1. Heard Mr. A.M. Borbhuiya and Mr. JUNM Laskar, learned counsel for the petitioner; Mr. D. Barua, learned standing counsel, Election Commission of India; Mr. U.K. Nair, learned Sr. Special Counsel, Foreigners Tribunal; and Ms. A. Verma, learned standing counsel, State Coordinator, National Registrar of Citizens (NRC).

2. By filing this petition under article 226 of the Constitution of India, petitioner seeks a direction to the respondents to remove the tag of doubtful (D) voter against his name in the electoral roll.

3. According to the petitioner he was a voter of Samuguri Constituency in the district of Nagaon but in the voter list of 1997 he was marked as “D” voter. Since then he has been continued to be marked as “D” voter thereby depriving him from exercising his right of franchise. Petitioner has questioned the process by which he was marked as “D” voter. According to the petitioner, he cannot be treated as a “D” voter for an indefinite period. A decision has to be taken one way or the other regarding his status. It is with such grievance that the present writ petition has been filed.

4. Notice in this case was issued on 9.1.2019.

5. Case is being heard along with other connected cases.

6. Learned counsel for the petitioner submits that Electoral Registration Officer should either forward the case of the petitioner to the jurisdictional Superintendent of Police or he should remove the tag of “D” voter if there are no materials to justify marking of the petitioner as a “D” voter. Either way, an early decision is warranted since the issue has implication as to the citizenship status of the petitioner.

7. Mr. D. Baruah, learned standing counsel, Election Commission of India has submitted a compilation of documents wherefrom he submits that if the Electoral Registration Officer has any doubt about the citizenship status of a person whose name appears in the draft electoral roll, he gets the matter verified through the Local Verification Officer who makes an on the spot verification whereafter he submits report. On consideration of such report if the Electoral Registration Officer has reasonable doubt that the person concerned is not a citizen of India he forwards the matter to the jurisdictional Superintendent of Police for getting an opinion from the competent Foreigners Tribunal after marking such person as “D” voter in the voters list. His further submission is that all cases of “D” voters do not necessarily arise from such an exercise by the Electoral Registration Officer. As per order of this court dated 23.3.2011 passed in WP(C) No. 1334/2019 (Momeja Khatun v. Union of India), persons whose cases are pending before the Foreigners Tribunals are also marked as “D” voters in the voters list.

8. Mr. U.K. Nair, learned senior special counsel submits that exercise carried out by Electoral Registration Officer is a quasi-judicial exercise under the Representation of People Act, 1951. Once Electoral Registration Officer expresses reasonable doubt on the basis of local enquiry that a person is a doubtful citizen, further enquiry by the administrative authority led by the Superintendent of Police may not be warranted as Superintendent of Police cannot sit over the enquiry and prima facie decision forwarded by the Electoral Registration Officer. Responding to the submission of Mr. Barua, Mr. Nair submits that jurisdictional Superintendent of Police may be directed to make a reference in respect of the petitioner to the concerned Foreigners Tribunal after ascertaining whether any previous reference has been made in the case of the petitioner. He further submits that Superintendent of Police may be directed to intimate the Border Wing of Assam Police regarding making of such reference since Border Police is in the process of compiling a common data base of foreigners and those whose cases are pending before the Foreigners Tribunals in the State of Assam. This will help in proper monitoring of the references and proceedings before the Foreigners Tribunals.

9. Ms. A. Verma, learned counsel appearing for the State Coordinator, NRC submits that while making the reference the Superintendent of Police should inform the NRC authority about such reference because in the past due to lack of communication, many names of undeserving persons against whom references have been made or in respect of whom references are pending before the Foreigners Tribunals have found place in the draft NRC.

10. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record.

11. In the year 1997, Election Commission of India had undertaken an intensive revision of electoral rolls in the State of Assam as apprehensions were expressed from various quarters that the electoral rolls were infested with the names of foreigners/illegal migrants. In the course of this exercise citizenship status of as many as 3,13,046 persons whose names were in the draft voters lists were found to be doubtful and accordingly they were marked as doubtful “D” voters in the electoral rolls after local verification.

12. Legality of this exercise was challenged before this court in HRA Choudhury v. Election Commission of India, 2002 (I) GLT 1. The challenge made was rejected by a Division Bench of this court in HRA Choudhury (supra) this court examined the guidelines dated 17.7.1997 of the Election Commission of India laying down the procedure to carry out the exercise.

12.1 As per paragraph 3.8 of the guidelines the Electoral Registration Officer was required to consider the verification report received from the Local Verification Officer, if he was satisfied on such report and such other material/information as may be available about the eligibility of a person, he should allow his name to continue on the electoral roll. Where, however, he was not so satisfied and had reasonable doubt about the citizenship of any person, he was required to refer such doubtful cases to the competent authority under the then Illegal Migrants (Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946 as the case may be. For convenience of the Electoral Registration Officers, Election Commission devised pro formas.

12.2 As per paragraph 3.9, after the case of a person was referred by the Electoral Registration Officer to the competent authority, he should wait for the decision of the relevant Tribunal in relation to that person and act according to such decision.

12.3 As per paragraph 3.10, where the relevant Tribunal decided that any such person was not a citizen of India, Electoral Registration Officer should proceed under rule 21A of the Registration of Electors Rolls, 1960 to have the name of such person deleted from the electoral roll before it was finally published.

12.4 This court in HRA Choudhury (supra) held that such guidelines and decision of the Election Commission were in accordance with article 324 of the Constitution of India besides conforming to the principles of natural justice. It was held that such guidelines cannot be held to be arbitrary or vitiated by mala fide or partiality.

13. At this stage, it may be mentioned that the Illegal Migrants (Determination by Tribunals) Act, 1983 is no longer in existence, the same having been declared unconstitutional by the Supreme Court in Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665. Therefore, in so far paragraph 3.8 of the guidelines dated 17.7.1997 is concerned, the reference would be under the Foreigners Act, 1946.

14. The above exercise was repeated in the year 2005 with the Election Commission of India again going for intensive revision of electoral rolls in the State of Assam taking 1.1.2005 as the qualifying date. In this connection, guidelines dated 17.6.2004 were issued by the Election Commission of India. Paragraph 2.2 of the guidelines dealt with “D” voters. It was mentioned that the guidelines issued in 1997 would be followed while dealing with such category of persons. Paragraph 8 dealt with verification by Electoral Registration Officers. It laid down the procedure while carrying out such verification including verification by Local Verification Officer. As per paragraph 8.6, Local Verification Officer would conduct the verification by making an on the spot visit and the person concerned could adduce any one or more of the documents mentioned therein in support of his claim as a citizen of India. After due verification, the Local Verification Officer was required to submit his report in the prescribed format. Under paragraph 8.8, Electoral Registration Officer on receipt of the verification report from the Local Verification Officer should consider the same. Where he was satisfied about the eligibility of a person, he should allow the name of such person to continue on the electoral roll but where he was not so satisfied and had reasonable doubt about the citizenship of any person he should refer such doubtful cases to the competent authority under the then Illegal Migrants (Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946 in a prepared format (Annexure B to the Guidelines dated 17.6.2004) to the competent authority for making reference to the Tribunal and await the decision of such Tribunal.

15. As pointed out by Mr. Barua, in Mameja Khatun (supra) a Single Bench of this court directed that “D” voters should not be allowed to cast their votes with the clarification that “D” voters would include persons whose names were included in the electoral rolls but their citizenship was doubted or disputed and also those whose cases were pending before the Foreigners Tribunals. This decision of the learned Single Bench was confirmed by the Division Bench in Writ Appeal No. 114/2011 (State v. Mameja Khatun). By the judgment and order dated 13.10.2015, the Division Bench directed Election Commission of India and other authorities to implement the directions of the Single Bench in letter and spirit.

16. At this stage, it may also be mentioned that in WP(C) No. 274/2009 filed by Assam Public Works which is pending before the Supreme Court of India wherein NRC updation exercise in the State of Assam is being monitored by the Supreme Court of India, on 25.10.2013, Supreme Court clarified that as far as persons in the “D” list are concerned, undoubtedly they were doubtful voters and, therefore, their names could not be included unless the NRC is updated and unless the Foreigners Tribunals declared them to be Indian citizens.

17. The Foreigners Act, 1946 is an act to confer upon the Central Government certain powers in respect of foreigners. This Act provides for the exercise of certain powers by the Central Government in respect of the entry of foreigners into India; their presence in India and their departure therefrom. Section 2(a) defines a “foreigner” to mean a person who is not a citizen of India. Section 3 confers power to the Central Government to make orders making provision either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigners, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or their continued presence therein.

17.1 In exercise of the powers conferred by section 3 of the Foreigners Act, 1946, Central Government made the Foreigners (Tribunals) Order, 1964. As per order 2(1), the Central Government may by order refer the question as to whether a person is or is not a foreigner within the meaning of the Foreigners Act, 1946 to a Tribunal to be constituted for the purpose for its opinion.

18. Ministry of Home Affairs, Government of India had issued notification dated 19.4.1958 in exercise of powers conferred by Clause (1) of article 258 of the Constitution of India whereby the President with the consent of the State Government concerned entrusted to the Governments of each of the States mentioned therein including the State of Assam the functions of the Central Government in making orders of the nature specified in section 3 of the Foreigners Act, 1946. Another notification dated 17.02.1976 was issued by the Government of India, Ministry of Home Affairs in the exercise of the powers conferred by article 258(1) of the Constitution entrusting the Superintendents of Police and Deputy Commissioners (Incharge of Police) under the Government of Assam the functions of the Central Government in making orders of the nature specified in section 3 of the Foreigners Act, 1946 within their respective jurisdictions subject to the conditions mentioned therein which included the condition that exercise of such functions would be in respect of nationals of Bangladesh and that while exercising such functions, Superintendents of Police and Deputy Commissioners (In-charge of Police) shall comply with such general or special directions as the Government of Assam or the Central Government may issue from time-to-time.

19. Article 258 of the Constitution deals with power of the Union to confer powers, etc., on States in certain cases. Clause (1) of article 258 starts with a non-obstante clause. It says that notwithstanding anything in the Constitution, President may with the consent of the Government of a State entrust either conditionally or unconditionally to that Government or to its officers, functions in relation to any matter to which the executive power of the Union extends. Clause (3) provides for making of payment by the Government of India to the State concerned such sum as may be agreed upon or in default of agreement through arbitration in respect of any extra-cost of administration incurred by the State in connection with the exercise of powers and duties of the Government of India conferred or imposed upon a State Government.

20. Thus, under the Central Government notifications dated 19.4.1958 and 17.2.1976, Government of Assam, Superintendents of Police and Deputy Commissioners (In-charge of Police) have been delegated the power to make reference to the Foreigners Tribunal under order 2(1) of the Foreigners (Tribunals) Order, 1964 to seek opinion as to whether the proceedee is a foreigner or not within the meaning of the Foreigners Act, 1946.

21. Thus, from the above, what transpires is that there are two categories of “D” voters:

(i) those who were marked as “D” voters in the electoral roll by the Electoral Registration Officer following enquiry by Local Verification Officer; and

(ii) those whose references are pending before the Foreigners Tribunals.

22. Insofar Electoral Registration Officer is concerned the exercise undertaken by him while marking a person as a “D” voter in the electoral roll is a quasi-judicial exercise. If he holds the view after examining the enquiry report of the Local Verification Officer that the concerned person is not a citizen of India he is required to forward the case of that person to the competent authority, i.e., the Superintendent of Police. If it is so forwarded by the Electoral Registration Officer, the jurisdictional Superintendent of Police has to make a reference to the competent Foreigners Tribunals under order 2(1) of the Foreigners (Tribunals) Order, 1964 based on the report received from the Electoral Registration Officer. Question of making further enquiry by the Superintendent of Police in such a case would not arise because enquiry has already been made by the Electoral Registration Officer by exercising quasi-judicial powers and the Superintendent of Police cannot sit over such decision of the Electoral Registration Officer. He has to forward the same by making the reference to the competent Foreigners Tribunal for its opinion.

23. It is also true that marking of a person as a doubtful “D” voter is only a temporary measure and, therefore, it cannot be continued for an indefinite period. A decision one way or the other has to be taken after marking the concerned person as a “D” voter within a reasonable time. But such decision can be taken only after obtaining the opinion of the Foreigners Tribunal.

24. That being the position and having regard to the above, court is of the view that the following directions may be issued which will meet the ends of justice:

1. Electoral Registration Officer, Nagaon shall forward the case of the petitioner in the prescribed format to the Office of the Superintendent of Police, Nagaon within a period of 30 days from the date of receipt of a copy of this order.

2. Upon receipt of the above from the Electoral Registration Officer, Superintendent of Police, Nagaon shall make the reference under order 2(1) of the Foreigners (Tribunals) Order, 1964 to the Foreigners Tribunal having jurisdiction. This shall be done within a period of 30 days from the date of receipt of the reference papers from the Electoral Registration Officer.

3. While making such reference, Superintendent of Police shall inform the Border Wing of Assam Police, which is monitoring references before the Foreigners Tribunals. Special Director General of Police (Border), Assam shall constitute a nodal officer or a team of officials in his office to monitor such references. Superintendent of Police shall also intimate the Office of the State Coordinator, NRC about making of such reference.

4. Upon receipt of reference from the referral authority, i.e., Superintendent of Police, the concerned Foreigners Tribunal shall register the reference and issue notice to the proceedee whereafter the procedure prescribed under the Foreigners (Tribunals) Order, 1964 shall be followed.

5. Following such registration, the jurisdictional Superintendent of Police shall collect the reference case number and forward the same to the Border Wing of Assam Police and to the NRC authority for information and regular monitoring.

25. Accordingly, the above directions are issued.

26. Copies of this order be furnished to Mr. D. Barua, learned standing counsel, Election Commission of India; Mr. U.K. Nair, learned senior special counsel, Foreigners Tribunal; and Ms. A. Verma, learned standing counsel, NRC for doing the needful.

27. Writ petition is disposed of.