing but a travel document is, I think, a complete misreading of the provisions of the Passports Act.

That is the first thing which I think should be clarified: since it is a complete misreading, a person who holds an Indian passport is a citizen of India. I think that should be very clear.

Now, look at it from the point of view of somebody from outside the country.

You go to an Embassy for a Visa because you want to travel abroad, and the officer there says: “I am giving this visa to you on the basis that you are a citizen of India, but your Ministry of External Affairs says that the document you are presenting to me is not a passport in that sense, and does not certify that you are a citizen of India. So, I am sorry, I can’t give you a visa!”

What happens then at such a time? Does it mean that all the Indians who have gone abroad — to Europe, to the United States, and so on — are persons who are not citizens of India, just because they have a passport? It doesn’t mean anything at all. The passport is effectively reduced to a ticket. Not even an airline ticket, but perhaps a bus ticket — something that entitles you to travel from one destination to another and nothing more.

Now, I think, with great respect to the officer in the Ministry, this is saying something which is totally contrary to the law, and totally contrary to the Constitution of India.

The third thing is what people have been saying — and they said so on TV.

This is that Section 20 of the Passports Act enables the Government of India to give a passport to a person who is not a citizen of India. Fair enough — it does. But how many people who are not citizens of India have actually been given passports of India? We don’t know. I will be surprised if there is anybody who has been given an Indian passport who is not a citizen of India and is admittedly a foreigner. So to quote Section 20 and what it enables is neither here nor there, because we don’t even have the facts. We don’t know how many such people have got passports, who those people are, or the circumstances in which such passports were given. We don’t know anything about this. So Section 20, at least on the evidence available today, is a dead letter.

Take something like the Bharat Ratna. It can be given to a foreign citizen. How many foreigners have actually got the Bharat Ratna? Just two — Nelson Mandela and Khan Abdul Ghaffar Khan, that’s it. But we know them, and we know what their nationality is; we know they are citizens of different countries. Under Section 20, first of all, we don’t even know whether such a passport has been given; we don’t know who that person is; we don’t know the nationality or the citizenship of that person. So we are just talking about something which is hypothetical. I think even this submission — that, well, it can be given to a foreign national — is neither here nor there.

There has been a mention of citizenship by birth. Yes, the Constitution of India and the Citizenship Act do mention citizenship by birth. There has also been a reference to the recent judgment of the United States Supreme Court. By the way, the US Constitution talks about citizenship by birth — but the Fourteenth Amendment, Section 5, says that Congress can make a law with regard to citizenship. And the Constitution of India also says the same thing, and it is on that basis that the Citizenship Act has been framed. So perhaps that is what the President of the United States is looking at — the possibility of framing a law under Section 5 of the Fourteenth Amendment to do away with citizenship by birth. We have done it. We have done it — we have put in some conditions, some riders: one parent being a citizen of India, one parent not being an illegal immigrant. I don’t know what the United States Supreme Court would or will do.

The last point I want to make on this is something I think is very, very important, and that is that the Constitution of India gives certain fundamental rights only to citizens. Among the most important of these are the right to freedom of speech and expression, the right to travel and move to any place within India, the right to carry on any business, profession, occupation or activity. These are granted only to citizens; they are not granted to everybody else. Article 21, the right to life and personal liberty, is granted to everybody, whether you are a citizen or not. Article 14, the right to equality, is granted to everybody — it doesn’t matter whether you are a citizen of India or not.

But Article 19 is granted only to citizens of India.

So if a person is declared to be a person who is not a citizen of India — why? Because he or she does not satisfy the requirements of the Election Commission, and therefore is not able to vote, and therefore, under Article 326, is perhaps deemed not a citizen of India — then that person is not entitled to any of the fundamental rights under Article 19. Can you imagine that? Somebody takes away your fundamental right to freedom of speech. You go to the court and say, I am a citizen of India, and my fundamental right to freedom of speech and expression has been taken away. And the judge asks you: what proof do you have that you are a citizen of India? What is your answer? You don’t have a single document to show that you are a citizen of India. You have a passport — but the judge says, sorry, the passport is a travel document, it is not a document of citizenship.

So, in effect, all these persons who have not been allowed to vote, and are therefore held not to be citizens of India, and are perhaps stateless persons, have been deprived of a fundamental constitutional right guaranteed under Article 19. So you have these 27 lakh, or 22 lakh, or

6.5 crore persons — whatever the figure — roaming around the country without the fundamental right to freedom of speech, to movement, to expression, to carrying on any business or occupation, because they are not citizens.

So really, when we are looking at this controversy about citizenship and passports, or about citizenship per se, we are looking at something which is extremely serious and which requires considerable debate and discussion — not some press conference where a joint secretary says that just because you have a passport, it does not mean you are a citizen of India. It has very, very serious consequences, which must be debated.

The second thing I would like to mention is about the Supreme Court, the Election Commission, and the judgments that have been rendered recently by the Supreme Court in the last year or two.

I do not want to say anything about the judgment on the appointment of the Chief Election Commissioner, because that judgment is still to be delivered. The only thing I would like to say is that this was debated in Parliament, and one of the suggestions given was that Parliament should appoint the Chief Election Commissioner and the Election Commissioners. That was mentioned, it was discussed, but it was turned down. The reason given was that the Election Commission is going to decide who is elected to Parliament, so we must have a person who is totally impartial. The Constituent Assembly was very clear that the Election Commission should have nothing to do with the executive. But today we have been told that two-thirds of the members of the selection committee to select the Chief Election Commissioner are members of the executive — the Prime Minister and a Cabinet Minister. So what the Constituent Assembly postulated — that there should be a complete separation between the executive and the Election Commission — has been done away with. But beyond that, there is not much I would like to say, because the judgment should be delivered any time now.

The recent judgments of the Supreme Court, particularly the ADR judgment, recognise the right to vote as a constitutional right. Now, way back in 1950–52, in the N.P. Ponnuswami case, a six-judge bench of the Supreme Court said that the right to vote is nothing but a statutory right — it is there in the Representation of the People Act, it is a statutory right. But now, in a sense overruling that six-judge decision, the Supreme Court has consistently taken the view — and it has been reiterated in that ADR judgment — that it is a constitutional right. That is good. I am not saying it should not be a constitutional right — but it is a constitutional right, and therefore it is very important.

So you can’t take away a constitutional right of a person. Apart from Article 19 and so on, if you say that you can’t vote, you are taking away a constitutional right — and you can’t just take it away by saying, listen, you produce certain documents. That is where the idea of a rebuttable presumption comes in. The presumption is that I am a citizen of India.

Somebody has to say that, no, you are not a citizen of India. I don’t have to prove that I am a citizen of India. Whereas now, what has happened is that I have to prove that I am a citizen of India. So that rebuttable presumption has been inverted, and the burden has been cast upon me — someone says to me, you please prove that you are a citizen of India, and if you are able to prove it through the production of these documents, I’ll allow you to vote.

It is actually the other way around. The presumption is that anybody who is here is a citizen of India. I can have an objection and say, listen, I don’t think this person is a citizen of India — in which case I can rebut that presumption and prove it, to the satisfaction of the Election Commission that this person is not a citizen of India. So there is a distinction to be made between a rebuttable presumption and the existence of a presumption which can be rebutted. I think the Election Commission has, in the recent past, kind of overturned that burden of proof.

What is the consequence of that? The consequence is that something like 27 lakh people, perhaps, in West Bengal have been disenfranchised. I met one of the tribunal members last week — last Saturday. She told me that on average — there are 18 tribunals; 19 were constituted, but one member resigned, and I don’t know if a replacement has been appointed. Out of the 18 tribunals, the daily disposal is about 20 to 25 cases per tribunal. On a rough calculation, that comes to about 500 cases being decided per day. I don’t know how many working days there are, but try and imagine: if 500 cases are decided in a day, how much time will it take for 27, or 22, or 23 lakh cases to be decided? And then to say, listen, you need not vote in this election, you can vote in the next election — perhaps that person’s turn may not even come in the next election, since the rate of adjudication is at 500 or 600 cases a day.

I also think that one of the important points the Supreme Court has missed is the expression “reason to believe,” which is there in the Act — that you can have an SIR if you have reason to believe that there is something wrong in the electoral roll. What is that reason to believe?

The expression “reason to believe” has been interpreted a hundred times under the Income Tax Act. You have an assessment order; the income tax officer has reason to believe that you have some income which has escaped assessment; he has to give the reasons why he has come to that belief; that has to be seen by the Commissioner, and then a notice is issued to you for reassessment. The PMLA, which the Enforcement Directorate is using day in and day out, also has the expression “reason to believe” — there is reason to believe that you are guilty of money laundering, or that you have some income which you have not shown and which you have perhaps laundered. The Representation of the People Act — the 1950 Act — also talks about “reason to believe.” The Election Commission has reason to believe that the electoral roll has been wrongly prepared in any constituency. The Supreme Court has said that “any constituency” can mean the entire country. Fair enough. But the reason to believe must be there — and the reason to believe has not been specified in the judgment of the Supreme Court. So we don’t even know what the reason is. Questions have been raised: what is the reason that you have? The electoral roll was prepared in January, elections were held in January; in June you said, well, I have reason to believe that it has to be revised. What were the reasons? Nobody knows. And the reason is, well, I think it should be done.

The Constituent Assembly used an expression, in the context of the judiciary — Imperium in Imperio, a power within a power. That is what the Election Commission is becoming today: Imperium in Imperio. Nobody can question it. Article 324 was not intended to give blanket power to the Election Commission. That is why you had the Representation of the People Act; that is why you had Article 327, which gives certain guidelines. So if the field is occupied by law, fine — you have to go by that law. If the area is unoccupied, then Article 324 comes into the picture. The Supreme Court said as much in Mohinder Singh Gill’s case, and that has been interpreted by the Supreme Court in ADR. I don’t agree with the interpretation, but that is a separate point. I believe that if the field is occupied, you go by what the law says; if it is not occupied, you go by what Article 324 says. It is not that Article 324 can, in a sense, say: well, I don’t think the field is occupied — even though it is occupied, I don’t think it is, and therefore I will do what I feel like doing. That is where the Imperium in Imperio concept comes in with the Election Commission, and I am afraid that has been given to the Election Commission.

There were two more things, actually. One: Mr Ashok Lavasa mentioned the piecemeal revision of electoral rolls. If you look at the statute, the revision or updating of the electoral rolls is expected to be a continuous process. You are supposed to do it all the time, because births are taking place all the time, deaths are taking place all the time, migration is taking place all the time. So you have to keep doing it continuously — not every day, but maybe once in six months, once in three months, once in a year, whatever it is. And when you come to the conclusion that there is something wrong, that is when you exercise the power to have this SIR. That is the reason to believe — that my study, of something I was supposed to do on a regular basis, is what has given me the impression, the empirical evidence, that the roll is incorrect and needs a revision, and therefore I order an SIR.

It could not have happened between January and June 2025. It could not have happened throughout the country. To say that because there has been no revision for the last 20 years, therefore I am going to have an SIR, is not correct. It means that for the last 20 years you have not been doing your job. You should have been doing it. Why have you not done it? How about explaining that to the people of the country? And if you have been doing it, then there is no reason for you to revise the electoral rolls of the entire country. So this piecemeal argument is, I think, of considerable significance. It just shows that either the Election Commission has not been working, or it has on its own decided that whatever happened in the past is wrong, we want to correct it, and we are going to do it in a period of three or four months in Bihar, and maybe some shorter period elsewhere.

The last thing I want to say is about welfare benefits. You had the situation in Bihar, you had the situation in West Bengal — people whose names are not on the electoral roll are not entitled to benefits. It is said, well, if you file an appeal, it’s okay, we’ll consider it. But in some places

— in Bihar, that is what I read in the newspapers — they are being deprived of the benefits. So just imagine the consequence. First of all, you are deprived of a fundamental right that you have under Article 19. Then you are deprived of certain benefits that you are entitled to because of your poverty. So advantage is being taken of your poverty to deprive you of the benefits that you should get because of your poverty. And you can’t carry on any business, profession or occupation, because that right has been taken away — because you are not a citizen. So where do these people go?

So the point is that this entire controversy that has been raised with regard to citizenship, and with regard to the SIR, is something so serious that a couple of discussions here or there is not going to make a difference. It is time that the Supreme Court actually looked into it — not simply saying that, because the Election Commission has done it, and it has the power under 324, we hold 324 to be a plenary power, and so on and so forth.

Look beyond the law. What is the consequence of the law? What is the consequence of an action taken under the law?

This is my closing comment. Just two days ago, you had one judgment from the Bombay High Court, where a person was externed from Mumbai because he had said something about a Cabinet Minister, and a couple of other things — completely innocuous — and he said, I have a right to protest. The Commissioner of Police externed him from Mumbai. So he had to leave his residence, go out of Mumbai, and find a place to stay. I was wondering whether the externment order had been stayed by the Bombay High Court. Whatever the exact position — the newspaper report is not entirely clear on that — the fact is that for seven months he lived outside Mumbai. He was sharing a flat with somebody. His family was in Mumbai. His children were in Mumbai. His work was in Mumbai. His political activities were in Mumbai. He was not allowed to enter the city because of that externment order. And the Bombay High Court said the externment order was illegal, and quashed it. But nothing followed from that. It was just a simple quashing. I believe that is where accountability comes in. Shouldn’t the executive, the Commissioner of Police or whoever it was who passed that externment order, have been made to pay for it, by way of compensation to this person, or by some other method?

The second judgment is from the Delhi High Court. A father and a son were arrested by the police and beaten up. The father was released the same evening. The son was not released; the next morning, the son was found dead, hanging. And the defence given by the police was — is material for committing suicide so easily available in a police station, that you tell a person, okay, in case you want to commit suicide, here is the material available? The Delhi High Court held — and I think rightly

• that custodial death is still actionable, and it gave compensation to the family, for whatever it is worth. That is where accountability comes in
• that you have deprived a person of his life illegally, unconstitutionally, so compensate him for that.

The Bombay High Court, according to me, should have done it. The Delhi High Court has done it. And this entire controversy about the SIR

• not being able to vote, not having fundamental rights, not getting welfare benefits, and all that — somebody has to be held And I think we need to discuss that as well. Thank you.

Related:

The Battle of Belonging: Why India’s Passport Controversy Matters

Not What the Court Decided: Re-reading the Bombay High Court’s passport judgment

Rejected as Voter, also denied a Passport? Here is how ‘New India’ deals with exclusion complaints under SIR: Former editor, Telegraph, R Rajagopal

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