Murali Krishnan

murali.krishnan@htlive.com

New Delhi : Is an electoral photo identity card proof of citizenship? A slew of contradictory rulings by different courts — in Gauhati and in Mumbai — in the past week have lent uncertainty to a fundamental question of law.

On February 12, the Gauhati high court, placing reliance on its 2018 judgment in Md. Babul Islam v. State of Assam, held that an electoral photo identity card is not proof of citizenship.

The decision was given by a bench of justices Manojit Bhuyan and Parthivjyothi Saikia in a plea by one Munindra Biswas, who had produced copy of his voter id and the voter list of 1997 bearing his name. On electoral card, the court held that it is not proof of citizenship.

“Regarding Electoral Photo Identity Card this court in the case of Md. Babul Islam v. State of Assam [WP(C) No. 3547 of 2016] has held that Electoral Photo Identity Card is not a proof of citizenship.” On electoral list, the court said that the petitioner did not produce voter lists prior to 1997 and thereby failed to prove that he was staying in Assam prior to March 1971. “The petitioner herein has failed to file voter lists prior to 1997, thereby the petitioner failed to prove that he has been staying in Assam prior to 25.03.1971.” On the very same day, the same bench also rejected the claim of a person who had produced proof of her parents’ names appearing in the voter list, but could not prove her linkage to her parents. In 2018, the Gauhati high court in Md. Babul Islam v. State of Assam had held that merely producing an electoral photo identity card without any supporting evidence would not be proof of citizenship.

“In so far Exhibit-7 Elector Photo Identity Card is concerned, besides not being proved, it is a post 25.03.1971 document. Besides, merely producing such an identity card in the absence of supporting evidence would not be proof of citizenship,” the court had ruled. In contrast, a Mumbai court, on February 15, ruled that electoral photo identity card is proof of citizenship unless proved otherwise. The ruling by a magistrate court in Mumbai was in a case concerning citizenship of a couple who were alleged to be from Bangladesh. The court held that “birth certificate, domicile certificate, bonafide certificate, passport, etc can be relied upon to establish the origin of any person.”

The court, while acquitting the couple, added, “Even the election card can be said to be a sufficient proof of citizenship as while applying for the election card or voting card, a person has to file declaration with the authority in view of Form 6 of Peoples Representation Act to the authority that he is citizen of India and if the declaration is found false, he is liable for punishment.” What explains this difference in judgments?The most important explanation is that the context in Assam in different.

It is governed by a special regime under Section 6A of the Citizenship Act and that contextual difference should be looked into while analysing decisions of the Gauhati high court, said Alok Prasanna Kumar, Senior Resident Fellow and Team Lead, Vidhi Karnataka.

“Under section 6A, there is a special regime for Assam. So, in Assam, it is not that everyone on voters list is automatically a citizen. A person in Assam will have to show that he/she is descended from somebody who was a citizen of India and in India prior to 1971,” Prasanna Kumar said.

But in the context of renewed debates about citizenship — as well as a possible National Register of Citizens, which the government has clarified is not in the works for now — and lack of clarity from official quarters, the debate on documentation for citizenship has acquired a new salience. N The Ministry of Home Affairs had, according to media reports, said in December 2019, that voter card, Aadhaar and passport are not citizenship documents – and are only travel documents or prove residence in India. Supreme Court lawyer Sriram Parakkat explained, “As per the existing legal position in India, neither voter id card nor passport will be proof of citizenship. I am not saying that it is morally correct. But that is the law since 2003 because we have stopped giving citizenship based on birth from 1987,” said Parakkat. So what is the law since 2003?